AMENDMENT OF CHARGE/INDICTMENT.

LEGAL PROVISIONS AND DECIDED JUDGEMENTS ON AMENDMENT OF CHARGE SHEET OR INDICTMENT

Duncan Abeynayaka – LLB, Attorney At Law.

 

CRIMINAL PROCEDURE CODE

167.

(1) Any court may alter any indictment or charge at any time before judgment is pronounced or, in the case of trials before the High Court by a jury, before the verdict of the jury is resumed.

(2) Every such alteration shall be read and explained to the accused.

(3) The substitution of One charge for another in an indictment or the addition of a new charge to an indictment and in a Magistrate's Court the substitution of one charge for another or the addition of a new charge shall be deemed to be an alteration of such indictment or charge within the meaning of this section.

 

01. RODRIGO V. THE QUEEN 55 NLR 49

The primary responsibility for the accuracy and suitability of an indictment rests with counsel for the prosecution, and not on the court. The court may, however, decide to amend the indictment on its own responsibility, but before such a decision in made, both the prosecution and the defence should be given an opportunity of making their submissions on the point.

 

02. THE QUEEN V. WILEGODA 60 NLR 246

An indictment served on an accused before trial cannot be amended under sec 172 (167) of the criminal procedure code before the commencement of the trial. The proper cause to adopt when the crown applies to alter an indictment is first to arraign the accused on the indictment served upon him and have it read and explained to him and take his plea. At any time thereafter, before the verdict is returned, the court can either ex mero motu or upon application of counsel alter the indictment.

 

03. THE QUEEN V. KULARATNE 71 NLR 529

That before a Charge is amended, particularly at a late stage, the defence should be given an opportunity of making their submissions on the point. Thereafter, if the amendment is made, the defence should be consulted, again before the Judge decides whether or not to proceed with the trial immediately in terms of section 172 or 173 of the Criminal Procedure Code. In the present case, however, the failure to observe this rule did not cause prejudice to the appellants.

04. SIYAMBALAGASTENNA v. O.I.C. CRIMES, POLICE STATION, KANDY (1998) 1 Sri LR. 78

The accused who was charged with criminal breach of trust of a sum of Rs. 11,065.65 was convicted by the Magistrate of that offence, but in respect of a sum of only Rs. 1,063.95.

The Magistrate did not “alter” the charge within the meaning of S. 167 of the Code of Criminal Procedure Act.

On an examination of the evidence at the conclusion of the trial, the Magistrate found that the appellant has committed criminal breach of trust of a lesser sum of money than the amount stated in the charge.

The penal section under which he was convicted was the same as the section alleged in the charge; all other particulars such as the time and place of the offence were the same, except that the quantum of money in respect of which the offence was committed was less than what was stated in the charge. On a consideration of these facts,

I am of the view that the Magistrate did not "alter" the charge within the meaning of section 167 (1) of the Code of Criminal Procedure Act. The appellant was convicted of the same charge, the only difference being that the offence was committed in respect of a lesser sum of money than what was set out in the charge.

05. DOOIE V. REPUBLIC OF SRI LANKA (1978 -79 ) 2 S.L R 33

That as a rule an amendment to an indictment should be allowed if it would have the effect of convicting the guilty or securing the acquittal of the innocent, but it should not be allowed if it would cause substantial injustice or prejudice to the accused.