Karnataka High Court
Smt K R Saraswathamma vs Sri B V Papanna on 28 August, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28th DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION NO.2415/2014
c/w.
CRIMINAL PETITION NO.7247/2014
IN CRIMINAL PETITION NO.2415/2014:
BETWEEN :
Smt. K.R.Saraswathamma
Aged about 57 years
W/o Gopal
R/o. Old Madras Road, K.R. Puram,
Bengaluru South Taluk-560 036.
... Petitioner
(By Sri Mohd. Usman Shaikh, Advocate)
AND :
1. Sri B.V. Papanna
Aged about 56 years
S/o late Venkataswamy
R/at Byranahalli,
Kasaba Hobli, Malur Taluk
Kolar District-563 142.
2. Sri B.Subhash Reddy
Aged about 57 years
S/o Chikkasiddappa
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R/at No.48, Cauvery Road
Ramamurthy Nagar
Bengaluru-560 016.
3. Sri Venkatachalapathi @ Chalapathi
S/o Achchambatta
Aged about 73 years
R/at. No.152/1,
Kote Temple Road, K.R. Puram,
Bengaluru-560 036
4. State by Hoskote Police
Bengaluru Rural District
Bengaluru-562 114.
... Respondents
(By Sri Tomy Sebastian, Senior Counsel for
Smt. Reny Sebastian, Advocate for R1 and R3;
Sri L.P. Suresh, Advocate for R2;
Sri I.S. Pramod Chandra SPP-II for R4)
This Criminal Petition is filed under Section 482 of
Cr.P.C praying to set aside the order dated 12.02.2014
passed in Crl.R.P.No.19/2013 by the II Addl. Sessions
and Special Judge, Bangalore Rural District, Bangalore
Rural and the order dated 18.01.2013 in
C.C.No.1299/2007 passed by the Addl. Chief Judicial
Magistrate, Bangalore District, Bangalore and allow the
application filed under Section 216 of the Code of
Criminal Procedure.
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IN CRIMINAL PETITION NO.7247/2014:
BETWEEN :
Smt. K.R. Saraswathamma
Aged about 56 years
W/o K.V. Gopal
R/o. Old Madras Road, K.R. Puram,
Bengaluru South Taluk-560 036.
... Petitioner
(By Sri Mohd. Usman Shaikh, Advocate)
AND :
1. B.V. Papanna
Aged about 56 years
S/o late Venkataswamy
R/at Byranahalli,
Kasaba Hobli, Malur Taluk
Kolar District-563 130.
2. B. Subhash Reddy
Aged about 57 years
S/o Chikkasiddappa
R/at No.48, Cauvery Road
Ramamurthy Nagar
Bengaluru-16.
3. Sri Venkatachalapathi @ Chalapathi
Aged about 73 years
R/at. No.152/1,
Kote Temple Road, K.R. Puram,
Bengaluru-36
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4. State by Hoskote Police
Bengaluru Rural District
Bengaluru-562 114.
... Respondents
(By Sri Tomy Sebastian, Senior Counsel for
Sri/Smt. Melanie Sebastian, Advocate for R1 and R3;
Sri I.S. Pramod Chandra SPP-II for R4;
R2- Notice not ordered)
This Criminal Petition is filed under Section 482 of
Cr.P.C praying to set aside the order dated 15.09.2014
passed by the I Addl. Chief Judicial Magistrate, Bangalore
Rural District, Bangalore in C.C.No.1299/2007 and allow
the application filed under Section 311 of the Code of
Criminal Procedure. in C.C.No.1299/2007 passed by the
1st Addl. Chief Judicial Magistrate, Bangalore Rural
District, Bangalore.
These Criminal Petitions coming on for admission
this day, the Court made the following:-
ORDER
Criminal Petition No.2415/2014 is filed challenging the order passed by the II Additional Sessions and Special Judge, Bangalore Rural District, Bangalore in Crl.R.P.No.19/2013, dated 12.2.2014, wherein the order passed by the CJM, Bangalore Rural District, Bangalore, in CC.No.1299/2007, dated 18.1.2013 on the application filed under Section 216 of Cr.P.C. was confirmed. -5-
2. Criminal Petition No.7247/2014 is filed challenging the order passed on application under Section 311 of Cr.P.C. passed by the I Additional CJM, Bangalore Rural District, Bangalore, in CC.No.1299/2007, dated 15.9.2014, by which the said application came to be rejected.
3. Since these two petitions are arising out of the same case and the parties are one and the same, for the purpose of disposal, they are heard together and disposed of by this common order.
4. In Criminal Petition No.2415/2014, petitioner herein through Senior APP moved the trial Court with an application under Section 216 of Cr.P.C. seeking alteration of the charge which has already been framed. It is the contention of the petitioner that Ex.P21 is a false document and as such the offences punishable under Sections 420, 465 and 479 of IPC are to be incorporated -6- in the charge and at the time of framing the charge the offences punishable under Sections 420, 465 and 479 IPC are not included and no charge has been framed though there is sufficient material to attract the ingredients of the said Sections. The said application was contested by the respondents-accused by filing their objections and after hearing both the parties, the Court below rejected the said application filed under Section 216 of Cr.P.C. Being aggrieved by the said order, the petitioner filed Crl.R.P.No.19/2013 before the II Additional and Special Judge, Bangalore Rural District, Bangalore. After hearing both sides, the said Court also confirmed the order of the trial Court. Being aggrieved by the said order, Criminal Petition No.2415/2014 is filed.
5. In Criminal Petition No.7247/2014, the petitioner herein filed an application through APP under Section 311 of Cr.P.C. to recall PW.3 for the purpose of further examination-in-chief. In the said application it was -7- contended that the charge sheet which has been filed is for the offences punishable under Sections 143, 144, 147, 447, 427, 504 and 506 r/w. Section 149 of IPC and PW.3 is the prime witness who has been examined by the prosecution and she was subjected to cross-examination. Due to oversight and beyond control of the prosecution, some material facts with regard to acquisition of property by Smt.Lalithamma was not elicited from the mouth of this witness and as such the examination of PW.3 is very much necessary. The said application was objected by the respondents-accused and ultimately after hearing both the parties, the said application also came to be dismissed. Being aggrieved by the said order, Criminal Petition No.7247/2014 is filed.
6. I have heard the learned counsel Sri Mohd.Usman Shaikh, appearing for the petitioner; Sri Tomy Sebastian, learned senior counsel for respondent Nos.1 and 3; Sri L.P.Suresh, learned counsel for -8- respondent No.2; Sri I.S.Pramod Chandra, learned SPP- II, for respondent No.4.
7. It is contended by the learned counsel for the petitioner that there is sufficient material in the charge itself to alter and addition of the charge which has been already framed. He has taken me through the statements which have been recorded by the Investigating Officer, which clearly go to show that the provisions of Sections 420, 465 and 479 of IPC are attracted. At the time of framing the charge the Court has not noticed and no charge has been framed due to oversight and as such the said fact has been brought by the petitioner to the notice of APP and therefore he has filed an application under Section 216 of Cr.P.C. to alter the charge. By referring to Section 216 of Cr.P.C. he further submitted that the Court may alter the charge at any stage before the judgment is pronounced. The only caveat which is there in Section 216 of Cr.P.C. is that no -9- prejudice should be caused to the accused. He further submitted that if the charge is altered, there will be an opportunity for the accused to cross-examine the witness and he can effectively cross-examine on those points and if the application is allowed and an opportunity is given, and no prejudice is going to be caused to the accused- respondents. He further submitted that if the charge is not altered and if the opportunity is not given to the petitioner, the prejudice would be caused to him. In the absence of charge, the petitioner cannot lead evidence though there is material to the said effect. He further submitted that the evidence also clearly goes to show that the documents have been forged and when once the said fact is proved, then under such circumstances, it is going to establish that the provisions of Sections 420, 465 and 479 of IPC are going to be attracted. In order to substantiate his contention, he relied upon the decision in the case of CBI Vs. Karimullah Osan Khan, reported in AIR 2014 SC 2234. He also relied upon some more
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decisions which he has given with list of authorities by a separate memo. He further submitted that the petitioner has filed an application under Section 311 Cr.P.C. to recall PW.3. Though she came to be examined before the Court below, some of the important material evidence has not been led due to oversight though the charge has been framed against the accused on some of the aspects. He further submitted that if PW.3 is not recalled and she is not permitted to be further examined, then under such circumstances, the complainant will be put to irreparable loss and prejudice would be caused to her case and no prejudice or injustice is going to be caused to the respondents-accused. On these grounds, he prayed to allow both the petitions and set aside the impugned orders.
8. Per contra, the learned senior counsel for respondent Nos.1 and 3 submitted that the complaint came to be filed on 29.10.1997 and after a long gap of
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more than a year the charge sheet came to be filed on 2.4.2007 and thereafter eight witnesses came to be examined on different dates and thereafter on 23.8.2011 application under Section 216 Cr.P.C. was filed for inclusion of Sections 420, 465, 479 of IPC in the charge. The trial Court after considering the delay and inadvertence, has rightly rejected the said application. He further submitted that PW.3 has already been examined and if her evidence is perused no where she has specifically deposed regarding forgery of the documents and if she is recalled and is permitted to be examined further, a new case is going to be made out. He further submitted that there is no material to prove the charges. By drawing my attention to the charge sheet material, he submitted that the Investigating Officer has already investigated into case and he has come to the conclusion that there is no material and as such the charges under Sections 420, 465, 479 have been dropped and the charge sheet is filed in respect of
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remaining offences, which itself clearly goes to show that there is no material as against the accused persons to frame the charge in respect of the aforesaid Sections. On these grounds, he prayed to dismiss the petitions.
9. The learned SPP-II submitted that though the Court below has got wide power under Sections 216 and 311 of Cr.P.C to alter the charge and to re-call the witness without proper exercise of the power legally, the Court below has erroneously dismissed the petition. He further submitted that in order to enable the Court to come to a right conclusion allowing both the applications was necessary. Hence by supporting the arguments of the petitioner he prays to allow the petitions .
10. I have gone through the submissions made by the learned counsel for the parties. I have also gone through the records which have been produced along with the petition.
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11. Before going to discuss the points in issue, I feel it just and proper to look into Section 216 of Cr.P.C. which read as under:-
"216. Court may alter charge - (1) Any Court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court to prejudice the accused in his defence or the prosecutor in the conduct of the case the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the
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Court to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
12. On going through the said provision of law, it has been clearly stated that the Court may alter or add to any charge at any time before judgment is pronounced which itself clearly indicates the fact that the Court has power to add to a charge and it has also the power to make alteration in the charge at any stage after the charge has been framed. No where the said section says that if there is any delay or inadvertence, such
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application be rejected. Here the word 'alter' includes alteration or addition to the charge. The only thing which the Court has to see at the time of altering the charge is whether the charge framed is defective. Though the other material was there in the charge sheet and due to oversight or by mistake the charge has been not framed, then under such circumstances, the said provision gives power to the Court to alter or add to the charge which has already framed. It is also observed that the addition or alteration of the charge does not open up a new trial or beginning of the case, that is one of the caveat which has been imposed on the said Court and the Court must also see that no prejudice is caused by adding or altering the charge and full opportunity has to be given to the accused. When it is the scope of the said section, if it is clearly and closely scrutinized, wide discretion has been given to the Court to alter the charge at any time before the judgment is pronounced. Admittedly, in the instant case, still the evidence is not fully recorded and even
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recording of the evidence is not closed by the Court below. Under such circumstances, both the Courts below have not properly and legally appreciated the points in issue and have wrongly rejected the applications filed by the petitioner. If the charge is altered or addition has been made as per Section 464 Cr.P.C. trial has to be commenced from beginning and if necessary the evidence of other witnesses has also to be recorded and effectively to cross-examine on the points in issue. If the charge is not altered and added, then under such circumstances, prejudice is going to be caused to the prosecution rather than to the accused. If the charge is altered, the respondents-accused will be having full opportunity to cross-examine the witnesses and effectively bring on record the material which has been produced in the charge sheet which is not sufficient to bring home the guilt of the accused. Though there is an inordinate delay in filing the said application, ultimately the Court has to see doing of justice by giving full
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opportunity to both the parties and follow the principles of natural justice. Keeping in view the said aspect, the order passed by the Court below dismissing the application under Section 216 of Cr.P.C. is set aside and the trial Court is directed to alter the charge by taking into consideration the material which is before it. At this juncture, I want to place on record that at the time of framing the charge, it is the duty of the Court to frame the charge on all the issues or the points in controversy so that the attention of the parties has to be drawn to the said points and effective representation has to be made, thereafter a reasoned order has to be passed, otherwise entire proceedings vitiate. Under such circumstances, in order to do full justice to the case in issue, the said application requires to be allowed.
13. In so far as the application filed under Section 311 of Cr.P.C. is concerned, the said Section empowers the Court at any stage of any enquiry, trial or other
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proceeding, to summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined before the Court and at the time of considering the application under Section 311 of Cr.P.C. the only point which the Court has to see is that if further examination is permitted, no new case has to be made out in the evidence which is going to be led by the said witness. It is well settled principle of law that bringing best available evidence is one of the way in which the witnesses are to be examined before the Court. If due to oversight or mistake, the said evidence has not been led and already material is there and in order to bring the said evidence on record, the witness has to be recalled. It is also well established principle of law that whenever an application under Section 311 of Cr.P.C. is to be considered, the Court should not stand on the technicalities. It is also well settled principle of law that rule of procedure are hand made of justice. Keeping
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in view the said aspect of the matter, if PW.3 is considered to be a material and essential witness and if she is examined further, no prejudice would be caused, on the contrary if the witness is not recalled and examined, prejudice is going to be caused to the petitioner. In that light, the trial Court has not properly appreciated the proposition of law and the facts and has erroneously rejected the application. As such, the order passed by the trial Court rejecting the application under Section 311 Cr.P.C. is also set aside.
Accordingly, both the petitions are allowed. The order passed by the II Additional Sessions and Special Judge, Bangalore Rural District, Bangalore, in Crl.R.P.No.19/2013 dated 12.02.2014 and the order dated 18.01.2013 in C.C No.1299/2007 so also the order dated 15.9.2014 passed on application under Section 311 of Cr.P.C. passed by the I Additional CJM, Bangalore
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Rural District, Bangalore, in CC.No.1299/2007, are set aside.
Since the records indicate that the matter is oldest one, the trial Court is directed to take up the matter on day today basis and dispose of the same as early as possible but not later than the outer limit of one year from the date of receipt of a copy of this order.
In view of the disposal of the petitions, I.A.No.1/2014 filed in Criminal Petition No.7247/2014 stands dismissed as it does not survive for consideration.
Sd/-
JUDGE *ck/-