Karnataka High Court
Sri Vikram Ballari vs Central Bureau Of Investigation on 31 August, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
Reserved on : 13.08.2024
Pronounced on : 31.08.2024
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.7467 OF 2024
C/W
WRIT PETITION No.18539 OF 2024 (GM - RES)
IN CRIMINAL PETITION No.7467 OF 2024
BETWEEN:
1. SRI VIKRAM BALLARI
S/O UDAY KUMAR BALLARI
AGED ABOUT 33 YEARS
RESIDENT OF 6TH CROSS,
MARATHA COLONY, DHARWAD,
HUBBALLI- DHARWAD CITY - 580 001.
2. SRI KIRTIKUMAR BASAVARAJ KURAHATTI
S/O BASAVARAJ T. KURAHATTI,
AGED ABOUT 32 YEARS,
RESIDENT OF ITIGATTI VILLAGE AND POST,
DHARWAD CITY - 580 001.
3. SRI SANDEEP SAUDATTI
S/O SOMASHEKAR,
AGED ABOUT 36 YEARS
RESIDENT OF MARATHA COLONY,
MALAPUR ROAD,
NEAR GANESH TEMPLE, DHARWAD,
HUBBALLI- DHARWAD CITY - 580 001.
2
4. SRI VINAYAK KATAGI
S/O BASAVARAJ NINGAPPA KATAGI,
AGED ABOUT 41 YEARS,
RESIDENT OF BHUSAPPA CHOUK,
KARUBAR ONI,
HUBBALLI-DHARWAD CITY - 580 001.
5. SRI MAHABALESHWAR HONGAL @ MUDAKA
S/O MALLAPA HONGAL
AGED ABOUT 38 YEARS,
RESIDENT OF VILLAGE GOVANAKOPPA
HUBBALLI-DHARWAD CITY - 580 001.
... PETITIONERS
(BY SRI C.V.NAGESH, SR.ADVOCATE A/W
SRI SUNIL KUMAR S., ADVOCATE)
AND:
1 . CENTRAL BUREAU OF INVESTIGATION
ANTI CORRUPTION BRANCH,
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR,
36, BELLARY ROAD, KGH LAYOUT
GANGANAGAR,
BENGALURU - 560 032.
2 . SMT. MALLAVVA GOUDAR,
W/O. YOGISHGOUDAGOUDAR,
AGED ABOUT 34 YEARS,
RESIDING AT GOVANAKOPPA,
DHARWAD - 580 112.
... RESPONDENTS
(BY SRI P.PRASANNA KUMAR, SPL.PP FOR R-1)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED ORDER
DATED 28.06.2024 PASSED BY THE LXXXI ADDL.CITY CIVIL AND
SESSIONS JUDGE BENGALURU SPL.COURT EXCLUSIVELY TO
3
DEAL WITH CRIMINAL CASES RELATED TO ELECTED MP/MLA IN
THE STATE OF KARNATAKA IN SPL.C.C.NO.565/2021 FOR
OFFENCES P/U/S 143, 147, 148, 120B, 302, 201 R/W SECTION
149 OF THE IPC AND UNDER SEC.25 R/W 3, 5, 8, 29 OF ARMS
ACT IN SO FAR AS THE PETITIONERS ARE CONCERNED AND
CONSEQUENTLY DIRECT THE LD.TRIAL COURT TO CONDUCT
FURTHER TRIAL IN ACCORDANCE WITH LAW.
IN WRIT PETITION No.18539 OF 2024
BETWEEN:
SRI BASAVARAJ SHIVAPPA MUTTHAGI
S/O SHIVAPPA MUTTHAGI
AGED ABOUT 45 YEARS
RESIDING AT MANAGUNDI
DHARWAD TALUK
AND DISTRICT - 580 007.
... PETITIONER
(BY SRI NAGENDRA NAIK R., ADVOCATE)
AND:
1 . CENTRAL BUREAU OF INVESTIGATION
ACB, GANGANAGAR
BENGALURU
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
2 . STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF HOME
VIDHANA SOUDHA
4
BENGALURU - 560 001.
... RESPONDENTS
(BY SRI P.PRASANNA KUMAR, SPL.PP FOR R-1;
SRI B.N.JAGADEESHA, ADDL.SPP FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 528
OF BHARATIYA NYAYA SURAKSHA SANHITHA - 2023, PRAYING
TO QUASH THE ORDER DATED 28/06/2024 PASSED BY LXXXI
ADDL. CITY CIVIL AND SESSIONS JUDGE AT BENGALURU IN
SPL. CC NO. 565/2021[CCH-82] AS PER ANNEXURE-A IN SO FAR
AS THE PETITIONER IS CONCERNED.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 13.08.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioners are before this Court calling in question an
order dated 28-06-2024 passed by the LXXXI Additional City Civil
and Sessions Judge, Bengaluru in Special C.C.No.565 of 2021
directing re-trial to be conducted as obtaining in Section 216(4)
of the Cr.P.C. and the procedure prescribed under Sections 230
5
and 231 thereof to be followed for conduct of such trial.
Petitioners in Criminal Petition No.7467 of 2024 are accused Nos.
2 to 6 and petitioner in Writ Petition No.18539 of 2024 is
accused No.1 in Special C.C.No.565 of 2021.
2. Shorn of unnecessary details, facts in brief, germane,
are as follows:-
The history of the case dates back to 15-06-2016 on which
day a complaint comes to be registered by one Smt. Mallavva
Goudar alleging offence punishable under Section 302 of the IPC
on the murder of her husband Yogesh Goudar, who was a
member of Zilla Panchayat, Dharwad, against unknown persons.
The complaint was registered before the Sub-Urban Police
Station, Dharwad. The Police conduct investigation and file a
charge sheet against 6 persons on 09-09-2016. The concerned
Court took cognizance of the offence against those 6 accused for
offences punishable under Sections 143, 147, 148, 120B, 302,
201 r/w Section 149 of the IPC and committed the case to the
Court of Sessions. The Court of Sessions in terms of its order
dated 14-09-2017 registers the case as S.C.No.50 of 2017 and
frames charges against accused Nos. 1 to 6. The trial continued
6
for 2 years between 2017 and 2019 during which 63 witnesses
were examined.
3. The mother and brother of the deceased prefers writ
petitions before this Court in Writ Petition Nos.58183-58184 of
2017 seeking further investigation from the hands of the Central
Bureau of Investigation ('CBI'). The said writ petitions come to
be dismissed on 01-03-2019. This becomes final, as the Apex
Court in a challenge to the said order also dismissed the
petitions. During the pendency of trial, an application comes to
be filed by the brother of the deceased under Section 319 of the
Cr.P.C. to array additional accused into the web of trial. This
also comes to be dismissed. In the meanwhile, Government of
Karnataka, in terms of its order dated 06-09-2019 accords
sanction for conduct of further investigation at the hands of the
CBI in respect of the crime in Crime No.135 of 2016. It is here
the CBI enters the scene. The CBI on 24-09-2019 registers a
fresh FIR in RC 17(S)/2019/CBI/ACB/BLR against accused Nos. 1
to 6 and other unknown persons for the offences punishable
under Sections 143, 147, 148, 120B, 302, 201 r/w Section 149
of the IPC. Accused No.1 prefers writ petition before this Court
7
in Writ Petition No.51012 of 2019 seeking quashment of order
dated 06-09-2019 entrusting the matter to the CBI. This Court
dismissed the petition in terms of its order dated 19-11-2019.
Then begins complete investigation by the CBI.
4. First supplemental charge sheet was filed arraigning 14
accused in all, as against 6 that were arraigned earlier. A second
supplemental charge sheet was filed arraigning 3 more accused
on 30-01-2021. It is here the then Minister in-charge of Dharwad
District comes into the web of trial as accused No.15.
Investigation did not stop. A third supplemental charge sheet
was filed by the CBI arraigning 4 more accused as accused Nos.
18 to 21. In all, the trial now is against 21 accused. The Special
Court takes cognizance of all the supplemental charge sheets
mentioned hereinabove. The issue in the lis at this juncture does
not concern merit of the matter before the concerned Court. The
CBI which had conducted further investigation and filed three
supplemental charge sheets is said to have been in gross
variance of the charge sheet that was filed by the State before
entrustment of the matter to the hands of the CBI. The
concerned Court initiates proceedings under Section 216 of the
8
Cr.P.C. for alteration of charge and passes an order under
Section 216(4) for conduct of trial and for the said purpose
prosecution was given liberty to examine witnesses as
contemplated under Sections 230 and 231 of the Cr.P.C. in
terms of its order dated 28-06-2024. It is this order of direction
for conduct of new trial or re-trial under Section 216(4) of the
Cr.P.C., for which the prosecution is permitted to examine
witnesses as obtaining under Sections 230 and 231 of the Cr.P.C.
is what has driven these accused to this Court at this juncture.
5. Heard Sri C.V. Nagesh, learned senior counsel appearing
for the petitioners in Criminal Petition No.7467 of 2024;
Sri R. Nagendra Naik, learned counsel appearing for the
petitioner in W.P.No.18539 of 2024 and Sri P.Prasanna Kumar,
learned Special Public Prosecutor representing the CBI in both
these cases and Sri B N Jagadeesha, learned Additional State
Public Prosecutor appearing for the State.
6. The learned senior counsel Sri C V Nagesh has
vehemently contended that conduct of trial under Section 216(4)
of the Cr.P.C. would amount to a de-novo trial; new trial or a re-
9
trial, result of which would be effacement of entire evidence that
is on record, as on the date of passing of the order. Therefore,
he would contend that it is the power of the Appellate Court to
order re-trial or de-novo trial and not the concerned Court
invoking its power under Section 216(4) of the Cr.P.C. He would
seek to place reliance upon following judgments to buttress his
submissions:
(i) NASIB SINGH v. STATE OF PUNJAB1
(ii) AJAY KUMAR GHOSHAL v. STATE OF BIHAR2
and
(iii) SUNITA DEVI v. STATE OF BIHAR3
The learned senior counsel would further contend that the power
under Section 216 is restricted to examination of witnesses. It
cannot stretch to grant of permission to the prosecution under
Sections 230 and 231 of the Cr.P.C. to examine the witnesses all
over again. To buttress his submission on the said issue, he
would seek to place reliance upon the following judgments:
(i) JASVINDER SAINI v. STATE (GOVT. OF NCT OF
DELHI) - (2013) 7 SCC 256
1
(2022) 2 SCC 89
2
(2017) 12 SCC 699
3
2024 SCC OnLine SC 984
10
(ii) R.RACHAIAH v. HOME SECRETARY,BANGALORE
- (2016) 12 SCC 172.
(iii) MADHUSUDAN v. STATE OF MAHDYA PRADESH -
Crl.A.No.1509 of 2010 decided on 02-05-2024
(iv) SHIVAPPA v. STATE OF KARNATAKA - Crl.R.P.No.
100280 of 2022 decided on 7-02-2024
It is the emphatic submission of the learned senior counsel that
the concerned Court has observed that the evidence that is
already let in by the State before the entry of CBI would also be
taken note of and a new trial under Section 216(4) is sought to
be conducted. He would seek quashment of the order and a
direction to the concerned Court to proceed with the evidence
that is already in place, as placed by the State, while filing the
charge sheet and conduct of trial or at the best it can be a
proceeding or procedure under Section 217 of the Cr.P.C. and
the new trial cannot be permitted. The learned counsel
representing the petitioner in the companion writ petition would
toe the lines of the learned senior counsel and add that under
sub-section (4) of Section 319 when additional accused are
added, it would not mean that altogether a new trial should
commence. The examination of those witnesses would take place
and the trial that has already commenced would continue. He
11
would draw parallel to the said principle for a proceeding under
Section 216 of the Cr.P.C. as well. In all, both the counsel, in
unison, would seek quashment of the impugned order.
7. Per contra, learned Special Public Prosecutor
Sri P. Prasanna Kumar representing the CBI would vehemently
refute both these submissions. He would contend that it is
permissible for a Court to order for new trial under Section
216(4) of the Cr.P.C. if the Court feels that any of the party
either the prosecution or the accused would be prejudiced if
there is an alteration of charge under Section 216. It is his
submission that the CBI undoubtedly gets prejudiced if a new
trial is not conducted. He would take this Court through the
statement of objections, with particular reference to the
comparative chart between the investigation conducted, charge
sheets filed by the State and by the CBI to demonstrate that
they are at complete variance. Therefore, a new trial was
imperative and for conduct of a trial under Section 216(4), the
procedure under Sections 230 and 231 of the Cr.P.C. is
necessary to be followed. It is his submission that if Section
216(4) had not happened in the case at hand, all the evidence
collected by the CBI and placed before the Court by the three
12
supplemental charge sheets would vanish in thin air and the
guilty would get away scot free, as the investigation conducted
and the charge sheet filed by the State were absolutely shoddy.
He would seek dismissal of the petitions.
8. The learned counsel appearing for the petitioners would
join issue to contend that either of the parties should plead
prejudice and only then a new trial can be conducted. No party
herein has pleaded any prejudice. As a matter of fact the
conduct of new trial would undoubtedly prejudice the accused in
the case at hand. Therefore, the Court by itself could not have
initiated proceedings under Section 216 of the Cr.P.C. for
conduct of a new trial or alteration of charge.
9. I have given my anxious consideration to the
submissions made by the respective learned counsel and have
perused the material on record.
10. The issue that falls for consideration at this juncture is,
whether Section 216 of the Cr.P.C. permits alteration of
charge, when the trial was at an advanced stage and if
13
alteration of charge would ensue, whether the procedure
under Sections 216(4), 217 or 230 and 231 of the Cr.P.C.
should be followed? Therefore, I deem it appropriate to notice
the aforesaid statutory provisions. They read as follows:
"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 is such that
proceeding immediately with the trial is likely, in the
opinion of the 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 has been already
obtained for a prosecution on the same facts as those on
which the altered or added charge is founded.
217. Recall of witnesses when charge altered.--
Whenever a charge is altered or added to by the Court after
the commencement of the trial, the prosecutor and the
accused shall be allowed--
(a) to recall or re-summon, and examine with reference to
such alteration or addition, any witness who may have
14
been examined, unless the Court, for reasons to be
recorded in writing, considers that the prosecutor or
the accused, as the case may be, desires to recall or
re-examine such witness for the purpose of vexation or
delay or for defeating the ends of justice;
(b) also to call any further witness whom the Court may
think to be material.
... ... ...
230. Date for prosecution evidence.--If the
accused refuses to plead, or does not plead, or claims to be
tried or is not convicted under Section 229, the Judge shall
fix a date for the examination of witnesses, and may, on the
application of the prosecution, issue any process for
compelling the attendance of any witness or the production
of any document or other thing.
231. Evidence for prosecution.--(1) On the date so
fixed, the Judge shall proceed to take all such evidence as
may be produced in support of the prosecution.
(2) The Judge may, in his discretion, permit the cross-
examination of any witness to be deferred until any other
witness or witnesses have been examined or recall any
witness for further cross-examination."
Section 216 of the Cr.P.C. deals with power of the Court to alter
or add to any charge at any time before judgment is pronounced.
Therefore, the statute itself empowers the Court to add or alter
any charge at any time even after reserving the matter for its
judgment. The procedure is stipulated therein. Sub-section (4)
of Section 216 of the Cr.P.C. directs that if alteration or addition
is such that proceeding immediately with the trial is likely, in the
opinion of the Court, would prejudice the accused or the
15
prosecutor, either direct a new trial or adjourn the trial for such
period as may be necessary.
11. Two factors would spring in for consideration qua the
language deployed in sub-section (4) of Section 216 or in Section
216 itself. The issue whether the Court is empowered to alter the
charge when the trial is at an advance stage or nearing
completion as the case would be, need not detain this Court for
long or delve deep to interpret the said provision. The Apex
Court in the case of ANANT PRAKASH SINHA v. STATE OF
HARYANA4 has held as follows:-
".... .... ....
18. From the aforesaid, it is graphic that the court can
change or alter the charge if there is defect or something is
left out. The test is, it must be founded on the material
available on record. It can be on the basis of the
complaint or the FIR or accompanying documents or
the material brought on record during the course of
trial. It can also be done at any time before
pronouncement of judgment. It is not necessary to
advert to each and every circumstance. Suffice it to
say, if the court has not framed a charge despite the
material on record, it has the jurisdiction to add a
charge. Similarly, it has the authority to alter the
charge. The principle that has to be kept in mind is
that the charge so framed by the Magistrate is in
accord with the materials produced before him or if
subsequent evidence comes on record. It is not to be
understood that unless evidence has been let in,
4
(2016) 6 SCC 105
16
charges already framed cannot be altered, for that is
not the purport of Section 216 CrPC.
19. In addition to what we have stated
hereinabove, another aspect also has to be kept in
mind. It is obligatory on the part of the court to see
that no prejudice is caused to the accused and he is
allowed to have a fair trial. There are in-built
safeguards in Section 216 CrPC. It is the duty of the
trial court to bear in mind that no prejudice is caused
to the accused as that has the potentiality to affect a
fair trial. It has been held in Amar Singh v. State of
Haryana [Amar Singh v. State of Haryana, (1974) 3 SCC 81 :
1973 SCC (Cri) 789] that the accused must always be
made aware of the case against him so as to enable
him to understand the defence that he can lead. An
accused can be convicted for an offence which is minor than
the one he has been charged with, unless the accused
satisfies the court that there has been a failure of justice by
the non-framing of a charge under a particular penal
provision, and some prejudice has been caused to the
accused. While so stating, we may reproduce the following
two passages from Bhimanna v. State of
Karnataka [Bhimanna v. State of Karnataka, (2012) 9 SCC
650 : (2012) 3 SCC (Cri) 1210]: (SCC pp. 659-60, paras 25-
26)
"25. Further, the defect must be so serious that it
cannot be covered under Sections 464/465 CrPC, which
provide that, an order of sentence or conviction shall not be
deemed to be invalid only on the ground that no charge was
framed, or that there was some irregularity or omission or
misjoinder of charges, unless the court comes to the
conclusion that there was also, as a consequence, a failure
of justice. In determining whether any error, omission or
irregularity in framing the charges has led to a failure of
justice, this Court must have regard to whether an objection
could have been raised at an earlier stage during the
proceedings or not. While judging the question of prejudice
or guilt, the court must bear in mind that every accused has
a right to a fair trial, where he is aware of what he is being
tried for and where the facts sought to be established
against him, are explained to him fairly and clearly, and
further, where he is given a full and fair chance to defend
himself against the said charge(s).
26. This Court in Sanichar Sahni v. State of
Bihar [Sanichar Sahni v. State of Bihar, (2009) 7 SCC 198:
17
(2009) 3 SCC (Cri) 347], while considering the issue placed
reliance upon various judgments of this Court particularly
on Topandas v. State of Bombay [Topandas v. State of
Bombay, AIR 1956 SC 33: 1956 Cri LJ 138], Willie (William)
Slaney v. State of M.P. [Willie (William) Slaney v. State of
M.P., AIR 1956 SC 116 : 1956 Cri LJ 291]
, Fakhruddin v. State of M.P. [Fakhruddin v. State of M.P.,
AIR 1967 SC 1326: 1967 Cri LJ 1197], State of A.P.
v. Thakkidiram Reddy [State of A.P. v. Thakkidiram Reddy,
(1998) 6 SCC 554: 1998 SCC (Cri) 1488], Ramji
Singh v. State of Bihar [Ramji Singh v. State of Bihar,
(2001) 9 SCC 528 : 2002 SCC (Cri) 760] and Gurpreet
Singh v. State of Punjab [Gurpreet Singh v. State of Punjab,
(2005) 12 SCC 615 : (2006) 1 SCC (Cri) 191] and came to
the following conclusion: (Sanichar Sahni case [Sanichar
Sahni v. State of Bihar, (2009) 7 SCC 198: (2009) 3 SCC
(Cri) 347] , SCC p. 204, para 27)
'27. Therefore ... unless the convict is able to establish that
defect in framing the charges has caused real prejudice to him and
that he was not informed as to what was the real case against him
and that he could not defend himself properly, no interference is
required on mere technicalities. Conviction order in fact is to be
tested on the touchstone of prejudice theory.'
A similar view has been reiterated in Abdul Sayeed v. State
of M.P. [Abdul Sayeed v. State of M.P., (2010) 10 SCC 259:
(2010) 3 SCC (Cri) 1262] "
20. We have reproduced the aforesaid passages by
abundant caution so that while adding or altering a charge
under Section 216 CrPC, the trial court must keep both the
aforestated principles in view. The test of prejudice, as has
been stated in the aforesaid judgment, has to be borne in
mind."
(Emphasis supplied)
Later, the Apex Court in the case of Dr. NALLAPAREDDY
SRIDHAR REDDY v. STATE OF ANDHRA PRADESH5 has held
as follows:
".... .... ....
5
(2020) 12 SCC 467
18
16. Section 216 appears in Chapter XVII CrPC.
Under the provisions of Section 216, the court is
authorised to alter or add to the charge at any time
before the judgment is pronounced. Whenever such an
alteration or addition is made, it is to be read out and
explained to the accused. The phrase "add to any
charge" in sub-section (1) includes addition of a new
charge. The provision enables the alteration or
addition of a charge based on materials brought on
record during the course of trial. Section 216 provides
that the addition or alteration has to be done "at any
time before judgment is pronounced". Sub-section (3)
provides that if the alteration or addition to a charge
does not cause prejudice to the accused in his defence,
or the prosecutor in the conduct of the case, the court
may proceed with the trial as if the additional or
alternative charge is the original charge. Sub-section
(4) contemplates a situation where the addition or
alteration of charge will prejudice the accused and
empowers the court to either direct a new trial or
adjourn the trial for such period as may be necessary
to mitigate the prejudice likely to be caused to the
accused. Section 217 CrPC deals with recalling of
witnesses when the charge is altered or added by the
court after commencement of the trial.
17. The decision of a two-Judge Bench of this Court
in P. Kartikalakshmi v. Sri Ganesh [P. Kartikalakshmi v. Sri
Ganesh, (2017) 3 SCC 347 : (2017) 2 SCC (Cri) 84] , dealt
with a case where during the course of a trial for an offence
under Section 376 IPC, an application under Section 216 was
filed to frame an additional charge for an offence under
Section 417 IPC. F.M. Ibrahim Kalifulla, J. while dealing with
the power of the court to alter or add any charge, held :
(SCC p. 350, para 6)
"6. ... 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
19
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 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."
(emphasis supplied)
18. In Anant Prakash Sinha v. State of Haryana [Anant
Prakash Sinha v. State of Haryana, (2016) 6 SCC 105 :
(2016) 2 SCC (Cri) 525] , a two-Judge Bench of this Court
dealt with a situation where for commission of offences under
Sections 498-A and 323 IPC, an application was filed for
framing an additional charge under Section 406 IPC against
the husband and the mother-in-law. After referring to various
decisions of this Court that dealt with the power of the court
to alter a charge, Dipak Misra, J. (as the learned Chief Justice
then was), held : (SCC p. 116, paras 18-19)
"18. ... the court can change or alter the charge if
there is defect or something is left out. The test is, it must
be founded on the material available on record. It can be on
the basis of the complaint or the FIR or accompanying
documents or the material brought on record during the
course of trial. It can also be done at any time before
pronouncement of judgment. It is not necessary to advert to
each and every circumstance. Suffice it to say, if the court
has not framed a charge despite the material on record, it
has the jurisdiction to add a charge. Similarly, it has the
authority to alter the charge. The principle that has to be
kept in mind is that the charge so framed by the Magistrate
is in accord with the materials produced before him or if
subsequent evidence comes on record. It is not to be
understood that unless evidence has been let in, charges
already framed cannot be altered, for that is not the purport
of Section 216 CrPC.
19. In addition to what we have stated hereinabove,
another aspect also has to be kept in mind. It is obligatory
on the part of the court to see that no prejudice is caused to
the accused and he is allowed to have a fair trial. There are
in-built safeguards in Section 216 CrPC. It is the duty of the
trial court to bear in mind that no prejudice is caused to the
accused as that has the potentiality to affect a fair trial."
(emphasis supplied)
20
19. In CBI v. Karimullah Osan Khan [CBI v.
Karimullah Osan Khan, (2014) 11 SCC 538 : (2014) 3 SCC
(Cri) 437] , this Court dealt with a case where an application
was filed under Section 216 CrPC during the course of trial
for addition of charges against the appellant under various
provisions of IPC, the Explosives Act, 1884 and the Terrorist
and Disruptive Activities (Prevention) Act, 1987. K.S.P.
Radhakrishnan, J. speaking for the Court, held thus : (SCC p.
546, paras 17-18)
"17. Section 216 CrPC gives considerable power to
the trial court, that is, even after the completion of
evidence, arguments heard and the judgment reserved, it
can alter and add to any charge, subject to the conditions
mentioned therein. The expressions "at any time" and
before the "judgment is pronounced" would indicate that the
power is very wide and can be exercised, in appropriate
cases, in the interest of justice, but at the same time, the
courts should also see that its orders would not cause any
prejudice to the accused.
18. Section 216 CrPC confers jurisdiction on all
courts, including the Designated Courts, to alter or
add to any charge framed earlier, at any time before
the judgment is pronounced and sub-sections (2) to
(5) prescribe the procedure which has to be followed
after that addition or alteration. Needless to say, the
courts can exercise the power of addition or
modification of charges under Section 216 CrPC, only
when there exists some material before the court,
which has some connection or link with the charges
sought to be amended, added or modified. In other
words, 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."
(emphasis supplied)
20. In Jasvinder Saini v. State (NCT of Delhi)
[Jasvinder Saini v. State (NCT of Delhi), (2013) 7 SCC 256:
(2013) 3 SCC (Cri) 295] , this Court dealt with the question
whether the trial court was justified in adding a charge under
Section 302 IPC against the accused persons who were
charged under Section 304-B IPC. T.S. Thakur, J. (as he then
was) speaking for the Court, held thus : (SCC pp. 260-61,
para 11)
"11. A plain reading of the above would show that
the court's power to alter or add any charge is unrestrained
21
provided such addition and/or alteration is made before the
judgment is pronounced. Sub-sections (2) to (5) of Section
216 deal with the procedure to be followed once the court
decides to alter or add any charge. Section 217 of the Code
deals with the recall of witnesses when the charge is altered
or added by the court after commencement of the trial.
There can, in the light of the above, be no doubt about the
competence of the court to add or alter a charge at any time
before the judgment. The circumstances in which such
addition or alteration may be made are not, however,
stipulated in Section 216. It is all the same trite that the
question of any such addition or alternation would 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."
(emphasis supplied)
21. From the above line of precedents, it is clear
that Section 216 provides the court an exclusive and
wide-ranging power to change or alter any charge. The
use of the words "at any time before judgment is
pronounced" in sub-section (1) empowers the court to
exercise its powers of altering or adding charges even
after the completion of evidence, arguments and
reserving of the judgment. The alteration or addition of
a charge may be done if in the opinion of the court
there was an omission in the framing of charge or if
upon prima facie examination of the material brought
on record, it leads the court to form a presumptive
opinion as to the existence of the factual ingredients
constituting the alleged offence. The test to be adopted
by the court while deciding upon an addition or
alteration of a charge is that the material brought on
record needs to have a direct link or nexus with the
ingredients of the alleged offence. Addition of a charge
merely commences the trial for the additional charges,
whereupon, based on the evidence, it is to be
determined whether the accused may be convicted for
the additional charges. 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 the
court's power is the prejudice likely to be caused to
the accused by the addition or alteration of charges.
Sub-section (4) accordingly prescribes the approach to
22
be adopted by the courts where prejudice may be
caused."
(Emphasis supplied)
In the light of the elucidation by the Apex Court interpreting
Section 216 of the Cr.P.C. it would unmistakably emerge that the
concerned Court, even after reserving the matter for its
judgment, is empowered to alter or add to any charge.
Therefore, the power is recognized. The procedure runs down
therein. Sub-section (4) of Section 216, as observed
hereinabove, if an order of alteration or addition is likely to cause
prejudice to the accused or the prosecution, the Court may on its
own motion or on an application direct conduct of a new trial.
After the order under Section 216(4) two options become open -
the first one being, Section 217 for recalling of witnesses when
the charge is altered and the second being, the Court has an
obligation to recall the witnesses on the altered charge.
12. There is yet another procedure that the Court is
empowered to after framing of charges on the alteration of
charges. The procedure stipulated is under Sections 230 and 231
of the Cr.P.C. They deal with fixing the date for prosecution
evidence and the evidence of the prosecution in terms of Section
23
231 qua the charges that are framed. What the Court has now
chosen to do is conduct of a new trial. The procedure under
Sections 230 and 231 of the Cr.P.C. is directed to be followed.
The learned senior counsel has strenuously contended that this is
only the power of the appellate Court under Section 386 of the
Cr.P.C. Even there, the learned senior counsel would contend,
that re-trial cannot be ordered except in extraordinary
circumstance. That would efface all the earlier evidence that was
brought in at the time of trial. The judgments that he places
reliance, which are noted supra, deal with the said principle.
13. There can no qualm as to what the Apex Court has
held qua the power under Section 386 of the Cr.P.C. rendered to
the appellate Court. Dictionary meaning of 'trial', 'de-novo trial',
and 'new trial' is sought to be projected again. This Court has
not generated any obfuscation for a reference to the dictionary
meaning for what these phrases would mean. The power of the
appellate Court is always available to do complete justice in the
event it notices failure of justice. The issue now would be, what
is the procedure to be followed when the charge is altered under
Section 216 of the CrPC. The Apex Court considers the purport of
24
Section 216 qua new trial in P.KARTIKALAKSHMI v. SRI
GANESH6 wherein it is 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 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.
7. 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
6
(2017) 3 SCC 347
25
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 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."
The Apex Court holds the power under Section 216 is exclusive
to the Court and there is no right in any party, neither the
complainant nor the accused nor the prosecution to seek addition
or alteration by filing any application as a matter of right.
Therefore the submission of the learned senior counsel that one
of the parties should plead prejudice and then only the Court is
empowered to conduct a new trial under Section 216(4) of the
Cr.P.C. would tumble down.
14. The Apex Court, again, considering the purport of
Section 216 holds that it is the duty of the Court to see that the
26
alteration of charge does not prejudice the accused. If on the
alteration of charge new trial would not be undertaken, it would
undoubtedly prejudice either of the parties, in the case at hand,
the prosecution. Therefore, the Apex Court in the case of
CENTRAL BUREAU OF INVESTIGATION v. KARIMULLAH
OSAN KHAN7 has held as follows:
".... .... ....
17. Section 216 CrPC gives considerable power to
the trial court, that is, even after the completion of
evidence, arguments heard and the judgment
reserved, it can alter and add to any charge, subject to
the conditions mentioned therein. The expressions "at
any time" and before the "judgment is pronounced"
would indicate that the power is very wide and can be
exercised, in appropriate cases, in the interest of
justice, but at the same time, the courts should also
see that its orders would not cause any prejudice to
the accused.
18. Section 216 CrPC confers jurisdiction on all courts,
including the Designated Courts, to alter or add to any
charge framed earlier, at any time before the judgment is
pronounced and sub-sections (2) to (5) prescribe the
procedure which has to be followed after that addition or
alteration. Needless to say, the courts can exercise the power
of addition or modification of charges under Section 216
CrPC, only when there exists some material before the court,
which has some connection or link with the charges sought to
be amended, added or modified. In other words, 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.
(See Harihar Chakravarty v. State of W.B. [(1953) 2 SCC 409
: AIR 1954 SC 266 : 1954 Cri LJ 724] ) Merely because the
charges are altered after conclusion of the trial, that itself will
not lead to the conclusion that it has resulted in prejudice to
7
(2014) 11 SCC 538
27
the accused because sufficient safeguards have been built in
in Section 216 CrPC and other related provisions."
The High Court of Gujarat in SANJAY RATILAL SHAH v. STATE
OF GUJARAT8 has held as follows:
".... ... ...
3. Learned advocate, Mr. Thakkar, for the applicant
submitted that as per the prosecution case, at the time when
the sample of turmeric powder was collected, at that time,
applicant - original accused No. 1 Sanjay was present and in
his presence the sample was collected by the FI. The original
accused No. 2 Ratilal Chandhlal Shah was arraigned as co-
accused on the ground that he was owner of the shop. It is
submitted that if the charge, Exh.90 is considered, it is
stated in the charge that at the time when the sample was
collected by the FI from the shop, at that time, original
accused No. 2 Ratilal Chandulal Shah was present, and in his
presence, sample was lifted. It is submitted that thereafter
the trial Court recorded evidence adduced by the
prosecution. After the prosecution concluded its evidence, the
trial Court recorded further statements of both the accused
u/s.313 of the Cr. P.C. and when the criminal case was
posted for pronouncement of judgment, at that time on
behalf of the complainant, an application, Exh.111 was
presented before the trial Court for alteration of charge to
the effect that the charge should be read that at the time
when the sample was lifted, accused No. 1 Sanjay was
present. The said application came to be allowed on dated
31.5.1995. It is submitted that thus, the material alteration
was made in the charge by the trial Court wherein the
alleged main accused was treated as abettor and the alleged
abettor was treated as main accused. My attention was
drawn to sub-Section 4 of Section 216 of the Cr.P.C. and
submitted that in such situation, the trial Court should have
directed trial afresh and, thereafter, the judgment should
have been pronounced.
3.1 Learned advocate, Mr. Thakkar, for the
applicant accused No. 1 submitted that considering the
8
2010 SCC OnLine Guj.1518
28
evidence of FI, it is quite clear that there is outright
violation of Rule 14 of the PFA Rules, in the sense that no
evidence is adduced by the FI as to who, how and when
the glass jars wherein turmeric powder was collected for
the purpose of sample were cleaned and dried. It is,
therefore, submitted that the non-compliance of
mandatory provisions contained under Rule 14 would be
sufficient enough to acquit the applicant - accused.
3.2 Learned advocate, Mr. Thakkar, for the
applicant - accused further submitted that considering the
evidence of FI and the relevant provisions of the PFA
Rules, it is clear that the FI was not possessing requisite
qualification.
3.3 Ultimately, it is submitted that the revision
application may be allowed and the impugned judgments
rendered by the trial Court and by the first Appellate
Court be set-aside and the applicant - original accused
No. 1 be acquitted of all the charges levelled against him.
... ... ...
6. At the outset, it is required to be considered that
the prosecution case, as it stood, was to the effect that at the
time when the FI lifted sample of turmeric powder, at that
time, applicant - original accused No. 1 Sanjay was present
in the shop and the shop was owned by original accused No.
2 Ratilal Chandulal Shah. In the aforesaid background, if the
initial charge framed by the trial Court at Exh.90 is
considered, the situation seems to be otherwise, in the sense
that, the original accused No. 2 Ratilal was described as the
person who was present in the shop at the time when the FI
lifted the sample. On the basis of such charge, the entire oral
and documentary evidence was adduced by the prosecution
and the trial Court recorded further statements of both the
accused under Section 313 of the Cr.P.C. When the trial
Court posted the criminal case for pronouncement of
judgment, on behalf of the complainant FI, an application
was tendered before the trial Court at Exh.111 for alteration
of charge, requesting that the charge may be altered to the
effect that at the time when the sample was lifted by the FI,
accused No. 1 Sanjay was present. It appears that said
application came to be allowed by the trial Court on dated
31.5.1995. However, it is true that both the accused were
asked as to whether they pleaded guilty to the altered charge
or not and none of them pleaded guilty. Thereafter, the trial
Court rendered the impugned judgment and order recording
29
the conviction of the applicant - accused No. 1 dated
7.6.1995."
The High Court of Gujarat holds that if alteration of charge
causes prejudice to the accused, a new trial should be directed.
The Apex Court in the case of R.RACHAIAH v. HOME
SECRETARY, BANGALORE9 has held as follows:
".... .... ....
10. The bare reading of Section 216 reveals that
though it is permissible for any court to alter or add to any
charge at any time before judgment is pronounced, certain
safeguards, looking into the interest of the accused person
who is charged with the additional charge or with the
alteration of the additional charge, are also provided
specifically under sub-sections (3) and (4) of Section 216 of
the Code. Sub-section (3), in no uncertain term, stipulates
that with the alteration or addition to a charge if any
prejudice is going to be caused to the accused in his defence
or the prosecutor in the conduct of the case, the Court has to
proceed with the trial as if it altered or added the original
charge by terming the additional or alternative charge as
original charge. The clear message is that it is to be treated
as charge made for the first time and trial has to proceed
from that stage. This position becomes further clear from the
bare reading of sub-section (4) of Section 216 of the Code
which empowers the Court, in such a situation, to either
direct a new trial or adjourn the trial for such period as may
be necessary. A new trial is insisted if the charge is
altogether different and distinct.
11. Even if the charge may be of same species, the
provision for adjourning the trial is made to give sufficient
opportunity to the accused to prepare and defend himself. It
is, in the same process, Section 217 of the Code provides
that whenever a charge is altered or added by the court after
the commencement of the trial, the prosecutor as well as the
accused shall be allowed to recall or resummon or examine
any witnesses who have already been examined with
9
(2016) 12 SCC 172
30
reference to such alteration or addition. In such
circumstances, the court is to even allow any further witness
which the court thinks to be material in regard to the altered
or additional charge."
The Apex Court holds that mandatory procedure under Sections
216 and 217 of the Cr.P.C. should be followed upon alteration or
addition of charge and if the charge is altogether different and
distinct, a new trial is to be insisted.
15. The issue would be, by passing an order under Section
216(4) of the Cr.P.C. whether it would be axiomatic that it would
lead to a new trial or there should be a specific order for such
new trial to be conducted. The Apex Court considers this issue in
RANBIR YADAV v. STATE OF BIHAR10 wherein it is held as
follows:
".... .... ....
23. The matter can be viewed from another angle
also. Section 216 of the Code empowers the court to alter or
add to any charge at any time before the judgment is
pronounced and provides that after such alteration or
addition of the charge the court is required to read and
explain the same to the accused in accordance with sub-
section (2) thereof. It is further laid down under sub-section
(3) that if in the opinion of the court the alteration or
addition to a charge is not likely to prejudice the accused in
his defence or the prosecutor in the conduct of the case the
court may in its discretion proceed with the trial immediately
with the altered or added charge. Sub-section (4) provides
that if the alteration or addition is such that the proceeding
10
(1995) 4 SCC 392
31
immediately with the trial is likely to prejudice the accused or
the prosecutor the court may either direct a new trial or
adjourn the trial for such period as may be necessary.
Section 217 of the Code provides that whenever a charge is
altered or added to by the court after the commencement of
the trial the prosecutor and the accused shall be allowed to
recall or to summon and examine with reference to such
alteration or addition any witness who has already been
examined unless the court for reasons to be recorded in
writing considers that the desire to recall or re-examine such
witness was only for the purposes of vexation or delay or
defeating the ends of justice. Besides, it permits the
prosecutor and the accused to call any further witness whom
the court may think to be material. On a combined reading of
the above two sections it is, therefore, evident that after an
alteration or addition of the charge the interest of the
prosecution and the accused has to be safeguarded by
permitting them to further examine or cross-examine the
witness already examined, as the case may be, and by
affording them an opportunity to call other witnesses. It is
undoubtedly true that discretion has been given to the court
to direct a new trial after addition or alteration of any charge,
but it does not mean that every such addition or alteration in
the charge which has been read over and explained to the
accused would lead to inevitable inference that the court has
directed a new trial for them. It, therefore, follows that
unless the court passes a specific order and directs a new
trial it cannot be presumed that a new trial has commenced
only because an alteration or addition to a charge which has
been read over and explained to the accused has been made.
Indeed the order dated 30-4-1987 shows that while directing
the prosecution to examine the 4 witnesses afresh the 5th
Court adjourned the case for further trial and did not direct
fresh trial. This apart, any such direction given by the court
has to be judged on the touchstone of prejudice to the
accused or the prosecution. In the instant case, as has
already been noticed after the addition of charges the
prosecution expressly stated that they did not want to further
examine the four witnesses already examined but they were
willing to produce them if the accused so wanted. The
accused, however, did not avail of this opportunity in
accordance with Section 217 of the Code and, therefore, it is
too late in the day for them to raise a grievance on that
score. We hasten to add that even if we had found that there
was any irregularity in the continuation of the trial against
the appellants after the additional charges were framed, we
32
would not have been justified in setting aside the impugned
judgment on that ground alone for there is not an iota of
material on record wherefrom it can be said that a failure of
justice has occasioned thereby. To put it differently, in our
view in such a case Section 465 of the Code would have
squarely applied."
The Apex Court holds that a specific order for a new trial is
imperative when Section 216(4) power is exercised by the
concerned Court. Therefore, none of the submissions that are
projected by the learned senior counsel that the power under
Section 216(4) of the Cr.P.C. for conduct of a new trial would
amount to exercise of power under Section 386 of the Cr.P.C.,
which is the power of the appellate Court are acceptable, as the
Apex Court clearly holds the power of the concerned Court to
alter or add a charge and on such alteration procedure under
Sections 217, 230 and 231 is to be followed.
16. As observed hereinabove, the learned senior counsel
for the petitioners has laid emphasis upon the fact that a new
trial as envisaged under section 216(4) of the Cr.P.C. can spring
only on an application filed by the prosecution or the accused, as
what is observed in the language is prejudice being caused either
to the prosecution or the accused. In the light of the preceding
analysis, the said submission would tumble down like a pack of
33
cards, as it is the power of the Court which alone is empowered
to alter the charge or conduct a new trial. It is neither the power
of the prosecution to seek the said alteration or that of the
accused. The language couched in sub-section (4) of Section 216
is beyond invocation as that is the power of the Court and the
Court alone. It is not that the Cr.P.C. does not recognize the
right of the victim, the prosecution or the accused to file
necessary applications intermittently during the period of trial.
There are several provisions to that effect. Section 144 of the
Cr.P.C. reads as follows:
"144. Power to issue order in urgent cases of
nuisance or apprehended danger.--(1) In cases where, in
the opinion of a District Magistrate, a Sub-Divisional
Magistrate or any other Executive Magistrate specially
empowered by the State Government in this behalf, there is
sufficient ground for proceeding under this section and
immediate prevention or speedy remedy is desirable, such
Magistrate may, by a written order stating the material facts
of the case and served in the manner provided by Section
134, direct any person to abstain from a certain act or to
take certain order with respect to certain property in his
possession or under his management, if such Magistrate
considers that such direction is likely to prevent, or tends to
prevent, obstruction, annoyance or injury to any person
lawfully employed, or danger to human life, health or safety,
or a disturbance of the public tranquillity, or a riot, or an
affray.
(2) An order under this section may, in cases of
emergency or in cases where the circumstances do not admit
of the serving in due time of a notice upon the person
against whom the order is directed, be passed ex parte.
34
(3) An order under this section may be directed to a
particular individual, or to persons residing in a particular
place or area, or to the public generally when frequenting or
visiting a particular place or area.
(4) No order under this section shall remain in force
for more than two months from the making thereof:
Provided that, if the State Government considers it
necessary so to do for preventing danger to human life,
health or safety or for preventing a riot or any affray, it may,
by notification, direct that an order made by a Magistrate
under this section shall remain in force for such further
period not exceeding six months from the date on which the
order made by the Magistrate would have, but for such
order, expired, as it may specify in the said notification.
(5) Any Magistrate may, either on his own motion or
on the application of any person aggrieved, rescind or alter
any order made under this section, by himself or any
Magistrate subordinate to him or by his predecessor-in-
office.
(6) The State Government may, either on its own
motion or on the application of any person aggrieved,
rescind or alter any order made by it under the proviso
to sub-section (4).
(7) Where an application under sub-section (5) or sub-
section (6) is received, the Magistrate, or the State
Government, as the case may be, shall afford to the
applicant an early opportunity of appearing before him or it,
either in person or by pleader and showing cause against the
order; and if the Magistrate or the State Government, as the
case may be, rejects the application wholly or in part, he or
it shall record in writing the reasons for so doing."
Section 144 supra observes that any Magistrate either on his
own motion or on an application of any person aggrieved, rescind
or alter any order made. Sub-section (6) of Section 144 further
35
observes that the State Government may, either on its own
motion or on the application of any person aggrieved, rescind or
alter any order. Section 407 of the Cr.P.C. reads -
"407. Power of High Court to transfer cases and
appeals.--(1) Whenever it is made to appear to the High
Court--
(a) that a fair and impartial inquiry or trial cannot be had
in any Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely
to arise, or
(c) that an order under this section is required by any
provision of this Code, or will tend to the general
convenience of the parties or witnesses, or is
expedient for the ends of justice,
it may order--
(i) that any offence be inquired into or tried by any Court
not qualified under Sections 177 to 185 (both
inclusive), but in other respects competent to inquire
into or try such offence;
(ii) that any particular case or appeal, or class of cases or
appeals, be transferred from a Criminal Court
subordinate to its authority to any other such Criminal
Court of equal or superior jurisdiction;
(iii) that any particular case be committed for trial to a
Court of Session; or
(iv) that any particular case or appeal be transferred to
and tried before itself.
(2) The High Court may act either on the report of the
lower Court, or on the application of a party interested, or on
its own initiative:
Provided that no application shall lie to the High Court
for transferring a case from one Criminal Court to another
36
Criminal Court in the same sessions division, unless an
application for such transfer has been made to the Sessions
Judge and rejected by him.
(3) Every application for an order under sub-section
(1) shall be made by motion, which shall, except when the
applicant is the Advocate-General of the State, be supported
by affidavit or affirmation.
(4) When such an application is made by an accused
person, the High Court may direct him to execute a bond,
with or without sureties, for the payment of any
compensation which the High Court may award under sub-
section (7).
(5) Every accused person making such application
shall give to the Public Prosecutor notice in writing of the
application, together with a copy of the grounds on which it
is made; and no order shall be made on the merits of the
application unless at least twenty-four hours have elapsed
between the giving of such notice and the hearing of the
application.
(6) Where the application is for the transfer of a case
or appeal from any subordinate Court, the High Court may, if
it is satisfied that it is necessary so to do in the interests of
justice, order that, pending the disposal of the application,
the proceedings in the subordinate Court shall be stayed, on
such terms as the High Court may think fit to impose:
Provided that such stay shall not affect the
subordinate Court's power of remand under Section 309.
(7) Where an application for an order under sub-
section (1) is dismissed, the High Court may, if it is of
opinion that the application was frivolous or vexatious, order
the applicant to pay by way of compensation to any person
who has opposed the application such sum not exceeding
one thousand rupees as it may consider proper in the
circumstances of the case.
(8) When the High Court orders under sub-section (1)
that a case be transferred from any Court for trial before
itself, it shall observe in such trial the same procedure which
that Court would have observed if the case had not been so
transferred.
37
(9) Nothing in this section shall be deemed to affect
any order of Government under Section 197."
deals with transfer of cases and appeals. Here again the party
interested or the Court on its own initiative, can pass necessary
orders. Section 408 which reads -
"408. Power of Sessions Judge to transfer cases
and appeals.--(1) Whenever it is made to appear to a
Sessions Judge that an order under this sub-section is
expedient for the ends of justice, he may order that any
particular case be transferred from one Criminal Court to
another Criminal Court in his sessions division.
(2) The Sessions Judge may act either on the report of
the lower Court, or on the application of a party interested,
or on his own initiative.
(3) The provisions of sub-sections (3), (4), (5), (6),
(7) and (9) of Section 407 shall apply in relation to an
application to the Sessions Judge for an order under sub-
section (1) as they apply in relation to an application to the
High Court for an order under sub-section (1) of Section 407,
except that sub-section (7) of that section shall so apply as if
for the words "one thousand rupees" occurring therein, the
words "two hundred and fifty rupees" were substituted."
deals with the power of the Sessions Judge to transfer cases and
appeals, again on its own initiate or on the party interested.
These are a kind of categories of cases where the action can be
on an application made by any person aggrieved. The next kind
of orders that could passed are under Sections 145 and 254 of
the Cr.P.C. They read as follows:
38
"145. Procedure where dispute concerning land
or water is likely to cause breach of peace.--(1)
Whenever an Executive Magistrate is satisfied from a report
of a police officer or upon other information that a dispute
likely to cause a breach of the peace exists concerning any
land or water or the boundaries thereof, within his local
jurisdiction, he shall make an order in writing, stating the
grounds of his being so satisfied, and requiring the parties
concerned in such dispute to attend his Court in person or by
pleader, on a specified date and time, and to put in written
statements of their respective claims as respects the fact of
actual possession of the subject of dispute.
(2) For the purposes of this section, the expression
"land or water" includes buildings, markets, fisheries, crops
or other produce of land, and the rents or profits of any such
property.
(3) A copy of the order shall be served in the manner
provided by this Code for the service of a summons upon
such person or persons as the Magistrate may direct, and at
least one copy shall be published by being affixed to some
conspicuous place at or near the subject of dispute.
(4) The Magistrate shall then, without reference to the
merits or the claims of any of the parties to a right to
possess the subject of dispute, peruse the statements so put
in, hear the parties, receive all such evidence as may be
produced by them, take such further evidence, if any, as he
thinks necessary, and, if possible, decide whether any and
which of the parties was, at the date of the order made by
him under sub-section (1), in possession of the subject of
dispute:
Provided that if it appears to the Magistrate that any
party has been forcibly and wrongfully dispossessed within
two months next before the date on which the report of a
police officer or other information was received by the
Magistrate, or after that date and before the date of his
order under sub-section (1), he may treat the party so
dispossessed as if that party had been in possession on the
date of his order under sub-section (1).
(5) Nothing in this section shall preclude any party so
required to attend, or any other person interested, from
showing that no such dispute as aforesaid exists or has
39
existed; and in such case the Magistrate shall cancel his said
order, and all further proceedings thereon shall be stayed,
but, subject to such cancellation, the order of the Magistrate
under sub-section (1) shall be final.
(6)(a) If the Magistrate decides that one of the parties
was, or should under the proviso to sub-section (4) be
treated as being, in such possession of the said subject, he
shall issue an order declaring such party to be entitled to
possession thereof until evicted therefrom in due course of
law, and forbidding all disturbance of such possession until
such eviction; and when he proceeds under the proviso to
sub-section (4), may restore to possession the party forcibly
and wrongfully dispossessed.
(b) The order made under this sub-section shall be
served and published in the manner laid down in sub-section
(3).
(7) When any party to any such proceeding dies, the
Magistrate may cause the legal representative of the
deceased party to be made a party to the proceeding and
shall thereupon continue the inquiry, and if any question
arises as to who the legal representative of a deceased party
for the purposes of such proceeding is, all persons claiming
to be representatives of the deceased party shall be made
parties thereto.
(8) If the Magistrate is of the opinion that any crop or
other produce of the property, the subject of dispute in a
proceeding under this section pending before him, is subject
to speedy and natural decay, he may make an order for the
proper custody or sale of such property and, upon the
completion of the inquiry, shall make such order for the
disposal of such property, or the sale-proceeds thereof, as he
thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage
of the proceedings under this section, on the application of
either party, issue a summons to any witness directing him
to attend or to produce any document or thing.
(10) Nothing in this section shall be deemed to be in
derogation of the powers of the Magistrate to proceed under
Section 107.
... ... ...
40
254. Procedure when not convicted.--(1) If the
Magistrate does not convict the accused under Section 252
or Section 253, the Magistrate shall proceed to hear the
prosecution and take all such evidence as may be produced
in support of the prosecution, and also to hear the accused
and take all such evidence as he produces in his defence.
(2) The Magistrate may, if he thinks fit, on the
application of the prosecution or the accused, issue a
summons to any witness directing him to attend or to
produce any document or other thing.
(3) The Magistrate may, before summoning any
witness on such application, require that the reasonable
expenses of the witness incurred in attending for the
purposes of the trial be deposited in Court."
Section 145 deals with a dispute concerning land or water which
is likely to cause breach of peace. This can be on an application
of either party. Section 254 permits the Magistrate to draw up
the procedure when the accused is not convicted. This can be on
an application by the prosecution or the accused. Therefore, here
the power of the Court is inclusive of the right of the accused or
the prosecution to file an application. There are other categories
of provisions where only on an application by either of the party,
proceedings can be taken up. Section 230 of the Cr.P.C. quoted
supra which deals with prosecution evidence mandates that on
an application of the prosecution, proceedings can be taken up.
Here, the Court cannot on its own pass any order. Sections 242
and 244 of the Cr.P.C. deal with evidence of the prosecution.
41
Here again, it is only on an application by the prosecution. They
read as follows:
"242. Evidence for prosecution.--(1) If the accused
refuses to plead or does not plead, or claims to be tried or
the Magistrate does not convict the accused under Section
241, the Magistrate shall fix a date for the examination of
witnesses:
Provided that the Magistrate shall supply in advance to
the accused, the statement of witnesses recorded during
investigation by the police.
(2) The Magistrate may, on the application of the
prosecution, issue a summons to any of its witnesses
directing him to attend or to produce any document or other
thing.
(3) On the date so fixed, the Magistrate shall proceed
to take all such evidence as may be produced in support of
the prosecution:
Provided that the Magistrate may permit the cross-
examination of any witness to be deferred until any other
witness or witnesses have been examined or recall any
witness for further cross-examination.
.... .... ....
244. Evidence for prosecution.--(1) When, in any
warrant-case instituted otherwise than on a police report, the
accused appears or is brought before a Magistrate, the
Magistrate shall proceed to hear the prosecution and take all
such evidence as may be produced in support of the
prosecution.
(2) The Magistrate may, on the application of the
prosecution, issue a summons to any of its witnesses
directing him to attend or to produce any document or other
thing."
These provisions would spring in only on an application filed by
the prosecution. Therefore, it is the right of the prosecution. The
42
other category is deposition of medical evidence dealt in Sections
291, 291A and 296 of the Cr.P.C.. They read as follows:
"291. Deposition of medical witness.--(1) The
deposition of a civil surgeon or other medical witness, taken
and attested by a Magistrate in the presence of the accused,
or taken on commission under this Chapter, may be given in
evidence in any inquiry, trial or other proceeding under this
Code, although the deponent is not called as a witness.
(2) The Court may, if it thinks fit, and shall, on the
application of the prosecution or the accused, summon and
examine any such deponent as to the subject-matter of his
deposition.
291-A. Identification report of Magistrate.--(1)
Any document purporting to be a report of identification
under the hand of an Executive Magistrate in respect of a
person or property may be used as evidence in any inquiry,
trial or other proceeding under this Code, although such
Magistrate is not called as a witness:
Provided that where such report contains a statement
of any suspect or witness to which the provisions of Section
21, Section 32, Section 33, Section 155 or Section 157, as
the case may be, of the Indian Evidence Act, 1872, apply,
such statement shall not be used under this sub-section
except in accordance with the provisions of those sections.
(2) The Court may, if it thinks fit, and shall, on the
application of the prosecution or of the accused, summon
and examine such Magistrate as to the subject matter of the
said report.
... ... ...
296. Evidence of formal character on affidavit.--
(1) The evidence of any person whose evidence is of a formal
character may be given by affidavit and may, subject to all
just exceptions, be read in evidence in any inquiry, trial or
other proceeding under this Code.
(2) The Court may, if it thinks fit, and shall, on the
application of the prosecution or the accused, summon and
43
examine any such person as to the facts contained in his
affidavit."
Here, orders to be passed in terms of the said provisions either
on an application of the prosecution or the accused. I have
found it appropriate to quote the aforesaid provisions only to
juxtapose them with Section 216 of the Cr.P.C. Section 216 of
the Cr.P.C. nowhere indicates that the prosecution or the
accused or even the victim has a right to seek alteration of
charge. It is the power of the Court and the Court alone. While
so doing, it is for the Court to decide whether either of the
parties is prejudiced by its action of alteration of charge. If it
comes to conclude that it does cause prejudice, then the
procedure under Section 230 or Section 231 of the Cr.P.C. is
necessarily to be followed.
17. Much emphasis is laid on the fact that if a new trial,
de-novo trial or re-trial is ordered, the initial trial conducted by
the concerned Court gets effaced. This is again unacceptable in
the light of several judgments rendered by the Apex Court and
44
that of this Court on the issue. The Apex Court in SATYAJIT
BANERJEE v. STATE OF WEST BENGAL11 has held as follows:
".... .... ....
27. So far as the position of law is concerned we are
very clear that even if a retrial is directed in exercise of
revisional powers by the High Court, the evidence already
recorded at the initial trial cannot be erased or wiped out
from the record of the case. The trial Judge has to decide the
case on the basis of the evidence already on record and the
additional evidence which would be recorded on retrial."
The Apex Court in the case of ATMA RAM v. STATE OF
RAJASTHAN12 has held as follows:
".... .... ....
22. According to Section 366 when a Court of Session
passes a sentence of death, the proceedings must be
submitted to the High Court and the sentence of death is not
to be executed unless it is confirmed by the High Court.
Section 367 then proceeds to lay down the power of the High
Court to direct further enquiry to be made or additional
evidence to be taken. Section 368, thereafter, lays down the
power of the High Court to confirm the sentence so imposed
or annul the conviction. One of the powers which the High
Court can exercise is one under Section 368(c) of the Code
and that is to "acquit the accused person". Pertinently, the
power to acquit the person can be exercised by the High
Court even without there being any substantive appeal on
the part of the accused challenging his conviction. To that
extent, the proceedings under Chapter XXVIII which deal
with "submission of death sentences for confirmation" is a
proceeding in continuation of the trial. These provisions thus
entitle the High Court to direct further enquiry or to take
additional evidence and the High Court may, in a given case,
even acquit the accused person. The scope of the chapter is
wider. Chapter XXIX of the Code deals with "Appeals".
Section 391 also entitles the appellate court to take further
11
(2005) 1 SCC 115
12
(2019) 20 SCC 481
45
evidence or direct such further evidence to be taken. Section
386 then enumerates powers of the appellate court which
inter alia includes the power to "reverse the finding and
sentence and acquit or discharge the accused, or order him
to be re-tried by a court of competent jurisdiction
subordinate to such appellate court or committed for trial".
The powers of the appellate court are equally wide. The High
Court in the present case was exercising powers both under
Chapters XXVIII and XXIX of the Code. If the power can go
to the extent of ordering a complete retrial, the exercise of
power to a lesser extent, namely, ordering de novo
examination of twelve witnesses with further directions as
the High Court has imposed in the present matter, was
certainly within the powers of the High Court. There is, thus,
no infraction or jurisdictional error on the part of the High
Court."
The Apex Court in the aforesaid judgments clearly holds that a
re-trial or a new trial can be conducted without wiping out the
existing evidence on record. Therefore, the submission of the
learned senior counsel, placing reliance upon certain judgments
that exercise of power under Section 386 of the appellate Court
would lead to effacement of the entire evidence, is again
unacceptable. With the law being thus, I deem it appropriate to
deep-dive into the facts or the evidence that led to the charges
being altered and an order under Section 216(4) being passed.
18. The learned counsel for the CBI has placed a
comparative chart in the statement of objections, which I deem
it appropriate to notice. It reads as follows:
46
"Comparative chart of accused with CBI Charge sheet as well as State
Police charge sheet is as follows:
Sl No. Accused in the State Accused in the CBI Charge Sections under
Police Chargesheet Chargesheet framed which Charges
by the were framed by
court CBI Court on
06.12.2023
1 A1 - Basavaraj Muttagi. A1 - BasavarajaMuttagi. U/s 143, 120-B r/w. 149
147, 148, IPC &
Role: Assailant Role: Chief Conspirator 120-B, 143 r/w. 120-B &
302, 201 149 IPC,
r/w Sec. 147 r/w. Sec. 120-
149 IPC B & 149 IPC
Role as 148 r/w. 120-B &
per the 149 IPC
charge: 302 r/w. 120-B &
149 IPC
201 r/w. 120-B &
149 IPC
25 r/w. 3, 5, 8 &
29 of Arms Act
1959 r/w. Sec.
120-B & 149 IPC.
2 A2 - Shri Vikram Ballari A2 - Shri Vikram Ballari -D0 120-B r/w. 149
Role: Assailant Associate of A-1 and IPC &
assisted real assailants 143 r/w. 120-B &
to provide logistic 149 IPC,
support, Surrendered 147 r/w. Sec. 120-
before the Police and B & 149 IPC
falsely admitted 148 r/w. 120-B &
commission of crime. 149 IPC
302 r/w. 120-B &
149 IPC
201 r/w. 120-B &
149 IPC
3 A-3 Shri Shri Do 120-B r/w. 149
KirtikumarBasavrajKuraha KirtikumarBasavrajKura IPC &
tti hatti 143 r/w. 120-B &
Role: Assailant Role Same as A-2 149 IPC,
147 r/w. Sec. 120-
B & 149 IPC
148 r/w. 120-B &
149 IPC
302 r/w. 120-B &
149 IPC
47
201 r/w. 120-B &
149 IPC
4 A-4 Shri Sandeep A-4Shri Sandeep Do 120-B r/w. 149
Soudatti Soudatti IPC &
Role: Assailant Role Same as A-2 143 r/w. 120-B &
149 IPC,
147 r/w. Sec. 120-
B & 149 IPC
148 r/w. 120-B &
149 IPC
302 r/w. 120-B &
149 IPC
201 r/w. 120-B &
149 IPC
5 A-5 Shri Vinayak Katagi A-5 Shri Vinayak Katagi Do 120-B r/w. 149
Role: Assailant Role Same as A-2 IPC &
Further he was the one 143 r/w. 120-B &
who was having the 149 IPC,
illegal possession of the 147 r/w. Sec. 120-
old Bunglow, which was B & 149 IPC
used to keep real 148 r/w. 120-B &
assailants A-8 to A-14, 149 IPC
who visited from 302 r/w. 120-B &
Bangalore to execute 149 IPC
the murder. 201 r/w. 120-B &
149 IPC
6 A-6 Shri Mahabaleshwar A-6Shri Mahabaleshwar Do 120-B r/w. 149
Hongal Hongal IPC &
Role: Assailant Associate of A-1 and 143 r/w. 120-B &
assisted real assailants 149 IPC,
to provide logistic 147 r/w. Sec. 120-
support, Surrendered B & 149 IPC
before the Police and 148 r/w. 120-B &
falsely admitted 149 IPC
commission of crime. He 302 r/w. 120-B &
was the one who 149 IPC
informed the other 201 r/w. 120-B &
accused about deceased 149 IPC
that he had left his
village to attend Gym.
7 A-7 Shri Santosh Not in the 120-B r/w. 149
Savadatti charge IPC &
Real assailant and the sheet filed 143 r/w. 120-B &
owner of the White by Local 149 IPC,
Tavera Car used to Police. 147 r/w. Sec. 120-
escape from SOC with B & 149 IPC
A-8 to A-14. 148 r/w. 120-B &
149 IPC
302 r/w. 120-B &
149 IPC
201 r/w. 120-B &
48
149 IPC
8 A-8 Shri Dinesh. M Do 120-B r/w. 149
Real Assailants IPC &
arranged by A-1 from 143 r/w. 120-B &
Bangalore 149 IPC,
147 r/w. Sec. 120-
B & 149 IPC
148 r/w. 120-B &
149 IPC
302 r/w. 120-B &
149 IPC
201 r/w. 120-B &
149 IPC
9 A-9 Shri. Aswath.S Do 120-B r/w. 149
Real Assailants IPC &
arranged by A-1 from 143 r/w. 120-B &
Bangalore 149 IPC,
147 r/w. Sec. 120-
B & 149 IPC
148 r/w. 120-B &
149 IPC
302 r/w. 120-B &
149 IPC
201 r/w. 120-B &
149 IPC
10 A-10 Shri Sunil K.S Do 120-B r/w. 149
Real Assailants IPC &
arranged by A-1 from 143 r/w. 120-B &
Bangalore 149 IPC,
147 r/w. Sec. 120-
B & 149 IPC
148 r/w. 120-B &
149 IPC
302 r/w. 120-B &
149 IPC
201 r/w. 120-B &
149 IPC
11 A-11Shri Nazeer Do 120-B r/w. 149
Ahamad IPC &
Real Assailants 143 r/w. 120-B &
arranged by A-1 from 149 IPC,
Bangalore 147 r/w. Sec. 120-
B & 149 IPC
148 r/w. 120-B &
149 IPC
302 r/w. 120-B &
149 IPC
201 r/w. 120-B &
149 IPC
12 A-12Shri Shanawaz Do 120-B r/w. 149
49
Real Assailants IPC &
arranged by A-1 from 143 r/w. 120-B &
Bangalore 149 IPC,
147 r/w. Sec. 120-
B & 149 IPC
148 r/w. 120-B &
149 IPC
302 r/w. 120-B &
149 IPC
201 r/w. 120-B &
149 IPC
13 A-13 Shri. Nutan K Do 120-B r/w. 149
Real Assailants IPC &
arranged by A-1 from 143 r/w. 120-B &
Bangalore 149 IPC,
147 r/w. Sec. 120-
B & 149 IPC
148 r/w. 120-B &
149 IPC
302 r/w. 120-B &
149 IPC
201 r/w. 120-B &
149 IPC
14 A-14 Shri Harsith C Do 120-B r/w. 149
Real Assailants IPC &
arranged by A-1 from 143 r/w. 120-B &
Bangalore 149 IPC,
147 r/w. Sec. 120-
B & 149 IPC
148 r/w. 120-B &
149 IPC
302 r/w. 120-B &
149 IPC
201 r/w. 120-B &
149 IPC
15 A-15 Shri Vinay Do 120-B r/w. 149
Rajashekhara Kulkarni IPC
302 r/w. 120-B &
Main conspirator 149 IPC
201 r/w. 120-B &
149 IPC
25 r/w. 3, 5, 8 &
29 of Arms Act
1959 r/w. Sec.
120-B & 149 IPC.
16 A-16 Shri Do 120-B r/w. 149
Chandrashekhar Indi, IPC
maternal uncle of A-15 302 r/w. 120-B &
Arranged three country 149 IPC
made from Vijaypura 201 r/w. 120-B &
and the same was 149 IPC
50
seized from the 25 r/w. 3, 5, 8 &
possession of A-1. 29 of Arms Act
1959 r/w. Sec.
120-B & 149 IPC.
17 A-17, Shri Do 120-B r/w. 149
ShirishalBiradar, IPC,
He handed over three 25 r/w. 3, 5, 8 &
country made pistol to 29 of Arms Act
A-16 on the direction of 1959 r/w. Sec.
Dharam Raj Chadchan, 120-B & 149 IPC.
notorious gangster from
Vijaypura on the
request of A-15.
18 A-18 Shri Vikas Kalburgi Do 120-B r/w. 149
Associate of A-1 and IPC
assisted real assailants 302 r/w. 120-B &
in logistic support and 149 IPC
also provided his white 201 r/w. 120-B &
colour maestro scooter. 149 IPC
19 A-19 Shri Do 201 r/w. 120-B &
ChanakeshvaTingerikar, 149 IPC
the then IO, 218 r/w. 120B &
149 IPC,
Who did perfunctionary 7, 13(1)(d) r/w.
investigation to shield 13(2) of PC Act
real accused. Accepted
illegal gratification too.
20 A-20 Shri Vasudev Do 201 r/w. 120-B &
Rama Nilekeni 149 IPC,
Superviosry officer of A- 218 r/w. 120B &
19, who recorded the 149 IPC
surrender of implanted 7, 13(1)(d) r/w.
accused A-1 to A-6. He 13(2) of PC Act
also obtained illegal
gratification.
21 A-21 Shri Somashekar Do 120-B r/w. 149
Nymegoudar , PS to A- IPC,
15. He is involved in 302 r/w. 120-B &
larger conspiracy with 149 IPC
A-15. He handed over
money to A-1 , a day
after commission of
murder.
51
Based upon the said divergence in the charge sheet filed by the
State, charges were framed therein and supplementary charge
sheets were filed by the CBI. The concerned Court takes note of
the same and passes the order impugned:
".... .... ....
54. When the aforesaid aspects are carefully
appreciated and compared with the facts and
circumstances of the case, the undisputed facts which
could be culled out and are applicable for consideration in
the above case are as follows:
a) The deceased Yogesh Goudar was murdered
on 15.6.2016 between 7.30 to 7.45 a.m. near Uday Gym
at Sapthapur, Dharwad.
b) Criminal law was set in to motion on the basis
of written information filed by wife of the deceased by
name Mallamma Goudar
c) The State Police had conducted investigation
and had filed charge sheet against accused No.1 to 6 by
citing 84 witnesses and alleged that accused No.1 to 6
had hatched up a conspiracy to commit murder of
Yogesh Goudar.
d) The case came to be committed to IV Addl.
District & Sessions Judge, Dharwad where 61 witnesses
examined and 137 documents got marked as Ex.P.1 to
137 and Materials objects M.O.1 to 25 are marked.
e) The State Government had decided to entrust
the further investigation to the CBI authorities.
f) The CBI commenced investigation and filed
supplementary charge sheet on 20.5.2020 wherein
allegation of conspiracy is changed and they have sought
to arraign accused No.7 to 14 as additional accused
persons. It is also narrated that accused No.7 to 14 were
the real assailants.
g) Another supplementary charge sheet was filed
on 30.01.2021 wherein accused No.15 Vinay R. Kulkarni,
accused No.16 Chandrashekar Indi @ Chandu Mana,
accused No.17 Shivanand Shrishail Biradar are sought
be arraigned necessary accused indicating that the
52
incident of commission of murder had taken place due to
the conspiracy hatched at the behest of accused No.15
Vinay R. Kulkarni who had entertained political rivalry
with the deceased.
h) Another supplementary charge sheet was filed
on 15.9.2021 wherein accused No.18 to 21 were
arraigned as necessary accused persons. Out of the said
accused No.19 and 20 were the Investigation Officers
who had conducted investigation and filed charge sheet.
55. When the aforesaid aspects are appreciated, it
would indicate that the entire materials collected by the CBI
Investigating Agency are towards indicating larger conspiracy
being entered into between the accused persons. At this
juncture, the court is not making any observation touching
upon the merits or demerits of the case and also the earlier
materials which is placed before the court remains intact.
56. The prosecution in order to justify their contention
has to now rely upon the present charge sheet which is
placed before the court. It is settled law that the bounden
duty of proving the allegation of commission of offence
beyond reasonable doubt will always be upon the
prosecution. Admittedly, the investigation is now entrusted to
CBI authorities, who have conducted further investigation
and have placed materials by submitting that a larger
conspiracy was involved in the above case which was not
unearthed by the State Investigating Agency and in fact the
then investigating officer's and some of the witnesses who
were cited in the charge sheet of the State have been placed
/ arraigned as accused persons in the above case. As such, if
the prosecution is directed to continue with the very same
witnesses, they will not be in a position to establish their
case. At this juncture, the concept of fair trial is to be
appreciated. The concept of fair trial ensues that a fair and
equal opportunity is to be provided to the State who is larger
stake holder, victim and also to the accused persons. In this
regard, reliance is placed on the judgment of Hon'ble Apex
Court reported in the case of (2004)4 SCC 158 (Zahira
Habibulla H. Sheikh v. State of Gujarat) wherein it is held
as:
30. Right from the inception of the judicial
system it has been accepted that discovery,
vindication and establishment of truth are the
main purposes underlying existence of courts of
justice. The operating principles for a fair trial
permeate the common law in both civil and
53
criminal contexts. Application of these
principles involves a delicate judicial balancing
of competing interests in a criminal trial, the
interests of the accused and the public and to a
great extent that of the victim have to be
weighed not losing sight of the public interest
involved in the prosecution of persons who
commit offences.
31. In 1846, in a judgment which Lord
Chancellor Selborne would later describe as
"one of the ablest judgments of one of the
ablest judges who ever sat in this court", Vice-
Chancellor Knight Bruce said [Pearse v.
Pearse(1846), 1 De G&Sm. 12 : 16 L.J. Ch. 153 :
63 ER 950 : 18 Digest (Repl.) 91, 748] :
"The discovery and vindication and
establishment of truth are main purposes
certainly of the existence of courts of justice;
still, for the obtaining of these objects, which,
however valuable and important, cannot be
usefully pursued without moderation, cannot be
either usefully or creditably pursued unfairly or
gained by unfair means, not every channel is or
ought to be open to them. The practical
inefficacy of torture is not, I suppose, the most
weighty objection to that mode of
examination... Truth, like all other good things,
may be loved unwisely -- may be pursued too
keenly -- may cost too much."
The Vice-Chancellor went on to refer to paying
"too great a price ... for truth". This is a
formulation which has subsequently been
frequently invoked, including by Sir Gerard
Brennan. On another occasion, in a joint
judgment of the High Court, a more expansive
formulation of the proposition was advanced in
the following terms: "The evidence has been
obtained at a price which is unacceptable
having regard to the prevailing community
standards."
32. Restraints on the processes for determining
the truth are multifaceted. They have emerged
in numerous different ways, at different times
and affect different areas of the conduct of
legal proceedings. By the traditional common
54
law method of induction there has emerged in
our jurisprudence the principle of a fair trial.
Oliver Wendell Holmes described the process:
"It is the merit of the common law that it
decides the case first and determines the
principle afterwards.... It is only after a series
of determination on the same subject-matter,
that it becomes necessary to 'reconcile the
cases', as it is called, that is, by a true induction
to state the principle which has until then been
obscurely felt. And this statement is often
modified more than once by new decisions
before the abstracted general rule takes its
final shape. A well-settled legal doctrine
embodies the work of many minds, and has
been tested in form as well as substance by
trained critics whose practical interest is to
resist it at every step."
33. The principle of fair trial now informs and
energises many areas of the law. It is reflected
in numerous rules and practices. It is a
constant, ongoing development process
continually adapted to new and changing
circumstances, and exigencies of the situation
-- peculiar at times and related to the nature of
crime, persons involved -- directly or operating
behind, social impact and societal needs and
even so many powerful balancing factors which
may come in the way of administration of
criminal justice system.
34. As will presently appear, the principle of a
fair trial manifests itself in virtually every
aspect of our practice and procedure, including
the laws of evidence. There is, however, an
overriding and, perhaps, unifying principle. As
Deane, J. put it:
"It is desirable that the requirement of fairness
be separately identified since it transcends the
content of more particularized legal rules and
principles and provides the ultimate rationale
and touch-stone of the rules and practices
which the common law requires to be observed
in the administration of the substantive
criminal law."
55
35. This Court has often emphasised that in a
criminal case the fate of the proceedings cannot
always be left entirely in the hands of the
parties, crimes being public wrongs in breach
and violation of public rights and duties, which
affect the whole community as a community
and are harmful to the society in general. The
concept of fair trial entails familiar
triangulation of interests of the accused, the
victim and the society and it is the community
that acts through the State and prosecuting
agencies. Interests of society are not to be
treated completely with disdain and as persona
non grata. Courts have always been considered
to have an overriding duty to maintain public
confidence in the administration of justice --
often referred to as the duty to vindicate and
uphold the "majesty of the law". Due
administration of justice has always been
viewed as a continuous process, not confined to
determination of the particular case, protecting
its ability to function as a court of law in the
future as in the case before it. If a criminal
court is to be an effective instrument in
dispensing justice, the Presiding Judge must
cease to be a spectator and a mere recording
machine by becoming a participant in the trial
evincing intelligence, active interest and elicit
all relevant materials necessary for reaching
the correct conclusion, to find out the truth, and
administer justice with fairness and impartiality
both to the parties and to the community it
serves. Courts administering criminal justice
cannot turn a blind eye to vexatious or
oppressive conduct that has occurred in
relation to proceedings, even if a fair trial is
still possible, except at the risk of undermining
the fair name and standing of the judges as
impartial and independent adjudicators.
36. The principles of rule of law and due
process are closely linked with human rights
protection. Such rights can be protected
effectively when a citizen has recourse to the
courts of law. It has to be unmistakably
understood that a trial which is primarily aimed
at ascertaining the truth has to be fair to all
concerned. There can be no analytical, all-
comprehensive or exhaustive definition of the
56
concept of a fair trial, and it may have to be
determined in seemingly infinite variety of
actual situations with the ultimate object in
mind viz. whether something that was done or
said either before or at the trial deprived the
quality of fairness to a degree where a
miscarriage of justice has resulted. It will not
be correct to say that it is only the accused who
must be fairly dealt with. That would be turning
a Nelson's eye to the needs of the society at
large and the victims or their family members
and relatives. Each one has an in-built right to
be dealt with fairly in a criminal trial. Denial of
a fair trial is as much injustice to the accused
as is to the victim and the society. Fair trial
obviously would mean a trial before an
impartial judge, a fair prosecutor and
atmosphere of judicial calm. Fair trial means a
trial in which bias or prejudice for or against
the accused, the witnesses, or the cause which
is being tried is eliminated. If the witnesses get
threatened or are forced to give false evidence
that also would not result in a fair trial. The
failure to hear material witnesses is certainly
denial of fair trial.
38. A criminal trial is a judicial examination of
the issues in the case and its purpose is to
arrive at a judgment on an issue as to a fact or
relevant facts which may lead to the discovery
of the fact issue and obtain proof of such facts
at which the prosecution and the accused have
arrived by their pleadings; the controlling
question being the guilt or innocence of the
accused. Since the object is to mete out justice
and to convict the guilty and protect the
innocent, the trial should be a search for the
truth and not a bout over technicalities, and
must be conducted under such rules as will
protect the innocent, and punish the guilty. The
proof of charge which has to be beyond
reasonable doubt must depend upon judicial
evaluation of the totality of the evidence, oral
and circumstantial, and not by an isolated
scrutiny.
39. Failure to accord fair hearing either to the
accused or the prosecution violates even
minimum standards of due process of law. It is
57
inherent in the concept of due process of law,
that condemnation should be rendered only
after the trial in which the hearing is a real one,
not sham or a mere farce and pretence. Since
the fair hearing requires an opportunity to
preserve the process, it may be vitiated and
violated by an overhasty, stage-managed,
tailored and partisan trial.
40. The fair trial for a criminal offence consists
not only in technical observance of the frame
and forms of law, but also in recognition and
just application of its principles in substance, to
find out the truth and prevent miscarriage of
justice.
57. When the aforesaid aspect is carefully appreciated,
the law which emerges in this regard is that an opportunity is
to be given to both the parties to conduct trial in proper and
fair manner. The last few lines of the Hon'ble Apex court
judgment clearly envisages that the fair trial in a criminal
offence cannot be construed as observance of technical
aspects or forms of law but also recognition and just
application of its principles to find out the truth and to
prevent the miscarriage of justice. At the cost of repetition it
is to the appreciated that the materials collected by the State
Investigating agency and that of CBI varies and it indicates
that as per the supplementary charge sheet, larger
conspiracy is noticed and further the then investigating
officers are now arraigned as accused persons. By
considering the same, if provision of Sec.216(4) of Cr.P.C., is
invoked, no hardship whatsoever will be caused to the
accused side, since they will be having an opportunity to
confront the witnesses with respect to the statement which
they had given on earlier occasion. The statement which is
given before the Court of law can always be confronted in the
subsequent proceedings and the veracity of both the
statements can be looked in to by the Court at the conclusion
of the trial. The court will have the opportunity to ascertain
the veracity of the investigation conducted by the State
Investigating Agency and also the CBI authority by looking
into the materials that are produced. If the prosecution
examines the witnesses and produces certain materials that
indicate a reversal of their earlier position, the accused will
also have the opportunity to cross-examine the witnesses by
confronting their earlier statements. As a result, invoking the
58
provision under Sec. 216(4) of Cr.P.C. is the only alternative
mode available for continuing with the trial.
58. Last but not the least the parties are to be
reminded the kind directions of the Hon'ble High Court of
Karnataka wherein the Hon'ble High Court had directed this
court by apprising about the factual situation to conduct and
dispose the case in expeditious manner. In the paragraph-11
at page No.39 of the impugned judgment in WP
No.1167/2024 the Hon'ble High Court of Karnataka at pains
to hold as follows:-
"(F) AS TO THE NEED FOR THE EXPEDITIOUS
TRIAL OF THE CRIMINAL CASE IN THE COURT BELOW:
(a) The incident happened way back in the year
2016; petitioner & other accused persons have moved this
court and Apex Court several times. It is true that in some
cases, they have got some reprieve. A Division Bench of this
court whilst disposing off petitioner's W.P.No.15828/2021
and co-accused's W.P.No.15012/2019 vide order dated
16.10.2021 had directed expeditious trial of the case.
Challenge to this order in SLP (Crl) No.9629/2021 came to
be dismissed as withdrawn on 7.2.2022. Since then, years
have rolled, not even a leaf being turned. A long drawn
criminal case would dis-serve the interest of administration
of criminal justice. Every case, more particularly, a case of
this kind should be tried & disposed off 'Before the Memory
Fades', at least as a concession to the shortness of human
life. Therefore, I am of the considered view that the trial of
this case should be conducted on a war footing"
59. The aforesaid directions are to be followed in letter
and spirit and the trial has to be conducted in accordance
with law. Accordingly, the point for consideration is held as
disposed of as per final order.
60. Point No.2:- In view the discussions made herein
above, I proceed to pass the following:
ORDER
Application filed by the accused No.1 to 6 under Sec.231 of Cr.P.C., is hereby disposed off by directing the prosecution to conduct the trial as enumerated under Sec.216(4) of Cr.P.C. Needless to mention that the earlier 59 materials placed before the IV Addl. District & Sessions Judge, Dharwad in SC No.50/2017 will be available on record and the same will be appreciated along with the materials collected in the above case. Further, the prosecution is at liberty to examine the witnesses as contemplated under Sec.230 and 231 of Cr.P.C."
If the impugned order is considered on the touchstone of the statutory provisions supra and interpretation on those provisions placed by the Apex Court in all the judgments quoted or noted hereinabove, the unmistakable inference would be, no fault being found by the order so passed by the concerned Court. The order is based upon sound reasons and the procedure necessarily to be followed is what is ordered by the concerned Court. On the entire analysis of the reasons rendered by the concerned Court, there is no warrant to interfere with the order impugned.
19. In the result, finding no merit in these petitions, the petitions stand rejected.
Consequently, I.A.No.1 of 2024 also stands disposed.
sd/-
(M. NAGAPRASANNA) JUDGE Bkp CT:MJ