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2021 Supreme(Online)(KER) 45194
HIGH COURT OF KERALA
R. NARAYANA PISHARADI, J
N.P.HAMZA – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC/5428/2020
SRI.K.VISWAN, SMT.ANUROOPA JAYADEVAN, SRI.D.ARUN BOSE, SHRI.ASHRUTH NASER
A trial court must indicate specific materials when exercising its power to add charges, ensuring no prejudice to the accused.
Headnote:
Additions - Criminal Charges - Code of Criminal Procedure - Sections 216, 313 - The court held that a trial court can add or alter charges at any time before judgment, requiring clear indication of materials linking the charges to the accused.
Fact of the Case:
The case involves allegations of misappropriation of funds by an accountant in a cooperative bank, with co-accused charged with aiding or abetting the crime. The trial court sought to add a charge against some accused under Section 202 IPC after initial charges were framed.
Issues: Whether the trial court properly exercised its power under Section 216(1) of the Code to add a new charge without presenting adequate materials linking the accused to the charge.
Ratio Decidendi: The court emphasized that while Section 216 allows broad powers to alter charges, it mandates that explicit materials supporting the new charge must be presented, highlighting the need for due process.
Final Decision: The order of the trial court was set aside due to lack of sufficient basis for additional charges.
O R D E R
The petitioners are the second and the third accused in the case C.C.No.173/2016 pending in the Court of the Enquiry Commissioner and Special Judge, Thalassery.
2. The first accused was employed as the Accountant in the Valapattanam Service Co-operative Bank. Accused 2 to 5 were the Secretary, Manager, Chief Accountant and the Assistant Secretary of the Bank respectively.
3. It is not necessary here to narrate the prosecution case in detail. Suffice it to state that the case relates to misappropriation of an amount of Rs.2,00,000/- allegedly committed by the first accused while he was working as the Manager in-charge of the Bank with the assistance of the other accused in the case.
4. The trial court framed charge against the accused for the offences punishable under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 and also under Sections 409, 468, 471, 477A, 201 and 120B of the Indian Penal Code .
5. After examination of the accused under Section 313 of the Code of Criminal Procedure, 1973 (for short 'the Code'), the trial of the case reached the stage of defence evidence. The trial court then found that the materials produced by the prosecution showed sufficient elements to attract the offence punishable under Section 202 I.P.C against accused 2 to 5 and therefore, in the interest of justice, it was necessary to frame additional charge against them for that offence. Accordingly, the trial court passed Annexure-A6 order to that effect.
6. The petitioners, who are the second and the third accused in the case, have filed this application under Section 482 of the Code to set aside Annexure-A6 order.
7. Heard Sri.K.Gopalakrishna Kurup, learned senior counsel who appeared for the petitioners and also the learned Public Prosecutor.
8. Learned senior counsel contended that there is absolutely no material on record before the trial court to add a charge against the petitioners for an offence under Section 202 I.P.C. Learned senior counsel would contend that, in the absence of any such material, the trial court should not have exercised the power under Section 216 (1) of the Code. Learned senior counsel further contended that the impugned order does not disclose what are the materials on record which attract the offence punishable under I.P.C against the petitioners.
9. Per contra, the learned Public Prosecutor submitted that the trial court was satisfied that there was sufficient material to add a charge for the offence under Section 202 I.P.C against the petitioners and therefore, this Court cannot invoke the power under Section 482 of the Code to interfere with that finding.
10. The relevant portion of Annexure-A6 order reads as follows:
“Here in this case the prosecution allegation against A2 to A5 is that they have purposefully delayed reporting the offence of alleged criminal misappropriation of Rs.2,00,000/- committed by A1 from Manna Branch of the Valapattanam Service Co-operative Bank. A2 is the Secretary, A3 is the Manager, A4 is the Chief Accountant and A5 is the Assistant Secretary of the Valapattanam Service Co-operative Bank during the relevant period of this case. The charge framed by my predecessor against the accused persons for offences u/s.13(1)(d) read with 13(2) of PC Act and U/s.120B, 409, 468, 471, 477A and 201 of I.P.C. The materials produced by the prosecution show sufficient elements to attract offence u/s.202 of IPC against A2 to A5. So for the interest of justice it is necessary to frame additional charge for offence U/s.202 of against A2 to A5 in addition to the charge already framed against them. Therefore the case is suo-motu re-opened for framing additional charge against A2 to A5 and they are directed to appear on 06.10.2020 to read the charge.”
11. It is pertinent here to note that, in the chargesheet filed by the investigating officer, no offence under Section 202 I.P.C is alleged against any of the accused. As far as accused 2 to 5 are concern
