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IN THE HIGH COURT OF KARNATAKA AT BENGALURU R
DATED THIS THE 21ST DAY OF DECEMBER, 2018
BEFORE
THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR
CRIMINAL PETITION No.4758/2018
C/W
CRIMINAL PETITION No.4756/2018
CRIMINAL PETITION No.4757/2018
IN CRIMINAL PETITION NO.4758/2018
BETWEEN:
1. H.B. PRAKASH KUMAR
@ PRAKASH
S/O LATE BOREGOWDA
AGED ABOUT 45 YEARS
R/AT SI HAGALAHALLI VILLAGE
C.A. KERE HOBLI
MADDUR TALUK
MANDYA CITY-571 401
2. BOMMEGOWDA
S/O BASARALEGOWDA @
HANUMEGOWDA
AGED ABOUT 49 YEARS
C.A. KERE HOBLI
MADDUR TALUK
MANDYA CITY-571 401
3. M. SOMANNA
S/O LATE KARIPUTTEGOWDA
AGED ABOUT 39 YEARS
R/AT KADAKOTHANAHALLI
MADDUR TALUK
MANDYA CITY-571 401
4. LOKESH
S/O KRISHNEGOWDA
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AGED ABOUT 38 YEARS
R/AT HITTANAHALLI KOPPALU
MALAVALLI TALUK
MANDYA CITY-571 401
5. K. C. SRINIVAS
S/O KEMPEGOWDA
AGED ABOUT 36 YEARS
R/AT KYATHAGATTA
MADDUR TALUK
MANDYA CITY-571 401 … PETITIONERS
(BY SHRI. B.T. VENKATESH, ADVOCATE FOR
SHRI. SUNIL S.RAO, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY MANDYA
WEST POLICE STATION
MANDYA TOWN
2. BASAVARAJU. B
S/O VEEREGOWDA`
AGED ABOUT 56 YEARS
R/AT: NO.2341, 3RD CROSS
GANDHI NAGAR, MANDYA … RESPONDENTS
(BY SHRI. S. RACHAIAH, HCGP FOR R-1;
SMT.B.V.VIDYULATHA, ADVOCATE FOR R2;
SMT. SHEETAL SONI, ADVOCATE FOR INTERVENOR)
IN CRIMINAL PETITION NO.4756/2018
BETWEEN:
1. K. CHANNALINGASWAMY
S/O KARIPUTTEGOWDA
50 YEARS, CONTRACTOR
R/AT 7TH CROSS
CHAMUNDESHWARINAGARA
MANDYA CITY-571 401
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2. G.T. RAVINDRA KUMAR
S/O LATE THIMMAIAH
AGED ABOUT 58 YEARS
R/AT NO.388, KUVEMPUNAGARA
MANDYA CITY-571 401
3. G.C. MAHINDRA
S/O LATE CHIKKAMOOGAIAH
47 YEARS, GEJJALAGERE VILLAGE
KASABA HOBLI, MADDUR TALUK
MANDYA CITY-571 401 … PETITIONERS
(BY SHRI. B.T. VENKATESH, ADVOCATE FOR
SHRI. SUNIL S.RAO, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY MANDYA
WEST POLICE STATION
MANDYA TOWN
2. BASAVARAJU. B
S/O VEEREGOWDA
AGED ABOUT 56 YEARS
R/AT: NO.2341, 3RD CROSS
GANDHI NAGAR, MANDYA … RESPONDENTS
(BY SHRI. S. RACHAIAH, HCGP FOR R-1;
SMT.B.V.VIDYULATHA, ADVOCATE FOR R2;
SMT. SHEETAL SONI, ADVOCATE FOR INTERVENOR)
IN CRIMINAL PETITION NO.4757/2018
BETWEEN:
1. S. DASHARATHA
S/O SIDDAIAH
AGED ABOUT 44 YEARS
M. BASAVAPURA VILLAGE
MALAVALLI TALUK
MANDYA DISTRICT-571 401
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2. M.G. RAGHU
S/O GURULINGA
AGED ABOUT 34 YEARS
RESIDING AT MANIGERE
MADDUR TALUK
MANDYA DISTRICT-571 401
3. S.H. SHIVARAJU
S/O K. HANUMEGOWDA
AGED ABOUT 48 YEARS
R/AT K. SHETTIHALLI VILLAGE
C.A. KERE HOBLI, MADDUR TALUK
MANDYA DISTRICT-571 401
4. BASAVARAJU
S/O LATE KENCHEGOWDA
AGED ABOUT 45 YEARS
R/AT YADAGANAHALLI VILLAGE
C.A. KERE HOBLI, MADDUR TALUK
MANDYA DISTRICT-571 401 … PETITIONERS
(BY SHRI. B.T. VENKATESH, ADVOCATE FOR
SHRI. SUNIL S.RAO, ADVOCATE)
AND:
STATE OF KARNATAKA
REPRESENTED BY MANDYA
WEST POLICE STATION
MANDYA TOWN … RESPONDENT
(BY SHRI. S. RACHAIAH, HCGP)
THESE CRIMINAL PETITIONS ARE FILED U/S 482 CR.P.C
PRAYING TO QUASH THE IMPUGNED ORDER DATED 21.04.2018,
PASSED BY THE 1ST ADDITIONAL CIVIL JUDGE AND JMFC, MANDYA
IN C.C.NO.390/2009 COMMITTING THE CASE TO HON’BLE
DISTRICT AND SESSIONS COURT, MANDYA AS AGAINST THE
PETITIONERS, AS FOUND AT ANNEXURE-A.
THESE CRIMINAL PETITIONS, HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 18.09.2018, COMING ON FOR
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PRONOUNCEMENT OF ORDER, THIS DAY, THIS COURT
PRONOUNCED THE FOLLOWING:-
ORDER
These three petitions have been filed by accused
No.1, 3, 4, 5, 6, 8, 9, 10, 11, 12, 25, and 27 challenging
order dated 21.04.2018, passed by the Additional Civil
Judge and JMFC, Mandya, in C.C.No.380/2009, whereby
the learned Magistrate has committed the said criminal
case to the Court of learned Sessions Judge, Mandya.
2. Heard Shri B.T.Ventakesh, learned advocate for
the petitioners, Shri S.Rachaiah, learned HCGP for the
State and Ms.B.V.Vidyulatha, learned advocate for
respondent No.2.
3. Briefly stated the facts of the case are, respondent
No.2, Basavaraju filed a complaint in Mandya West
Police Station, stating inter alia that a furious mob which
was protesting against Congress leader
Shri G.Madegowda, on an assumption that he was
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responsible for the defeat of a rival candidate
Shri D.C.Thammanna, hurled stones and manhandled
Shri G.Madegowda. Police registered FIR No.255/2008
alleging commission of offences punishable under various
Sections of Indian Penal Code. After investigation,
charge sheet was filed in C.C.No.380/2009 against 24
accused persons out of 34, for offences punishable under
Sections 143, 145, 146, 147, 188, 323, 427, 448, r/w
149 of IPC and Section 2(b) of Prevention of Destruction
and Loss of Property Act, 1981. Thus, ten persons named
in the FIR were dropped. Complainant filed a protest
petition before the trial Court seeking addition of
remaining ten persons also as accused; and to include
Section 307 of IPC in the charge sheet. On 12.03.2010,
the learned Magistrate ordered to include the proposed
accused and Section 307 of IPC in the charge sheet.
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4. Accused No.23, 25 to 33 challenged the order
passed by the learned Magistrate before this Court in
Criminal Petitions No.1610/2010, 1777/2011 and
Misc.Crl.No.1879/2011. This Court, by common order
dated 12.09.2011, set aside the order passed by the
learned Magistrate and remitted the matter to the trial
Court for fresh consideration from the stage of filing of
protest petition.
5. After recording the sworn statement of witnesses,
by his order dated 21.03.2012, the learned Magistrate
took cognizance and included five additional accused as
accused No.25 to 29 and framed charges on 30.08.2016
for offences punishable under Sections 143, 145, 146,
147, 188, 323, 427, 448, r/w 149 of IPC and Section
2(b) of Prevention of Destruction and Loss of Property
Act, 1981.
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6. Thereafter, on 22.03.2017, complainant filed an
application under Section 323 Cr.P.C. with a prayer to
commit the case to the Court of learned Sessions Judge,
by contending that accused had committed offence under
Section 307 IPC also. All accused contested the said
application contending that there were no ingredients of
Section 307 IPC. After hearing, the learned Magistrate
has passed the impugned order holding that there was
prima facie material attracting ingredients of Section 307
IPC and committed the case to the Sessions Court.
7. Assailing the aforesaid order passed by the
learned Magistrate, Shri B.T.Venkatesh, learned advocate
for the petitioners urged following contentions:
• that an application seeking committal of
proceedings by any person other than a Public
Prosecutor is not maintainable;
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CRL.P. NO.4757/2018• that inclusion of any further offences could be
considered only after recording of evidence;
and
• that the learned Magistrate has no power to
review his order.
8. In support of his contentions, learned Advocate
for the petitioners placed reliance on the following
authorities:
1. (2001)8 SCC 394 (Harijinder Kaur Vs. State of
Jharkhand and another)
2. (2014)3 SCC 92 (Hardeep Singh Vs. State of
Punjab and others)
9. Ms.B.V.Vidyulatha learned Advocate for
complainant-respondent No.2, opposing the petitions
argued that the petitioners did not urge the aforesaid
grounds before the learned Magistrate. In support of her
submission, she placed reliance on a decision of this
Court in Ananda Shetty And Another Vs. Aithu Poojary
and Others(ILR 1998 KAR 3829).
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10. I have carefully considered the submissions of
the learned Advocates for the parties and learned HCGP
for the State; and perused the records.
11. The order dated 21.03.2012 reads as follows:
“Office is directed to register (sic) the case under
Register No.III against the accused persons for the
offence punishable U/s 143, 145, 146, 147, 323, 427,
448, 114, 188 r/wSec.149 of IPC and Sec.2(b) Prevention
of Destruction and Loss of Property Act, 1981 and issue
summons to the Basavaraju, Muthaiah @
Doddathammaiah, Shivaraju and Dayananda and
D.C.Thammanna.”
12. By the above order, the learned Magistrate has
directed to register the case against the five additional
accused for the offences mentioned above.
13. While considering the application under Section
323 Cr.P.C. filed by the complainant, the learned trial
Judge has revisited the statement of witnesses all over
again and held that there is prima facie material
attracting ingredients of Section 307 IPC. In substance,
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learned trial Judge has held that complainant has made
out sufficient ground to commit the case to the Court of
Sessions.
14. Shri Venkatesh strenuously urged to draw a
distinction between ‘enquiry’ and ‘trial’ by placing
reliance on Hardeep Singh(supra).
15. In the conspectus of facts and rival contentions,
the point that arises for consideration is, whether the
learned Magistrate could have entertained an application
filed by the complainant under Section 323 Cr.P.C.?
16. Indisputably, the instant application is filed by the
complainant stating that though the complaint averments
disclosed offence under Section 307 IPC, charge has not
been framed for the said offence and accordingly, he has
prayed for adding Section 307 IPC and committing the
case to the Sessions Court which is competent to try
offence under Section 307 IPC.
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17. In these petitions, petitioners have pleaded that
the Supreme Court of India in Harihar
Chakravarty Vs. State of W.B.1 has held that addition of
charges could be done only on the basis of evidence.
18. The Supreme Court of India in Anant Prakash
Sinha alias Anant Sinha Vs. State of Haryana and
another2 has considered and explained the earlier
judgment in Harihar Chakravarthy. Further, all
contentions urged on behalf of the petitioners have been
answered in Anant Prakash Sinha.
19. With regard to the contention that the application
ought to have been moved by the Public Prosecutor, the
Supreme Court of India has held as follows:
“22………….. As is evident, an application was filed by the
informant to add a charge under Section 406 IPC as there
were allegations against the husband about the criminal
breach of trust as far as her Stridhan is concerned. It was,1
AIR 1954 SC 266
2
(2016) 6 SCC 105
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CRL.P. NO.4757/2018in a way, bringing to the notice of the learned Magistrate
about the defect in framing of the charge. The Court could
have done it suo motu. In such a situation, we do not find
any fault on the part of the learned Magistrate in
entertaining the said application. It may be stated that the
learned Magistrate has referred to the materials and
recorded his prima facie satisfaction. There is no error in
the said prima facie view. ………….”
(emphasis supplied)
20. With regard to the contention that charges could
not be added without recording the evidence, it is held as
follows:
“17. In Thakur Shah v. King Emperor [Thakur
Shah v. King Emperor, 1943 SCC OnLine PC 26 : (1942-43)
70 IA 196 : (1943) 56 LW 706 : AIR 1943 PC 192] , what
the Court has held is that 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. It does not
necessarily mean that the alteration can be done only in a
case where evidence is adduced. We may hasten to clarify
that there has been a reference to the decision rendered
in Harihar Chakravarty [Harihar Chakravarty v. State of
W.B., AIR 1954 SC 266 : 1954 Cri LJ 724] but the said
reference has to be understood in the context. Section 216
CrPC, as is evincible, does not lay down that the court
cannot alter the charge solely because it has framed the
charge. In Hasanbhai Valibhai Qureshi [Hasanbhai Valibhai
Qureshi v. State of Gujarat, (2004) 5 SCC 347 : 2004 SCC
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CRL.P. NO.4757/2018(Cri) 1603 : (2004) 2 RCR (Cri) 463] , it has been stated
there is scope for alteration of the charge during trial on the
basis of material brought on record. In Jasvinder
Saini [Jasvinder Saini v. State (Govt. of NCT of Delhi),
(2013) 7 SCC 256 : (2013) 3 SCC (Cri) 295] , it has been
held that circumstances in which addition or alteration of
charge can be made have been stipulated in Section 216
CrPC and sub-sections (2) to (5) of Section 216 CrPC deal
with the procedure to be followed once the court decides to
alter or add any charge. It has been laid down therein that
the question of any such addition or alteration 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. If the said decision is appositely
understood, it clearly lays down the principle which is in
consonance with Harihar Chakravarty[Harihar
Chakravarty v. State of W.B., AIR 1954 SC 266 : 1954 Cri
LJ 724].”
(emphasis supplied)
21. Thus it emerges that it is not necessary that
alteration of charges can be done only in a case where
evidence is adduced. If this ratio is applied to the facts
of the case on hand, the ground urged on behalf of the
petitioners that impugned order passed by the learned
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CRL.P. NO.4757/2018Magistrate amounts to reviewing his earlier order is merit
less.
22. Therefore, all three contentions urged on behalf
of the petitioners namely, that the application ought to
have been moved by the public prosecutor, that
alteration of charges can be considered only after
recording of evidence and that learned Magistrate’s order
amounts to reviewing his earlier order are untenable.
23. Now on facts, the complaint reveals that there
was an attempt to strangulate the victim. It could have
been fatal particularly in a situation where attack is by an
unruly mob. Therefore, no exception can be taken to
the order passed by the learned Magistrate adding
Section 307 IPC. The said offence is triable by a Court of
Sessions. Therefore, once the learned Magistrate was
satisfied that the ingredients of Section 307 IPC were
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found, the case ought to have been, and rightly
committed to the Court of Sessions.
24. Resultantly, these petitions must fail and they are
accordingly dismissed.
No costs.
Sd/-
JUDGE
Yn.