Karnataka High Court

Sri Shivappa S/O Arjun Hadimani Alias ... vs The State Of Karnataka on 7 February, 2024

Author: S.Vishwajith Shetty

Bench: S.Vishwajith Shetty

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                                                        CRL.RP No. 100280 of 2022




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                              DATED THIS THE 7TH DAY OF FEBRUARY, 2024

                                                BEFORE                       R
                             THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
                      CRIMINAL REVISION PETITION NO. 100280 OF 2022 (397)
                      BETWEEN:

                      SRI SHIVAPPA
                      S/O. ARJUN HADIMANI @ PANCHAGAON,
                      AGE: 38 YEARS, OCC. AGRICULTURE,
                      R/O. SALAHALLI, TAL. RAMADURG,
                      DIST. BELAGAVI-590001.
                                                                     ...PETITIONER
                      (BY SRI SRINAND A. PACHHAPURE, ADVOCATE)
                      AND:
                      1.    THE STATE OF KARNATAKA
                            BY KATAKOL POLICE STATION,
                            NOW REP . BY ITS STATE PUBLIC PROSECUTOR,
                            HIGH COURT OF KARNATAKA, DHARWAD,
                            BENCH AT DHARWAD.

                      2.    SMT. HANAMAVVA D/O. YAMANAPPA MADAR,
                            AGE: 73 YEARS, OCC. COOLIE,
                            R/O. AMBEDKAR NAGAR,
ANNAPURNA
CHINNAPPA                   SALAHALLI-590001, TAL. RAMDURG,
DANDAGAL                    DIST. BELAGAVI.
                                                                   ...RESPONDENTS
Digitally signed by
ANNAPURNA             (BY SMT. GIRIJA S. HIREMATH, HCGP)
CHINNAPPA
DANDAGAL
Date: 2024.02.22
17:14:14 +0530
                             THIS CRIMINAL REVISION PETITION IS FILED U/S 397(1)
                      R/W SECTION 401 OF CR.P.C., SEEKING TO CALL FOR THE
                      RECORDS IN SPL.CASE NO.77/2014 AND SET ASIDE THE ORDER
                      DATED 11.07.2022 PASSED BY THE COURT OF I ADDITIONAL
                      DISTRICT AND SESSIONS JUDGE, BELAGAVI ON AN APPLICATION
                      FILED U/S 216 OF CR.P.C. IN SPL.CASE NO.77/214, MARKED AT
                      ANNEXURE-A, AND SET ASIDE THE ORDER/CHARGE DATED
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                                   NC: 2024:KHC-D:2742
                                  CRL.RP No. 100280 of 2022




20.07.2022 FRAMED BY THE COURT OF I ADDITIONAL DISTRICT
AND SESSIONS JUDGE, BELAGAVI IN SPL.CASE NO.77/2014
MARKED AT ANNEXURE-A1, FOR THE OFFENCE PUNISHABLE U/S
135(1) (a) OF ELECTRICITY ACT 2003 AND 304(II) AND 201 R/W
34 OF IPC.


     THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:


                          ORDER

This criminal revision petition under Section 397 (1)

read with Section 401 of the Criminal Procedure Code, (for

short, 'the Cr.P.C') is filed by the accused No.1 with a

prayer to set aside the order dated 11.07.2022 passed by

the Court of I Additional District and Session Judge,

Belagavi, in Spl.Case.No.77/2014, wherein the application

filed by the prosecution under Section 216 of the Cr.P.C.

was allowed.

2. Heard the learned counsel for the parties.

3. Petitioner herein was charge sheeted along with

accused No.2 for the offences punishable under Sections

304A and 201 read with Section 34 of the Indian Penal

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Code (for short, 'the IPC') and Section 135(1)A Karnataka

Electricity Act (for short,' the K.E.Act'). The trial Court after

taking cognizance of the charge sheeted offences had

issued summons to the accused. Since accused claimed to

be tried, the case was posted for recording the evidence on

behalf of the prosecution. At the fag end of the trial,

prosecution had filed an application under Section 216 of

the Cr.P.C with a prayer to alter the charge for the offence

punishable under Section 304 Part II instead of offence

punishable under Section 304A. The said application was

opposed by the accused. The trial Court vide impugned

order had allowed the said application. Being aggrieved by

the same, accused No.1 is before this Court.

4. Learned counsel for the petitioner submits that

from a reading of Section 216 of Cr.P.C., it is very clear

that it is only the trial Court that can exercise power under

the said provision. He submits that unless sufficient

material is available on record during the course of trial,

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the power under Section 216 cannot be exercised. He

accordingly prays to allow the petition.

5. Per contra, learned High Court Government

Pleader has opposed the petition. She submits that the

plain reading of the Section 216 of the Cr.P.C would go to

show that at any stage the trial Court can alter or add any

charge if it finds that there is sufficient material for

exercising powers under Section 216 Cr.P.C. She also

submits that the accused are not prejudiced since they

have a right to recall the witnesses. Accordingly, she prays

to dismiss the petition.

6. Undisputed facts in the present case are, charge

sheet was filed against the accused for the offences

punishable under Section 304A and 201 read with Section

34 of the IPC and Section 135(1)(A) K.E.Act and charges

were framed against the accused by the trial Court only for

the aforesaid offences. After the charges were framed the

trial Court had proceeded with the trial of the case and at

the stage of recording the evidence of P.W.20, prosecution

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had filed an application under Section 216 Cr.P.C with a

prayer to alter the charges.

7. Sections 216 and 217 of Cr.P.C. reads as

under:

"Section 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

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sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.

Section 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 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."

8. From a reading of Sections 216 and 217 of

Cr.P.C., it can be said that it is only the trial Court which

can su moto exercise power under this provision of law and

power under this provision of law cannot be exercised at

the instance of accused or the complainant. If the provision

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of law does not provide any specific right to the parties,

such a right should not be read into the provision of law by

the courts, unless the court is of the view that if such a

right is not conferred on the parties, there is likelihood of

failure of justice. Abuse of legal procedure is one of the

major factors for delay in disposal of cases. Unless the

Courts dispense with such procedures which are totally

unnecessary and causes no prejudice to the parties if they

are dispensed with, it would not be possible for the Courts

to take effective steps for speedy disposal of the cases.

Providing Fast Track Court and use of Alternate Dispute

Resolution, is not sufficient to reduce the burden of the

Courts. The courts have to be proactive and they are not

only required to dispense with unnecessary procedures but

are also required to ensure that legal procedures are not

abused.

9. Section 216 of Cr.P.C. provides that Courts can

alter or add any charge at any time before the judgement

is pronounced. Section 217 of Cr.P.C. provides that

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whenever a charge is altered or added to by the Courts,

after commencement of trial, the prosecution and the

accused shall be allowed to recall or re-summon and

examine the witness with reference to the said alteration or

addition of charge and also call any other further witnesses

whom the Court may think to be material. Therefore, in the

event the Court alters or adds to any charge at any time

before the judgment is pronounced, the prosecution as well

as the accused gets a right under Section 217 of Cr.P.C. to

recall or re-summon the witnesses and in addition to the

same, even further witnesses may be summoned whom the

Court may think to be material after the trial is

commenced. In the event the Court exercises its power

under Section 216 of Cr.P.C., then under the normal

circumstance the trial is likely to be delayed for the reason

that the accused and the prosecution are likely to exercise

their rights provided under Section 217 of Cr.P.C. Therefore

the Courts should be very conscious of this aspect of the

matter and unless the Court is satisfied that the material

evidence placed before it warrants exercise of power under

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Section 216, the powers under Section 216 of Cr.P.C.

should not be exercised.

10. A reading of Section 216 of Cr.P.C. makes it

clear that legislature has not provided any right for the

party to make an application under this provision of law.

The Hon'ble Supreme Court in the case of

P.Kartikalakshmi Vs.Sri.Ganesh and Another reported

in (2017) 3 SCC 347 wherein application was filed by the

defacto-complainant under Section 216 of the Cr.P.C to

frame an additional charge, in paragraphs No. 6 and 7 has

observed as under:

"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

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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 factor 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 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."

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11. The judgment in the case of

P.KARTIKALAKSHMI has been relied upon the Hon'ble

Supreme Court in the case of DR.NALLAPPAREDDY

SRIDHAR REDDY VS. STATE OF ANDRA PRADESH AND

ANOTHER reported in (2020) 12 SCC 467, wherein

paragraph 21 of the order the Hon'ble Supreme Court has

observed as follows:

"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

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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."

12. This Court in the case of K.MUNIVAHINI

V.K.CHAKRAPANI reported in AIR ONLINE 2023 KAR

255, placed reliance on the judgment of the Hon'ble

Supreme Court in P.KARTIKALAKSHMI's case and has

held that the application filed by the accused under Section

216 of the Cr.P.C is not maintainable. In K.Munivahini's

case, this Court has also held that the trial Court while

exercising its power under Section 216 of Cr.P.C. cannot

delete a charge already framed by it and it has no power to

do so.

13. In the present case, undisputedly the

application is filed by the prosecution to alter the charges.