Telangana High Court

M.A. Hadi Shaheri vs The State Of Telangana on 19 June, 2024

        THE HON'BLE SMT. JUSTICE K.SUJANA

         CRIMINAL PETITION No.4686 of 2024

ORDER:

This Criminal Petition is filed under Section 482 of

Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') to set

aside the order dated 02.04.2024 passed in Cr.M.P.No.19

of 2024 in S.C.No.176 of 2013 by the learned Assistant

Sessions Judge, Vikarabad, Ranga Reddy District.

2. The brief facts of the case are that the prosecution

filed a petition, vide Cr.M.P.No.19 of 2024 in S.C.No.176 of

2013, before the trial Court under Section 216 (1) Cr.P.C to

amend/alter the charges against the petitioners under

Section 27 of the Arms Act, 1959 and Section 120-B of the

Indian Penal Code, 1860. It is stated that the case is

coming up for examination of the petitioners and the

prosecution has found that at the time of framing of

charges, due to typographical error Section 27 of WALTA

Act was typed instead of Section 27 of the Arms Act, 1959.

Further, Section 120-B of the Indian Penal Code, 1860,

which was mentioned in the charge sheet was missing in

the charges framed by the trial Court. Thereafter, the

SKS,J

charge sheet was filed under Section 147,148, 307, 326,

120-B read with Section 149 of the IPC and Section 27 of

the Arms Act after conducting the investigation and

collecting the evidence. Therefore, there is sufficient

material evidence under Section 27 of the Arms Act, 1959

and Section 120-B of the IPC.

3. After hearing on both sides, the trial allowed the said

petition and consequently, directed that the charge for the

offence under Section 27 of WALTA Act shall be altered as

charge under Section 27 of the Arms Act, 1959 and the

charge under Section 120-B of IPC shall be added against

the petitioners. Aggrieved by the same, the present

criminal petition is filed.

4. Heard Sri H. Sudhakar, learned counsel appearing

on behalf of the petitioners as well as Sri S. Ganesh,

learned Assistant Public Prosecutor appearing on behalf of

the respondents

5. Learned counsel for the petitioners submitted that

the petitioners filed counter in Crl.M.P.No.19 of 2024 in

S.C.No.176 of 2013, in which it is stated that P.Ws.1 to 15

SKS,J

were examined and after conclusion of trial, the said case

was posted for 313 Cr.P.C., examination of the petitioners.

From the date of framing of charges, i.e., from 19.04.2016

and even during the course of entire trial, the prosecution

remained silent and filed the said petition at a belated

stage with an oblique motive of filling up the lacunas in the

case. It is further stated that absolutely there is no

evidence in the petition disclosing the acts of conspiracy

among the petitioners and without bringing any

substantive evidence, no party can be allowed to file a

petition under Section 216 of Cr.P.C to modify the charges.

6. Learned counsel for the petitioners further submitted

that the learned Judge failed to appreciate that the entire

trial was concluded and the case was posted for 313

Cr.P.C. examination of the petitioners. In support of his

submission, he relied on the judgment of the Hon'ble

Supreme Court in CBI vs. Karimullah Osan Khan 1 ,

wherein it is observed that the Court can exercise the

power of addition or modification of charges under Section

216 Cr.P.C., only when there exists some material before

2014 136 AIC 238

SKS,J

the Court which has some connection or link with the

charges sought to be amended, added or modified.

7. Learned counsel for the petitioners further relied on

the judgment of the Hon'ble Supreme Court in Jasvinder

Saini and others vs. State (Govt. of NCT of Delhi 2 ,

wherein it is observed that the trial Court has to take into

consideration the broad probabilities of the case based

upon total effect of the evidence during the course of entire

trial and documents produced and when satisfied that any

addition or alteration of the charge is necessary, then only

the Court is free to do so and further the Court should not

have acted in mechanically without adverting to the

evidence adduced in the case. Therefore, he prayed the

Court to set aside the order of the trial Court dated

02.04.2024 passed in Cr.M.P.No.19 of 2024 in S.C.No.176

of 2013 by the learned Assistant Sessions Judge,

Vikarabad, Ranga Reddy District.

8. On the other hand, learned Assistant Public

Prosecutor submitted that there is no illegality in the order

of the trial Court. The Court can alter or add charges at

2013 128 AIC 183

SKS,J

any stage as per Section 216 of Cr.P.C. He further

submitted that the Court has power to alter the charges at

any stage and it will not cause any prejudice to the

accused. Basing on the said charges, if there is any

evidence, the prosecution may produce the evidence, and

there is every possibility of cross examining the witnesses,

as such, the trial Court has rightly allowed the petition.

Therefore, there are no sufficient grounds to interfere with

the order of the trial Court and prayed the Court to dismiss

the petition.

9. Having regard to the rival submissions made by both

the learned counsel and perusal of the material placed on

record, the only contention of the learned counsel for the

petitioners is that there is no averment in the evidence of

P.Ws.1 to 15 with regard to the conspiracy, whereas, as

seen from the record, the charge sheet itself is filed for

Section 120-B of the IPC and Court has not taken

cognizance under Section 120-B of the IPC and Section 27

of the Arms Act. The Court has taken cognizance under

Section 27 of the WALTA Act and the charges were framed

for the said offences.

SKS,J

10. At this stage it is pertinent to note that the judgment

of the Hon'ble Supreme Court in Dr. Nallapareddy

Sridhar Reddy vs. The State of Andhra Pradesh and

others 3, wherein in paragraph No.18 and 24, it is held as

follows:

"18. In CBI vs. Karimullah Osan Khan, this Court dealt with a case where an application was filed under Section 216 of Cr.P.C. during the Court of trial for additional of charges against the appellant under various provisions of the IPC, the Explosives Act, 1884 and the Terrorist and Disruptive Activities (Prevention) Act, 1987. Justice K S P Radhakrishnan, speaking for the Court, held thus:

"17. Section 216 CrPC gives considerable power to the trial Court, that is, even after completion of evidence, arguments head 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 Cr.P.C 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-

Criminal Appeal No.1934 of 2019

SKS,J

sections (2) and (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."

24. The veracity of the depositions made by the witnesses is a question of trial and need not be determined at the time of framing of charge. Appreciation of evidence on merit is to be done by the Court only after the charges have been framed and the trial has commenced. However, for the purpose of framing of charge the Court needs to prima facie determine that there exists sufficient material for the commencement of trial. The High Court has relied upon the materials on record and concluded that the ingredients of the offences under Sections 406 and 420 of the IPC are attracted. The High Court has spelt out the reasons that have necessitated the addition of the charge and hence, the impugned order does not warrant any interference."

11. In view of the above judgment, though the learned

counsel for the petitioners submitted that none of the

witnesses stated anything about the conspiracy, as such,

the trial Court erroneously allowed the petition. The

veracity of the depositions made by the witnesses is a

SKS,J

question of trial need not be determined at the time of

framing of charges. When a petition is filed under Section

216 of Cr.P.C., the Court has the power to

alter/modify/add for framing the charges at any stage,

even after completion of the trial or even after reserving the

judgment. Further, framing of charges itself does not