Karnataka High Court
Sri Venkatesha vs The State Of Karnataka on 2 January, 2024
Author: K.Natarajan
Bench: K.Natarajan
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CRL.P No. 12406 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL PETITION NO. 12406 OF 2023
BETWEEN:
SRI VENKATESHA
S/O MUTHU,
AGED ABOUT 27 YEARS,
R/AT NO.33, 3RD CROSS,
NARASIPURA LAYOUT, VIDYARANYAPURA,
BANGALORE - 97.
...PETITIONER
(BY SRI. H. V. SUBRAMANYA, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY DODDABELAVANGALA POLICE STATION,
DODDABALLAPUR TALUK,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
Digitally signed by BANGALORE - 560 001.
BHAVANI BAI G
Location: High
...RESPONDENT
Court of Karnataka (BY SRI. K. NAGESHWARAPPA, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.PC PRAYING TO QUASH THE CHARGE DATED 07.12.2020
FOR THE OFFENCE P/U/S 120B, 109, 323, 396, 506 AND 201 OF
IPC AND ALSO THE ORDER DATED 20.11.2023 PASSED IN
RESPECT OF THE APPLICATION FILED BY THE PETITIONER U/S
216 OF CR.P.C. IN S.C.NO.10005/2021, PENDING ON THE FILE OF
THE IV ADDL. DISTRICT AND SESSIONS JUDGE AT
DODDABALLAPURA, BANGALORE RURAL DISTRICT THEREBY
ORDERED TO PROCEED AGAINST THE PETITIONER ONLY FOR THE
OFFENCE P/U/S 109 OF IPC FOR THE REASONS STATED ABOVE.
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CRL.P No. 12406 of 2023
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioner-accused No.7 under
Section 482 of Cr.P.C. for quashing the impugned order dated
20.11.2023 in S.C.No.10005/2021 for having rejected the
application filed by the petitioner under Section 216 of Cr.P.C.
2. Heard the arguments of learned counsel for the
petitioner and learned High Court Government Pleader for the
State.
3. The case of the petitioner is that the petitioner
facing the trial before the Sessions Court and the charge sheet
is filed by the police for the offences punishable under Sections
120B, 109, 323, 396, 506, 201 of IPC and the charges were
also framed by the trial Court against accused Nos.1 to 8 for
the above said offences. During the trial, the petitioner being
accused No.7 filed an application for altering the charge against
him for the offence punishable under Section 109 of IPC which
came to be dismissed. Hence, the petitioner is before this
Court.
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4. Learned counsel for the petitioner has contended
that the Police have filed the charge sheet. At column No.17 of
the charge sheet, it is categorically mentioned that this
petitioner has abetted or aided the other accused for
committing dacoity by sending two accused persons i.e.
accused Nos.5 and 8. But the Trial Court by ignoring the
material on record, framed the charges against this petitioner
against accused Nos.1 to 8 for the offences punishable under
Sections 120B, 323, 396, 506, 201 of IPC and also framed a
separate charge under Section 109 of IPC, therefore, filed an
application. But, the Trial Court wrongly rejected the
application holding that he has also participated in the
commission of dacoity and murder. They assaulted CW.1. In
fact, he has not participated except sending accused Nos.5 and
8, which may attract Section 109 of IPC but not other offences.
Hence, prayed for allowing the application and directing the
Trial Court to frame proper charges against the petitioner.
5. Per contra, learned High Court Government Pleader
supported the order of the Trial Court.
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6. Having heard the arguments and perused the
records. On perusal of the same, especially, at column No.17
of the charge sheet reveals, the accused Nos.1 to 4 and 6 were
hatched plan or conspired to commit dacoity in the house of
CW.1 during the lockdown period thinking that the deceased-
Manjunath said to be having a huge property by doing real
estate business. After watching the house, the accused No.2
approached this petitioner-accused No.7 for providing two more
persons for the purpose of committing theft. At that time, this
petitioner said to be sent accused Nos.5 and 8 for committing
theft. However, he has insisted for share in the robbed amount.
Based upon the charge sheet, the Trial Court framed the
charges against all the accused persons on 18.03.2023
including for the charges under Sections 323, 506, 120B, 201,
396 and 5th charge was against this petitioner for the offences
under Section 109 of IPC.
7. On careful reading of the charge and the charge
sheet material produced by the Police which clearly reveals,
this accused was only sent accused Nos.5 and 8 along with
accused No.2 for committing theft. In fact, subsequently, it
was dacoity with murder for the offence punishable under
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Section 396 of IPC. The other accused persons i.e., accused
Nos.1 to 4 and 6 were conjointly conspired to commit theft or
dacoity. But the accused Nos.5 and 8 were sent by accused
No.7 for committing theft. In fact, later it became dacoity with
murder as they also assaulted the deceased. The accused No.7
was not actually participated in the crime and the allegation
against him was that he has sent two persons along with
accused No.2 for committing theft or committing the offence.
In this regard, it is necessary to mention Section 391 of IPC
which reads as under:
"391. When five or more persons conjointly commit
or attempt to commit a robbery, or where the
whole number of persons conjointly committing
or attempting to commit a robbery, and
persons present and aiding such commission or
attempt, amount to five or more, every person
so committing, attempting or aiding, is said to
commit "dacoity".
8. On bare reading of Section 391 of IPC, which
reveals not only committing or attempting to commit robbery
or persons present and aiding such commission or attempt,
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amount to five or more, every person so committing,
attempting and aiding is said to commit dacoity.
9. Even in this case, this petitioner has sent two
persons aiding the commission of dacoity. However he was not
present which is nothing but the offence committed by the
accused attracts Section 109 of IPC. However, when the
offence was committed by the other accused under Section 396
of IPC. Hence, Section 396 read with Section 109 of IPC
attracts against this petitioner. Section 109 of IPC cannot be
independently charged or convicted against this petitioner.
Therefore, the Trial Court ought to have framed the proper
charges against accused No.7 independently though the Trial
Court independently charged Section 109 of IPC, but conjointly
charged for other offences with other accused which is not
correct. Therefore, when this petitioner was not present on the
spot and aided, Section 396 of IPC or other offences cannot be
attracted along with the other accused, but he has to be
charged independently for the offence under Section 396 read
with Section 109 of IPC. Therefore, the Trial Court ought to
have altered the charges against the accused persons and the
application ought to have allowed.
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10. It is well settled, the Trial Court can alter the
charges of Section 216 of Cr.P.C. at any stage prior to passing
the judgment by providing some opportunity to the accused
persons or the prosecution to adduce any further evidence on
the altered charges. Such being the case, I am of the view, the
Trial Court committed error in framing all the charges against
this petitioner including Sections 120B, 506, 323, 201 and 396
of IPC apart from Section 109 of IPC.
11. Therefore, the Trial Court is required to alter the
charges against this petitioner under Section 396 read with
Section 109 of IPC and delete his name in other 5 charges i.e.,
charge Nos.1 to 4 and 6. Accordingly, I proceed to pass the
following:
ORDER
The petition is allowed.
The order of the Trial Court rejecting the application is set
aside.
The application is allowed.
The Trial Court is directed to frame proper charge against
this petitioner especially for Section 396 read with Section 109
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of IPC for other offences against other accused persons i.e.,
accused Nos.1 to 6 and 8.
An opportunity should be provided to both the side for
any further cross examination or further examination-in-chief
by the State.
It is observed that the time for framing of altered charges
and time consumed for further evidence can be excluded in the
direction given by this Court for disposing this matter.
Sd/-
JUDGE
GBB
CT:SK
