IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN CRIMINAL REVISION PETITION NO.437 OF 2018 BETWEEN:
SRI GOVINDARAJU @ SHIVA S/O. NAGARAJU, AGED ABOUT 25 YEARS, RESIDING AT NO.07, 6TH CROSS, NEAR OM SHAKTHI TEMPLE, HONGASANDRA, BENGALURU.
... PETITIONER AND:
(BY SRI S. MAHESH, ADVOCATE) STATE OF KARNATAKA BY MADIWALA POLICE STATION, BENGALURU, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU.
(BY SRI S.J. NAIK, H.C.G.P.) * * * ... RESPONDENT THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF THE CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 3-4-2018 PASSED BY THE LXX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE (CCH-71), BENGALURU, IN SPECIAL CASE NO.404 OF 2015 FRAMING THE CHARGE UNDER SECTION 305 READ WITH SECTION 511 OF THE I.P.C.
THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner herein filed this revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure being aggrieved by the charges framed by the LXX Additional City Civil and Sessions Judge and Special Judge, Bengaluru, in Special Case No.404 of 2015 dated 3-4-2018.
2. The ranks of the parties before the trial Court are retained for the sake of brevity.
3. The case of the petitioner/accused No.1 is that Madivala Police filed charge-sheet against the petitioner and other three accused for the offences punishable under Sections 504 and 506 of the Indian Penal Code, 1860 (for short, ‘the I.P.C.’), Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, [for short, ‘the SC/ST (POA) Act’]. After filing the charge- sheet, the petitioner and other accused appeared before the Court and all the four accused filed an application under Section 227 of the Code of Criminal Procedure to discharge them from the said offences. On 25-9-2017, the trial Court rejected the application. Being aggrieved by the same, all the four accused filed Criminal Revision Petition No.1069 of 2017 before this Court. By the order dated 10-11-2017, this Court allowed the revision petition and directed the trial Court to re-hear the said application and to pass appropriate orders. Thereafter, by the order 23-12-2017, the trial Court considered the application of the accused under Section 227 of the Code of Criminal Procedure and passed the order holding that the charges shall be framed against accused Nos.1 to 4 for the offences punishable under Sections 504 and 506 read with Section 34 of the I.P.C., Section 3(1)(x) of the SC/ST (POA) Act and also under Section 354D of the I.P.C. and Section 12 of the POCSO Act.
4. Being aggrieved by the same, all accused filed Criminal Revision Petition No.39 of 2018 before this Court. After considering the facts and circumstances of the case, by the order dated 16-2-2018, this Court partly allowed the revision petition and ordered to discharge accused Nos.2 to 4 for the offences punishable under Sections 504, 506 and 354D of the I.P.C., Section 3(1)(x) of the SC/ST (POA) Act and also under Section 12 of the POCSO Act and specifically directed the trial Court to proceed accused No.1 and frame charges for the offences punishable under Sections 504, 506 and 354D of the I.P.C., Section 3(1)(x) of the SC/ST (POA) Act and also under Section 12 of the POCSO Act. By the order dated 3-4-2018, the trial Court framed the charges against the petitioner/accused No.1 for the offences punishable under Sections 504, 506, 354D and 305 read with Section 511 of the I.P.C. and Section 12 of the POCSO Act and also Section 3(1)(x) of the SC/ST (POA) Act. The same is challenged in this revision petition under the grounds that in spite of directions issued by this Court in Criminal Revision Petition No.39 of 2018, the trial Court included one more Section 305 read with Section 511 of the I.P.C. without assigning any reason prior to framing of the charges.
5. Learned counsel for the petitioner contended that Section 305 read with Section 511 of the I.P.C. are not applicable to the facts and circumstances of the case and also combined composite charges are framed against the accused are erroneous. Hence, he prays to set aside the order passed by the trial Court.
6. Learned High Court supports the order of the trial Court.
7. Heard learned counsels and perused the records.
8. On perusal of the record and the order passed by this Court, the charges framed by the trial Court is illegal and erroneous. For the reasons that, this Court by the order dated 16-2-2018 in Criminal Revision Petition No.39 of 2018 directed the trial Court to frame charges against accused No.1 is as follows:
“The order passed by the trial Court insofar as accused No.1 is concerned is sustainable and the same is confirmed insofar as accused No.1. The trial Court is directed to frame charges for the offences punishable under Sections 504, 506 and 354D of IPC, Section 3(1)(x) of SC/ST (POA) Act and also under Section 12 of POCSO Act.”
9. This Court discharged accused Nos.2 to 4 for the offences punishable under Sections mentioned in the charge-sheet. Once the matter has been remanded to the trial Court to frame the specific charges for the offences punishable under Sections 504, 506 and 354D of the I.P.C. and Section 3(1)(x) of the SC/ST (POA) Act, also under Section 12 of the POCSO Act, but the trial Court added Section 305 read with Section 511 of the I.P.C., after remand made by this Court.
10. On perusal of the order passed in Criminal Revision Petition No.39 of 2018 dated 16-2-2018, this Court observed at paragraph No.5 is as follows:
“xxx xxx Mere looking into the FIR, complaint and the statement of witnesses is not sufficient, unless it is said as to what emanate from those materials and how those materials are sufficient for the Court to come to a conclusion that the application is devoid of merits. That exercise has not been done by the trial Court in spite of specific direction issued by this Court. It is painful for this Court to say that, the trial Judge has not even looked into what exactly the order passed by this Court and what he has to do. Therefore, the learned trial Judge has made this Court to apply its mind to ascertain whether the order of the trial Court is proper or not. Even on remanding the matter to the trial Court, once again it will add to the wasting of time both before the trial Court and this Court, because it will give another opportunity to the accused to come back to this Court once again. Therefore, in order to avoid such contingency, this Court has to ascertain whether prima facie case is made out for framing of charges against all the accused persons as per the charge sheet papers. The Police have laid the charge sheet on the basis of the statement of witnesses particularly the injured eye witness and her parents.”
11. This Court has clearly held that the trial Court is required to consider all the material placed before the Court and frame charges. If at all any material available before the Court to frame charges under Section 305 read with Section 511 of the I.P.C., the trial Court ought to have given reasons for adding that Section to frame charges, after hearing the accused or his counsel. By the order dated 3-4-2018, the trial Court framed the charges against accused No.1, which reads as follows:
“xxx Accused No.1 not belonging to Scheduled Caste or Scheduled Tribe, and neighbour of child victim, CW2 belonging to Scheduled Caste, knowing very well that CW2 belong to Scheduled Caste, have been sexually harassing CW2 for about one year prior to 04.05.2015, by going to her school, following her, proposing her, despite her protest and on 04.05.2016, at 5.30 p.m, seeing the absence of complainant, went to CW2’s house no.411, 6th cross, 7th main, Hongasandra, Bengaluru and abused CW2 in foul and filthy language and in the name of caste and put life threats to her and CW2, unable to bear the harassment poured kerosene on herself and lit fire, in a bid to commit suicide, and thereby grievous burn injuries are caused to CW2, and thereby you have committed offences punishable u/s 504, 506, 354D, 305 R/w 511 of IPC and section 12 of POCSO Act and section 3(1)(x) of SC and ST (Prevention of Atrocities) Act, within cognizance of this Court.”
12. On perusal of the order-sheet, the trial Judge not at all applied his mind or given any reason for adding Section 305 read with Section 511 of the I.P.C. while framing of the charges. Therefore, once again the petitioner is before this Court, in spite of the directions and observations made in paragraph No.5 of the said order passed by this Court, the trial Court not followed the same. No doubt, the trial Court during recording of the evidence can alter the Sections before pronouncing the judgment as per Section 216 of the I.P.C., but in spite of the directions given by the superior, the trial Judge again committed mistake and erred in framing additional charges without assigning any reason for adding the Sections. That apart, as per Section 211 of the Code of Criminal Procedure, every charge under this Code shall state the offence with which the accused is charged and the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only and as per Section 212 of the Code of Criminal Procedure, the charge shall contain such particulars as to the time, place of the alleged offence and the person, against whom, it was committed.
13. On perusal of the charges framed by the trial Court, it is a composite charge framed and there is no specific and distinct charge framed by the trial Court for each of the offences, which is illegal. All offences are put together and framed charges as one charge which is not in accordance with law. Therefore, on this ground, the charges framed by the trial Court require to be set aside with a specific direction to the trial Court to frame appropriate charges in accordance with law as stated under Chapter XVII of the Code of Criminal Procedure and even during the trial, if the trial Judge come to the conclusion that there is material evidence adduced to frame charges under Section 305 read with Section 511 of the I.P.C., the trial Court is at liberty to alter the charge or add the charge under Section 216 of the Code of Criminal Procedure before pronouncing the judgment. Therefore, on both counts, the petition deserves to be allowed.
14. Accordingly, the revision petition is allowed.
The charges framed against the petitioner/accused No.1 in Special Case No.404 of 2015 dated 3-4-2018 by the LXX Additional City Civil and Sessions Judge and Special Judge, Bengaluru, is set aside with a direction to the trial Court to frame distinct charge as per the law and proceed with the case and strictly follow the directions issued in Criminal Revision Petition No.39 of 2018 dated 16-2-2018, failing which, the matter will be viewed seriously.
Registry is directed to send the records with a copy of this order to the trial Court, forthwith, for further course of action.
SD/- JUDGE kvk