Karnataka High Court
Sri V Nagaraj vs Sri Ahmed P S on 26 February, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR
WRIT PETITION NO.4315 OF 2020 (GM-RES)
BETWEEN:
1. SRI V.NAGARAJ,
S/O VARADAPPA
AGED ABOUT 59 YEARS
EX COUNCILLOR
2. SRI N GANDHI,
S/O V NAGARAJ
AGED ABOUT 27 YEARS
3. SRI N SHASTRI,
S/O V NAGARAJ,
AGED ABOUT 25 YEARS
(ALL ARE RESIDENTS OF V - 7 II CROSS,
II MAIN, HANUMANTHAPURAM
SRIRAMPURAM
BENGALURU - 560 021. ...PETITIONERS
(BY SRI TIGADI VEERANNA GADIGEPPA, ADVOCATE)
AND:
1. SRI AHMED P S,
S/O SYED P K,
R/O NO 443/2,
6TH CROSS ROAD,
I MAIN ROAD,
2
YESHWANTHAPURAM,
BENGALURU - 560022.
2. STATE OF KARNATAKA,
REP. BY SUB INSPECTOR OF POLICE,
SRIRAMPURAM POLICE STATION,
BENGALURU - 560 021. ...RESPONDENTS
(BY SRI HONNAPPA, HCGP FOR R2)
****
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA R/W SECTION 482 OF
CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO
QUASH THE CHARGES FRAMED AGAINST THE
PETITIONERS AND TO QUASHING ALL FURTHER
PROCEEDINGS IN SESSION CASE NO.72/2018 VIDE
ANNEXURE-E FOR THE OFFENCES PUNISHABLE UNDER
SECTION 143, 144, 504, AND 506 R/W SECTION 149 OF
INDIAN PENAL CODE AND SECTION 397 OF INDIA PENAL
CODE ON THE FILES OF THE LEARNED 64TH ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH 65).
THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure for quashing the charges framed against the petitioners and to quash all further proceedings in Sessions Case No.72/2018 for the 3 offences punishable under Sections 395, 504 and 506 of Indian Penal Code and under Section 25 of the Arms Act, on the file of the 64th Additional City Civil & Sessions Judge, Bengaluru (CCH-65).
2. Heard learned counsel for the petitioners and learned High Court Government Pleader.
3. The facts leading to this petition are that on the complaint dated 24.04.2017 filed by respondent No.1 - Ahmed P.S., the police have registered the case. After completion of the investigation, the chargesheet was filed for the offences punishable under Sections Sections 395, 504 and 506 of Indian Penal Code and it was registered as C.C. No.20887/2017. The learned Magistrate committed the case to the Sessions Court and it was registered as Sessions Case No.72/2018. The Sessions Court framed the charges. The charge No.5 is as under:
4
LzÀ£A É iÀÄzÁV, ªÉÄîÌAqÀ ¢£ÁAPÀ, ¸ÀªÀÄAiÀÄ, ¸Àܼ ó À ªÀÄvÀÄÛ ¸ÀAzÀ¨ð sÀ zÀ°è DgÉÆævÀgÁzÀ ¤ÃªÀÅ zÀgÉÆÃqÉ ªÀiÁr CPÀª æ ÀÄ ¯Á¨sÀU½ À ¸ÀĪÀ zÀÄgÀÄzÉÝñÀ¢AzÀ ªÀiÁgÀPÁAiÀÄÄzsUÀ ¼ À ÁzÀ qÀ«Ää jªÁ®égï, ªÀÄZÀÄ,Ñ PÀ©âtzÀ gÁqï vÉÆÃj¹ ¨ÉzÀj¹ ¥Áæt ¨sÀAiÀĪÀÅAlÄ ªÀiÁr ZÁ¸Á-1 gÀªg À À §½¬ÄzÀÝ gÀzÁÝzÀ gÀÆ.76,80,000 UÀ¼À ºÀ¼É £ÉÆÃlÄUÀ¼À ºÀt ªÀÄvÀÄÛ J¯ïªÉÊJ¥sï PÀA¥À¤AiÀÄ ªÉƨÉÊ¯ï ¥ÉÆãï£ÀÄß QvÀÄÛPÉÆArgÀÄwÛÃj. D ªÀÄÆ®PÀ ¤ÃªÀÅ L.¦.¹ PÀ®A 397 gÀrAiÀÄ°è ²PÁëºð À C¥ÀgÁzsÀªÀ£ÀÄß F £ÁåAiÀiÁ®AiÀÄzÀ ªÁå¦ÛAiÀÄ°è J¸ÀVgÀÄwÛÃj.
(English translation not provided)
4. The grounds urged in the petition are that charge No.5 framed is illegal and perverse. The charge for the offence under Section 397 is not attracted, since the subject matter of dacoity was demonetized currency notes. The trial Court has passed charge No.5 mechanically and without understanding the fact that the demonetized currency notes is not a movable property. As such, the ingredients of Section 378 or 397 of IPC are not attracted and the proceedings initiated needs to be quashed.
5
5. The learned counsel for the petitioners submitted that in view of Section 5 of the Specified Bank Notes (Cessation of Liabilities) Act, 2017, there is a prohibition on holding, transferring or receiving specified bank notes. The said Section reads as under:
"5. Prohibition on holding transferring or receiving specified bank notes - On and from the appointed day, no person shall, knowingly or voluntarily hold transfer or receive any specified bank note:
Provided that nothing contained in this section shall prohibit the holding of specified bank notes -
(a) by any person -
(i) up to the expiry of the grace period; or
(ii) after the expiry of the grace period, (A) not more than ten notes in total, irrespective of the denomination; or (B) not more than twenty-five notes for the purposes of study, research or numismatics; 6
(b) by the Reserve bank or its agencies, or any other person authorised by the Reserve Bank;
(c) by any person on the direction of a court in relation to any case pending in the court."
6. According to the petitioners, the demonetized currency notes are not the property. Thus, charge No.5 framed in respect of the robbery of the said property, cannot be sustained in law.
7. The learned High Court Government Pleader submitted that the trial Court has framed five charges. The subject matter i.e., the property involved is not only the demonetized notes, but other articles also. Thus the contention of the learned counsel for the petitioners does not hold good. On framing of charges, the trial has already commenced. As such, there are no valid grounds for quashing the proceedings.
7
8. 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 powers 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. Such power is available with the Court anytime before the judgment is pronounced. It is an enabling provision for the Court to exercise its powers under certain contingencies which comes to its notice or brought to its notice by parties.
9. It is clear that Section 216 provides the Court an exclusive and wide ranging power. Sub- section (1) empowers the Court to exercise its power of 8 altering or adding charges even after completion of evidence, arguments and reserving of the judgment. The test to be adopted by the Court while deciding upon the issue of alteration or deletion of charge is that the material brought on record needs to have a direct link or nexus with the ingredients of alleged offence. The Court must exercise its powers under Section 216 judiciously and ensure that no prejudice is caused to the accused and that he is allowed to have a fair trial. The only constraint on Court's power is the prejudice likely to be caused to the accused. It is trite that at the time of framing of charge, the Court is required to evaluate the material and documents on record. With a view to find out that if the facts emerging therefrom, taken at the face value disclose the evidence of all the ingredients constituting the alleged offence. At that stage, the Court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for 9 presuming that the offence has been committed and not a ground for convicting the accused has been made out.
10. In the instant case, the petitioners have not exhausted the remedy available for them to approach the trial Court for seeking amendment / alteration of the charges. Thus, at this stage, the apprehension of the petitioners that the trial Court may not alter the charge is baseless. The petitioners have filed a writ petition for quashing the proceedings instead of approaching the Sessions Court for alteration of charges, as provided under Section 216 CrPC, which cannot be sustained in law.
11. For the foregoing reasons, this Court does not find merits in the petition. In the result, I pass the following:
ORDER The writ petition is dismissed.10
However, liberty is reserved to the petitioners to approach the Sessions Court for seeking alteration of charges. In the event of such application being submitted by the petitioners, the Sessions Court shall consider the application in accordance with law.
Sd/-
JUDGE SJ