Kerala High Court: Trial Court May Frame Charges Under Both Secs.409 & 420 IPC When Offence Is Uncertain
Safiya Malik
The High Court of Kerala, Single Bench of Justice Dr. Kauser Edappagath held that a trial court may frame charges under both Sections 409 and 420 of the Indian Penal Code when there is uncertainty about the precise offence established by the facts. The Court set aside the lower court’s refusal to include the charge under Section 409 and directed that it be added, observing that the ingredients of criminal breach of trust by a public servant were prima facie made out. The decision arose from a case involving allegations that a court employee and an advocate conspired to remove and tamper with a material object kept in judicial custody to secure an acquittal in an earlier criminal proceeding.
The petition was filed by Anil K. Emmanuel challenging the order dated 26.09.2025 of the Judicial First Class Magistrate Court-I, Nedumangad, which dismissed an application filed by the Assistant Public Prosecutor under Section 239(1) BNSS seeking addition of a charge under Section 409 IPC. The respondents were the State of Kerala, the Station House Officer, and the two accused, who faced trial for offences under Sections 120B, 420, 201, 193, 217 read with Section 34 IPC.
According to the prosecution, the first accused was serving as property section clerk in the Judicial Second Class Magistrate Court-II, Thiruvananthapuram. It was alleged that he conspired with the second accused, an advocate, in connection with an underwear that was a material object in Sessions Case. The prosecution case was that on 09.08.1990, the material object was dishonestly delivered to the second accused after making entries in the Thondi Register. The second accused allegedly took it outside the court, altered it, and returned it on 05.12.1990, after which it was forwarded to the Sessions Court as the original object. A forensic report recorded tampering.
Earlier, both accused had filed petitions before the High Court under Section 482 CrPC questioning cognizance. These petitions were allowed, but the Supreme Court later set aside the High Court’s order and restored the trial, directing its completion within one year. Trial subsequently concluded and the matter was posted for arguments when the prosecutor sought addition of the Section 409 charge. The Magistrate rejected that request, holding that the ingredients of Section 409 IPC were not made out and that Sections 409 and 420 IPC could not coexist on the same facts. The petitioner, although a journalist and not a party to the trial, approached the High Court under Article 227 contending that the finding was legally unsustainable.
The Court recorded that the objection to the maintainability of the prosecutor’s application could not be upheld. It stated that the Supreme Court in Anant Prakash Sinha held that “even an informant/victim can seek alteration or addition of charge invoking Section 216(1) of Cr.P.C.” and that this Court had followed the same position in Puthiya Purayil Shaji. The Court further recorded that “the trial court is well within its power to invoke Section 239(1) of BNSS… if the requirement of alteration or addition of the charge is brought to the notice of the court by the public prosecutor.”
On locus standi, the Court referred to the role earlier played by the petitioner and noted the Supreme Court’s view that “since the allegation against the accused raises concerns with regard to tampering with the order of the court, locus is not important especially since the State is not carrying forward the matter any further.” It also referred to precedent permitting third-party intervention in cases involving offences against society.
On the merits, the Court examined Section 239(1) BNSS (Section 216 CrPC) and recorded that “the power is very wide and can be exercised in appropriate cases, in the interest of justice.” It then stated that at the stage of framing or altering charges, “it is sufficient if the court is able to form a presumption regarding the existence of ingredients constituting the offence.” The Court quoted the principle that “even a strong suspicion founded on material… would justify the framing of the charge.”
The Court recorded that the Thondi Register entries marked as Exhibits P3(a) and P3(d) showed entrustment and return of the material object. It observed that “the property clerk, by virtue of his office, is the custodian of all the properties kept in the property room,” and that no separate entrustment order was required. It also recorded that the forensic report indicated tampering.
Referring to the trial court’s view that Section 409 ingredients were not made out, the Court stated that “I am unable to subscribe to the said findings” and held that the materials on record “are sufficient to attract the ingredients of Section 409 of IPC for the purpose of framing charge.” Regarding the reliance placed on decisions concerning the incompatibility of Sections 406/409 and 420 IPC, the Court recorded that “the above-mentioned decisions… were not rendered in the context of Sections 221 and 216 of Cr.P.C and hence cannot be applied.”
The Court held that “Ext.P17 order is set aside, and Ext.P16 petition is allowed.” It directed that “The trial court is directed to proceed under sub-clause (3) or (4) of Section 239 of BNSS, as the case may be. I have not expressed any final opinion that the prosecution evidence adduced so far discloses an offence under Section 409 of the IPC. The observation made in this judgment that the offence under Section 409 of the IPC has been prima facie attracted and a charge under that section also could be framed is for the limited purpose of deciding the petition under Section 239(1) of BNSS (Section 216 of Cr.P.C).”
“If the trial court feels that, in view of the addition of charge, the trial cannot be completed within the period stipulated in Ext.P13 judgment of the Supreme Court, it is free to address the Supreme Court seeking an extension of time. OP(Crl) is disposed of as above.
Advocates representing the parties
For the Petitioner: Shri. Ajit G. Anjarlekar, Sri. G.P. Shinod, Sri. Govind Padmanaabhan, Shri. Atul Mathews, Smt. Gayathri S.B.
For the Respondents: Sri. Rinu S. Aswan, Sri. Sasthamangalam Ajithkumar Senior Counsel, Shri. Sreejith S. Nair, Shri. B. Ajith Kumar (Kovalam) , Smt. Shyni Das J.S., Smt. Gopika H.H., Shri. Syam Mohan C., Additional Director General of Prosecution, Sri. C.K. Suresh (Sr. PP).
Case Title: Anil K Emmanuel v. State of Kerala & Others
Neutral Citation: 2025: KER:82901
Case Number: O.P.(Crl.) No. 718 of 2025
Bench: Justice Dr. Kauser Edappagath
