ORDER

This petition is filed by the petitioner-accused No.7 under Section 482 of Cr.P.C. for quashing the impugned order dated 20.11.2023 in S.C.No.10005/2021 for having rejected the application filed by the petitioner under Section 216 of Cr.P.C.

2. Heard the arguments of learned counsel for the petitioner and learned High Court Government Pleader for the State.

3. The case of the petitioner is that the petitioner facing the trial before the Sessions Court and the charge sheet is filed by the police for the offences punishable under Sections 120B, 109, 323, 396, 506, 201 of IPC and the charges were also framed by the trial Court against accused Nos.1 to 8 for the above said offences. During the trial, the petitioner being accused No.7 filed an application for altering the charge against him for the offence punishable under Section 109 of IPC which came to be dismissed. Hence, the petitioner is before this Court.

4. Learned counsel for the petitioner has contended that the Police have filed the charge sheet. At column No.17 of the charge sheet, it is categorically mentioned that this petitioner has abetted or aided the other accused for committing dacoity by sending two accused persons i.e. accused Nos.5 and 8. But the Trial Court by ignoring the material on record, framed the charges against this petitioner against accused Nos.1 to 8 for the offences punishable under Sections 120B, 323, 396, 506, 201 of IPC and also framed a separate charge under Section 109 of IPC, therefore, filed an application. But, the Trial Court wrongly rejected the application holding that he has also participated in the commission of dacoity and murder. They assaulted CW.1. In fact, he has not participated except sending accused Nos.5 and 8, which may attract Section 109 of IPC but not other offences. Hence, prayed for allowing the application and directing the Trial Court to frame proper charges against the petitioner. 5. Per contra, learned High Court Government Pleader supported the order of the Trial Court.

6. Having heard the arguments and perused the records. On perusal of the same, especially, at column No.17 of the charge sheet reveals, the accused Nos.1 to 4 and 6 were hatched plan or conspired to commit dacoity in the house of CW.1 during the lockdown period thinking that the deceased- Manjunath said to be having a huge property by doing real estate business. After watching the house, the accused No.2 approached this petitioner-accused No.7 for providing two more persons for the purpose of committing theft. At that time, this petitioner said to be sent accused Nos.5 and 8 for committing theft. However, he has insisted for share in the robbed amount. Based upon the charge sheet, the Trial Court framed the charges against all the accused persons on 18.03.2023 including for the charges under Sections 323, 506, 120B, 201, 396 and 5th charge was against this petitioner for the offences under Section 109 of IPC.

7. On careful reading of the charge and the charge sheet material produced by the Police which clearly reveals, this accused was only sent accused Nos.5 and 8 along with accused No.2 for committing theft. In fact, subsequently, it was dacoity with murder for the offence punishable under Section 396 of IPC. The other accused persons i.e., accused Nos.1 to 4 and 6 were conjointly conspired to commit theft or dacoity. But the accused Nos.5 and 8 were sent by accused No.7 for committing theft. In fact, later it became dacoity with murder as they also assaulted the deceased. The accused No.7 was not actually participated in the crime and the allegation against him was that he has sent two persons along with accused No.2 for committing theft or committing the offence. In this regard, it is necessary to mention Section 391 of IPC which reads as under:

"391. When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aid