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H. B. Prakash Kumar vs State Of Karnataka on 21 December, 2018

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CRL.P. NO.4757/2018

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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• 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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in 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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(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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Magistrate 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.

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