Of course, the Magistrate has the power to frame charges for offences which are different from those mentioned in the charge sheet filed by the police.
In fact, the Magistrate is required to apply his independent mind to the evidence disclosed in the case as seen from the charge sheet (and not go merely as per police version), and to see whether there is prima facie evidence to frame charges. If there is no prima facie evidence to frame charges, the Magistrate may discharge the accused. On the other hand, if there is prima facie evidence to frame charges, the Magistrate has to apply his mind to see for what offences the charges can be framed (again, depending upon availability of prima facie evidence in respect of those individual offences).
So, the Magistrate has full powers to differ from the police charge sheet in respect of the offences for which charges can be framed.
In fact, while your question relates to the Magistrate’s power of framing charges at the initial stage only, the law laid down in Section 216 of Criminal Procedure Code goes to the extent of giving power to the court to modify or add to any charge at any time before judgment is pronounced, i.e., at any stage of the trial before the pronouncement of the judgment. This section is reproduced below:
“216. Court may alter charge.— (1) Any Court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.”
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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