Criminal Procedure | Updated 18 October 2026

Section 216 CrPC and Section 239 BNSS: Court's Power to Alter or Add Charges

A criminal court may correct, alter or add to a charge before judgment, but must protect the accused's right to know the accusation and prevent prejudice to either side. Section 216 of the Code of Criminal Procedure, 1973 is substantially carried forward in Section 239 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

Meaning of alteration or addition of a charge

A charge is the formal statement of the offence alleged against the accused. Alteration means changing an existing charge, such as correcting the offence or its legal particulars. Addition means including a further charge justified by the case material. This power is exercised by the court; it is not an automatic entitlement of either the prosecution or the accused.

Section 216 CrPC: Explanation of all five subsections

Subsection (1): Power before judgment

Any court may alter or add to any charge at any time before judgment is pronounced. The power is not confined to the initial framing-of-charge stage. It must be exercised judicially on the material in the record and not arbitrarily.

Subsection (2): Explanation to the accused

Every alteration or addition must be read and explained to the accused. This safeguard ensures that the person being tried understands the case to be answered and can prepare an effective defence.

Subsection (3): Trial may continue where no prejudice is likely

If, in the court's opinion, immediately continuing the trial is unlikely to prejudice the accused in the defence or the prosecutor in conducting the case, the court may continue as though the revised charge had been the original charge.

Subsection (4): Adjournment or new trial where prejudice is likely

If immediate continuation is likely to prejudice either side, the court may order a new trial or adjourn the trial for the period needed to address the prejudice. The choice depends on the circumstances and procedural fairness.

Subsection (5): Prior sanction, where legally required

Where prosecution for an offence in the altered or added charge requires previous sanction, the case must not proceed until sanction is obtained, unless valid sanction has already been obtained for prosecution on the same facts underlying that charge. This requirement cannot be bypassed merely by changing the charge.

Section 239 BNSS: Corresponding current provision

Section 239 BNSS, titled "Court may alter charge", retains the five core safeguards: the power to alter or add charges before judgment; reading and explaining the revision to the accused; continuation where no prejudice is likely; adjournment or a new trial where necessary; and compliance with any required previous sanction.

Rights of the accused and prosecution

• Notice: The revised charge must be read and explained to the accused.
• Fair opportunity: The court must assess whether proceeding immediately would prejudice either side.
• Witness recall: Section 217 CrPC and the corresponding Section 240 BNSS address recalling or re-summoning witnesses after alteration of a charge, subject to statutory safeguards.
• Sanction: Where the newly charged offence requires prior sanction, the court must apply the statutory sanction requirement.
• Judicial scrutiny: Any alteration should be supported by the case record and the applicable offence-creating law.

Practical illustrations

Example 1: Additional offence revealed during evidence

During trial, evidence may disclose facts supporting a further offence not included in the original charge. Before judgment, the court may consider adding the charge and must explain it to the accused. If the defence needs more time or witness examination, the court should address that prejudice under the relevant provisions.

Example 2: Incorrect statutory section

A charge may refer to an incorrect section although the alleged conduct is sufficiently identified. Depending on the evidence and applicable law, the court may correct the charge. The central questions are whether the accused understands the revised allegation and whether any prejudice results.

Example 3: A new charge requires prosecution sanction

If a revised charge concerns an offence requiring previous sanction, proceedings on that charge cannot continue without satisfying subsection (5), unless the existing sanction already covers prosecution on the same facts.

How a court deals with a proposed alteration

1. Examine the evidence and material supporting the proposed charge.
2. Determine the legally applicable offence and whether an alteration or addition is justified before judgment.
3. Read and explain the revised charge to the accused.
4. Assess prejudice to the defence and prosecution if the trial continues immediately.
5. Continue, adjourn or order a new trial as warranted; address witness recall under Section 240 BNSS or Section 217 CrPC, as applicable.
6. Verify any legally required prior sanction before proceeding.

Frequently asked questions

Can a criminal court change a charge after witnesses have testified?

Yes. The statute permits alteration or addition at any time before judgment is pronounced, subject to notice, fairness and other safeguards.

Does every alteration require a fresh trial?

No. A trial may continue if immediate continuation is not likely to prejudice either side. Where prejudice is likely, the court may adjourn or direct a new trial.

Can the accused ask to recall witnesses after a charge is changed?

The applicable witness-recall provision is Section 217 CrPC or Section 240 BNSS. Its statutory conditions govern the opportunity to recall or re-summon witnesses after a charge is altered.

Can the court alter a charge after judgment?

Not under Section 216 CrPC or Section 239 BNSS: the express power is exercisable before judgment is pronounced.

Does the new BNSS provision automatically apply to older trials?

Not necessarily. Section 531 BNSS contains savings rules for certain proceedings pending immediately before commencement. The governing procedure must be checked against those rules and the particular court record.

Official statutory sources

Consult the Government of India's India Code database for the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Code of Criminal Procedure, 1973, and the Ministry of Home Affairs for notifications and legislative information. Read the enacted text and amendments applicable to the case.

This article is general legal information, not case-specific legal advice.