Karnataka High Court
H. B. Prakash Kumar vs State Of Karnataka on 21 December, 2018
Equivalent citations: AIRONLINE 2018 KAR 2360, 2019 (1) AKR 386, (2019) 195 ALLINDCAS 700 (KAR), (2019) 195 ALLINDCAS 700, (2019) 2 KANT LJ 111, (2019) 2 KCCR 1735, (2019) 3 ALLCRILR 760
Author: P.S.Dinesh Kumar
Bench: P.S. Dinesh Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU R
DATED THIS THE 21ST DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
CRIMINAL PETITION No.4758/2018
C/W
CRIMINAL PETITION No.4756/2018
CRIMINAL PETITION No.4757/2018
IN CRIMINAL PETITION NO.4758/2018
BETWEEN:
1. H.B. PRAKASH KUMAR
@ PRAKASH
S/O LATE BOREGOWDA
AGED ABOUT 45 YEARS
R/AT SI HAGALAHALLI VILLAGE
C.A. KERE HOBLI
MADDUR TALUK
MANDYA CITY-571 401
2. BOMMEGOWDA
S/O BASARALEGOWDA @
HANUMEGOWDA
AGED ABOUT 49 YEARS
C.A. KERE HOBLI
MADDUR TALUK
MANDYA CITY-571 401
3. M. SOMANNA
S/O LATE KARIPUTTEGOWDA
AGED ABOUT 39 YEARS
R/AT KADAKOTHANAHALLI
MADDUR TALUK
MANDYA CITY-571 401
4. LOKESH
S/O KRISHNEGOWDA
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AGED ABOUT 38 YEARS
R/AT HITTANAHALLI KOPPALU
MALAVALLI TALUK
MANDYA CITY-571 401
5. K. C. SRINIVAS
S/O KEMPEGOWDA
AGED ABOUT 36 YEARS
R/AT KYATHAGATTA
MADDUR TALUK
MANDYA CITY-571 401 ... PETITIONERS
(BY SHRI. B.T. VENKATESH, ADVOCATE FOR
SHRI. SUNIL S.RAO, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY MANDYA
WEST POLICE STATION
MANDYA TOWN
2. BASAVARAJU. B
S/O VEEREGOWDA`
AGED ABOUT 56 YEARS
R/AT: NO.2341, 3RD CROSS
GANDHI NAGAR, MANDYA ... RESPONDENTS
(BY SHRI. S. RACHAIAH, HCGP FOR R-1;
SMT.B.V.VIDYULATHA, ADVOCATE FOR R2;
SMT. SHEETAL SONI, ADVOCATE FOR INTERVENOR)
IN CRIMINAL PETITION NO.4756/2018
BETWEEN:
1. K. CHANNALINGASWAMY
S/O KARIPUTTEGOWDA
50 YEARS, CONTRACTOR
R/AT 7TH CROSS
CHAMUNDESHWARINAGARA
MANDYA CITY-571 401
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2. G.T. RAVINDRA KUMAR
S/O LATE THIMMAIAH
AGED ABOUT 58 YEARS
R/AT NO.388, KUVEMPUNAGARA
MANDYA CITY-571 401
3. G.C. MAHINDRA
S/O LATE CHIKKAMOOGAIAH
47 YEARS, GEJJALAGERE VILLAGE
KASABA HOBLI, MADDUR TALUK
MANDYA CITY-571 401 ... PETITIONERS
(BY SHRI. B.T. VENKATESH, ADVOCATE FOR
SHRI. SUNIL S.RAO, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY MANDYA
WEST POLICE STATION
MANDYA TOWN
2. BASAVARAJU. B
S/O VEEREGOWDA
AGED ABOUT 56 YEARS
R/AT: NO.2341, 3RD CROSS
GANDHI NAGAR, MANDYA ... RESPONDENTS
(BY SHRI. S. RACHAIAH, HCGP FOR R-1;
SMT.B.V.VIDYULATHA, ADVOCATE FOR R2;
SMT. SHEETAL SONI, ADVOCATE FOR INTERVENOR)
IN CRIMINAL PETITION NO.4757/2018
BETWEEN:
1. S. DASHARATHA
S/O SIDDAIAH
AGED ABOUT 44 YEARS
M. BASAVAPURA VILLAGE
MALAVALLI TALUK
MANDYA DISTRICT-571 401
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2. M.G. RAGHU
S/O GURULINGA
AGED ABOUT 34 YEARS
RESIDING AT MANIGERE
MADDUR TALUK
MANDYA DISTRICT-571 401
3. S.H. SHIVARAJU
S/O K. HANUMEGOWDA
AGED ABOUT 48 YEARS
R/AT K. SHETTIHALLI VILLAGE
C.A. KERE HOBLI, MADDUR TALUK
MANDYA DISTRICT-571 401
4. BASAVARAJU
S/O LATE KENCHEGOWDA
AGED ABOUT 45 YEARS
R/AT YADAGANAHALLI VILLAGE
C.A. KERE HOBLI, MADDUR TALUK
MANDYA DISTRICT-571 401 ... PETITIONERS
(BY SHRI. B.T. VENKATESH, ADVOCATE FOR
SHRI. SUNIL S.RAO, ADVOCATE)
AND:
STATE OF KARNATAKA
REPRESENTED BY MANDYA
WEST POLICE STATION
MANDYA TOWN ... RESPONDENT
(BY SHRI. S. RACHAIAH, HCGP)
THESE CRIMINAL PETITIONS ARE FILED U/S 482 CR.P.C
PRAYING TO QUASH THE IMPUGNED ORDER DATED 21.04.2018,
PASSED BY THE 1ST ADDITIONAL CIVIL JUDGE AND JMFC, MANDYA
IN C.C.NO.390/2009 COMMITTING THE CASE TO HON'BLE
DISTRICT AND SESSIONS COURT, MANDYA AS AGAINST THE
PETITIONERS, AS FOUND AT ANNEXURE-A.
THESE CRIMINAL PETITIONS, HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 18.09.2018, COMING ON FOR
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PRONOUNCEMENT OF ORDER, THIS DAY, THIS COURT
PRONOUNCED THE FOLLOWING:-
ORDER
These three petitions have been filed by accused No.1, 3, 4, 5, 6, 8, 9, 10, 11, 12, 25, and 27 challenging order dated 21.04.2018, passed by the Additional Civil Judge and JMFC, Mandya, in C.C.No.380/2009, whereby the learned Magistrate has committed the said criminal case to the Court of learned Sessions Judge, Mandya.
2. Heard Shri B.T.Ventakesh, learned advocate for the petitioners, Shri S.Rachaiah, learned HCGP for the State and Ms.B.V.Vidyulatha, learned advocate for respondent No.2.
3. Briefly stated the facts of the case are, respondent No.2, Basavaraju filed a complaint in Mandya West Police Station, stating inter alia that a furious mob which was protesting against Congress leader Shri G.Madegowda, on an assumption that he was 6 CRL.P. NO.4758/2018 C/W CRL.P. NO.4756/2018 CRL.P. NO.4757/2018 responsible for the defeat of a rival candidate Shri D.C.Thammanna, hurled stones and manhandled Shri G.Madegowda. Police registered FIR No.255/2008 alleging commission of offences punishable under various Sections of Indian Penal Code. After investigation, charge sheet was filed in C.C.No.380/2009 against 24 accused persons out of 34, for offences punishable under Sections 143, 145, 146, 147, 188, 323, 427, 448, r/w 149 of IPC and Section 2(b) of Prevention of Destruction and Loss of Property Act, 1981. Thus, ten persons named in the FIR were dropped. Complainant filed a protest petition before the trial Court seeking addition of remaining ten persons also as accused; and to include Section 307 of IPC in the charge sheet. On 12.03.2010, the learned Magistrate ordered to include the proposed accused and Section 307 of IPC in the charge sheet. 7 CRL.P. NO.4758/2018 C/W CRL.P. NO.4756/2018 CRL.P. NO.4757/2018
4. Accused No.23, 25 to 33 challenged the order passed by the learned Magistrate before this Court in Criminal Petitions No.1610/2010, 1777/2011 and Misc.Crl.No.1879/2011. This Court, by common order dated 12.09.2011, set aside the order passed by the learned Magistrate and remitted the matter to the trial Court for fresh consideration from the stage of filing of protest petition.
5. After recording the sworn statement of witnesses, by his order dated 21.03.2012, the learned Magistrate took cognizance and included five additional accused as accused No.25 to 29 and framed charges on 30.08.2016 for offences punishable under Sections 143, 145, 146, 147, 188, 323, 427, 448, r/w 149 of IPC and Section 2(b) of Prevention of Destruction and Loss of Property Act, 1981.
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6. Thereafter, on 22.03.2017, complainant filed an application under Section 323 Cr.P.C. with a prayer to commit the case to the Court of learned Sessions Judge, by contending that accused had committed offence under Section 307 IPC also. All accused contested the said application contending that there were no ingredients of Section 307 IPC. After hearing, the learned Magistrate has passed the impugned order holding that there was prima facie material attracting ingredients of Section 307 IPC and committed the case to the Sessions Court.
7. Assailing the aforesaid order passed by the learned Magistrate, Shri B.T.Venkatesh, learned advocate for the petitioners urged following contentions:
• that an application seeking committal of proceedings by any person other than a Public Prosecutor is not maintainable;9 CRL.P. NO.4758/2018 C/W CRL.P. NO.4756/2018 CRL.P. NO.4757/2018
• that inclusion of any further offences could be considered only after recording of evidence;
and • that the learned Magistrate has no power to review his order.
8. In support of his contentions, learned Advocate for the petitioners placed reliance on the following authorities:
1. (2001)8 SCC 394 (Harijinder Kaur Vs. State of Jharkhand and another)
2. (2014)3 SCC 92 (Hardeep Singh Vs. State of Punjab and others)
9. Ms.B.V.Vidyulatha learned Advocate for complainant-respondent No.2, opposing the petitions argued that the petitioners did not urge the aforesaid grounds before the learned Magistrate. In support of her submission, she placed reliance on a decision of this Court in Ananda Shetty And Another Vs. Aithu Poojary and Others(ILR 1998 KAR 3829).
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10. I have carefully considered the submissions of the learned Advocates for the parties and learned HCGP for the State; and perused the records.
11. The order dated 21.03.2012 reads as follows:
"Office is directed to register (sic) the case under Register No.III against the accused persons for the offence punishable U/s 143, 145, 146, 147, 323, 427, 448, 114, 188 r/wSec.149 of IPC and Sec.2(b) Prevention of Destruction and Loss of Property Act, 1981 and issue summons to the Basavaraju, Muthaiah @ Doddathammaiah, Shivaraju and Dayananda and D.C.Thammanna."
12. By the above order, the learned Magistrate has directed to register the case against the five additional accused for the offences mentioned above.
13. While considering the application under Section 323 Cr.P.C. filed by the complainant, the learned trial Judge has revisited the statement of witnesses all over again and held that there is prima facie material attracting ingredients of Section 307 IPC. In substance, 11 CRL.P. NO.4758/2018 C/W CRL.P. NO.4756/2018 CRL.P. NO.4757/2018 learned trial Judge has held that complainant has made out sufficient ground to commit the case to the Court of Sessions.
14. Shri Venkatesh strenuously urged to draw a distinction between 'enquiry' and 'trial' by placing reliance on Hardeep Singh(supra).
15. In the conspectus of facts and rival contentions, the point that arises for consideration is, whether the learned Magistrate could have entertained an application filed by the complainant under Section 323 Cr.P.C.?
16. Indisputably, the instant application is filed by the complainant stating that though the complaint averments disclosed offence under Section 307 IPC, charge has not been framed for the said offence and accordingly, he has prayed for adding Section 307 IPC and committing the case to the Sessions Court which is competent to try offence under Section 307 IPC.
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17. In these petitions, petitioners have pleaded that the Supreme Court of India in Harihar Chakravarty Vs. State of W.B.1 has held that addition of charges could be done only on the basis of evidence.
18. The Supreme Court of India in Anant Prakash Sinha alias Anant Sinha Vs. State of Haryana and another2 has considered and explained the earlier judgment in Harihar Chakravarthy. Further, all contentions urged on behalf of the petitioners have been answered in Anant Prakash Sinha.
19. With regard to the contention that the application ought to have been moved by the Public Prosecutor, the Supreme Court of India has held as follows:
"22.............. As is evident, an application was filed by the informant to add a charge under Section 406 IPC as there were allegations against the husband about the criminal breach of trust as far as her Stridhan is concerned. It was, 1 AIR 1954 SC 266 2 (2016) 6 SCC 105 13 CRL.P. NO.4758/2018 C/W CRL.P. NO.4756/2018 CRL.P. NO.4757/2018 in a way, bringing to the notice of the learned Magistrate about the defect in framing of the charge. The Court could have done it suo motu. In such a situation, we do not find any fault on the part of the learned Magistrate in entertaining the said application. It may be stated that the learned Magistrate has referred to the materials and recorded his prima facie satisfaction. There is no error in the said prima facie view. ............."
(emphasis supplied)
20. With regard to the contention that charges could not be added without recording the evidence, it is held as follows:
"17. In Thakur Shah v. King Emperor [Thakur Shah v. King Emperor, 1943 SCC OnLine PC 26 : (1942-43) 70 IA 196 : (1943) 56 LW 706 : AIR 1943 PC 192] , what the Court has held is that 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. It does not necessarily mean that the alteration can be done only in a case where evidence is adduced. We may hasten to clarify that there has been a reference to the decision rendered in Harihar Chakravarty [Harihar Chakravarty v. State of W.B., AIR 1954 SC 266 : 1954 Cri LJ 724] but the said reference has to be understood in the context. Section 216 CrPC, as is evincible, does not lay down that the court cannot alter the charge solely because it has framed the charge. In Hasanbhai Valibhai Qureshi [Hasanbhai Valibhai Qureshi v. State of Gujarat, (2004) 5 SCC 347 : 2004 SCC 14 CRL.P. NO.4758/2018 C/W CRL.P. NO.4756/2018 CRL.P. NO.4757/2018 (Cri) 1603 : (2004) 2 RCR (Cri) 463] , it has been stated there is scope for alteration of the charge during trial on the basis of material brought on record. In Jasvinder Saini [Jasvinder Saini v. State (Govt. of NCT of Delhi), (2013) 7 SCC 256 : (2013) 3 SCC (Cri) 295] , it has been held that circumstances in which addition or alteration of charge can be made have been stipulated in Section 216 CrPC and sub-sections (2) to (5) of Section 216 CrPC deal with the procedure to be followed once the court decides to alter or add any charge. It has been laid down therein that the question of any such addition or alteration generally arise either because the court finds the charge already framed to be defective for any reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the court. If the said decision is appositely understood, it clearly lays down the principle which is in consonance with Harihar Chakravarty[Harihar Chakravarty v. State of W.B., AIR 1954 SC 266 : 1954 Cri LJ 724]."
(emphasis supplied)
21. Thus it emerges that it is not necessary that alteration of charges can be done only in a case where evidence is adduced. If this ratio is applied to the facts of the case on hand, the ground urged on behalf of the petitioners that impugned order passed by the learned 15 CRL.P. NO.4758/2018 C/W CRL.P. NO.4756/2018 CRL.P. NO.4757/2018 Magistrate amounts to reviewing his earlier order is merit less.
22. Therefore, all three contentions urged on behalf of the petitioners namely, that the application ought to have been moved by the public prosecutor, that alteration of charges can be considered only after recording of evidence and that learned Magistrate's order amounts to reviewing his earlier order are untenable.
23. Now on facts, the complaint reveals that there was an attempt to strangulate the victim. It could have been fatal particularly in a situation where attack is by an unruly mob. Therefore, no exception can be taken to the order passed by the learned Magistrate adding Section 307 IPC. The said offence is triable by a Court of Sessions. Therefore, once the learned Magistrate was satisfied that the ingredients of Section 307 IPC were 16 CRL.P. NO.4758/2018 C/W CRL.P. NO.4756/2018 CRL.P. NO.4757/2018 found, the case ought to have been, and rightly committed to the Court of Sessions.
24. Resultantly, these petitions must fail and they are accordingly dismissed.
No costs.
Sd/-
JUDGE Yn.