My Lord, What is the import of Section 216 of The Code of Criminal Procedure, 1973?
“It is graphic that the Court can change or alter the charge if there is defect or something is left out. The test is, it must be founded on the material available on record. It can be on the basis of the complaint or the FIR or accompanying documents or the material brought on record during the course of trial. It can also be done at any time before pronouncement of judgment. It is not necessary to advert to each and every circumstance. Suffice it to say, if the Court has not framed a charge despite the material on record, it has the jurisdiction to add a charge. Similarly, it has the authority to alter the charge. The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with the materials produced before him or if subsequent evidence comes on record. It is not to be understood that unless evidence has been let in, charges already framed cannot be altered, for that is not the purport of Section 216.
Another aspect also has to be kept in mind. It is obligatory on the part of the Court to see that no prejudice is caused to the accused and he is allowed to have a fair trial. There are in-built safeguards in Section 216. It is the duty of the Trial Court to bear in mind that no prejudice is caused to the accused as that has the potentiality to affect a fair trial. The test of prejudice has to be borne in mind.”
– Hon’ble Justice Dipak Misra, Ananth Prakash v. State of Haryana, [Criminal Appeal No. 131 of 2016].