Lokesh S vs State By
2022 Latest Caselaw 11109 Kant

                             1



         IN THE HIGH COURT OF KARNATAKA AT BENGALURU

             DATED THIS THE 26TH DAY OF JULY, 2022

                            BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

                CRIMINAL PETITION No.284/2020

BETWEEN:

LOKESH S.,
S/O LATE SIDDAPPA
AGED ABOUT 28 YEARS
R/AT CHIKKAJAJURU
CHITRADURGA TALUK AND DISTRICT
PIN - 577 510
PERMANENT R/O
GANDAKATTE, CHENNAGIRI TQ
DAVANAGERE DISTRICT - 577 006.
                                                ... PETITIONER

(BY SRI S.G.RAJENDRA REDDY, ADVOCATE)

AND:

1.     STATE BY
       DAVANAGERE CENTRAL
       CIRCLE POLICE STATION,
       DAVANAGERE
       REPT. BY S.P.P.
       HIGH COURT BUILDING,
       BENGALURU - 560 001.

2.     KU JOTHI B.L.,
       S/O NAGARAJAPPA
       AGED 26 YEARS
       R/AT 11TH CROSS,
                                 2



      KTJ NAGARA, DAVANAGERE
      DAVANAGERE DISTRICT - 577 006.
                                                    ... RESPONDENTS

(BY SRI K.S.ABHIJITH, HCGP FOR R1;
    SMT.SHAKUNTHALA V.RACHOTIMATH, ADVOCATE FOR R2)


     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE ADDITIONAL CHARGE SHEET
FILED BY THE RESPONDENT POLICE IN S.C.NO.30/2019 PENDING
IN THE FILE OF THE II ADDITIONAL SESSIONS JUDGE,
DAVANAGERE.


     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 16.06.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-


                               ORDER

The petitioner is before this Court calling in question

additional charge sheet dated 25-10-2019 filed by the

respondent/Police in S.C.No.30 of 2019 pending before the II

Additional Sessions Judge, Davangere.

2. Heard Sri S.G.Rajendra Reddy, learned counsel for the

petitioner, Sri K.S.Abhijith, learned High Court Government Pleader

for respondent No.1 and Smt. Shakunthala V. Rachotimath, learned

counsel for respondent No.2.

3. A complaint comes to be registered against the petitioner

for offences punishable under Sections 420, 376, 506 and 34 of the

IPC. Police after investigation filed a charge sheet against the

petitioner for offences punishable under Sections 417, 376, 506 and

34 of the IPC. The allegation against the petitioner was that the

complainant and the petitioner were in love for over three years

from the date of complaint and had physical relationship on the

promise of marriage. The petitioner had backed out of the promise

of marriage and was in the process of preparation of marriage with

another girl. At this juncture, the complaint came to be registered

against the petitioner. The learned Magistrate passed a committal

order placing the matter before the learned Sessions Judge. The

learned Sessions Judge, after committal of the case, framed

charges against the petitioner and others for the aforesaid offences.

The accused pleaded not guilty and claimed to be tried. It is

thereafter the prosecution examines CW-1 to CW-18. After

examination of CWs-1 to 18, on the basis of the charge framed, on

25-10-2019 the first respondent/prosecution filed additional/

supplementary charge sheet requesting the Court to include seven

witnesses CWs-20 to 26. These were witnesses neither examined

by the Police nor stated as witnesses in the original charge sheet.

The Court concerned by its order dated 19.11.2019 allowed the said

request made on behalf of the prosecution and permitted additional

witnesses to be examined on 10-12-2019. It is this examination of

additional witnesses that drives the petitioner to this Court in the

subject criminal petition.

4. The learned counsel appearing for the petitioner would

contend with vehemence that when the trial was at its fag end and

when the matter was set for Section 313 Cr.P.C. statement,

noticing insufficiency in evidence, other witnesses are dragged into

these proceedings to fill up lacunae in the prosecution. It is his

contention that once charges are framed and at the fag end of trial

witnesses who are not even stated as witnesses during the trial

could not have been added that too on alteration of the charge.

5. On the other hand, the learned High Court Government

Pleader would refute the submissions to contend that examination

of witnesses is already over on 10-12-2019 and it is not the stage

at which this Court should interfere notwithstanding the interim

order granted by this Court at the outset. It is his submission that

charges can be altered at any time during the proceedings under

Section 216 of the Cr.P.C. and would submit that since witnesses

have already been examined, the trial should be permitted to

proceed further.

6. I have given my anxious consideration to the submissions

of the respective learned counsel and perused the material on

record.

7. The afore-narrated facts are not in dispute. The trial was

in progress and had reached its fag end. At that point in time on

25-10-2019 the Police filed additional charge sheet to include four

more witnesses and that is permitted by the Court by its order

dated 31-10-2019 with further direction to examine the witnesses

on 7-11-2019. It is germane to consider the plea of the petitioner

as to whether there can be addition of witnesses in the garb of

additional charge sheet or supplementary charge sheet after the

trial has commenced.

8. Admittedly, under Section 173(8) of the Cr.P.C further

investigation can be directed to be ordered and the product of

further investigation would be of filing of additional or

supplementary charge sheet. All these factors would happen prior

to taking of cognizance of the offences against the accused. Once

cognizance is taken, what can be altered are the charges already

framed by adding additional charges on the basis of the evidence as

set in the trial. What the prosecution has now done is filing of

supplementary report or additional charge sheet under Section

173(8) of the Cr.P.C. after the charges having been framed and

trial had commenced. While witnesses cannot be added in the garb

of additional charge sheet, but additional charges can be added to

the already existing charge sheet on the basis of the evidence that

is let in.

9. The issue with regard to further investigation or

supplementary charge sheet being filed after cognizance is taken is

no longer res integra. The Apex Court in the case of VINUBHAI

HARIBHAI MALAVIYA v. STATE OF GUJARAT1 has clearly held

(2019) 17 SCC 1

that further investigation by the concerned Court can be directed

even after the cognizance is taken. But, the Court clearly holds that

it is only after cognizance is taken and not charges are framed. The

Apex court holds in the said judgment as follows:

"42. There is no good reason given by the Court in these decisions as to why a Magistrate's powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409: (2008) 1 SCC (Cri) 440], Samaj Parivartan Samudaya [Samaj Parivartan Samudaya v. State of Karnataka, (2012) 7 SCC 407: (2012) 3 SCC (Cri) 365], Vinay Tyagi [Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762: (2013) 4 SCC (Cri) 557], and Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92: (2014) 2 SCC (Cri) 86]; Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92: (2014) 2 SCC (Cri) 86] having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1),

Section 2(h) and Section 173(8) CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi [Hasanbhai Valibhai Qureshi v. State of Gujarat, (2004) 5 SCC 347: 2004 SCC (Cri) 1603]. Therefore, to the extent that the judgments in Amrutbhai Shambhubhai Patel [Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel, (2017) 4 SCC 177: (2017) 2 SCC (Cri) 331] , Athul Rao [Athul Rao v. State of Karnataka, (2018) 14 SCC 298: (2019) 1 SCC (Cri) 594] and Bikash Ranjan Rout [Bikash Ranjan Rout v. State (NCT of Delhi), (2019) 5 SCC 542: (2019) 2 SCC (Cri) 613] have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Admn.) [Randhir Singh Rana v. State (Delhi Admn.), (1997) 1 SCC 361] and Reeta Nag v. State of W.B. [Reeta Nag v. State of W.B., (2009) 9 SCC 129: (2009) 3 SCC (Cri) 1051] also stand overruled."

The case at hand runs counter to what the Apex Court has held in

the aforesaid case. When the trial was at the fag end

supplementary charge sheet is filed. It is not the case of addition or

alteration of the charge that was already made. It is where a

supplementary charge sheet is filed in which six witnesses are

added and were sought to be examined. This is specifically barred

in the light of the judgment of the Apex Court in the case of

VINUBHAI HARIBHAI MALAVIYA.

10. It is not a case where certain documents are placed by

way of evidence under Section 242 of the Cr.P.C. Sub-Section (3) of

Section 242 of the Cr.P.C. gives liberty to the Court trying the case

to take all such evidence as may be produced in support of the

prosecution. The proviso mandates 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. If it were to be an application filed under

Section 242 of the Cr.P.C. it would have been a different

circumstance altogether. What is now sought by the prosecution is

additional charge sheet to include six more witnesses. Filing of

additional charge sheet cannot be done after the charges have been

framed and trial is in progress. Alteration of charges is permissible

but not filing of additional charge sheet with altogether new

witnesses who were not examined during the investigation and

were not a part of the charges already framed and the trial being

continued on the strength of those witnesses would be permitting

Section 173(8) Cr.P.C. proceedings after framing of charges.

11. Insofar as the judgment relied on by the learned High

Court Government Pleader in the case of B.L.UDAYKUMAR AND

OTHERS v. STATE OF KARNATAKA rendered in Criminal

Petition No.4398 of 2018 decided on 23-07-2018 to buttress his

submissions that any witnesses can be examined at any time, the

same is unacceptable as the Co-ordinate Bench of this Court was

considering the purport of Section 242 of the Cr.P.C. and its inter-

play with Section 173(8) Cr.P.C. The Court holds that Section 242

of the Cr.P.C. cannot be given a restrictive meaning. All evidence

would mean all evidence as produced under Section 242 of the

Cr.P.C.

12. The case at hand is not the case where an application is

filed under Section 242 of the Cr.P.C., but additional charge sheet is

filed under Section 173(8) of the Cr.P.C. Filing of such additional

charge sheet under Section 173(8) of the Cr.P.c. is specifically

barred after the charges have been framed. The learned Sessions

Judge could not have permitted that evidence to come on record.

Therefore, it is a case where the evidence that is let in by those

four witnesses who have come in on the basis of the additional

charges will have to be eschewed and further trial to be conducted

only on the basis of the evidence that was available as on the date

the prosecution sought to file additional charge sheet.

13. For the aforesaid reasons, the following:

ORDER

(i) Criminal Petition is allowed.

(ii) The additional charge sheet filed by the Police in

S.C.No.30 of 2019 pending before the II Additional

Sessions Judge, Davangere stands quashed.

(iii) The trial is to proceed further on the basis of the charge

sheet filed on 12.06.2017.

Sd/-

JUDGE

bkp CT:MJ