Without notice to accused, appellate court cannot alter charge, says SC

The Supreme Court has said an appellate court can't alter a charge in a criminal case without issuing notice to the accused.

The top court set aside the conviction of Chandra Pratap Singh in relation to the triple murders of 1987 after finding that the High Court altered the charge against him without issuing a notice and decided the appeal in the absence of his counsel. A bench of Justices Abhay S Oka and Pankaj Mithal said in view of the wide powers conferred by Section 386 of CrPC, even an appellate court can exercise the power under Section 216 of altering or adding the charge. 

"However, if the appellate court intends to do so, elementary principles of natural justice require the appellate court to put the accused to the notice," the bench said.

When the HC took up the appeal, the advocate of appellant Singh was found absent. The HC altered the charge under Section 302 read with Section 34 (common intention) of IPC without recording any reason for it, causing grave prejudice to the appellant, the bench noted.

The bench said in the ordinary course, it would have remanded the matter to the HC for a fresh hearing, "however, we cannot ignore that the incident is from 1987, and the present appeal is of 2011. Therefore, it will be unjust to pass an order of remand."

The court said there was no evidence of the presence of common intention.

"There is no overt act attributed to the appellant by any prosecution witness in the assault on deceased Uma Prasad," the bench said.

The court said the appellant was awarded five years jail under Section 201 (destruction of evidence) for dragging the body of the deceased. However, he remained in jail for nine years before grant of bail in 2012.

The case related to murders of Uma Prasad, and his sons Vinod Kumar and Munau alias Anant Kishore Khare on June 2, 1987.

It was alleged as many as 17 accused had attacked Uma Prasad who died on the spot. Thereafter, the accused went towards bus stand and shot dead his two sons.

As many as seven accused were held guilty while 10 others were acquitted by the trial. No accused was convicted in murder of two others. Of seven convicts, the HC confirms conviction of four accused and acquitted three others. Out of four convicts, two did not file an appeal. One convict filed an appeal in 2012 which was dismissed by the top court.