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SUPREME COURT OF INDIA
K. S. Radhakrishnan, Vikramajit Sen, JJ.
C.B.I. – Appellant
Versus
Karimullah Osan Khan – Respondent
CRIMINAL APPEAL NO. 1127 OF 2009
Decided On : 04-03-2014
Code of Criminal Procedure,1973- Section 216-Scope and ambit of-Section 216 CrPC gives considerable powers to 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” indicates that the power is very wide and can be exercised, in appropriate cases, in the interest of justice- However ,at the same time, the Courts should also see that its orders would not cause any prejudice to the accused(para14)
Code of Criminal Procedure,1973- Section 216 - Power under section 216-When can be exercised-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- 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- 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 -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(para15)
Facts of the Case-
Present appeal has been filed against Order passed by Designated Court under TADA (P) Act, 1987 for Bomb Blast Case, Greater Bombay, rejecting application filed by ‘CBI’ under Section 216 of ‘CrPC’ for addition of charges punishable under Section 302 and other charges under ‘IPC’ and the Explosives Act read with Section 120-B IPC and also under Section 3(2) of TADA (P) Act, 1987.
Findings of the Court-
Taking note of the fact that respondent was declared as a proclaimed offender and was absconding for more than 15 years and sufficient materials were already on record and all elements of the crime were interconnected and interrelated, Court could not simply discard the confession made by him on 27.8.2008 during investigation, wherein he had admitted his role in the criminal conspiracy .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. Designated Court framed charge of criminal conspiracy against 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. Hence Apex Court held it to be a fit case where the Court ought to have exercised its powers under Section 216 CrPC and allowed the application filed by CBI for alteration of charge.
Key Points: - (!) (!) (!) - (!) (!) - (!) (!) (!) - (!) (!) - [1000539000010] (!) - (!)
JUDGMENT
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
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