N.P.Hamza vs State Of Kerala
2021 Latest Caselaw 4782 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

      THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

 WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942

                 Crl.MC.No.5428 OF 2020(G)

  AGAINST THE ORDER DATED 29.09.2020 IN CC 173/2016 (CRIME
 NO.1015/2013 OF VALAPPATANAM POLICE STATION) OF THE COURT
     OF ENQUIRY COMMNR. & SPECIAL JUDGE, AT THALASSERY


PETITIONERS/ACCUSED 2 & 3:

      1     N.P.HAMZA
            AGED 50 YEARS
            S/O.MOIDEENKUTTY, DILHITHA, POOPPAD, KAYARALAM
            AMSOM, (FORMER SECRETARY, V.S.C BANK,
            VALAPATTANAM).

      2     T.SAIFUDIN,
            AGED 68 YEARS
            S/O.MOHAMMED, SAJNAS, MILL ROAD, VALAPATTANAM,
            (FORMER PRESIDENT, V.S.C BANK, VALAPATTANAM).

            BY ADVS.
            SRI.K.VISWAN
            SMT.ANUROOPA JAYADEVAN
            SRI.D.ARUN BOSE
            SHRI.ASHRUTH NASER

RESPONDENTS/STATE & COMPLAINANT:

      1     STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
            COURT OF KERALA, ERNAKULAM, KOCHI-682031.

      2     DEPUTY SUPERINTENDENT OF POLICE,
            KANNUR-670001.

            SRI B JAYASURYA -SR PP,
            SRI K GOPALAKRISHNA KURUP SR ADV

     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
03.02.2021, THE COURT ON 10.02.2021 PASSED THE FOLLOWING:
 Crl.M.C.No.5428/2020
                                     2




                                                               "CR"

                     R.NARAYANA PISHARADI, J
                     ************************
                      Crl.M.C.No.5428 of 2020
            ------------------------------------------------
             Dated this the 10th day of February, 2021


                                  ORDER

The petitioners are the second and the third accused in the

case C.C.No.173/2016 pending in the Court of the Enquiry

Commissioner and Special Judge, Thalassery.

2. The first accused was employed as the Accountant in

the Valapattanam Service Co-operative Bank. Accused 2 to 5

were the Secretary, Manager, Chief Accountant and the Assistant

Secretary of the Bank respectively.

3. It is not necessary here to narrate the prosecution

case in detail. Suffice it to state that the case relates to

misappropriation of an amount of Rs.2,00,000/- allegedly

committed by the first accused while he was working as the Crl.M.C.No.5428/2020

Manager in-charge of the Bank with the assistance of the other

accused in the case.

4. The trial court framed charge against the accused for

the offences punishable under Sections 13(1)(c) and 13(1)(d)

read with 13(2) of the Prevention of Corruption Act, 1988 and

also under Sections 409, 468, 471, 477A, 201 and 120B of the

Indian Penal Code.

5. After examination of the accused under Section 313 of

the Code of Criminal Procedure, 1973 (for short 'the Code'), the

trial of the case reached the stage of defence evidence. The trial

court then found that the materials produced by the prosecution

showed sufficient elements to attract the offence punishable

under Section 202 I.P.C against accused 2 to 5 and therefore, in

the interest of justice, it was necessary to frame additional

charge against them for that offence. Accordingly, the trial court

passed Annexure-A6 order to that effect.

6. The petitioners, who are the second and the third

accused in the case, have filed this application under Section 482

of the Code to set aside Annexure-A6 order. Crl.M.C.No.5428/2020

7. Heard Sri.K.Gopalakrishna Kurup, learned senior

counsel who appeared for the petitioners and also the learned

Public Prosecutor.

8. Learned senior counsel contended that there is

absolutely no material on record before the trial court to add a

charge against the petitioners for an offence under Section 202

I.P.C. Learned senior counsel would contend that, in the absence

of any such material, the trial court should not have exercised

the power under Section 216(1) of the Code. Learned senior

counsel further contended that the impugned order does not

disclose what are the materials on record which attract the

offence punishable under Section 202 I.P.C against the

petitioners.

9. Per contra, the learned Public Prosecutor submitted

that the trial court was satisfied that there was sufficient material

to add a charge for the offence under Section 202 I.P.C against

the petitioners and therefore, this Court cannot invoke the power

under Section 482 of the Code to interfere with that finding. Crl.M.C.No.5428/2020

10. The relevant portion of Annexure-A6 order reads as

follows:

"Here in this case the prosecution allegation against A2 to A5 is that they have purposefully delayed reporting the offence of alleged criminal misappropriation of Rs.2,00,000/- committed by A1 from Manna Branch of the Valapattanam Service Co-operative Bank. A2 is the Secretary, A3 is the Manager, A4 is the Chief Accountant and A5 is the Assistant Secretary of the Valapattanam Service Co-operative Bank during the relevant period of this case. The charge framed by my predecessor against the accused persons for offences u/s.13(1)(d) read with 13(2) of PC Act and U/s.120B, 409, 468, 471, 477A and 201 of I.P.C. The materials produced by the prosecution show sufficient elements to attract offence u/s.202 of IPC against A2 to A5. So for the interest of justice it is necessary to frame additional charge for offence U/s.202 of IPC against A2 to A5 in addition to the charge already framed against them. Therefore the case is suo-motu re-opened for framing additional charge against A2 to A5 and they are directed to appear on 06.10.2020 to read the charge."

11. It is pertinent here to note that, in the chargesheet

filed by the investigating officer, no offence under Section 202 Crl.M.C.No.5428/2020

I.P.C is alleged against any of the accused. As far as accused 2

to 5 are concerned, the trial court had framed charge against

them only for the offences punishable under Sections 120B I.P.C

and under Section 201 read with 120B I.P.C.

12. Section 216(1) of the Code provides that, any Court

may alter or add to any charge at any time before judgment is

pronounced. Section 216(2) of the Code states that, every such

alteration or addition shall be read and explained to the accused.

13. Section 216(1) of the Code gives considerable powers

to the trial court to alter and add any charge. It can be done

even after the completion of evidence, hearing the arguments

and reserving the judgment. The expressions "at any time" and

before the "judgment is pronounced" would indicate that the

power is very wide and it can be exercised, in the interest of

justice, in appropriate cases (See C.B.I v. Karimullah Osan

Khan : AIR 2014 SC 2234 and Nallapareddy Sridhar Reddy

v. State of A.P : AIR 2020 SC 753).

14. The power of the court to alter or add to any charge is

uninhibited and untrammelled by any time or stage of the trial. Crl.M.C.No.5428/2020

The legislative intention is evidently to invest the court with all

comprehensive power for remedying the defects in a charge

whether they arose while framing the charge or due to

non-framing of charge, whether the defects were discovered at

the inception of the trial or at any subsequent stage of it. An

erroneous and improper charge may be corrected under Section

216(1) of the Code by reframing it properly or by adding to it or

altering it, at any time, prior to pronouncement of the judgment

(See Pradeepan v. State of Kerala : 1993 (2) KLT 880).

15. During the trial, if the trial court, on a consideration of

broad probabilities of the case based upon total effect of the

evidence and documents produced, is satisfied that any addition

or alteration of the charge is necessary, it is free to do so, and

there can be no legal bar to appropriately act as the exigencies of

the case warrant or necessitate (Hasanbhai Valibhai Qureshi

v. State of Gujarat : AIR 2004 SC 2078). If the trial Court is

of the view that there is sufficient evidence on record against the

accused which would make them liable for conviction and

punishment for offences, other than those offences for which Crl.M.C.No.5428/2020

charge is framed, the court can alter/add the requisite charges,

at any stage prior to the conclusion of the trial (Bhimanna v.

State of Karnataka : AIR 2012 SC 3026).

16. The court can change or alter the charge if there is

defect or something is left out. It can be done at any time before

pronouncement of judgment. If the court has not framed a

charge despite the material on record, it has the jurisdiction to

add a charge (Anant Prakash Sinha v. State of Haryana :

AIR 2016 SC 1197).

17. In P.Kartikalakshmi v Sri Ganesh : (2017) 3 SCC

347, it has been held that the power vested under Section

216(1) of the Code is exclusive to the Court and there is no right

in any party to seek for addition or alteration of charge by filing

any application as a matter of right. It was held that Section

216(1) of the Code is an enabling provision for the Court to

exercise its power under certain contingencies which come to its

notice or brought to its notice. It was made clear in this decision

that, neither the de facto complainant nor the accused or for that

matter the prosecution has any vested right to seek any addition Crl.M.C.No.5428/2020

or alteration of charge.

18. However, in Anant Prakash Sinha (supra), it had been

held that there was no fault on the part of the trial court in

entertaining the application filed by the informant seeking

addition of charge. It was held that the informant had, in a way,

only brought to the notice of the trial court the defect in framing

of the charge which could have been rectified by the court suo

motu.

19. There is no real conflict between Kartikalakshmi

(supra) and Anant Prakash Sinha (supra). Kartikalakshmi

(supra) only holds that neither the de facto complainant nor the

accused or the prosecution has any vested right to seek any

addition or alteration of charge and that the power under Section

216(1) of the Code is exclusively confined to the Court. But,

Anant Prakash Sinha (supra) makes it clear that, by filing an

application seeking addition or alteration of charge, the informant

only brings to the notice of the trial court the defect in framing

the charge to enable the court to rectify it. Crl.M.C.No.5428/2020

20. What is the test to be applied in deciding whether any

alteration or addition of charge is necessary? Anant Prakash

Sinha (supra) holds that, the test is, alteration or addition of

charge must have foundation on the material available on record.

It can be on the basis of the complaint or the first information

report or accompanying documents or the material brought on

record during the course of the trial or evidence adduced during

the course of the trial. It is not to be understood that unless

evidence has been let in, charges already framed cannot be

altered.

21. In a case instituted on a complaint, addition of charge

could be done only if there are materials either in the complaint

or in the evidence adduced to justify such action (See Harihar

Chakravarty v. State of W.B : AIR 1954 SC 266).

22. The court can exercise the power of addition or

modification of charges 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 (See C.B.I v.

Karimullah Osan Khan : AIR 2014 SC 2234).

Crl.M.C.No.5428/2020

23. In Nallapareddy Sridhar Reddy (supra), it has been

held as follows:

"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".

24. An analysis of the decisions referred to above leads to

the conclusion that the test to be applied in exercising the power

under Section 216(1) of the Code to add a charge is the

existence of sufficient materials on record which have direct link,

nexus or connection with the ingredients of the offence.

25. In the instant case, the grievance of the petitioners is

that the impugned order does not disclose what are the materials

on record which have got a direct nexus or link with the

ingredients of the offence punishable under Section 202 I.P.C Crl.M.C.No.5428/2020

which is proposed to be added against them.

26. In the impugned order, the trial court has only stated

that "the materials produced by the prosecution show sufficient

elements to attract offence under Section 202 I.P.C against A2 to

5." The trial court has not indicated what are the materials on

record which contain sufficient elements attracting the offence

under Section 202 I.P.C against the petitioners.

27. Normally, when the trial court initially decides to frame

charge against the accused, there is no legal requirement that it

shall pass an order specifying the reasons as to why it opts to do

so. Framing of charge itself is prima facie order that the trial

court has formed the opinion, upon considering the police report

and other documents and after hearing both sides, that there is

ground for presuming that the accused has committed the

offence concerned (See Kanti Bhadra Shah v. State of West

Bengal : AIR 2000 SC 522).

28. However, when the trial court exercises the power

under Section 216(1) of the Code, that too, at a stage after

examination of the accused under Section 313 of the Code, to Crl.M.C.No.5428/2020

add a charge for an offence which the prosecution has not

alleged against the accused, it is necessary that the trial court

shall specifically indicate the materials on record which form the

basis for adding a new charge. The court must ensure that there

exists convincing materials on record to add a new charge and

indicate with certainty what those materials are. In the instant

case, the trial court has not indicated with certainty as to what is

the material on record which, prima facie, shows that the

petitioners have committed the offence punishable under Section

202 IPC. Keeping the accused in dark of those materials would

cause serious prejudice to them. Annexure-A6 order is liable to

be set aside for this reason.

29. Consequently, the petition is allowed and

Annexure- A6 order is set aside. If found necessary, the trial

court is at liberty to pass fresh orders for addition of charge

against the petitioners or other accused, keeping in mind the

observations made in this order in the previous paragraph.

(sd/-) R.NARAYANA PISHARADI, JUDGE jsr Crl.M.C.No.5428/2020

APPENDIX PETITIONERS' EXHIBITS:

ANNEXURE A1 TRUE COPY OF THE F.I.R IN CRIME NO.1015/2013 OF THE VALAPATTANAM POLICE STATION ALONG WITH THE COMPLAINT WITH ENCLOSURES SUBMITTED BY THE 1ST PETITIONER (EXTS.P64,P64(A),P64(B) AND P64(C) IN CC 173/2016.

ANNEXURE A2 TRUE COPY OF REPORT DATED 28.01.2014 MARKED AS EXT.P65 IN C.C. 173/2016.

ANNEXURE A2(a) TRUE COPY OF REPORT DATED 28.01.2014 MARKED AS EXT.P66 IN C.C.173/2016.

ANNEXURE A3              TRUE COPY OF THE GIST OF THE
                         ALLEGATIONS CONTAINED IN THE COPY OF
                         THE FINAL REPORT DATED 14.06.2016 IN
                         C.C.173/2016 SUPPLIED TO THE
                         PETITIONERS.

ANNEXURE A4              TRUE COPY OF THE COURT CHARGE DATED
                         19.03.2018 IN C.C.NO.173/2016.

ANNEXURE A5              TRUE COPY OF THE QUESTIONS AND ANSWERS
                         UNDER SECTION 313 CR.P.C.IN RESPECT OF
                         THE 2ND ACCUSED AND THE STATEMENT OF
                         THE 2ND ACCUSED IN C.C.173/2016 (1ST
                         PETITIONER HEREIN).

ANNEXURE A6              CERTIFIED COPY OF THE ORDER DATED
                         29.09.2020 IN C.C.NO.173/2016 ON THE
                         FILE OF THE COURT OF THE ENQUIRY
                         COMMISSIONER AND SPECIAL JUDGE,
                         THALASSERY.

                       TRUE COPY
                                          PS TO JUDGE