Judgment:
R Reserved on :
13. 08.2024 Pronounced on :
31. 08.2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE31T DAY OF AUGUST, 2024 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA CRIMINAL PETITION No.7467 OF2024C/W WRIT PETITION No.18539 OF2024(GM – RES) IN CRIMINAL PETITION No.7467 OF2024BETWEEN:
1. . SRI VIKRAM BALLARI S/O UDAY KUMAR BALLARI AGED ABOUT33YEARS RESIDENT OF6H CROSS, MARATHA COLONY, DHARWAD, HUBBALLI- DHARWAD CITY – 580 001. 2 . SRI KIRTIKUMAR BASAVARAJ KURAHATTI S/O BASAVARAJ T. KURAHATTI, AGED ABOUT32YEARS, RESIDENT OF ITIGATTI VILLAGE AND POST, DHARWAD CITY – 580 001. 3 . SRI SANDEEP SAUDATTI S/O SOMASHEKAR, AGED ABOUT36YEARS RESIDENT OF MARATHA COLONY, MALAPUR ROAD, NEAR GANESH TEMPLE, DHARWAD, HUBBALLI- DHARWAD CITY – 580 001. 2 4 . SRI VINAYAK KATAGI S/O BASAVARAJ NINGAPPA KATAGI, AGED ABOUT41YEARS, RESIDENT OF BHUSAPPA CHOUK, KARUBAR ONI, HUBBALLI-DHARWAD CITY – 580 001. 5 . SRI MAHABALESHWAR HONGAL @ MUDAKA S/O MALLAPA HONGAL AGED ABOUT38YEARS, RESIDENT OF VILLAGE GOVANAKOPPA HUBBALLI-DHARWAD CITY – 580 001. ... PETITIONERS (BY SRI C.V.NAGESH, SR.ADVOCATE A/W SRI SUNIL KUMAR S., ADVOCATE) AND:
1. . CENTRAL BUREAU OF INVESTIGATION ANTI CORRUPTION BRANCH, REPRESENTED BY SPECIAL PUBLIC PROSECUTOR, 36, BELLARY ROAD, KGH LAYOUT GANGANAGAR, BENGALURU – 560 032. 2 . SMT. MALLAVVA GOUDAR, W/O. YOGISHGOUDAGOUDAR, AGED ABOUT34YEARS, RESIDING AT GOVANAKOPPA, DHARWAD – 580 112. ... RESPONDENTS (BY SRI P.PRASANNA KUMAR, SPL.PP FOR R-1) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED
ORDERDATED2806.2024 PASSED BY THE LXXXI ADDL.CITY CIVIL AND SESSIONS JUDGE BENGALURU SPL.COURT EXCLUSIVELY TO3DEAL WITH CRIMINAL CASES RELATED TO ELECTED MP/MLA IN THE STATE OF KARNATAKA IN SPL.C.C.NO.565/2021 FOR OFFENCES P/U/S143 147, 148, 120B, 302, 201 R/W SECTION149OF THE IPC AND UNDER SEC.25 R/W3 5, 8, 29 OF ARMS ACT IN SO FAR AS THE PETITIONERS ARE CONCERNED AND CONSEQUENTLY DIRECT THE LD.TRIAL COURT TO CONDUCT FURTHER TRIAL IN ACCORDANCE WITH LAW. IN WRIT PETITION No.18539 OF2024BETWEEN: SRI BASAVARAJ SHIVAPPA MUTTHAGI S/O SHIVAPPA MUTTHAGI AGED ABOUT45YEARS RESIDING AT MANAGUNDI DHARWAD TALUK AND DISTRICT – 580 007. ... PETITIONER (BY SRI NAGENDRA NAIK R., ADVOCATE) AND:
1. . CENTRAL BUREAU OF INVESTIGATION ACB, GANGANAGAR BENGALURU REPRESENTED BY SPECIAL PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU – 560 001. 2 . STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF HOME VIDHANA SOUDHA4BENGALURU – 560 001. ... RESPONDENTS (BY SRI P.PRASANNA KUMAR, SPL.PP FOR R-1; SRI B.N.JAGADEESHA, ADDL.SPP FOR R-2) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA READ WITH SECTION528OF BHARATIYA NYAYA SURAKSHA SANHITHA – 2023, PRAYING TO QUASH THE
ORDERDATED2806/2024 PASSED BY LXXXI ADDL. CITY CIVIL AND SESSIONS JUDGE AT BENGALURU IN SPL. CC No.565/2021[CCH-82]. AS PER ANNEXURE-A IN SO FAR AS THE PETITIONER IS CONCERNED. THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON1308.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA CAV
ORDERThe petitioners are before this Court calling in question an order dated 28-06-2024 passed by the LXXXI Additional City Civil and Sessions Judge, Bengaluru in Special C.C.No.565 of 2021 directing re-trial to be conducted as obtaining in Section 216(4) of the Cr.P.C. and the procedure prescribed under Sections 230 5 and 231 thereof to be followed for conduct of such trial. Petitioners in Criminal Petition No.7467 of 2024 are accused Nos. 2 to 6 and petitioner in Writ Petition No.18539 of 2024 is accused No.1 in Special C.C.No.565 of 2021.
2. Shorn of unnecessary details, facts in brief, germane, are as follows:- The history of the case dates back to 15-06-2016 on which day a complaint comes to be registered by one Smt. Mallavva Goudar alleging offence punishable under Section 302 of the IPC on the murder of her husband Yogesh Goudar, who was a member of Zilla Panchayat, Dharwad, against unknown persons. The complaint was registered before the Sub-Urban Police Station, Dharwad. The Police conduct investigation and file a charge sheet against 6 persons on 09-09-2016. The concerned Court took cognizance of the offence against those 6 accused for offences punishable under Sections 143, 147, 148, 120B, 302, 201 r/w Section 149 of the IPC and committed the case to the Court of Sessions. The Court of Sessions in terms of its order dated 14-09-2017 registers the case as S.C.No.50 of 2017 and frames charges against accused Nos. 1 to 6. The trial continued 6 for 2 years between 2017 and 2019 during which 63 witnesses were examined.
3. The mother and brother of the deceased prefers writ petitions before this Court in Writ Petition Nos.58183-58184 of 2017 seeking further investigation from the hands of the Central Bureau of Investigation (‘CBI’). The said writ petitions come to be dismissed on 01-03-2019. This becomes final, as the Apex Court in a challenge to the said order also dismissed the petitions. During the pendency of trial, an application comes to be filed by the brother of the deceased under Section 319 of the Cr.P.C. to array additional accused into the web of trial. This also comes to be dismissed. In the meanwhile, Government of Karnataka, in terms of its order dated 06-09-2019 accords sanction for conduct of further investigation at the hands of the CBI in respect of the crime in Crime No.135 of 2016. It is here the CBI enters the scene. The CBI on 24-09-2019 registers a fresh FIR in RC17S)/2019/CBI/ACB/BLR against accused Nos. 1 to 6 and other unknown persons for the offences punishable under Sections 143, 147, 148, 120B, 302, 201 r/w Section 149 of the IPC. Accused No.1 prefers writ petition before this Court 7 in Writ Petition No.51012 of 2019 seeking quashment of order dated 06-09-2019 entrusting the matter to the CBI. This Court dismissed the petition in terms of its order dated 19-11-2019. Then begins complete investigation by the CBI.
4. First supplemental charge sheet was filed arraigning 14 accused in all, as against 6 that were arraigned earlier. A second supplemental charge sheet was filed arraigning 3 more accused on 30-01-2021. It is here the then Minister in-charge of Dharwad District comes into the web of trial as accused No.15. Investigation did not stop. A third supplemental charge sheet was filed by the CBI arraigning 4 more accused as accused Nos. 18 to 21. In all, the trial now is against 21 accused. The Special Court takes cognizance of all the supplemental charge sheets mentioned hereinabove. The issue in the lis at this juncture does not concern merit of the matter before the concerned Court. The CBI which had conducted further investigation and filed three supplemental charge sheets is said to have been in gross variance of the charge sheet that was filed by the State before entrustment of the matter to the hands of the CBI. The concerned Court initiates proceedings under Section 216 of the 8 Cr.P.C. for alteration of charge and passes an order under Section 216(4) for conduct of trial and for the said purpose prosecution was given liberty to examine witnesses as contemplated under Sections 230 and 231 of the Cr.P.C. in terms of its order dated 28-06-2024. It is this order of direction for conduct of new trial or re-trial under Section 216(4) of the Cr.P.C., for which the prosecution is permitted to examine witnesses as obtaining under Sections 230 and 231 of the Cr.P.C. is what has driven these accused to this Court at this juncture.
5. Heard Sri C.V. Nagesh, learned senior counsel appearing for the petitioners in Criminal Petition No.7467 of 2024; Sri R. Nagendra Naik, learned counsel appearing for the petitioner in W.P.No.18539 of 2024 and Sri P.Prasanna Kumar, learned Special Public Prosecutor representing the CBI in both these cases and Sri B N Jagadeesha, learned Additional State Public Prosecutor appearing for the State.
6. The learned senior counsel Sri C V Nagesh has vehemently contended that conduct of trial under Section 216(4) of the Cr.P.C. would amount to a de-novo trial; new trial or a re- 9 trial, result of which would be effacement of entire evidence that is on record, as on the date of passing of the order. Therefore, he would contend that it is the power of the Appellate Court to order re-trial or de-novo trial and not the concerned Court invoking its power under Section 216(4) of the Cr.P.C. He would seek to place reliance upon following judgments to buttress his submissions: (i) NASIB SINGH v. STATE OF PUNJAB1 (ii) AJAY KUMAR GHOSHAL v. STATE OF BIHAR2 and (iii) SUNITA DEVI v. STATE OF BIHAR3 The learned senior counsel would further contend that the power under Section 216 is restricted to examination of witnesses. It cannot stretch to grant of permission to the prosecution under Sections 230 and 231 of the Cr.P.C. to examine the witnesses all over again. To buttress his submission on the said issue, he would seek to place reliance upon the following judgments: (i) JASVINDER SAINI v. STATE (GOVT. OF NCT OF DELHI) - (2013) 7 SCC2561(2022) 2 SCC892 (2017) 12 SCC6993 2024 SCC OnLine SC98410 (ii) R.RACHAIAH v. HOME SECRETARY,BANGALORE - (2016) 12 SCC172 (iii) MADHUSUDAN v. STATE OF MAHDYA PRADESH - Crl.A.No.1509 of 2010 decided on 02-05-2024 (iv) SHIVAPPA v. STATE OF KARNATAKA - Crl.R.P.No.100280 of 2022 decided on 7-02-2024 It is the emphatic submission of the learned senior counsel that the concerned Court has observed that the evidence that is already let in by the State before the entry of CBI would also be taken note of and a new trial under Section 216(4) is sought to be conducted. He would seek quashment of the order and a direction to the concerned Court to proceed with the evidence that is already in place, as placed by the State, while filing the charge sheet and conduct of trial or at the best it can be a proceeding or procedure under Section 217 of the Cr.P.C. and the new trial cannot be permitted. The learned counsel representing the petitioner in the companion writ petition would toe the lines of the learned senior counsel and add that under sub-section (4) of Section 319 when additional accused are added, it would not mean that altogether a new trial should commence. The examination of those witnesses would take place and the trial that has already commenced would continue. He 11 would draw parallel to the said principle for a proceeding under Section 216 of the Cr.P.C. as well. In all, both the counsel, in unison, would seek quashment of the impugned order.
7. Per contra, learned Special Public Prosecutor Sri P. Prasanna Kumar representing the CBI would vehemently refute both these submissions. He would contend that it is permissible for a Court to order for new trial under Section 216(4) of the Cr.P.C. if the Court feels that any of the party either the prosecution or the accused would be prejudiced if there is an alteration of charge under Section 216. It is his submission that the CBI undoubtedly gets prejudiced if a new trial is not conducted. He would take this Court through the statement of objections, with particular reference to the comparative chart between the investigation conducted, charge sheets filed by the State and by the CBI to demonstrate that they are at complete variance. Therefore, a new trial was imperative and for conduct of a trial under Section 216(4), the procedure under Sections 230 and 231 of the Cr.P.C. is necessary to be followed. It is his submission that if Section 216(4) had not happened in the case at hand, all the evidence collected by the CBI and placed before the Court by the three 12 supplemental charge sheets would vanish in thin air and the guilty would get away scot free, as the investigation conducted and the charge sheet filed by the State were absolutely shoddy. He would seek dismissal of the petitions.
8. The learned counsel appearing for the petitioners would join issue to contend that either of the parties should plead prejudice and only then a new trial can be conducted. No party herein has pleaded any prejudice. As a matter of fact the conduct of new trial would undoubtedly prejudice the accused in the case at hand. Therefore, the Court by itself could not have initiated proceedings under Section 216 of the Cr.P.C. for conduct of a new trial or alteration of charge.
9. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
10. The issue that falls for consideration at this juncture is, whether Section 216 of the Cr.P.C. permits alteration of charge, when the trial was at an advanced stage and if 13 alteration of charge would ensue, whether the procedure under Sections 216(4), 217 or 230 and 231 of the Cr.P.C. should be followed?. Therefore, I deem it appropriate to notice the aforesaid statutory provisions. They read 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.
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 14 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. … … … 230. Date for prosecution evidence.—If the accused refuses to plead, or does not plead, or claims to be tried or is not convicted under Section 229, the Judge shall fix a date for the examination of witnesses, and may, on the application of the prosecution, issue any process for compelling the attendance of any witness or the production of any document or other thing.
231. Evidence for prosecution.—(1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution. (2) The Judge may, in his discretion, permit the cross- examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.” Section 216 of the Cr.P.C. deals with power of the Court to alter or add to any charge at any time before judgment is pronounced. Therefore, the statute itself empowers the Court to add or alter any charge at any time even after reserving the matter for its judgment. The procedure is stipulated therein. Sub-section (4) of Section 216 of the Cr.P.C. directs that if alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, would prejudice the accused or the 15 prosecutor, either direct a new trial or adjourn the trial for such period as may be necessary.
11. Two factors would spring in for consideration qua the language deployed in sub-section (4) of Section 216 or in Section 216 itself. The issue whether the Court is empowered to alter the charge when the trial is at an advance stage or nearing completion as the case would be, need not detain this Court for long or delve deep to interpret the said provision. The Apex Court in the case of ANANT PRAKASH SINHA v. STATE OF HARYANA4 has held 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, 4 (2016) 6 SCC10516 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. It has been held in Amar Singh v. State of Haryana [Amar Singh v. State of Haryana, (1974) 3 SCC81:
1973. SCC (Cri) 789]. that the accused must always be made aware of the case against him so as to enable him to understand the defence that he can lead. An accused can be convicted for an offence which is minor than the one he has been charged with, unless the accused satisfies the court that there has been a failure of justice by the non-framing of a charge under a particular penal provision, and some prejudice has been caused to the accused. While so stating, we may reproduce the following two passages from Bhimanna v. State of Karnataka [Bhimanna v. State of Karnataka, (2012) 9 SCC650: (2012) 3 SCC (Cri) 1210].: (SCC pp. 659-60, paras 25-
26) “25. Further, the defect must be so serious that it cannot be covered under Sections 464/465 CrPC, which provide that, an order of sentence or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the court comes to the conclusion that there was also, as a consequence, a failure of justice. In determining whether any error, omission or irregularity in framing the charges has led to a failure of justice, this Court must have regard to whether an objection could have been raised at an earlier stage during the proceedings or not. While judging the question of prejudice or guilt, the court must bear in mind that every accused has a right to a fair trial, where he is aware of what he is being tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair chance to defend himself against the said charge(s).
26. This Court in Sanichar Sahni v. State of Bihar [Sanichar Sahni v. State of Bihar, (2009) 7 SCC198 17 (2009) 3 SCC (Cri) 347]., while considering the issue placed reliance upon various judgments of this Court particularly on Topandas v. State of Bombay [Topandas v. State of Bombay, AIR1956SC33 1956 Cri LJ138, Willie (William) Slaney v. State of M.P. [Willie (William) Slaney v. State of M.P., AIR1956SC116:
1956. Cri LJ291 , Fakhruddin v. State of M.P. [Fakhruddin v. State of M.P., AIR1967SC1326 1967 Cri LJ1197, State of A.P. v. Thakkidiram Reddy [State of A.P. v. Thakkidiram Reddy, (1998) 6 SCC554 1998 SCC (Cri) 1488]., Ramji Singh v. State of Bihar [Ramji Singh v. State of Bihar, (2001) 9 SCC528:
2002. SCC (Cri) 760]. and Gurpreet Singh v. State of Punjab [Gurpreet Singh v. State of Punjab, (2005) 12 SCC615: (2006) 1 SCC (Cri) 191]. and came to the following conclusion: (Sanichar Sahni case [Sanichar Sahni v. State of Bihar, (2009) 7 SCC198 (2009) 3 SCC (Cri) 347]. , SCC p. 204, para
27) ‘27. Therefore … unless the convict is able to establish that defect in framing the charges has caused real prejudice to him and that he was not informed as to what was the real case against him and that he could not defend himself properly, no interference is required on mere technicalities. Conviction order in fact is to be tested on the touchstone of prejudice theory.’ A similar view has been reiterated in Abdul Sayeed v. State of M.P. [Abdul Sayeed v. State of M.P., (2010) 10 SCC259 (2010) 3 SCC (Cri) 1262].
20. We have reproduced the aforesaid passages by abundant caution so that while adding or altering a charge under Section 216 CrPC, the trial court must keep both the aforestated principles in view. The test of prejudice, as has been stated in the aforesaid judgment, has to be borne in mind.” (Emphasis supplied) Later, the Apex Court in the case of Dr. NALLAPAREDDY SRIDHAR REDDY v. STATE OF ANDHRA PRADESH5 has held as follows: “…. …. …. 5 (2020) 12 SCC46718 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 SCC347: (2017) 2 SCC (Cri) 84]. , dealt with 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 19 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 SCC105: (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) 20 19. In CBI v. Karimullah Osan Khan [CBI v. Karimullah Osan Khan, (2014) 11 SCC538: (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 SCC256 (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 21 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 22 be adopted by the courts where prejudice may be caused.” (Emphasis supplied) In the light of the elucidation by the Apex Court interpreting Section 216 of the Cr.P.C. it would unmistakably emerge that the concerned Court, even after reserving the matter for its judgment, is empowered to alter or add to any charge. Therefore, the power is recognized. The procedure runs down therein. Sub-section (4) of Section 216, as observed hereinabove, if an order of alteration or addition is likely to cause prejudice to the accused or the prosecution, the Court may on its own motion or on an application direct conduct of a new trial. After the order under Section 216(4) two options become open – the first one being, Section 217 for recalling of witnesses when the charge is altered and the second being, the Court has an obligation to recall the witnesses on the altered charge.
12. There is yet another procedure that the Court is empowered to after framing of charges on the alteration of charges. The procedure stipulated is under Sections 230 and 231 of the Cr.P.C. They deal with fixing the date for prosecution evidence and the evidence of the prosecution in terms of Section 23 231 qua the charges that are framed. What the Court has now chosen to do is conduct of a new trial. The procedure under Sections 230 and 231 of the Cr.P.C. is directed to be followed. The learned senior counsel has strenuously contended that this is only the power of the appellate Court under Section 386 of the Cr.P.C. Even there, the learned senior counsel would contend, that re-trial cannot be ordered except in extraordinary circumstance. That would efface all the earlier evidence that was brought in at the time of trial. The judgments that he places reliance, which are noted supra, deal with the said principle.
13. There can no qualm as to what the Apex Court has held qua the power under Section 386 of the Cr.P.C. rendered to the appellate Court. Dictionary meaning of ‘trial’, ‘de-novo trial’, and ‘new trial’ is sought to be projected again. This Court has not generated any obfuscation for a reference to the dictionary meaning for what these phrases would mean. The power of the appellate Court is always available to do complete justice in the event it notices failure of justice. The issue now would be, what is the procedure to be followed when the charge is altered under Section 216 of the CrPC. The Apex Court considers the purport of 24 Section 216 qua new trial in P.KARTIKALAKSHMI v. SRI GANESH6 wherein it is held as follows: “…. …. ….
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 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 facto 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 6 (2017) 3 SCC34725 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.
8. In such circumstances, when the application preferred by the appellant itself before the trial court was not maintainable, it was not incumbent upon the trial court to pass an order under Section 216 CrPC. Therefore, there was no question of the said order being revisable under Section 397 CrPC. The whole proceeding, initiated at the instance of the appellant, was not maintainable. Inasmuch as the legal issue had to be necessarily set right, we are obliged to clarify the law as is available under Section 216 CrPC. To that extent, having clarified the legal position, we make it clear that the whole proceedings initiated at the instance of the appellant was thoroughly misconceived and vitiated in law and ought not to have been entertained by the trial court. As rightly pointed out by the learned Senior Counsel for Respondent 1, such a course adopted by the appellant and entertained by the court below has unnecessarily provided scope for protraction of the proceedings which ought not to have been allowed by the court below.” The Apex Court holds the power under Section 216 is exclusive to the Court and there is no right in any party, neither the complainant nor the accused nor the prosecution to seek addition or alteration by filing any application as a matter of right. Therefore the submission of the learned senior counsel that one of the parties should plead prejudice and then only the Court is empowered to conduct a new trial under Section 216(4) of the Cr.P.C. would tumble down.
14. The Apex Court, again, considering the purport of Section 216 holds that it is the duty of the Court to see that the 26 alteration of charge does not prejudice the accused. If on the alteration of charge new trial would not be undertaken, it would undoubtedly prejudice either of the parties, in the case at hand, the prosecution. Therefore, the Apex Court in the case of CENTRAL BUREAU OF INVESTIGATION v. KARIMULLAH OSAN KHAN7 has held as follows: “…. …. ….
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. (See Harihar Chakravarty v. State of W.B. [(1953) 2 SCC409: AIR1954SC266:
1954. Cri LJ724 ) Merely because the charges are altered after conclusion of the trial, that itself will not lead to the conclusion that it has resulted in prejudice to 7 (2014) 11 SCC53827 the accused because sufficient safeguards have been built in in Section 216 CrPC and other related provisions.” The High Court of Gujarat in SANJAY RATILAL SHAH v. STATE OF GUJARAT8 has held as follows: “…. … … 3. Learned advocate, Mr. Thakkar, for the applicant submitted that as per the prosecution case, at the time when the sample of turmeric powder was collected, at that time, applicant - original accused No.1 Sanjay was present and in his presence the sample was collected by the FI. The original accused No.2 Ratilal Chandhlal Shah was arraigned as co- accused on the ground that he was owner of the shop. It is submitted that if the charge, Exh.90 is considered, it is stated in the charge that at the time when the sample was collected by the FI from the shop, at that time, original accused No.2 Ratilal Chandulal Shah was present, and in his presence, sample was lifted. It is submitted that thereafter the trial Court recorded evidence adduced by the prosecution. After the prosecution concluded its evidence, the trial Court recorded further statements of both the accused u/s.313 of the Cr. P.C. and when the criminal case was posted for pronouncement of judgment, at that time on behalf of the complainant, an application, Exh.111 was presented before the trial Court for alteration of charge to the effect that the charge should be read that at the time when the sample was lifted, accused No.1 Sanjay was present. The said application came to be allowed on dated 31.5.1995. It is submitted that thus, the material alteration was made in the charge by the trial Court wherein the alleged main accused was treated as abettor and the alleged abettor was treated as main accused. My attention was drawn to sub-Section 4 of Section 216 of the Cr.P.C. and submitted that in such situation, the trial Court should have directed trial afresh and, thereafter, the judgment should have been pronounced. 3.1 Learned advocate, Mr. Thakkar, for the applicant accused No.1 submitted that considering the 8 2010 SCC OnLine Guj.1518 28 evidence of FI, it is quite clear that there is outright violation of Rule 14 of the PFA Rules, in the sense that no evidence is adduced by the FI as to who, how and when the glass jars wherein turmeric powder was collected for the purpose of sample were cleaned and dried. It is, therefore, submitted that the non-compliance of mandatory provisions contained under Rule 14 would be sufficient enough to acquit the applicant - accused. 3.2 Learned advocate, Mr. Thakkar, for the applicant - accused further submitted that considering the evidence of FI and the relevant provisions of the PFA Rules, it is clear that the FI was not possessing requisite qualification. 3.3 Ultimately, it is submitted that the revision application may be allowed and the impugned judgments rendered by the trial Court and by the first Appellate Court be set-aside and the applicant - original accused No.1 be acquitted of all the charges levelled against him. … … … 6. At the outset, it is required to be considered that the prosecution case, as it stood, was to the effect that at the time when the FI lifted sample of turmeric powder, at that time, applicant - original accused No.1 Sanjay was present in the shop and the shop was owned by original accused No.2 Ratilal Chandulal Shah. In the aforesaid background, if the initial charge framed by the trial Court at Exh.90 is considered, the situation seems to be otherwise, in the sense that, the original accused No.2 Ratilal was described as the person who was present in the shop at the time when the FI lifted the sample. On the basis of such charge, the entire oral and documentary evidence was adduced by the prosecution and the trial Court recorded further statements of both the accused under Section 313 of the Cr.P.C. When the trial Court posted the criminal case for pronouncement of judgment, on behalf of the complainant FI, an application was tendered before the trial Court at Exh.111 for alteration of charge, requesting that the charge may be altered to the effect that at the time when the sample was lifted by the FI, accused No.1 Sanjay was present. It appears that said application came to be allowed by the trial Court on dated 31.5.1995. However, it is true that both the accused were asked as to whether they pleaded guilty to the altered charge or not and none of them pleaded guilty. Thereafter, the trial Court rendered the impugned judgment and order recording 29 the conviction of the applicant - accused No.1 dated 7.6.1995.” The High Court of Gujarat holds that if alteration of charge causes prejudice to the accused, a new trial should be directed. The Apex Court in the case of R.RACHAIAH v. HOME SECRETARY, BANGALORE9 has held as follows: “…. …. ….
10. The bare reading of Section 216 reveals that though it is permissible for any court to alter or add to any charge at any time before judgment is pronounced, certain safeguards, looking into the interest of the accused person who is charged with the additional charge or with the alteration of the additional charge, are also provided specifically under sub-sections (3) and (4) of Section 216 of the Code. Sub-section (3), in no uncertain term, stipulates that with the alteration or addition to a charge if any prejudice is going to be caused to the accused in his defence or the prosecutor in the conduct of the case, the Court has to proceed with the trial as if it altered or added the original charge by terming the additional or alternative charge as original charge. The clear message is that it is to be treated as charge made for the first time and trial has to proceed from that stage. This position becomes further clear from the bare reading of sub-section (4) of Section 216 of the Code which empowers the Court, in such a situation, to either direct a new trial or adjourn the trial for such period as may be necessary. A new trial is insisted if the charge is altogether different and distinct.
11. Even if the charge may be of same species, the provision for adjourning the trial is made to give sufficient opportunity to the accused to prepare and defend himself. It is, in the same process, Section 217 of the Code provides that whenever a charge is altered or added by the court after the commencement of the trial, the prosecutor as well as the accused shall be allowed to recall or resummon or examine any witnesses who have already been examined with 9 (2016) 12 SCC17230 reference to such alteration or addition. In such circumstances, the court is to even allow any further witness which the court thinks to be material in regard to the altered or additional charge.” The Apex Court holds that mandatory procedure under Sections 216 and 217 of the Cr.P.C. should be followed upon alteration or addition of charge and if the charge is altogether different and distinct, a new trial is to be insisted.
15. The issue would be, by passing an order under Section 216(4) of the Cr.P.C. whether it would be axiomatic that it would lead to a new trial or there should be a specific order for such new trial to be conducted. The Apex Court considers this issue in RANBIR YADAV v. STATE OF BIHAR10 wherein it is held as follows: “…. …. ….
23. The matter can be viewed from another angle also. Section 216 of the Code empowers the court to alter or add to any charge at any time before the judgment is pronounced and provides that after such alteration or addition of the charge the court is required to read and explain the same to the accused in accordance with sub- section (2) thereof. It is further laid down under sub-section (3) that if in the opinion of the court the alteration or addition to a charge is not likely to prejudice the accused in his defence or the prosecutor in the conduct of the case the court may in its discretion proceed with the trial immediately with the altered or added charge. Sub-section (4) provides that if the alteration or addition is such that the proceeding 10 (1995) 4 SCC39231 immediately with the trial is likely to prejudice the accused or the prosecutor the court may either direct a new trial or adjourn the trial for such period as may be necessary. Section 217 of the Code provides that 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 to recall or to summon and examine with reference to such alteration or addition any witness who has already been examined unless the court for reasons to be recorded in writing considers that the desire to recall or re-examine such witness was only for the purposes of vexation or delay or defeating the ends of justice. Besides, it permits the prosecutor and the accused to call any further witness whom the court may think to be material. On a combined reading of the above two sections it is, therefore, evident that after an alteration or addition of the charge the interest of the prosecution and the accused has to be safeguarded by permitting them to further examine or cross-examine the witness already examined, as the case may be, and by affording them an opportunity to call other witnesses. It is undoubtedly true that discretion has been given to the court to direct a new trial after addition or alteration of any charge, but it does not mean that every such addition or alteration in the charge which has been read over and explained to the accused would lead to inevitable inference that the court has directed a new trial for them. It, therefore, follows that unless the court passes a specific order and directs a new trial it cannot be presumed that a new trial has commenced only because an alteration or addition to a charge which has been read over and explained to the accused has been made. Indeed the order dated 30-4-1987 shows that while directing the prosecution to examine the 4 witnesses afresh the 5th Court adjourned the case for further trial and did not direct fresh trial. This apart, any such direction given by the court has to be judged on the touchstone of prejudice to the accused or the prosecution. In the instant case, as has already been noticed after the addition of charges the prosecution expressly stated that they did not want to further examine the four witnesses already examined but they were willing to produce them if the accused so wanted. The accused, however, did not avail of this opportunity in accordance with Section 217 of the Code and, therefore, it is too late in the day for them to raise a grievance on that score. We hasten to add that even if we had found that there was any irregularity in the continuation of the trial against the appellants after the additional charges were framed, we 32 would not have been justified in setting aside the impugned judgment on that ground alone for there is not an iota of material on record wherefrom it can be said that a failure of justice has occasioned thereby. To put it differently, in our view in such a case Section 465 of the Code would have squarely applied.” The Apex Court holds that a specific order for a new trial is imperative when Section 216(4) power is exercised by the concerned Court. Therefore, none of the submissions that are projected by the learned senior counsel that the power under Section 216(4) of the Cr.P.C. for conduct of a new trial would amount to exercise of power under Section 386 of the Cr.P.C., which is the power of the appellate Court are acceptable, as the Apex Court clearly holds the power of the concerned Court to alter or add a charge and on such alteration procedure under Sections 217, 230 and 231 is to be followed.
16. As observed hereinabove, the learned senior counsel for the petitioners has laid emphasis upon the fact that a new trial as envisaged under section 216(4) of the Cr.P.C. can spring only on an application filed by the prosecution or the accused, as what is observed in the language is prejudice being caused either to the prosecution or the accused. In the light of the preceding analysis, the said submission would tumble down like a pack of 33 cards, as it is the power of the Court which alone is empowered to alter the charge or conduct a new trial. It is neither the power of the prosecution to seek the said alteration or that of the accused. The language couched in sub-section (4) of Section 216 is beyond invocation as that is the power of the Court and the Court alone. It is not that the Cr.P.C. does not recognize the right of the victim, the prosecution or the accused to file necessary applications intermittently during the period of trial. There are several provisions to that effect. Section 144 of the Cr.P.C. reads as follows: “144. Power to issue order in urgent cases of nuisance or apprehended danger.—(1) In cases where, in the opinion of a District Magistrate, a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by Section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray. (2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte. 34 (3) An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area. (4) No order under this section shall remain in force for more than two months from the making thereof: Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification. (5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessor-in- office. (6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-section (4). (7) Where an application under sub-section (5) or sub- section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order; and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing.” Section 144 supra observes that any Magistrate either on his own motion or on an application of any person aggrieved, rescind or alter any order made. Sub-section (6) of Section 144 further 35 observes that the State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order. Section 407 of the Cr.P.C. reads – “407. Power of High Court to transfer cases and appeals.—(1) Whenever it is made to appear to the High Court— (a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or (b) that some question of law of unusual difficulty is likely to arise, or (c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order— (i) that any offence be inquired into or tried by any Court not qualified under Sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence; (ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction; (iii) that any particular case be committed for trial to a Court of Session; or (iv) that any particular case or appeal be transferred to and tried before itself. (2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative: Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another 36 Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him. (3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation. (4) When such an application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub- section (7). (5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application. (6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose: Provided that such stay shall not affect the subordinate Court's power of remand under Section 309. (7) Where an application for an order under sub- section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case. (8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred. 37 (9) Nothing in this section shall be deemed to affect any order of Government under Section 197.” deals with transfer of cases and appeals. Here again the party interested or the Court on its own initiative, can pass necessary orders. Section 408 which reads – “408. Power of Sessions Judge to transfer cases and appeals.—(1) Whenever it is made to appear to a Sessions Judge that an order under this sub-section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his sessions division. (2) The Sessions Judge may act either on the report of the lower Court, or on the application of a party interested, or on his own initiative. (3) The provisions of sub-sections (3), (4), (5), (6), (7) and (9) of Section 407 shall apply in relation to an application to the Sessions Judge for an order under sub- section (1) as they apply in relation to an application to the High Court for an order under sub-section (1) of Section 407, except that sub-section (7) of that section shall so apply as if for the words “one thousand rupees” occurring therein, the words “two hundred and fifty rupees” were substituted.” deals with the power of the Sessions Judge to transfer cases and appeals, again on its own initiate or on the party interested. These are a kind of categories of cases where the action can be on an application made by any person aggrieved. The next kind of orders that could passed are under Sections 145 and 254 of the Cr.P.C. They read as follows:
38. “145. Procedure where dispute concerning land or water is likely to cause breach of peace.—(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. (2) For the purposes of this section, the expression “land or water” includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. (3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. (4) The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute: Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1). (5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has 39 existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final. (6)(a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed. (b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3). (7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto. (8) If the Magistrate is of the opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit. (9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing. (10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under Section 107. … … … 40 254. Procedure when not convicted.—(1) If the Magistrate does not convict the accused under Section 252 or Section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence. (2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing. (3) The Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in Court.” Section 145 deals with a dispute concerning land or water which is likely to cause breach of peace. This can be on an application of either party. Section 254 permits the Magistrate to draw up the procedure when the accused is not convicted. This can be on an application by the prosecution or the accused. Therefore, here the power of the Court is inclusive of the right of the accused or the prosecution to file an application. There are other categories of provisions where only on an application by either of the party, proceedings can be taken up. Section 230 of the Cr.P.C. quoted supra which deals with prosecution evidence mandates that on an application of the prosecution, proceedings can be taken up. Here, the Court cannot on its own pass any order. Sections 242 and 244 of the Cr.P.C. deal with evidence of the prosecution. 41 Here again, it is only on an application by the prosecution. They read as follows: “242. Evidence for prosecution.—(1) If the accused refuses to plead or does not plead, or claims to be tried or the Magistrate does not convict the accused under Section 241, the Magistrate shall fix a date for the examination of witnesses: Provided that the Magistrate shall supply in advance to the accused, the statement of witnesses recorded during investigation by the police. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. (3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution: Provided that the Magistrate may permit the cross- examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination. …. …. ….
244. Evidence for prosecution.—(1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.” These provisions would spring in only on an application filed by the prosecution. Therefore, it is the right of the prosecution. The 42 other category is deposition of medical evidence dealt in Sections 291, 291A and 296 of the Cr.P.C.. They read as follows: “291. Deposition of medical witness.—(1) The deposition of a civil surgeon or other medical witness, taken and attested by a Magistrate in the presence of the accused, or taken on commission under this Chapter, may be given in evidence in any inquiry, trial or other proceeding under this Code, although the deponent is not called as a witness. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such deponent as to the subject-matter of his deposition. 291-A. Identification report of Magistrate.—(1) Any document purporting to be a report of identification under the hand of an Executive Magistrate in respect of a person or property may be used as evidence in any inquiry, trial or other proceeding under this Code, although such Magistrate is not called as a witness: Provided that where such report contains a statement of any suspect or witness to which the provisions of Section 21, Section 32, Section 33, Section 155 or Section 157, as the case may be, of the Indian Evidence Act, 1872, apply, such statement shall not be used under this sub-section except in accordance with the provisions of those sections. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or of the accused, summon and examine such Magistrate as to the subject matter of the said report. … … … 296. Evidence of formal character on affidavit.— (1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and 43 examine any such person as to the facts contained in his affidavit.” Here, orders to be passed in terms of the said provisions either on an application of the prosecution or the accused. I have found it appropriate to quote the aforesaid provisions only to juxtapose them with Section 216 of the Cr.P.C. Section 216 of the Cr.P.C. nowhere indicates that the prosecution or the accused or even the victim has a right to seek alteration of charge. It is the power of the Court and the Court alone. While so doing, it is for the Court to decide whether either of the parties is prejudiced by its action of alteration of charge. If it comes to conclude that it does cause prejudice, then the procedure under Section 230 or Section 231 of the Cr.P.C. is necessarily to be followed.
17. Much emphasis is laid on the fact that if a new trial, de-novo trial or re-trial is ordered, the initial trial conducted by the concerned Court gets effaced. This is again unacceptable in the light of several judgments rendered by the Apex Court and 44 that of this Court on the issue. The Apex Court in SATYAJIT BANERJEE v. STATE OF WEST BENGAL11 has held as follows: “…. …. ….
27. So far as the position of law is concerned we are very clear that even if a retrial is directed in exercise of revisional powers by the High Court, the evidence already recorded at the initial trial cannot be erased or wiped out from the record of the case. The trial Judge has to decide the case on the basis of the evidence already on record and the additional evidence which would be recorded on retrial.” The Apex Court in the case of ATMA RAM v. STATE OF RAJASTHAN12 has held as follows: “…. …. ….
22. According to Section 366 when a Court of Session passes a sentence of death, the proceedings must be submitted to the High Court and the sentence of death is not to be executed unless it is confirmed by the High Court. Section 367 then proceeds to lay down the power of the High Court to direct further enquiry to be made or additional evidence to be taken. Section 368, thereafter, lays down the power of the High Court to confirm the sentence so imposed or annul the conviction. One of the powers which the High Court can exercise is one under Section 368(c) of the Code and that is to “acquit the accused person”. Pertinently, the power to acquit the person can be exercised by the High Court even without there being any substantive appeal on the part of the accused challenging his conviction. To that extent, the proceedings under Chapter XXVIII which deal with “submission of death sentences for confirmation” is a proceeding in continuation of the trial. These provisions thus entitle the High Court to direct further enquiry or to take additional evidence and the High Court may, in a given case, even acquit the accused person. The scope of the chapter is wider. Chapter XXIX of the Code deals with “Appeals”. Section 391 also entitles the appellate court to take further 11 (2005) 1 SCC11512 (2019) 20 SCC48145 evidence or direct such further evidence to be taken. Section 386 then enumerates powers of the appellate court which inter alia includes the power to “reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a court of competent jurisdiction subordinate to such appellate court or committed for trial”. The powers of the appellate court are equally wide. The High Court in the present case was exercising powers both under Chapters XXVIII and XXIX of the Code. If the power can go to the extent of ordering a complete retrial, the exercise of power to a lesser extent, namely, ordering de novo examination of twelve witnesses with further directions as the High Court has imposed in the present matter, was certainly within the powers of the High Court. There is, thus, no infraction or jurisdictional error on the part of the High Court.” The Apex Court in the aforesaid judgments clearly holds that a re-trial or a new trial can be conducted without wiping out the existing evidence on record. Therefore, the submission of the learned senior counsel, placing reliance upon certain judgments that exercise of power under Section 386 of the appellate Court would lead to effacement of the entire evidence, is again unacceptable. With the law being thus, I deem it appropriate to deep-dive into the facts or the evidence that led to the charges being altered and an order under Section 216(4) being passed.
18. The learned counsel for the CBI has placed a comparative chart in the statement of objections, which I deem it appropriate to notice. It reads as follows:
46. “Comparative chart of accused with CBI Charge sheet as well as State Police charge sheet is as follows: Sl No.Accused in the State Accused in the CBI Charge Sections under Police Chargesheet Chargesheet framed which Charges by the were framed by court CBI Court on 06.12.2023 1 A1 – Basavaraj Muttagi. A1 – BasavarajaMuttagi. U/s 143, 120-B r/w. 149 147, 148, IPC & Role: Assailant Role: Chief Conspirator 120-B, 143 r/w. 120-B & 302, 201 149 IPC, r/w Sec. 147 r/w. Sec. 120- 149 IPC B & 149 IPC Role as 148 r/w. 120-B & per the 149 IPC charge:
302. r/w. 120-B & 149 IPC201r/w. 120-B & 149 IPC25r/w. 3, 5, 8 & 29 of Arms Act 1959 r/w. Sec. 120-B & 149 IPC. 2 A2 - Shri Vikram Ballari A2 - Shri Vikram Ballari -D0 120-B r/w. 149 Role: Assailant Associate of A-1 and IPC & assisted real assailants 143 r/w. 120-B & to provide logistic 149 IPC, support, Surrendered 147 r/w. Sec. 120- before the Police and B & 149 IPC falsely admitted 148 r/w. 120-B & commission of crime. 149 IPC302r/w. 120-B & 149 IPC201r/w. 120-B & 149 IPC3A-3 Shri Shri Do 120-B r/w. 149 KirtikumarBasavrajKuraha KirtikumarBasavrajKura IPC & tti hatti 143 r/w. 120-B & Role: Assailant Role Same as A-2 149 IPC, 147 r/w. Sec. 120- B & 149 IPC148r/w. 120-B & 149 IPC302r/w. 120-B & 149 IPC47201 r/w. 120-B & 149 IPC4A-4 Shri Sandeep A-4Shri Sandeep Do 120-B r/w. 149 Soudatti Soudatti IPC & Role: Assailant Role Same as A-2 143 r/w. 120-B & 149 IPC, 147 r/w. Sec. 120- B & 149 IPC148r/w. 120-B & 149 IPC302r/w. 120-B & 149 IPC201r/w. 120-B & 149 IPC5A-5 Shri Vinayak Katagi A-5 Shri Vinayak Katagi Do 120-B r/w. 149 Role: Assailant Role Same as A-2 IPC & Further he was the one 143 r/w. 120-B & who was having the 149 IPC, illegal possession of the 147 r/w. Sec. 120- old Bunglow, which was B & 149 IPC used to keep real 148 r/w. 120-B & assailants A-8 to A-14, 149 IPC who visited from 302 r/w. 120-B & Bangalore to execute 149 IPC the murder. 201 r/w. 120-B & 149 IPC6A-6 Shri Mahabaleshwar A-6Shri Mahabaleshwar Do 120-B r/w. 149 Hongal Hongal IPC & Role: Assailant Associate of A-1 and 143 r/w. 120-B & assisted real assailants 149 IPC, to provide logistic 147 r/w. Sec. 120- support, Surrendered B & 149 IPC before the Police and 148 r/w. 120-B & falsely admitted 149 IPC commission of crime. He 302 r/w. 120-B & was the one who 149 IPC informed the other 201 r/w. 120-B & accused about deceased 149 IPC that he had left his village to attend Gym. 7 A-7 Shri Santosh Not in the 120-B r/w. 149 Savadatti charge IPC & Real assailant and the sheet filed 143 r/w. 120-B & owner of the White by Local 149 IPC, Tavera Car used to Police. 147 r/w. Sec. 120- escape from SOC with B & 149 IPC A-8 to A-14. 148 r/w. 120-B & 149 IPC302r/w. 120-B & 149 IPC201r/w. 120-B & 48 149 IPC8A-8 Shri Dinesh. M Do 120-B r/w. 149 Real Assailants IPC & arranged by A-1 from 143 r/w. 120-B & Bangalore 149 IPC, 147 r/w. Sec. 120- B & 149 IPC148r/w. 120-B & 149 IPC302r/w. 120-B & 149 IPC201r/w. 120-B & 149 IPC9A-9 Shri. Aswath.S Do 120-B r/w. 149 Real Assailants IPC & arranged by A-1 from 143 r/w. 120-B & Bangalore 149 IPC, 147 r/w. Sec. 120- B & 149 IPC148r/w. 120-B & 149 IPC302r/w. 120-B & 149 IPC201r/w. 120-B & 149 IPC10A-10 Shri Sunil K.S Do 120-B r/w. 149 Real Assailants IPC & arranged by A-1 from 143 r/w. 120-B & Bangalore 149 IPC, 147 r/w. Sec. 120- B & 149 IPC148r/w. 120-B & 149 IPC302r/w. 120-B & 149 IPC201r/w. 120-B & 149 IPC11A-11Shri Nazeer Do 120-B r/w. 149 Ahamad IPC & Real Assailants 143 r/w. 120-B & arranged by A-1 from 149 IPC, Bangalore 147 r/w. Sec. 120- B & 149 IPC148r/w. 120-B & 149 IPC302r/w. 120-B & 149 IPC201r/w. 120-B & 149 IPC12A-12Shri Shanawaz Do 120-B r/w. 149 49 Real Assailants IPC & arranged by A-1 from 143 r/w. 120-B & Bangalore 149 IPC, 147 r/w. Sec. 120- B & 149 IPC148r/w. 120-B & 149 IPC302r/w. 120-B & 149 IPC201r/w. 120-B & 149 IPC13A-13 Shri. Nutan K Do 120-B r/w. 149 Real Assailants IPC & arranged by A-1 from 143 r/w. 120-B & Bangalore 149 IPC, 147 r/w. Sec. 120- B & 149 IPC148r/w. 120-B & 149 IPC302r/w. 120-B & 149 IPC201r/w. 120-B & 149 IPC14A-14 Shri Harsith C Do 120-B r/w. 149 Real Assailants IPC & arranged by A-1 from 143 r/w. 120-B & Bangalore 149 IPC, 147 r/w. Sec. 120- B & 149 IPC148r/w. 120-B & 149 IPC302r/w. 120-B & 149 IPC201r/w. 120-B & 149 IPC15A-15 Shri Vinay Do 120-B r/w. 149 Rajashekhara Kulkarni IPC302r/w. 120-B & Main conspirator 149 IPC201r/w. 120-B & 149 IPC25r/w. 3, 5, 8 & 29 of Arms Act 1959 r/w. Sec. 120-B & 149 IPC. 16 A-16 Shri Do 120-B r/w. 149 Chandrashekhar Indi, IPC maternal uncle of A-15 302 r/w. 120-B & Arranged three country 149 IPC made from Vijaypura 201 r/w. 120-B & and the same was 149 IPC50seized from the 25 r/w. 3, 5, 8 & possession of A-1. 29 of Arms Act 1959 r/w. Sec. 120-B & 149 IPC. 17 A-17, Shri Do 120-B r/w. 149 ShirishalBiradar, IPC, He handed over three 25 r/w. 3, 5, 8 & country made pistol to 29 of Arms Act A-16 on the direction of 1959 r/w. Sec. Dharam Raj Chadchan, 120-B & 149 IPC. notorious gangster from Vijaypura on the request of A-15. 18 A-18 Shri Vikas Kalburgi Do 120-B r/w. 149 Associate of A-1 and IPC assisted real assailants 302 r/w. 120-B & in logistic support and 149 IPC also provided his white 201 r/w. 120-B & colour maestro scooter. 149 IPC19A-19 Shri Do 201 r/w. 120-B & ChanakeshvaTingerikar, 149 IPC the then IO, 218 r/w. 120B & 149 IPC, Who did perfunctionary 7, 13(1)(d) r/w. investigation to shield 13(2) of PC Act real accused. Accepted illegal gratification too. 20 A-20 Shri Vasudev Do 201 r/w. 120-B & Rama Nilekeni 149 IPC, Superviosry officer of A- 218 r/w. 120B & 19, who recorded the 149 IPC surrender of implanted 7, 13(1)(d) r/w. accused A-1 to A-6. He 13(2) of PC Act also obtained illegal gratification. 21 A-21 Shri Somashekar Do 120-B r/w. 149 Nymegoudar , PS to A- IPC, 15. He is involved in 302 r/w. 120-B & larger conspiracy with 149 IPC A-15. He handed over money to A-1 , a day after commission of murder. 51 Based upon the said divergence in the charge sheet filed by the State, charges were framed therein and supplementary charge sheets were filed by the CBI. The concerned Court takes note of the same and passes the order impugned: “…. …. ….
54. When the aforesaid aspects are carefully appreciated and compared with the facts and circumstances of the case, the undisputed facts which could be culled out and are applicable for consideration in the above case are as follows: a) The deceased Yogesh Goudar was murdered on 15.6.2016 between 7.30 to 7.45 a.m. near Uday Gym at Sapthapur, Dharwad. b) Criminal law was set in to motion on the basis of written information filed by wife of the deceased by name Mallamma Goudar c) The State Police had conducted investigation and had filed charge sheet against accused No.1 to 6 by citing 84 witnesses and alleged that accused No.1 to 6 had hatched up a conspiracy to commit murder of Yogesh Goudar. d) The case came to be committed to IV Addl. District & Sessions Judge, Dharwad where 61 witnesses examined and 137 documents got marked as Ex.P.1 to 137 and Materials objects M.O.1 to 25 are marked. e) The State Government had decided to entrust the further investigation to the CBI authorities. f) The CBI commenced investigation and filed supplementary charge sheet on 20.5.2020 wherein allegation of conspiracy is changed and they have sought to arraign accused No.7 to 14 as additional accused persons. It is also narrated that accused No.7 to 14 were the real assailants. g) Another supplementary charge sheet was filed on 30.01.2021 wherein accused No.15 Vinay R. Kulkarni, accused No.16 Chandrashekar Indi @ Chandu Mana, accused No.17 Shivanand Shrishail Biradar are sought be arraigned necessary accused indicating that the 52 incident of commission of murder had taken place due to the conspiracy hatched at the behest of accused No.15 Vinay R. Kulkarni who had entertained political rivalry with the deceased. h) Another supplementary charge sheet was filed on 15.9.2021 wherein accused No.18 to 21 were arraigned as necessary accused persons. Out of the said accused No.19 and 20 were the Investigation Officers who had conducted investigation and filed charge sheet.
55. When the aforesaid aspects are appreciated, it would indicate that the entire materials collected by the CBI Investigating Agency are towards indicating larger conspiracy being entered into between the accused persons. At this juncture, the court is not making any observation touching upon the merits or demerits of the case and also the earlier materials which is placed before the court remains intact.
56. The prosecution in order to justify their contention has to now rely upon the present charge sheet which is placed before the court. It is settled law that the bounden duty of proving the allegation of commission of offence beyond reasonable doubt will always be upon the prosecution. Admittedly, the investigation is now entrusted to CBI authorities, who have conducted further investigation and have placed materials by submitting that a larger conspiracy was involved in the above case which was not unearthed by the State Investigating Agency and in fact the then investigating officer’s and some of the witnesses who were cited in the charge sheet of the State have been placed / arraigned as accused persons in the above case. As such, if the prosecution is directed to continue with the very same witnesses, they will not be in a position to establish their case. At this juncture, the concept of fair trial is to be appreciated. The concept of fair trial ensues that a fair and equal opportunity is to be provided to the State who is larger stake holder, victim and also to the accused persons. In this regard, reliance is placed on the judgment of Hon'ble Apex Court reported in the case of (2004)4 SCC158(Zahira Habibulla H. Sheikh v. State of Gujarat) wherein it is held as:
30. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of courts of justice. The operating principles for a fair trial permeate the common law in both civil and 53 criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences.
31. In 1846, in a judgment which Lord Chancellor Selborne would later describe as “one of the ablest judgments of one of the ablest judges who ever sat in this court”, Vice- Chancellor Knight Bruce said [Pearse v. Pearse(1846), 1 De G&Sm. 12 :
16. L.J.
Ch. 153 :
63. ER950:
18. Digest (Repl.) 91, 748]. : “The discovery and vindication and establishment of truth are main purposes certainly of the existence of courts of justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination… Truth, like all other good things, may be loved unwisely — may be pursued too keenly — may cost too much.” The Vice-Chancellor went on to refer to paying “too great a price … for truth”. This is a formulation which has subsequently been frequently invoked, including by Sir Gerard Brennan. On another occasion, in a joint judgment of the High Court, a more expansive formulation of the proposition was advanced in the following terms: “The evidence has been obtained at a price which is unacceptable having regard to the prevailing community standards.
32. Restraints on the processes for determining the truth are multifaceted. They have emerged in numerous different ways, at different times and affect different areas of the conduct of legal proceedings. By the traditional common 54 law method of induction there has emerged in our jurisprudence the principle of a fair trial. Oliver Wendell Holmes described the process: “It is the merit of the common law that it decides the case first and determines the principle afterwards…. It is only after a series of determination on the same subject-matter, that it becomes necessary to ‘reconcile the cases’, as it is called, that is, by a true induction to state the principle which has until then been obscurely felt. And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape. A well-settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest is to resist it at every step.
33. The principle of fair trial now informs and energises many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapted to new and changing circumstances, and exigencies of the situation — peculiar at times and related to the nature of crime, persons involved — directly or operating behind, social impact and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system.
34. As will presently appear, the principle of a fair trial manifests itself in virtually every aspect of our practice and procedure, including the laws of evidence. There is, however, an overriding and, perhaps, unifying principle. As Deane, J.
put it: “It is desirable that the requirement of fairness be separately identified since it transcends the content of more particularized legal rules and principles and provides the ultimate rationale and touch-stone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law.” 55 35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society are not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice — often referred to as the duty to vindicate and uphold the “majesty of the law”. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.
36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all- comprehensive or exhaustive definition of the 56 concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of the society at large and the victims or their family members and relatives. Each one has an in-built right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.
38. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny.
39. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is 57 inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty, stage-managed, tailored and partisan trial.
40. The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.
57. When the aforesaid aspect is carefully appreciated, the law which emerges in this regard is that an opportunity is to be given to both the parties to conduct trial in proper and fair manner. The last few lines of the Hon’ble Apex court judgment clearly envisages that the fair trial in a criminal offence cannot be construed as observance of technical aspects or forms of law but also recognition and just application of its principles to find out the truth and to prevent the miscarriage of justice. At the cost of repetition it is to the appreciated that the materials collected by the State Investigating agency and that of CBI varies and it indicates that as per the supplementary charge sheet, larger conspiracy is noticed and further the then investigating officers are now arraigned as accused persons. By considering the same, if provision of Sec.216(4) of Cr.P.C., is invoked, no hardship whatsoever will be caused to the accused side, since they will be having an opportunity to confront the witnesses with respect to the statement which they had given on earlier occasion. The statement which is given before the Court of law can always be confronted in the subsequent proceedings and the veracity of both the statements can be looked in to by the Court at the conclusion of the trial. The court will have the opportunity to ascertain the veracity of the investigation conducted by the State Investigating Agency and also the CBI authority by looking into the materials that are produced. If the prosecution examines the witnesses and produces certain materials that indicate a reversal of their earlier position, the accused will also have the opportunity to cross-examine the witnesses by confronting their earlier statements. As a result, invoking the 58 provision under Sec. 216(4) of Cr.P.C. is the only alternative mode available for continuing with the trial.
58. Last but not the least the parties are to be reminded the kind directions of the Hon'ble High Court of Karnataka wherein the Hon'ble High Court had directed this court by apprising about the factual situation to conduct and dispose the case in expeditious manner. In the paragraph-11 at page No.39 of the impugned judgment in WP No.1167/2024 the Hon'ble High Court of Karnataka at pains to hold as follows:- “(F) AS TO THE NEED FOR THE EXPEDITIOUS TRIAL OF THE CRIMINAL CASE IN THE COURT BELOW: (a) The incident happened way back in the year 2016; petitioner & other accused persons have moved this court and Apex Court several times. It is true that in some cases, they have got some reprieve. A Division Bench of this court whilst disposing off petitioner's W.P.No.15828/2021 and co-accused's W.P.No.15012/2019 vide order dated 16.10.2021 had directed expeditious trial of the case. Challenge to this order in SLP (Crl) No.9629/2021 came to be dismissed as withdrawn on 7.2.2022. Since then, years have rolled, not even a leaf being turned. A long drawn criminal case would dis-serve the interest of administration of criminal justice. Every case, more particularly, a case of this kind should be tried & disposed off 'Before the Memory Fades', at least as a concession to the shortness of human life. Therefore, I am of the considered view that the trial of this case should be conducted on a war footing
59. The aforesaid directions are to be followed in letter and spirit and the trial has to be conducted in accordance with law. Accordingly, the point for consideration is held as disposed of as per final order.
60. Point No.2:- In view the discussions made herein above, I proceed to pass the following:
ORDERApplication filed by the accused No.1 to 6 under Sec.231 of Cr.P.C., is hereby disposed off by directing the prosecution to conduct the trial as enumerated under Sec.216(4) of Cr.P.C. Needless to mention that the earlier 59 materials placed before the IV Addl. District & Sessions Judge, Dharwad in SC No.50/2017 will be available on record and the same will be appreciated along with the materials collected in the above case. Further, the prosecution is at liberty to examine the witnesses as contemplated under Sec.230 and 231 of Cr.P.C.” If the impugned order is considered on the touchstone of the statutory provisions supra and interpretation on those provisions placed by the Apex Court in all the judgments quoted or noted hereinabove, the unmistakable inference would be, no fault being found by the order so passed by the concerned Court. The order is based upon sound reasons and the procedure necessarily to be followed is what is ordered by the concerned Court. On the entire analysis of the reasons rendered by the concerned Court, there is no warrant to interfere with the order impugned.
19. In the result, finding no merit in these petitions, the petitions stand rejected. Consequently, I.A.No.1 of 2024 also stands disposed. sd/- (M. NAGAPRASANNA) JUDGE Bkp CT:MJ