217 CrPC | Alteration of Charges Is Not a Mere Formality: Calcutta High Court Sets Aside Dowry Death Conviction

“The right under Section 217 CrPC is not a matter of discretion but a mandatory procedural safeguard” – In a significant ruling Calcutta High Court set aside a conviction under Sections 498A and 304B of the Indian Penal Code, holding that a criminal trial is vitiated when the Trial Court materially alters charges after the prosecution’s evidence is closed, without affording the accused the statutory right under Section 217 of the Code of Criminal Procedure, 1973, to recall or re-examine witnesses.

This decision reaffirms the importance of procedural fairness and the substantive nature of rights conferred under Sections 216 and 217 CrPC. The High Court observed that the denial of opportunity to the accused to test the prosecution’s evidence in light of altered charges amounted to a violation of natural justice and the constitutional guarantee of a fair trial under Article 21.

“Conviction Cannot Stand If Witnesses Were Never Cross-Examined On The Ingredients Of Altered Offence”

The Court sharply criticized the manner in which the Trial Court had proceeded to convict the accused after materially altering the charges at a late stage in the trial. Originally, the accused were charged under Sections 498A and 304 IPC, but after the closure of prosecution evidence, the Trial Court altered the charges to Sections 498A/34 and 304B/34 IPC – thus introducing the grave charge of dowry death and the element of common intention.

Justice Biswas held:

“Despite such a fundamental alteration in the nature and gravity of the acquisition, the learned Trial Court proceeded further to pronounce the judgment without recalling any of the prosecution witnesses and without affording the accused persons any opportunity to cross-examine the witnesses with reference to the amended/altered charges.”

The judgment emphasized that the ingredients of Section 304B IPC, particularly the requirement of proving dowry demand and cruelty or harassment “soon before death”, had never been the subject of cross-examination, thus depriving the accused of a fair opportunity to rebut the case now framed against them.

“Evidence originally led and tested only in context of Sections 498A and 304 IPC was never subjected to cross-examination on statutory requirements of Section 304B IPC,” the Court said, holding the resulting conviction to be “wholly unsustainable”.

Charges Altered After Evidence Closed Without Fresh Cross-Examination

The case arose from the unnatural death of a 22-year-old woman, allegedly due to dowry-related harassment. A written complaint was lodged by the victim’s maternal uncle, alleging that the deceased had been subjected to physical and mental cruelty by her husband and in-laws due to dowry demands. She succumbed to burn injuries on November 30, 1990. An FIR was registered under Sections 498A and 306 IPC, which later resulted in a chargesheet under Sections 498A and 304 IPC.

The Trial Court initially framed charges under Sections 498A and 304 IPC on August 1, 1995, and the prosecution led evidence accordingly. Fourteen witnesses were examined, all of whom were cross-examined by the defence under the premise of these charges. However, after the closure of evidence, the Trial Court, by order dated March 3, 2001, altered the charges to Sections 498A/34 and 304B/34 IPC—without recalling any witnesses or granting any opportunity to the accused to cross-examine them on these new charges.

This ultimately led to the conviction of Manik Shaw under Sections 498A/304B IPC and of co-accused Anuradha Shaw under Section 498A/34 IPC, which the High Court has now reversed.

Sections 216 & 217 CrPC Are Not Formalities

Justice Biswas extensively discussed the mandatory safeguards enshrined under Sections 216 and 217 of the CrPC. While Section 216 gives the court the power to alter or add charges at any stage before judgment, Section 217 imposes an unequivocal duty upon the court to inform the parties of such alteration and grant them the right to recall or re-examine witnesses.

“The power of the Court to alter or add to any charge at any stage before judgment is not unfettered. Once the charge is materially altered, the Court is duty bound to inform the parties and afford opportunity to recall or re-examine witnesses.”

Crucially, the Court noted that the accused’s right under Section 217 is not contingent upon a formal application being made. It arises automatically once there is a material alteration of charges.

“Providing an opportunity to the parties to recall or re-examine witnesses in reference to such altered/amended charge is not a matter of discretion but a mandatory procedural safeguard.”

The judgment emphasized that once Section 304B was introduced—bringing with it distinct ingredients such as a death occurring under unnatural circumstances within seven years of marriage and harassment related to dowry “soon before death”—a new case was effectively framed. The accused were never allowed to contest this new case.

Common Intention Under Section 34 IPC Also Expanded Scope of Liability Without Opportunity to Contest

The High Court further flagged the invocation of Section 34 IPC as problematic. The addition of “common intention” altered the scope of criminal liability in a material way. Yet, the prosecution witnesses were not re-examined in this new context.

“The earlier cross-examination may become inadequate or irrelevant in the context of the amended acquisition... fairness demands that the accused must be given meaningful opportunity to recall witnesses for further cross-examination confined to the altered charge.”

Court Sets Aside Conviction, Remands Case for Fresh Trial From Stage of Altered Charges

Ultimately, holding the trial to be vitiated, the Calcutta High Court allowed the appeal and remanded the matter back to the Trial Court from the stage of alteration of charge, directing full compliance with Section 217 CrPC and for the trial to be concluded within six months.

“Any conviction that may have been found on evidences not tested against the altered/amended charges cannot be sustained in law,” the Court concluded.

The Trial Court has been directed to afford the accused a full and effective opportunity to recall and cross-examine the prosecution witnesses and proceed thereafter in accordance with law.

Date of Decision: 21 January 2026