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“Alteration Of Charge Is The Vested Power Of The Court At Any Time Before The Judgment Is Pronounced”: Kerala Hc

Ifrah Murtaza ,
  18 June 2024       Share Bookmark

Court :
Hon’ble High Court of Kerala
Brief :

Citation :
Crl. Rev. Pet No. 437 Of 2024

Case title:

Aswathy K.P. v State of Kerala 

Date of Order:



Hon’ble Mr. Justice A. Badharudeen


(Revision) Petitioner: Aswathy K.P. @ Aswathy

Respondent: State of Kerala 


The Hon’ble High Court of Kerala adjudicated a revision petition brought before it which challenged the order of the Assistant Sessions Judge who had altered the charges against the petitioner/accused. During the impugned trial, evidence indicating severe offences than that of the original charges were presented. The prosecution/respondent filed an application requesting the alteration of charges, which were affirmed by the sessions court based on the evidence. The petitioner argued that the respondent could not have filed such an application, the result of which subjects his defense to prejudice. The High Court dismissed the revision petition, upholding the order of the Sessions Court affirming that the discretion to alter charges belonged exclusively to the court and it may do so any time during the trial before the pronouncement of the final ruling. 


The Code of Criminal Procedure 1973 (CrPC):

  • Section 216
  • Section 397

The Indian Penal Code, 1860 (IPC):

  • Section 302: deals with punishment for murder
  • Section 304: deals with culpable homicide not amounting to murder
  • Section 309: deals with attempt to commit suicide.


  • The accused (petitioner) was charged in a criminal case under sections 304 and 309 of IPC, handled by the Assistant Sessions Court in Irinjalakuda. 
  • During the trial, the court found new evidence brought by one of the witnesses which suggested more severe offences than what the accused was actually charged with. 
  • The Public Prosecution filed an application before the sessions court seeking to alter the charges from Section 304 to Section 302, in light of the new evidence. 
  • The sessions court allowed the petition on 13.02.2024 and altered the charges from section 304 to section 302 of IPC. 
  • The accused filed a revision petition under sections 397 and 401 of CrPC to contest the alteration of charges.


  • Whether the Public Prosecutor has the right to file an application seeking an alteration of charges?
  • Whether the court has jurisdiction to alter charges based on newfound evidence?
  • Whether any such alterations affect the fairness of the trial?


  • Alteration of charges cannot be sought by the prosecution as it is only at the court’s discretion that charges can be altered under section 216 of CrPC.
  • The petitioner relied on the Supreme Court’s judgment in P. Kartikalakshmi v. Sri Ganesh & Anr, wherein it held the court had the exclusive powers to alter charges, and no party can seek such alteration as a matter of right.
  • The alteration of the charges could prejudice the petitioner’s defence, affecting the fairness of the trial.


  • Relying on the case of Silvester @ Silver v. State of Kerala, the respondent argued that parties to a trial had the right to file an application seeking alteration of charges. 
  • Section 216 of CrPC enables courts to alter charges on the basis of new found evidence, provided it is necessary to deliver justice. The respondent cited the rulings in Dr. Nallapareddy Sridhar Reddy v. State of Andhra Pradesh and Central Bureau of Investigation v. Karimullah Osan Khan to support their argument.
  • The alteration is justified as the Sessions court found it appropriate based on the new evidence.
  • It is the court’s duty to ensure that any such alteration does not affect the fairness of the trial.


  • While acknowledging the powers granted to the court u/s 216 of CrPC, the High Court observed that from the arguments and precedents cited, it was clear that the authority to alter charges were vested in the court itself. It may do so anytime before the judgment is pronounced.
  • Even though parties are permitted to file an application to prompt the court to consider such alteration, the same does not confer a right to alter charges on them.
  • Once the application has been filed, it is up to the court whether to exercise its power u/s 216 of CrPC. 
  • However, HC held that the decision to alter charges must be based on the evidence presented during trial, and whether it had direct nexus with the ingredients of the alleged offense. 
  • The alteration must ensure that no prejudice is caused as a consequence, and it is the court’s duty to ensure that the principles of justice are upheld. 
  • In the instant case, the evidence presented during the trial at the sessions court indicated more severe offences than the initial charges.
  • The Court deemed the alteration necessary and justified.
  • The petition was accordingly dismissed by the High Court


The ruling of the Assistant Sessions Court was upheld by the Kerala High Court. The High Court deemed the alteration from section 304 to section 302 of the IPC justified in light of the evidence presented during trial. It affirmed the powers of the court under section 216 of CrPC as an exclusive power of the court.  It opined that while parties may file an application to prompt such alterations, it is not a right and final decision rests with the court. After the decision to alter has been made, the court has to ensure that principles of justice are upheld. The revision petition was subsequently dismissed with no order as to costs. 

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