Karnataka High Court

Ananda vs State Of Karnataka on 8 June, 2022

Bench: M.Nagaprasanna

                             1



        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 08TH DAY OF JUNE, 2022             R
                            BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

              CRIMINAL PETITION No.1829 OF 2022

BETWEEN:

ANANDA
S/O JONAPPA
AGED ABOUT 30 YEARS,
R/AT TRUNASI VILLAGE
MASTHI HOBLI,
MALUR TALUK
KOLAR DISTRICT - 563 139.
                                                  ... PETITIONER
(BY SRI BASAVARAJU T.A., ADVOCATE)

AND:

1.     STATE OF KARNATAKA BY
       MASTHI POLICE STATION,
       KOLAR DISTRICT
       REPRESENTED BY LEARNED
       STATE PUBLIC PROSECUTOR
       PUBLIC PROSECUTORS OFFICE
       AT HIGH COURT BUILDING,
       HIGH COURT OF KARNATAKA
       AMBEDKAR VEEDI
       AT BENGALURU - 560 001.

2.     SUSHEELAMMA
       W/O LATE CHIKKATHIMMARAYAPPA
       AGED ABOUT 46 YEARS,
       R/AT TRUNASI VILLAGE
       MASTHI HOBLI
                               2



     MALUR TALUK
     KOLAR DISTRICT - 563 139.
                                                ... RESPONDENTS
(BY SRI K.S.ABHIJITH, HCGP FOR R1;
    R2 SERVED - UNREPRESENTED)


     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 31.12.2021
PASSED IN S.C.NO.227/2018 BY HONBLE II ADDITIONAL DISTRICT
AND SESSIONS JUDGE AT KOLAR DISTRICT.


    THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 24.05.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:-
                            ORDER

The petitioner/accused No.1 in S.C.No.227 of 2018 has

knocked the doors of this Court in the subject petition calling in

question order dated 31-12-2021 by which the II Additional

District and Sessions Judge, Kolar has added a charge under

Section 7 of the POCSO Act ('the Act' for short) apart from the

allegations which were initially levelled and punishable under

Sections 366A, 506 and 34 of the IPC.

2. Heard Sri T.A.Basavaraju, learned counsel appearing for

the petitioner and Sri K.S.Abhijith, learned High Court

Government Pleader for the 1st respondent.

3. The facts, necessary for consideration of the subject lis,

are as follows:

A complaint came to be registered on 01-12-2016 on an

allegation that when the victim was going to the school at

Masthi, the petitioner is said to have asked her to sit on the bike

to drop her at the school. The victim sits on the bike and they

reached Masthi Dinne where accused 2 and 3 along with

accused No.1 kidnapped and taken the victim to

Halasumaranadoddi. The purpose of such kidnap was to get her

married to accused No.4. The complaint further narrates that

she escaped from the clutches of the accused and contacted the

complainant and her relatives. Thereafter, a complaint came to

be registered against all the accused including the petitioner for

offences punishable under Sections 366A, 506 and 34 of the

IPC. The crime came to be registered on 06-12-2016 for an

incident that had happened on 01-12-2016.

4. The issue in the case at hand is not with regard to

merits of the matter. What drives the petitioner to this Court at

this juncture is an order passed by the learned Sessions Judge

altering the charge invoking his power under Section 216 of the

Cr.P.C. on an application being made by the prosecution seeking

alteration of the charge and inclusion of offence punishable

under the Act. The application was filed by the prosecution on

25.01.2021 on account of certain statements recorded during

the trial before the learned Sessions Judge. The petitioner and

others filed their objections for alteration of the charge. The

learned Sessions Judge by his order dated 31-12-2021 allows

the application permitting amendment of the charge for

inclusion of Section 7 of the Act.

5. The learned counsel appearing for the petitioner

submits that the very order passed by the learned Sessions

Judge is contrary to law as the charge is altered after three years

of commencement of trial which could not have been done and

for such alteration of charge there was no evidence but merely

on the statement of the victim which does not touch upon the

offence punishable under Section 7 of the Act, the charge that is

added casts grave prejudice to the petitioner. He would submit

that the victim was taken only to get her married to accused

No.4 and nobody has indulged in any act that would become

offence punishable under the Act.

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

Pleader would seek to justify the order and submits that the

charge can be altered by the learned Sessions Judge at any time

and alteration of charge now made does indicate the offence

punishable under the Act. He seeks dismissal of the petition.

7. I have given my anxious consideration to the

submissions of the respective learned counsel and perused the

material on record. In furtherance whereof, the issues that fall

for my consideration are:

(i) Whether the charge can be altered under Section

216 of the Cr.P.C. after commencement of trial

and recording of evidence of several witnesses?

and

(ii) Whether the order directing alteration of the

charge warrants interference?

Issue No.1:

(i) Whether the charge can be altered under Section 216 of the Cr.P.C. after commencement of trial and recording of evidence of several witnesses?

8. To consider the issue whether the Court would be well

within its jurisdiction to alter the charge at any stage of the

proceedings, it is germane to notice source of power for such

alteration. Section 216 of the Cr.P.C. reads 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."

Section 216 (1) permits any Court to alter or add to any charge

at any time before the judgment is pronounced. Other sub-

sections quoted (supra) deal with the manner in which such

alteration of charge has to be made.

9. This power of alteration of the charge, as found in the

statute, can be exercised by any Court, before pronouncement of

the judgment, which would mean after the matter is reserved for

its judgment the charge can be altered. The power of such

alteration of charge is also considered by the Apex Court in the

case of ANANT PRAKASH SINHA @ ANANT SINHA v. STATE

OF HARYANA AND ANOTHER1 wherein the Apex Court holds

that the charge can be altered at any time during the

proceedings, which would mean even after the case is reserved

for its judgment. But, what has to be seen is, whether there is

material and what is the prejudice that would be caused to the

accused by such act. The Apex Court in the said judgment holds

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, charges already framed cannot be altered, for that is not the purport of Section 216 CrPC.

(Emphasis supplied)

(2016) 6 SCC 105

The Apex Court, in a later judgment, following ANANT

PRAKASH SINHA's case has in DR. NALLAPAREDDY SRIDHAR

REDDY v. STATE OF ANDHRA PRADESH AND OTHERS2 has

held as follows:

"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

(2020) 12 SCC 467

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 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)

19. In CBI v. Karimulla 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 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 be adopted by the courts where prejudice may be caused."

(Emphasis supplied)

In the light of the judgments rendered by the Apex Court as

afore-quoted, the submission of the learned counsel appearing

for the petitioner that the charge could not have been altered

after three years of commencement of trial is unacceptable, as

the language employed under Section 216 of the Cr.P.C. is

unequivocal that a Court trying a case is empowered to alter the

charge. The usage of the word 'may' only deploy judicial

discretion to be exercised while altering the said charge.

Therefore, the submission that charge cannot be altered after

the trial has progressed to a large extent is rejected. Issue No.1

is answered against the petitioner.

Issue No.2:

(ii) Whether the order directing alteration of the

charge warrants interference?

10. The afore-quoted fact is not in dispute. The offences

initially alleged against the petitioner were the ones punishable

under Sections 366A, 506 and 34 of the IPC. Section 366A IPC

deals with procuration of minor girl and reads as follows:

"366A. Procuration of minor girl.--Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine."

Whoever, by any means whatsoever, induces any minor girl to go

from any place or do any act or knowing that it is likely that she

will be forced or seduced to illicit intercourse with another

person, the offence would become punishable for a term that

may extend to ten years. The said offence is alleged and a charge

to that effect is also framed by the Court.

11. The victim tenders her evidence on 05-08-2019 and the

said evidence insofar as it pertains to examination-in-chief reads

as follows:

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DgÉÆÃ¦vÀgÀÄ £À£ÀUÉ vÀÄA¨Á CªÀªÀiÁ£À ªÀiÁrzÀÄÝ, CªÀjUÉ ²PÉë PÉÆqÀ¨ÉÃPÀÄ JAzÀÄ PÉÃ½PÉÆ¼ÀÄîvÉÛÃ£É. £Á£ÀÄ DvÀäºÀvÉå ¥ÀæAiÀÄvÀß ªÀÄrzÀÄÝ, DUÀ £À£Àß ªÀiÁªÀ £ÁUÀgÁeï £À£Àß£ÀÄß ªÀÄzÀÄªÉ ªÀiÁrPÉÆAqÀgÀÄ D£ÀAzï, ªÀÄÆwð ªÀÄvÀÄÛ CªÀgÀ ªÀÄ£ÉAiÀÄªÀgÀÄ FUÀ®Æ £À£ÀUÉ vÀÄA¨Á »A¸É PÉÆqÀÄvÁÛgÉ."

(Emphasis added)

Later, the witness was cross-examined on 24-09-2019.

The evidence in the cross-examination reads as follows:

"... ... ... ...

£À£ÀUÉ 4 d£À DgÉÆÃ¦vÀgÀÄ ªÀÄÄlÖ ¨ÁgÀzÀ eÁUÀUÀ¼À°è ªÀÄÄnÖ CªÀªÀiÁ£À ªÀiÁrzÀgÀÄ. £À£Àß£ÀÄß ©lÄÖ ©r JAzÀÄ JµÀÄÖ PÉÃ½PÉÆAqÀgÀÆ £À£Àß£ÀÄß ©qÀ°®è JAzÀÄ ¥ÉÆ°Ã¸ÀgÀ ªÀÄÄAzÉ ºÉÃ½®è. £Á£ÀÄ MAzÀÆªÀgÉ ªÀµÀð¢AzÀ UÀAUÁgÀ¥ÀÄgÀzÀ°è ªÁ¸À EzÉÃ£É. DgÉÆÃ¦vÀgÀÄ ªÀÄÄzÀÄªÉ ªÀiÁrPÉÆAqÀÄ ¨ÉÃgÉ ¨ÉÃgÉ HgÀÄUÀ¼À°è ªÁ¸À EzÁÝgÉ JAzÀgÉ UÉÆwÛ®è."

(Emphasis added)

What triggers the prosecution to file the application is the

evidence afore-quoted. In the examination-in-chief the victim

narrates that the car in which she was travelling was not

stopped near the college and even when she shouted the car was

not stopped. The car was taken to accused No.1's house at

Halasumaranadoddi where she pleaded with all the accused that

she should be let off. She would further state that three accused

have touched her body in places where they should not have

touched. The kind and nature of touching of a 16 years old

minor girl will come about only when the trial gets concluded

after the evidence is let in.

12. The very fact that the victim child has deposed in the

examination-in-chief and sustained the same in the cross-

examination would indicate that it is a matter for trial, as this

Court cannot at this juncture consider as to what has transpired

at the time when the victim was carried to a particular place and

the statement of the victim being that she was touched

inappropriately in all places of her body. After the evidence

afore-quoted the prosecution seeks to incorporate offences

punishable under Section 7 of the Act. It is germane to notice

Section 7 of the Act which deals with sexual assault and reads

as follows:

"7. Sexual assault.- Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

Section 7 of the Act which pertains to "sexual assault" is on its

appearance in two parts. The first part of the section deals with

acts of touching specific sexual parts of the body with sexual

intent. The second part speaks about "any other act" done with

sexual intent which involves physical contact but without

penetration. Therefore, the second part of Section 7 of the Act is

prima facie applicable in the case at hand qua the evidence of

the victim child. The child speaks of touching by the accused at

inappropriate places of her body.

13. In the light of what is afore-observed, no fault can be

found with the order of the concerned Court in allowing the

application filed by the prosecution under Section 216 of the