Siddappa vs State of Karnataka

A.N. Venugopala Gowda, J.—FIR in Crime No. 39 of 2008 was registered by the Haveri Town Police, against the petitioners, on a complaint filed by Basavaraj, S/o Puttappa Gorappanavar, alleging commission of the offence punishable under Sections 323, 504 and 506 read with Section 34 of Indian Penal Code, 1860.

The matter was investigated and charge-sheet was filed against the petitioners, arraigned as the accused 1 and 2 in CC No. 388 of 2008, for the offences punishable under Sections 114,323,504 and 506 read with Section 34 of IPC. Charges was framed and the accused having denied the charges and claimed to be tried, during the trial, prosecution has examined the witnesses including the Investigation Officer.

On 18-11-2013, learned Assistant Public Prosecutor filed an application, under Section 216 of Criminal Procedure Code, 1973, for alteration of charges and for framing of additional charges for the offences punishable under Sections 451 and 355 read with Section 34 of IPC. The accused filed their objections to the said application on 4-1-2015. Learned Magistrate having allowed the application on 11-6-2015, this petition was filed to set aside the said order.

Sri Srinand A. Pachhapure, learned Advocate, firstly contended that the application having been filed after lapse of 5 years and after completion of the trial, learned Magistrate has committed error in allowing the application. Secondly, the charges having been framed on 26-6-2008 and the trial of the case being complete and the ingredients of the offences punishable under Sections 451 and 355 of IPC having not been made out by the evidence recorded during the course of the trial, impugned order is perverse and illegal. Placing reliance on the decision in Central Bureau of Investigation v. Karimullah Osan Khan, (2014) 11 SCC 538, learned Advocate submitted that the petition is liable to be allowed.

Learned High Court Government Pleader, on the other hand, submitted that the learned Magistrate having been satisfied that there is need to alter to charges and there being sufficient material to frame the additional charges, the power conferred as per Section 216 of Cr.P.C. was exercised and that by amendment of the charges and raising the additional charges, no prejudice would be caused to the accused, as they would have the opportunity to cross-examine the witnesses and hence, this petition may be dismissed.

Considered the rival contentions and perused the petition. The point for consideration is, whether the Trial Court is justified in allowing the application filed under Section 216 of Cr.P.C.?

Section 216 of Cr.P.C. deals with the alteration or addition of any charge and empowers the Court to do so at any time before the judgment is pronounced. A plain reading of the provision shows that the Court''s power to alter and add any charge is unrestrained, provided, such addition and/or alteration is made before the judgment is pronounced.

Section 217 of Cr.P.C. deals with the power to recall witnesses when the charges is altered or added by the Court, after communication of trial. Hence, the Court has the competence to add or alter charge at any time before the judgment is pronounced. Consequently, there is no merit in the first contention urged by the learned Advocate for the petitioners.

In the case of Karimullah Osan Khan, Apex Court has held as follows:

"18. In other words, alteration or addition of a charge must be for an offence made out by the evidence recorded during the course of trial before the Court..."

The relevant portion of the impugned order, reads as follows:

"5. On perusal of the complaint, charge-sheet and other materials on record, it is clear that, there is a necessity to alter the charge as prayed in the application as all the facts constituting the offences alleged against the accused are not narrated in the charge. Further, there are sufficient materials to frame additional charges against accused 1 and 2 for the offence punishable under Sections 451 and 355 read with Section 34 of IPC."

From the above, it is clear that the impugned order does not show the alteration or addition of the charges being for the offences made out by evidence recorded during the course of trial. Which of the charges framed need alteration and the alleged material on the basis of which there is need to frame additional charges for the offences punishable under Sections 451 and 335 read with Section 34 of IPC has not been indicated and the impugned order is bald. The exercise of the power under Section 216 of Cr.P.C., cannot be whimsical and/or arbitrary.

In the result, the petition is allowed and impugned order is set aside. Application filed under Section 216 of Cr.P.C. having not been decided by the Trial Court in accordance with law by keeping in view the law laid down by the Apex Court, noticed supra, Trial Court shall decide the application afresh by keeping in view'' the observations made supra.

The case being more than eight years old, there is need to decide the same with as much expedition as is possible. The accused shall extend ready co-operation to the Trial Court to decide the matter with expedition. In that regard, unnecessary adjournment(s) sought, if any, by either side and/or the exemption application(s) filed, if found to be unjustified, shall be refused.