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Sec.216 Cr.P.C. – Supplementary /additional charge sheet after investigation on absconded accused for 15 years after his arrest – after completion of trial – TADA court dismissed the application – Apex court held that The Designated Court failed to appreciate that the supplementary charge-sheet dated 17.11.2008 filed against the respondent accused was in continuation of the original charge-sheet filed on 4.11.1993 and the list of witnesses annexed to the supplementary charge-sheet was shown as list of additional witnesses. Further, the entire material available at that time, which led to the framing of charges during abscondance of the respondent accused and other accused persons, is available to the prosecution to be used against the respondent at the stage of charge or at the stage of modification of the charge.Consequently, the impugned order is set aside. = C.B.I. .. Appellant Versus Karimullah Osan Khan .. Respondent = 2014 (March . Part) judis.nic.in/supremecourt/filename=41282

Sec.216 Cr.P.C. – Supplementary /additional charge sheet after investigation on absconded accused for 15 years after his arrest – after completion of trial – TADA court dismissed the application – Apex court held that The  Designated  Court  failed  to appreciate that  the  supplementary  charge-sheet  dated  17.11.2008  filed against the respondent accused was in continuation of the original  charge-sheet filed  on  4.11.1993  and  the  list  of  witnesses  annexed  to  the supplementary charge-sheet was  shown  as  list  of  additional  witnesses. Further, the entire material available at  that  time,  which  led  to  the framing of charges during abscondance of the respondent accused  and  other accused persons, is available to the prosecution to  be  used  against  the respondent at the stage of charge or at the stage of  modification  of  the

charge.Consequently, the impugned order is set  aside. =

 

a  series  of bomb blasts on 12.3.1993, 

whereby 257 persons were killed, 713  persons  got

injured and   extensive  damage  to  properties  worth  approximately  Rs.27

crores was caused.  The State Police  registered  27  criminal  cases.    On

4.11.1993, a single charge-sheet was filed in the Designated  Court  against

189 accused persons, of which 44 were shown  as  absconding.   Investigation

from the State Police was transferred to  CBI  on  19.11.1993  and  the  CBI

registered Case Crime No. RC  1  (S)/93/STF/BB.      CBI,  later,  submitted

supplementary reports before the Designated Court under Section 173(8)  CrPC

and the case was registered as Court Case No.  BBC-1  of  1993.   Permission

for further investigation was obtained by the CBI from the Designated  Court

on 25.11.1993.  During the course of investigation, the involvement  of  the

respondent accused, by name Karimullah Osan Khan, was disclosed and  efforts

were made to arrest him.  The Designated Court issued  proclamation  against

him and, on 5.8.1994, he was declared as  a  proclaimed  offender.    Later,

the Designated Court, on 8.9.1994, issued warrant of arrest against him.=

Respondent accused No. 193, who was absconding was,  later,  arrested

in Mumbai on 22.8.2008, and was remanded to the police custody and  further

investigation was carried on.  During further investigation, the respondent

accused made a confession which was recorded under Section 15 of  the  TADA

Act, wherein he had admitted his role in the criminal conspiracy, for which

the above mentioned common charges  had  been  framed.   On  completion  of

investigation, a supplementary  charge-sheet  dated  17.11.2008  was  filed

against the respondent accused for offence of criminal conspiracy  as  well

as the offence punishable under Section 3(3)  of  TADA  Act  and  lists  of

additional witnesses and additional documents were enclosed along with  the

supplementary charge-sheet.   On  1.1.2009,  the  Designated  Court  framed

charge of conspiracy against the respondent accused under Section 120-B IPC

read with Section 3(3) of TADA Act but, it is the statement  of  CBI,  that

inadvertently the original charge of criminal conspiracy under Section 3(2)

of TADA Act read with Section 120-B IPC and other offences applicable  were

not mentioned.  On 3.2.2009, the evidence was closed  by  the  CBI  and  on

6.2.2009, the statement of the respondent accused was  recorded.   CBI,  as

already indicated, filed an application on 26.2.2009 under Section 216 CrPC

for alteration of charge  by  addition  of  the  charges  punishable  under

Section 302 IPC and other charges under the IPC and the Explosives Act read

with Section 120-B IPC and Section 3(2) of the TADA  Act.   The  Designated

Court, on 28.4.2009, rejected the application filed  by  the  CBI,  against

which this appeal has been preferred.

the legality of the order  passed

by the Designated Court under TADA  (P)  Act,  1987  for  Bomb  Blast  Case,

Greater Bombay, rejecting the application filed by  the  Central  Bureau  of

Investigation (for short ‘CBI’) under Section 216 of the  Code  of  Criminal

Procedure (for short ‘CrPC’) for addition of the  charges  punishable  under

Section 302 and other charges under the Indian Penal Code (for short  ‘IPC’)

and the Explosives Act read with Section 120-B IPC and  also  under  Section

3(2) of the Terrorist and Disruptive Activities (Prevention) Act, 1987  (for

short ‘TADA Act’).=

 

Section 216 CrPC gives considerable powers to the Trial  Court,  that

is, even after the completion of evidence, arguments heard and the judgment

reserved, it can alter and  add  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.-

The  Designated  Court  failed  to

appreciate that  the  supplementary  charge-sheet  dated  17.11.2008  filed

against the respondent accused was in continuation of the original  charge-

sheet filed  on  4.11.1993  and  the  list  of  witnesses  annexed  to  the

supplementary charge-sheet was  shown  as  list  of  additional  witnesses.

Further, the entire material available at  that  time,  which  led  to  the

framing of charges during abscondance of the respondent accused  and  other

accused persons, is available to the prosecution to  be  used  against  the

respondent at the stage of charge or at the stage of  modification  of  the

charge.

Consequently, the impugned order is set  aside.   The  application

preferred by CBI under  Section  216  CrPC  would  stand  allowed  and  the

Designated Court is directed to further proceed with the case in accordance

with law.  Ordered accordingly.

 

19.   The Appeal is, accordingly, allowed.

 

2014 (March . Part) judis.nic.in/supremecourt/filename=41282

K.S. RADHAKRISHNAN, VIKRAMAJIT SEN

REPORTABLE
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1127 OF 2009

C.B.I. .. Appellant
Versus
Karimullah Osan Khan .. Respondent

J U D G M E N T
K. S. Radhakrishnan, J.

1. We are, in this case, concerned with the legality of the order passed
by the Designated Court under TADA (P) Act, 1987 for Bomb Blast Case,
Greater Bombay, rejecting the application filed by the Central Bureau of
Investigation (for short ‘CBI’) under Section 216 of the Code of Criminal
Procedure (for short ‘CrPC’) for addition of the charges punishable under
Section 302 and other charges under the Indian Penal Code (for short ‘IPC’)
and the Explosives Act read with Section 120-B IPC and also under Section
3(2) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for
short ‘TADA Act’).
2. The city of Mumbai and its surrounding areas witnessed a series of
bomb blasts on 12.3.1993, whereby 257 persons were killed, 713 persons got
injured and extensive damage to properties worth approximately Rs.27
crores was caused. The State Police registered 27 criminal cases. On
4.11.1993, a single charge-sheet was filed in the Designated Court against
189 accused persons, of which 44 were shown as absconding. Investigation
from the State Police was transferred to CBI on 19.11.1993 and the CBI
registered Case Crime No. RC 1 (S)/93/STF/BB. CBI, later, submitted
supplementary reports before the Designated Court under Section 173(8) CrPC
and the case was registered as Court Case No. BBC-1 of 1993. Permission
for further investigation was obtained by the CBI from the Designated Court
on 25.11.1993. During the course of investigation, the involvement of the
respondent accused, by name Karimullah Osan Khan, was disclosed and efforts
were made to arrest him. The Designated Court issued proclamation against
him and, on 5.8.1994, he was declared as a proclaimed offender. Later,
the Designated Court, on 8.9.1994, issued warrant of arrest against him.
3. The Designated Court framed a common charge of criminal conspiracy on
10.4.1995 against all the accused persons present before the Court and also
against the absconding accused persons, including the respondent – accused
No. 193 and all other unknown persons, under the following Sections:
“1. Section 3(3) of TADA (P) Act, 1987 and Section 120(B) of IPC r/w
section 3(2) (i) (ii), 3(3), 3(4), 5 and 6 of TADA (P) Act, 1987
and r/w Section 302, 307, 326, 324, 427, 435, 436, 201 and 212
of IPC.
2. Section 3 and 7 r/w Section 25(1A), [1B(a)] of the Arms Act,
1959.
3. Section 9-B (1),(a),(b),(c) of the Explosives Act 1884.
4. Section 3, 4(a), (b), 5 and 6 of the Explosives Substances Act,
1908.
5. Section 4 of Prevention of Damage to Public Property Act, 1984.

The Designated Court then issued an order dated 19.6.1995 for examination
of the witnesses, including the absconding accused no.193, in accordance
with the provisions contained in Section 299 CrPC.

4. Respondent accused No. 193, who was absconding was, later, arrested
in Mumbai on 22.8.2008, and was remanded to the police custody and further
investigation was carried on. During further investigation, the respondent
accused made a confession which was recorded under Section 15 of the TADA
Act, wherein he had admitted his role in the criminal conspiracy, for which
the above mentioned common charges had been framed. On completion of
investigation, a supplementary charge-sheet dated 17.11.2008 was filed
against the respondent accused for offence of criminal conspiracy as well
as the offence punishable under Section 3(3) of TADA Act and lists of
additional witnesses and additional documents were enclosed along with the
supplementary charge-sheet. On 1.1.2009, the Designated Court framed
charge of conspiracy against the respondent accused under Section 120-B IPC
read with Section 3(3) of TADA Act but, it is the statement of CBI, that
inadvertently the original charge of criminal conspiracy under Section 3(2)
of TADA Act read with Section 120-B IPC and other offences applicable were
not mentioned. On 3.2.2009, the evidence was closed by the CBI and on
6.2.2009, the statement of the respondent accused was recorded. CBI, as
already indicated, filed an application on 26.2.2009 under Section 216 CrPC
for alteration of charge by addition of the charges punishable under
Section 302 IPC and other charges under the IPC and the Explosives Act read
with Section 120-B IPC and Section 3(2) of the TADA Act. The Designated
Court, on 28.4.2009, rejected the application filed by the CBI, against
which this appeal has been preferred.

5. The Designated Court framed the following points while examining the
application preferred by the CBI:
A) Is there any evidence existing on record to add further charges
against the accused for agreeing to commit the terrorist acts by
use of explosive substances at various places in Mumbai and for
that purpose bringing the arms to Indian shore in furtherance of
the implementation of the criminal conspiracy?
B) Is there any evidence on record to add charges of causing death
and attempt to cause death, injuries to human bodies and loss to
properties during commission of terrorist acts by use of explosive
substances?
C) Whether the charges as alleged deserve to be altered and added
as prayed?
6. In support of the application, CBI highlighted the following grounds:
1) Conspiracy was hatched to cause communal disturbance and
destabilizing the Government. Huge quantity of arms and
ammunitions was smuggled into India by the accused persons and used
at different places in Mumbai. 27 cases were registered and single
charge-sheet came to be filed against 189 accused persons in the
Designated Court, out of which 44 accused were shown as absconding
in the said case No. BBC 1/1993.
2) The Designated Court framed charges for conspiracy on 10.4.1995
against the accused persons who were present before it at that
time, as well as against the respondent accused whose involvement
was disclosed and charge was also framed against him, being
absconding accused.
3) The prosecution moved an application M.A. 139/94 under Section
299 CrPC and the Court granted the liberty to join the absconding
accused in the trial whenever he is arrested and the said evidence
was also recorded under Section 299 CrPC against the respondent
accused vide order dated 19.6.1995.
4) The prosecution adduced evidence to show that the respondent
was deeply involved in the criminal conspiracy which was hatched by
the accused persons to commit various terrorist activities and the
respondent accused actively participated in the said criminal
conspiracy.
5) Mohd. Usman, who was an approver, was examined for charge
punishable under Section 120-B IPC and the said witness identified
the respondent and also narrated his role in landing of arms by
other co-accused for the prime accused Tiger Memon. Further, it
was pointed out that the accused had participated in the
conspiratorial meeting held by Memon before proceeding for landing
work.
6) The accused also aided the main accused twice in the landing
operations and also in smuggling of various arms and ammunitions in
Mumbai. Further, the respondent had also confessed about his
participation in landing arms and also about his fleeing to
Pakistan to escape from clutches of law.
7) The confession made by him was proved by witnesses SP Mr. Sujit
Pandey and Dy. S.P. Mr. Tyagi and that the confession was voluntary
and is admissible in evidence, when read along with the confession
of others.
7. Defence opposed the prayer for alteration of charges stating that the
same would prejudice the accused and the intention is to delay the trial
proceedings and to see that the accused languishes in jail. Further, it
was pointed out that the abscondance is not a ground for alteration of
charges. Further, it was also stated that the prosecution is trying to
compel the court to appreciate the entire evidence at the fag end of the
trial and pointed out that even the evidence already adduced required
corroboration. The evidence already recorded, it was pointed out, would not
show that the respondent was a party to the criminal conspiracy and that he
had committed any act described by Section 3(2) of TADA Act. Further, it
was also pointed out that the order passed by the Court on 6.2.2009 in
respect of other accused persons has no bearing when an application under
Section 216 CrPC is being examined, which has to be examined independently,
on the basis of the materials available in that case.
8. We heard Shri Sidharth Luthra, learned Additional Solicitor General,
appearing for the appellant and Shri Satbir Pillania, learned counsel
appearing for the respondent, at length. Learned counsel highlighted
their respective stand placing reliance on the materials already on record
as well as on the interpretation of Section 216 CrPC.
9. We are, in this case, primarily concerned with the scope of Section
216 CrPC and the power of the Court to alter or add to the charge at any
time before judgment is pronounced. We may point out that the following
are the reasons given by the Designated Court in rejecting the application:
a) The application is moved after closure of evidence and there is
delay in the matter.
b) The charge could not be framed against absconding Respondent.
c) The order dated 06.2.2009 in SLP (Crl.) No. 569/2009 titled CBI
V. Abu Salem Ansari & Anr. and order dated 02.12.2008 of the
Designated Court is final, and charges against the Respondent were
distinct.
d) The voluntariness of the confession of the Respondent has to be
tested in law at Trial Court.
e) The evidence of Mohd. Usman Ahmed Jan Khan is not adequate.
f) There is no sufficient material on record to indicate that the
accused can be charged for being member of the criminal conspiracy
and it is not the case of prosecution that the accused himself took
any active part in commission of any terrorist act as were done by
other accused who are already charged and convicted for individual
acts in earlier Trial BBC 1/93.
g) The delay in pursuing proper remedies at appropriate time has
become the order of the day on the part of the prosecution which
cannot be appreciated.
h) Still there is no material to indicate that the accused was
member of any such assembly which had agreed to commit terrorist
acts in Mumbai or anywhere else. Even no shred of any earlier
piece of evidence or witness is cited in the charge sheet nor is
the statement of any witnesses annexed therewith.
10. We may have to examine whether the reasons stated above would be
sufficient enough to reject the application filed by CBI under Section 216
CrPC. As already pointed out, initially, the investigation was started by
the State Police and, later, it was entrusted to CBI and it was during the
investigation by CBI that the involvement of the respondent accused was
disclosed on 5.8.1994 and a warrant of arrest and proclamation was issued
against him. On 19.6.1995, the Designated Court permitted examination of
witnesses, in which the respondent’s name was also recorded but, since he
was absconding, he could not be examined. 7 accused persons, including the
respondent, who were absconding, were later arrested on various days and as
against 6 absconding accused persons trials proceeded based on the charges
framed by the Designated Court, as originally contemplated. However, only
against the respondent, with same materials in hand, charges were framed
distinctly without invoking Section 3(2) of TADA Act read with Section 120-
B IPC and other provisions of IPC. The Designated Court failed to
appreciate that the supplementary charge-sheet dated 17.11.2008 filed
against the respondent accused was in continuation of the original charge-
sheet filed on 4.11.1993 and the list of witnesses annexed to the
supplementary charge-sheet was shown as list of additional witnesses.
Further, the entire material available at that time, which led to the
framing of charges during abscondance of the respondent accused and other
accused persons, is available to the prosecution to be used against the
respondent at the stage of charge or at the stage of modification of the
charge.

11. Apart from the above factual situation, it should be remembered that
it is a case where the respondent accused was absconding for about 15 years
and, therefore, the delay cannot be attributed to that of the prosecution
alone and, it is in the above circumstances, we have to examine whether the
application filed under Section 216 CrPC, could be rejected. Section 216
CrPC reads as follows :
“216. (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.”

 
12. This Court in Jasvinder Saini and others v. State (Government of NCT
of Delhi) (2013) 7 SCC 256, had an occasion to examine the scope of
Section 216 CrPC and held as follows:

“11.. …… the court’s power to alter or add any charge is
unrestrained 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 [pic]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.

12. In the case at hand the evidence assembled in the course of
the investigation and presented to the trial court was not found
sufficient to call for framing a charge under Section 302 IPC. …..”

 

13. The Privy Council, as early as in Thakur Shah v. Emperor AIR 1943 PC
192, spoke on alteration or addition of charges as follows :

“The alteration or addition is always, of course, subject to the
limitation that no course should be taken by reason of which the
accused may be prejudiced either because he is not fully aware of the
charge made or is not given full opportunity of meeting it and putting
forward any defence open to him on the charge finally preferred.”
14. Section 216 CrPC gives considerable powers to the Trial Court, that
is, even after the completion of evidence, arguments heard and the judgment
reserved, it can alter and add 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.

15. 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 West Bengal AIR 1954 SC 266. 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 the
accused because sufficient safeguards have been built in in Section 216
CrPC and other related provisions.

16. We may point out, so far as the present case is concerned, with
regard to the incident occurred on 12.3.1993 (Bombay blast), trial in
respect of 123 accused persons had been concluded, out of which 100 persons
were convicted by the Designated Court and this Court vide its judgment
recorded on 21.3.2013 confirmed the conviction of 98 accused persons in the
following cases:

i. Essa @ Anjum Abdul Razak Memon vs. State of Maharashtra cited as
2013 (4) SCALE 1;

ii. Ibrahim Musa Chauhan @ Baba Chauhan vs. State of Maharashtra
cited as 2013 (4) SCALE 207;

iii. Ahmed Shah Khan Durrani @ A.S. Mubarak S. vs. State of
Maharashtra cited as 2013 (4) SCALE 272;

iv. State of Maharashtra vs. Fazal Rehman Abdul cited as 2013 (4)
SCALE 401; and

v. Sanjay Dutt (A-117) vs. The State of Maharashtra through CBI
(STF), Bombay cited as 2013 (4) SCALE 462.”
17. Taking note of all those aspects and the fact that the respondent was
declared as a proclaimed offender and was absconding for more than 15 years
and sufficient materials are already on record and all elements of the
crime are interconnected and interrelated, the Court cannot simply discard
the confession made by him on 27.8.2008 during investigation, which was
recorded under Section 15 of TADA Act, wherein he had admitted his role in
the criminal conspiracy, of course, that has to be dealt with in accordance
with law. Following that, the supplementary charge-sheet was filed against
the respondent accused for offence of criminal conspiracy as well as for
offences punishable under Section 3(3) of TADA Act and a list of additional
witnesses and documents was enclosed with that. The Designated Court
framed charge of criminal conspiracy against the respondent under Section
120-B IPC read with Section 3(3) of TADA Act but, inadvertently, the
original charge of criminal conspiracy under Section 3(2) of TADA Act read
with Section 120-B and other offences, was not mentioned.
18. Looking into all those aspects, in our view, this is a fit case where
the Court ought to have exercised its powers under Section 216 CrPC and
allowed the application dated 26.12.2009 filed by CBI for alteration of
charge. Consequently, the impugned order is set aside. The application
preferred by CBI under Section 216 CrPC would stand allowed and the
Designated Court is directed to further proceed with the case in accordance
with law. Ordered accordingly.

19. The Appeal is, accordingly, allowed.

 

eard Hear…………………………J.
(K. S. Radhakrishnan)

 
.….……………………J.
(Vikramajit Sen)
New Delhi,
March 4, 2014.

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