Section 239 of BNSS, 2023 — Court May Alter Charge

Introduction

Section 239 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the power of the Court to alter or add to a charge at any time before judgment is pronounced.

During the course of a criminal trial, the Court may discover that the charge originally framed does not correctly reflect the offence disclosed by the evidence or circumstances of the case. Section 239 allows the Court to alter an existing charge or add a new charge when necessary.

Meaning of Section 239

Section 239 provides that:

• the Court may alter or add to any charge at any time before judgment is pronounced;
• every such alteration or addition must be read and explained to the accused;
• if the altered or added charge does not prejudice the accused or prosecution, the Court may proceed with the trial;
• where the alteration or addition causes prejudice, the Court must take appropriate steps to ensure a fair trial.

The provision therefore gives the Court flexibility to correct or modify the charge while protecting the rights of both sides.

Object and Purpose

The main objectives of Section 239 are:

• To enable the Court to correct an incorrect or incomplete charge.
• To allow an additional charge to be framed when required by the facts of the case.
• To ensure that the accused is tried for the offence actually disclosed by the proceedings.
• To prevent a technical defect in the original charge from defeating justice.
• To protect the accused against prejudice caused by an alteration or addition.

Power of the Court

The Court has the power to:

1. Alter a Charge

An existing charge may be modified if the Court considers that the charge requires correction.

2. Add a Charge

A new charge may be added where the circumstances of the case justify it.

3. Exercise the Power Before Judgment

The power can be exercised at any time before judgment is pronounced.

Therefore, the power is not limited to the stage immediately after framing of the original charge.

Charge Must Be Read and Explained

Whenever a charge is altered or added, the altered or additional charge must be read and explained to the accused.

This is an important safeguard because the accused must know the exact accusation being faced.

The accused should not be required to defend a new or modified charge without being informed of it.

Effect on the Trial

After altering or adding a charge, the Court must consider whether the alteration or addition is likely to prejudice the accused or the prosecution.

If No Prejudice Is Caused

The Court may proceed with the trial as if the altered or additional charge had been the original charge.

If Prejudice Is Likely

If the alteration or addition is likely to prejudice either side, the Court may:

• adjourn the trial; or
• direct that a new trial be conducted.

The purpose is to ensure that both parties receive a fair opportunity to deal with the altered accusation.

New Charge Requiring Sanction

Where the altered or added charge is one for which previous sanction is legally required, the Court must not proceed with the prosecution of that charge until the necessary sanction has been obtained.

This prevents the alteration power from being used to bypass a statutory requirement of prior sanction.

Example

Suppose an accused is originally charged with a particular offence.

During the trial, the evidence reveals facts indicating that another offence is also made out.

Before judgment is pronounced, the Court may add the additional charge under Section 239.

The Court must then read and explain the new charge to the accused and determine whether the defence requires additional time or other safeguards.

Example of Prejudice

Suppose a new and substantially different charge is added after the prosecution has already completed its evidence.

If the accused requires additional opportunity to cross-examine witnesses or produce evidence specifically in relation to the new charge, proceeding immediately may cause prejudice.

In such circumstances, the Court may adjourn the proceedings or take other appropriate steps to ensure a fair trial.

Importance of Section 239

Section 239 balances two important principles:

First: Criminal proceedings should determine the offence actually established by the facts and evidence.

Second: The accused must receive a fair opportunity to defend against every charge.

The provision therefore prevents both:

• injustice caused by an incorrect or incomplete charge; and
• prejudice caused by an unexpected alteration of the accusation.

Relationship with Section 238

Section 238 — Effect of Errors

Section 238 deals with the consequences of errors or omissions in a charge.

Section 239 — Alteration of Charge

Section 239 gives the Court the power to correct, alter or add to the charge.

Therefore:

Section 238 → Effect of errors in charge

Section 239 → Power to alter or add to charge

Relationship with Section 240

Section 240 deals with situations where, after a charge has been altered or added, the prosecution or defence may recall witnesses.

Thus, Section 239 provides the power to alter the charge, while the following provision contains safeguards concerning witnesses after such alteration.

BNSS and CrPC

Section 239 of the BNSS corresponds to Section 216 of the Code of Criminal Procedure, 1973.

The basic principle remains the same: the Court may alter or add to a charge at any time before judgment is pronounced, subject to safeguards ensuring that the accused and prosecution are not prejudiced.

Common Confusions

Can the Court alter a charge after the trial has begun?

Yes.

The power may be exercised at any time before judgment is pronounced.

Can the Court add a completely new charge?

Yes, where the facts and circumstances justify the addition and the statutory requirements are satisfied.

Does the accused have to be informed?

Yes.

Every alteration or addition to the charge must be read and explained to the accused.

Can the Court continue the trial immediately after altering the charge?

It depends on whether the alteration or addition causes prejudice.

If prejudice is likely, the Court may adjourn the trial or direct a new trial as necessary.

Does alteration of charge mean the accused is guilty?

No.

Altering or adding a charge only changes the accusation being tried. It does not amount to a finding of guilt.

Topic at a Glance

• BNSS Section: 239
• Subject: Court may alter or add to charge
• Power: Alter or add to any charge
• Time limit: Any time before judgment is pronounced
• Safeguard: Altered or added charge must be read and explained to accused
• If prejudice occurs: Court may adjourn trial or direct a new trial
• Prior sanction: Required where legally applicable
• Related provision: Section 240
• Corresponding CrPC provision: Section 216
• Nature: Procedural power with safeguards

Quick Revision

• Section 239 gives the Court power to alter or add to a charge.
• The power can be exercised before judgment is pronounced.
• The altered or additional charge must be read and explained to the accused.
• The Court must consider possible prejudice to the accused or prosecution.
• If necessary, the Court may adjourn the trial or direct a new trial.
• Where previous sanction is legally required for the new charge, the necessary sanction must be obtained.
• Section 238 deals with errors in charge.
• Section 240 deals with recalling witnesses after alteration or addition of charge.
• Section 239 BNSS corresponds to Section 216 CrPC.

ASLO READ: Section 238 – Effect of errors

Conclusion

Section 239 of the BNSS empowers the Court to alter or add to a charge at any time before judgment is pronounced. At the same time, it protects the fairness of the proceedings by requiring the altered or additional charge to be explained to the accused and by allowing appropriate safeguards where the change may cause prejudice. The provision ensures that the trial remains focused on the offence actually disclosed by the case while preserving the accused’s right to a fair defence.