Karnataka High Court
Sri Manjunath V vs State Of Karnataka on 2 September, 2016
Equivalent citations: 2016 (4) AKR 555
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 02ND DAY OF SEPTEMBER 2016
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.2249 OF 2016
BETWEEN:
Sri. Manjunath V.,
Aged about 33 years,
Son of Sri. Venkataramappa,
Residing at Morarji Desai Residential
School, near Junior College,
Malur Town,
Kolar District - 563 101.
...PETITIONER
(By Shri Raghavendra K., Advocate)
AND:
1. State of Karnataka,
By the Station House Officer,
Malur Town,
Kolar District - 563 101.
2. Smt. Munithayamma,
Aged about 50 years,
Wife of Sri. Venkateshappa,
2
Resident of Veeranjeneya Nagara,
Gokul College Road,
Kolar Town,
Kolar District - 563 101.
...RESPONDENTS
(By Shri K.R.Keshav Murthy, State Public Prosecutor-II for
Respondent No.1/State;
Shri N. Kumar, Advocate for Respondent No.2)
*****
This Criminal Petition filed under Section 482 code of
Criminal Procedure, 1973, praying to set aside the order dated
10.3.2016 accepting the additional charge sheet/supplementary
charge sheet in S.C.No.99/2014 for offences punishable under
Sections 302 and 201 of IPC, pending on the file of the
Principal Sessions Judge, Kolar.
This Criminal Petition coming on for Admission this day,
the court made the following:
ORDER
Heard the learned counsel for the petitioner, the learned State Public Prosecutor as well as the counsel for Respondent No.2.
2. The petition coming on for admission, is considered for final disposal by consent, having regard to the facts and circumstances. The petitioner is alleged as an accused and is 3 facing trial for offences punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (hereinafter referred to as 'the IPC', for brevity) in case No.S.C.99/2014 before the Principal Sessions Judge, Kolar.
It transpires that in the course of the trial, the witnesses cited in the charge-sheet had been examined and the matter was posted for recording of the statement of the accused under Section 313 Cr.P.C. It also is on record that all the witnesses who were examined before the court had turned hostile and had been treated as hostile witnesses and they did not support the case of the prosecution. The Investigating Officer on this development, claimed to have conducted a further investigation of the case and submitted an additional charge-sheet or a supplementary charge-sheet and the Trial Court had accepted the same and was proceeding with the case. The Trial Court in accepting the additional charge-sheet, has reasoned as follows:
That there is no provision for rejecting the charge-sheet under the Code of Criminal Procedure. The evidence collected 4 by the Investigating Officer would require to be tested during the course of the trial itself and the question of rejecting the charge-sheet did not arise. Further, the complainant had disputed the identity of the said witness who was examined as PW-12, though it was insisted that the Investigating Officer had recorded the statement of that witness alone. But, when the complainant had disputed the identity of the said witness of having rented the premises to the deceased and the accused, the prosecution had taken up further investigation and submitted statements of two more witnesses who claimed to be owners and who had let out the premises to the accused. Therefore, the court below has opined that it was for the prosecution to examine the same and at the threshold, such evidence could not be rejected, as it was denying justice to the complainant and has proceeded on these lines in permitting the additional charge- sheet being taken on record.5
3. The learned counsel for the petitioner would point out that Section 173 sub-section (8) of the Code of Criminal Procedure, 1973, provides as follows:
"173(8). Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2)."
This would clearly indicate that such filing of supplementary charge-sheet to further strengthen the case of the prosecution is permissible at an early stage before the commencement of the evidence and not in a case where the evidence was completed and the case was set down for recording of the statement of the accused under Section 313 6 Cr.P.C. This would amount to permitting the prosecution to bolster its case when it is explicit that it has been seriously weakened by the witnesses not seeking to support the case of the prosecution and the court below having lightly permitted the prosecution to file such an additional charge-sheet and to field more witnesses would result in the prosecution being given a long rope of somehow framing the accused. This practice would lead to no criminal case being completed till such time the prosecution was certain that there was enough evidence to bring home the charges. And till such time it could indefinitely go on filing supplementary charge-sheets. Hence, the rule would be followed only in the breach and seeks that the supplementary charge-sheet being taken on record be quashed.
4. The learned State Public Prosecutor would however contend that if the object of a criminal trial is to arrive at the truth, it would depend on the facts and circumstances as to whether the prosecution can be permitted to bring additional 7 material on record and it cannot be as a general rule stated that any additional charge-sheet could be submitted only before the evidence commences and not thereafter. In a given case, if the material which may surface belatedly would clearly frame the accused and bring home the charges even at a time when the evidence had been completed, it would not be out of place if the court be satisfied of such evidence being necessary to bring home the charges and if the evidence is found to be genuine and worthy, it cannot be shut out. If it is shut out, it would result in a miscarriage of justice and the accused would be enabled to go scot-free and that is not the object of the law. Therefore, there is no impediment in a supplementary charge-sheet being submitted even at a late stage. In this regard, he would place reliance on the judgments of the Supreme Court in the case of Kari Choudhary vs. Smt. Sita Devi and others AIR 2002 SC 441 and Ram Lal Narang vs. State (Delhi Admn.) AIR 1979 SC 1791.
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5. In the above circumstances, it is evident that on a plain reading of Section 173(8) Cr.P.C., it would appear that the additional charge sheet, if any, would normally be expected to be filed before the evidence or the trial commences. This would be in order and would not throw up any surprises for the accused in defending the case. However, it cannot be ruled out that there may be circumstances in a given case which would require such additional material being brought on record even at a later stage. Therefore, it would depend on the facts and circumstances of each case, which the Magistrate should weigh carefully in either permitting or rejecting such supplementary charge-sheet being filed and additional material being brought on record. This in fact is the tenor of the judgments cited by the learned State Public Prosecutor himself.
6. In Kari Choudhary's (supra) case, the facts were as follows:
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A mother-in-law figured as the complainant in a case of culpable homicide of her daughter-in-law, but eventually she was transposed as one of the delinquent offenders of the said murder. The High Court had stalled the case against her on the ground of her first complaint. This was not palatable to the brother of the deceased and hence he had approached the Supreme Court challenging the order of the High Court.
It is further found that the unfortunate victim who was killed on the night of 27.6.1988. About 10 years prior to her death she was married to Ram Jatan Choudhary, one of the four sons of Sita Devi and she remained childless. On the day which followed her death, Sita Devi lodged an FIR with the police alleging that a few persons from outside had sneaked into the bedroom of Sugnia Devi and murdered her by strangulation. A case was registered on the basis of the said complaint and investigation was commenced thereafter.10
During the progress of investigation, the police formed an opinion that the murder of Sugnia Devi had taken place in a manner totally different from the version furnished by Sita Devi in the FIR. Police found that the murder was committed pursuant to a conspiracy hatched by Sita Devi and her other daughters-in-law besides others. So the police sent a report to the court stating that the allegations in the FIR were false. The police continued with the investigation after informing the court that they have registered another FIR.
The first respondent Sita Devi filed a protest complaint before the Chief Judicial Magistrate alleging that the police report was wholly unsustainable and reiterating that the persons arrayed in her complaint are the real culprits. The Chief Judicial Magistrate rejected the protest complaint and the first respondent challenged the said order in a revision filed before the High Court. The said revision happened to be allowed and the Chief Judicial Magistrate was directed to conduct an inquiry under Section 202 of the Code of Criminal Procedure. 11
The police force proceeded with the investigation on the new discovery that Sugnia Devi was murdered by some other persons and finally concluded the investigation and filed a charge sheet. In the said charge sheet, the first respondent Sita Devi, her two other daughters-in-law, her son Ram Ashish Choudhary and a few others were arraigned for the offence under Section 302 read with Section 34 of the IPC. The Chief Judicial Magistrate before whom the charge-sheet was laid committed the said case to the court of sessions. Thereafter, the Sessions court framed charges against the accused. In the meanwhile, the first respondent had moved the High Court once again for quashing the criminal proceedings lodged against her and others. A single Judge upheld her contention and quashed the criminal proceedings as per the impugned judgment. Thus, the appellant and other accused were totally absolved from the murder charge even without conducting any trial into the said case. That order of the High Court was under challenge before the Supreme Court.12
Therefore, the facts of the case would clearly indicate that the court having permitted the second F.I.R. to be filed and a charge-sheet being filed, was warranted in the circumstances of the case and would not advance the case of the prosecution insofar as the present case on hand is concerned.
7. In Ram Lal Narang's case, the facts were, on the intervening night of 31st March 1967 and 1st April 1967, two sandstone pillars of great antiquity, beauty and value were stolen from Suraj Kund temple, in Village Amin (District Karnal, Haryana). They were of immense historical importance and therefore, the estimated value was around five hundred thousand American dollars. A first information report was registered by the Police of Lutana, District Karnal. The pillars were recovered on 2nd May 1967. On completion of investigation a charge-sheet was filed on 3rd October 1967 in the Court of the Ilaqa Magistrate at Karnal, against one Bali Ram Sharma and two others. The case ended in their acquittal. During the pendency of the case, one Narinder Nath Malik filed 13 an application before the Magistrate alleging that he was a research scholar and requesting that he might be given custody of the two pillars to enable him to make a detailed study. At the instance of H. L. Mehra, the then Chief Judicial Magistrate, Karnal and a friend of N. N. Malik, the learned Magistrate gave custody of the two pillars to N. N. Malik on his executing a personal bond. The order was written by the Magistrate himself. The pillars remained in the custody of N. N. Malik from 1st March 1968 to 27th May 1968. When N. N. Malik purported to return them to the Court and after the acquittal of Bali Ram Sharma and others, the pillars were handed over to the Lambardar of village Amin. Later, it came to light that the pillars returned by N. N. Malik were not the original pillars but fake. Thereupon, a First Information Report was registered at Delhi against N. N. Malik and H. L. Mehra under Section 120B read with Sections 406 and 420 of the Indian Penal Code. After completing the investigation, the C.B.I. filed a charge-sheet in the Court of Special Magistrate, Ambala, against N. N. Malik 14 and H. L. Mehra for alleged offences under Section 120-B read with Sections 406 and 420 of the IPC. The charge-sheet was filed on 30th December, 1972. On 17th May, 1976, the learned Special Magistrate, Ambala, passed an order directing the framing of charges against N. N. Malik and H. L. Mehra. But, no charges were actually framed as the accused were not present in the Court. On 17th April, 1977, the Public Prosecutor filed an application under Section 494 of the Cr.P.C. for permission to withdraw the case against Malik and Mehra. The Special Magistrate, Ambala, by his order dated 16th May 1977, permitted the withdrawal of the case and discharged the accused.
Between May 1976 and May 1977 several other things happened and the Narang brothers, the appellants in the two appeals, made their appearance on the scene. Of the three Narang brothers, Om Prakash alias Omi Narang had been living in London since 1970, Manohar Lal alias Manu Narang had been similarly living in London since July 1974 and Ram Lal 15 Narang alone had been living in India. Ram Lal Narang was detained first under the MISA from September 1974 till he was released under orders of the High Court, and later, under the COFEPOSA from 1st July 1975 till after the revocation of the internal Emergency in March 1977.
The two genuine pillars which had been removed from Suraj Kund temple were traced and found in London in the warehouse of Messrs Spink & Co. It was suspected that Manoharlal Narang and Ramlal Narang had engaged Balkishan Rawal and Nathubhai Rawal of Delhi to make three sets of fakes and had exported the genuine pillars to London. A First Information Report was registered by the Superintendent of Police, CIU (Antiquities, SPE/CBI, New Delhi) against Manohar Lal Narang and others, for alleged offences under Section 120-B read with Section 411 of the IPC and Section 25(1) of the Antiquities and Art Treasures Act, 1972. On 26th June, 1976, N. N. Malik made an application before the Chief Metropolitan Magistrate, Delhi, purporting to be under Section 16 306 of the Cr.P.C., praying that he might be granted pardon. The application mentioned Sections 411, 406 and 420 IPC read with Section 120-B and Section 25(1) of the Antiquities and Art Treasures Act, 1972, as the offences involved. The application was supported by the reply filed by the Superintendent of Police, C.B.I. On 3rd July 1976, the Chief Metropolitan Magistrate, Delhi, granted pardon to N. N. Malik. Before the grant of pardon, the confessional statement of N. N. Malik was got recorded by the Metropolitan Magistrate, Delhi. Thereafter, on 19th July 1976, a charge-sheet was filed in the Court of Chief Judicial Magistrate, Delhi, for offences under Section 120-B read with Sections 420, 411 and 406 of the IPC and Section 25 of the Antiquities and Art Treasures Act, 1972. The case was transferred to the Court of the Additional Chief Metropolitan Magistrate. On 20th July 1976, the Additional Metropolitan Magistrate issued process for the appearance of the three Narang brothers. The learned Magistrate also issued warrants for the extradition of Omi Narang and Manu Narang 17 who were in London. Extradition proceedings were initiated in Britain at the instance of the Government of India. The Metropolitan Magistrate, Bow Street, London ordered the detention of Omi Narang and Manu Narang pending the issue of warrants by the Secretary of State under Section 5 of the Fugitive Offenders Act. A petition for the issue of Writ of Habeas Corpus Ad Subjiciendum was filed in the High Court of Justice, Queen's Bench Division, London. The Divisional Court directed the release of Omi Narang and Manu Narang. The Government of India filed an appeal to the House of Lords and on 24th March, 1977 and the appeal was allowed. Omi Narang and Manu Narang were finally extradited and brought to India on 27th July, 1977.
To cut it short, it was ultimately found that the Narang brothers were the real culprits who had engineered the crime in the pillars of the temple being replaced by fake pillars and the real pillars had been taken away to London. Notwithstanding that there were two sets of proceedings earlier, the third F.I.R. 18 being lodged against the Narang brothers, the charges against them having been brought home, would indicate the circumstances under which such turn of events could take place requiring additional materials and further cases being lodged in respect of the same set of facts.
The said judgment also would not advance the case of the prosecution in the present case on hand.
8. Accordingly, the order of the court below permitting the supplementary charge-sheet being filed in the circumstances of the present case, is bad in law and accordingly, the petition is allowed. The order dated 10.03.2016 in S.C.No.99/2014 on the file of the Principal District & Sessions Judge, Kolar, is quashed.
Sd/-
JUDGE KS