Section 216 CrPC cannot add a new accused; Section 319 is required.

Opposite Party No. 2 filed Complaint Case No. 93 of 2022 alleging offences under Sections 323, 379, 498A and 494 of the Indian Penal Code against her husband and other persons, including the petitioner, who was alleged to be the husband’s second wife.

During the proceedings, Opposite Party No. 2 filed an application under Section 216 Cr.P.C. seeking addition of Sections 498A and 323 IPC. By order dated 10 May 2024, the Sub-Divisional Judicial Magistrate, Sherghati, allowed the application, added Sections 498A and 323 IPC, and summoned the petitioner as an additional accused.

The petitioner challenged that order, contending that Section 216 Cr.P.C. permits alteration or addition of charges against an existing accused, but does not authorise the summoning of a person who was not previously an accused; such action could only be taken under Section 319 Cr.P.C.

Whether a court may summon and array a person as an additional accused by exercising the power under Section 216 Cr.P.C., which concerns alteration or addition of charges?

Whether the impugned order summoning the petitioner as an additional accused, without expressly invoking Section 319 Cr.P.C., was legally sustainable?

Section 216 Cr.P.C. empowers a criminal court to alter or add to a charge at any time before judgment, subject to safeguards against prejudice to the accused; the provision operates in relation to an accused already before the court and does not itself authorise the addition of a new person as an accused.

Section 319 Cr.P.C. provides the specific power to proceed against a person who is not already an accused where evidence during an inquiry or trial indicates that such person appears to have committed an offence for which they could be tried together with the existing accused; the provision also prescribes the procedural consequences, including commencement of proceedings afresh and rehearing of witnesses.

The petitioner relied on U. Suvetha v. State by Inspector of Police & Anr., (2009) 6 SCC 757, concerning the meaning of “relative of the husband” under Section 498A IPC, but the High Court did not adjudicate the merits of that contention.

The High Court distinguished between alteration of charges and addition of an accused. Although Section 216 Cr.P.C. gives the court broad power to alter or add charges against an existing accused, its text contains no authority to bring a new person into the proceedings.

Since the petitioner had not previously been arrayed as an accused, the Magistrate could summon her only by exercising the power under Section 319 Cr.P.C. on the basis of evidence appearing during the inquiry or trial. However, the impugned order neither referred to an application under Section 319 Cr.P.C. nor recorded any exercise of that power.

The court held that a power not expressly exercised in the order could not be presumed to have been exercised, and therefore the petitioner’s addition as an accused under Section 216 Cr.P.C. was legally unsustainable.

The court expressly left the merits of the allegations open for consideration by the court below under the appropriate legal provision.

The order dated 10 May 2024 was accordingly quashed to the extent that it added the petitioner as an accused and issued summons to her.

The application was allowed to that limited extent, without any adjudication on the merits of the allegations or prejudice to proceedings under the appropriate provision of law.