Court can alter a charge from 149 of IPC to 34 of IPC if the offence was committed in furtherance of a common intention and proved. Rohtas and Another v. State of Haryana, (Criminal Appeal No.38/2011)
– Court was dealing with the situation where seven persons committed attempt to murder (under section 307 of IPC). They have prior meeting of minds, said by the prosecution. Further in this matter three out of the seven persons accused for attempt to murder was set free and acquitted. For section 149 of IPC the number of persons under the assembly must be five or more and now as three out of seven was acquitted, there is no application to apply section 149 of IPC.
– Section 216 of the Code of criminal procedure states:
(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.
– Sections 211 to 224 of CrPC deals with framing of charges in criminal trials, give significant flexibility to Courts to alter and rectify the charges.