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Karnataka High Court

Smt B V Shindhu W/O Shivaram Revankar vs State Of Karnataka on 9 December, 2022

Author: Hemant Chandangoudar

Bench: Hemant Chandangoudar

                             -1-




                                      CRL.P No. 103571 of 2022

     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

         DATED THIS THE 9TH DAY OF DECEMBER, 2022

                          BEFORE
     THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
         CRIMINAL PETITION NO. 103571 OF 2022 (482-)
BETWEEN:

SMT B V SHINDHU W/O SHIVARAM REVANKAR
AGE. 35 YEARS, OCC. ASSISTANT ENGINEER HESCOM IN
CESC CORPORATE OFFICE MYSURU
CORRECT ADDRESS
R/O. EWS 227 NEW KANTHRAJUS ROAD
KUVEMPU NAGAR, MYSURU-570023.

                                              ...PETITIONER
(BY SRI. NEELENDRA.D.GUNDE, ADVOCATE)
AND:

1.    STATE OF KARNATAKA
      BY MALMARUTI POLICE STATION
      REPRESENTED BY THE STATE PUBLIC PROSECUTOR
      HIGH COURT BUILDING
      DHARWAD-580001

2.    SRI. TUKARAM MAJJAGI S/O. BALESH
      AGE 57 YEARS, OCC-GOVT OFFICIAL GAZETTED,
      R/O. (TS NO.4867/10 I ST A,
      2ND CROSS SAMPIGE ROAD, SADASHIVA NAGAR,
      BELAGAVI-570023


                                           ...RESPONDENTS
(BY   SRI. V.S.KALASURMATH,   HCGP         FOR    R1;   SRI.
U.M.SHEELVANT, ADVOCATE FOR R2)
      THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.
SEEKING TO QUASH ORDER DATED 19.10.2022 PASSED
PRINCIPAL DISTRICT AND SESSIONS JUDGE, BELAGAVI, IN S.C.
NO.262/2019 THEREBY REJECTING THE APPLICATION FILED
U/S 216(1) AND (2) OF CR.P.C., AND CONSEQUENTLY ALLOW
THE APPLICATION FILED U/S 216(1) (2) OF CR.P.C., AND ALLOW
THE ABOVE CRIMINAL PETITION, IN SO FAR AS
PETITIONER/ACCUSED NO.1 IS CONCERNED.
      THIS CRIMINAL PETITION COMING ON FOR ORDER, THIS
DAY, THE COURT MADE THE FOLLOWING:
                               -2-




                                     CRL.P No. 103571 of 2022

                         ORDER

Against the order passed by the learned Sessions Judge rejecting an application filed by the accused No.1 for alteration of the charges, the present petition is filed.

2. Learned counsel for the petitioner submits that the petitioner has been charge sheeted for the offences punishable under sections 195, 211, 420 465, 468, 192, 471, 461, 120B r/w section 34 of IPC and even if the allegations are accepted on the face of it, the same does not constitute for commission of the aforesaid offences and as such charge framed against the petitioner requires to be altered.

3. Learned HCGP for the respondent No.1- State and learned counsel for the respondent No.2 submits that the power under Section 216 is vested with the Court exclusively and there is no right to the accused to file an application to add or alter and as such application filed under Section 216 Cr.P.C is not maintainable.

4. I have examined submissions made by the learned counsel for the parties.

5. The Apex Court in the case of P.KARTIKLAKSHMI VS. SRI GANESH AND ANOTHER (2017) 3 SCC 347, para 6, 7 and 8 as held as follows:

6. Having heard the learned counsel for the respective parties, we find force in the submission of the learned Senior Counsel for Respondent 1. Section 216 CrPC empowers the Court to alter or add any charge at any time before the judgment is pronounced. It is now well settled that the power vested in the Court is exclusive to the Court and there is no right in any party to seek for such addition or alteration by filing any application as a matter of right. It may be that if there was an omission in the framing of the charge and if it comes to the knowledge of the Court trying the offence, the power is always vested in the Court, as provided under Section 216 CrPC to either alter or add the charge and that such power is available with the Court at any time before the judgment is pronounced. It is an enabling provision for the Court to exercise its power under certain contingencies which comes to its notice or brought to its notice. In such a situation, if it comes to the knowledge of the Court that a necessity has arisen for the charge to be altered or added, it may do so on its own and no order -4- CRL.P No. 103571 of 2022 need to be passed for that purpose. After such alteration or addition when the final decision is rendered, it will be open for the parties to work out their remedies in accordance with law.

6. We were taken through Sections 221 and 222 CrPC in this context. In the light of the facts involved in this case, we are only concerned with Section 216 CrPC. We, therefore, do not propose to examine the implications of the other provisions to the case on hand. We wish to confine ourselves to the invocation of Section 216 and rest with that. In the light of our conclusion that the power of invocation of Section 216 CrPC is exclusively confined with the Court as an enabling provision for the purpose of alteration or addition of any charge at any time before pronouncement of the judgment, we make it clear that no party, neither de facto complainant nor the accused or for that matter the prosecution has any vested right to seek any addition or alteration of charge, because it is not provided under Section 216 CrPC. If such a course to be adopted by the parties is allowed, then it will be well-nigh impossible for the criminal court to conclude its proceedings and the concept of speedy trial will get jeopardised.

8. In such circumstances, when the application preferred by the appellant itself -5- CRL.P No. 103571 of 2022 before the trial court was not maintainable, it was not incumbent upon the trial court to pass an order under Section 216 CrPC. Therefore, there was no question of the said order being revisable under Section 397 CrPC. The whole proceeding, initiated at the instance of the appellant, was not maintainable. Inasmuch as the legal issue had to be necessarily set right, we are obliged to clarify the law as is available under Section 216 CrPC. To that extent, having clarified the legal position, we make it clear that the whole proceedings initiated at the instance of the appellant was thoroughly misconceived and vitiated in law and ought not to have been entertained by the trial court. As rightly pointed out by the learned Senior Counsel for Respondent 1, such a course adopted by the appellant and entertained by the court below has unnecessarily provided scope for protraction of the proceedings which ought not to have been allowed by the court below.

7. In view of the ratio enunciated by Hon'ble Supreme court in case of P.KARTIKLAKSHMI (supra) the application filed by accused No.1 under Section 216 Cr.P.C is held to be not maintainable.

Accordingly, petition stands dismissed.

8. It is needless to state that the learned Sessions Judge is at liberty to alter the charge at any time if the time if so necessitated.

SD/-

JUDGE AC List No.: 1 Sl No.: 34