N.P. Hamza and T. Saifudin v. State of Kerala & Deputy Superintendent of Police, Kannur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942 Crl.MC.No.5428 OF 2020(G)** **AGAINST THE ORDER DATED 29.09.2020 IN CC 173/2016 (CRIME NO.1015/2013 OF VALAPPATANAM POLICE STATION) OF THE COURT OF ENQUIRY COMMNR. & SPECIAL JUDGE, AT THALASSERY** ## **PETITIONERS/ACCUSED 2 & 3:** - **1 N.P.HAMZA AGED 50 YEARS S/O.MOIDEENKUTTY, DILHITHA, POOPPAD, KAYARALAM AMSOM, (FORMER SECRETARY, V.S.C BANK, VALAPATTANAM).** - **2 T.SAIFUDIN, AGED 68 YEARS S/O.MOHAMMED, SAJNAS, MILL ROAD, VALAPATTANAM, (FORMER PRESIDENT, V.S.C BANK, VALAPATTANAM).** **BY ADVS. SRI.K.VISWAN SMT.ANUROOPA JAYADEVAN SRI.D.ARUN BOSE SHRI.ASHRUTH NASER** ## **RESPONDENTS/STATE & COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** - **2 DEPUTY SUPERINTENDENT OF POLICE, KANNUR-670001.** ## **SRI B JAYASURYA -SR PP, SRI K GOPALAKRISHNA KURUP SR ADV** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03.02.2021, THE COURT ON 10.02.2021 PASSED THE FOLLOWING:** Crl.M.C.No.5428/2020 2 ## **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.5428 of 2020 -----------------------------------------------Dated this the 10[th] day of February, 2021 ## **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 Crl.M.C.No.5428/2020 3 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. Crl.M.C.No.5428/2020 4 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 Section 202 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. Crl.M.C.No.5428/2020 5 ## 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 IPC 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 Crl.M.C.No.5428/2020 6 I.P.C is alleged against any of the accused. As far as accused 2 to 5 are concerned, the trial court had framed charge against them only for the offences punishable under Sections 120B I.P.C and under Section 201 read with 120B I.P.C. 12. Section 216(1) of the Code provides that, any Court may alter or add to any charge at any time before judgment is pronounced. Section 216(2) of the Code states that, every such alteration or addition shall be read and explained to the accused. 13. Section 216(1) of the Code gives considerable powers to the trial court to alter and add any charge. It can be done even after the completion of evidence, hearing the arguments and reserving the judgment. The expressions "at any time" and before the "judgment is pronounced" would indicate that the power is very wide and it can be exercised, in the interest of justice, in appropriate cases (See **C.B.I v. Karimullah Osan Khan : AIR 2014 SC 2234** and **Nallapareddy Sridhar Reddy v. State of A.P : AIR 2020 SC 753** ). 14. The power of the court to alter or add to any charge is uninhibited and untrammelled by any time or stage of the trial. Crl.M.C.No.5428/2020 7 The legislative intention is evidently to invest the court with all comprehensive power for remedying the defects in a charge whether they arose while framing the charge or due to non-framing of charge, whether the defects were discovered at the inception of the trial or at any subsequent stage of it. An erroneous and improper charge may be corrected under Section 216(1) of the Code by reframing it properly or by adding to it or altering it, at any time, prior to pronouncement of the judgment (See **Pradeepan v. State of Kerala : 1993 (2) KLT 880** ). 15. During the trial, if the trial court, on a consideration of broad probabilities of the case based upon total effect of the evidence and documents produced, is satisfied that any addition or alteration of the charge is necessary, it is free to do so, and there can be no legal bar to appropriately act as the exigencies of the case warrant or necessitate ( **Hasanbhai Valibhai Qureshi v. State of Gujarat : AIR 2004 SC 2078** ). If the trial Court is of the view that there is sufficient evidence on record against the accused which would make them liable for conviction and punishment for offences, other than those offences for which Crl.M.C.No.5428/2020 8 charge is framed, the court can alter/add the requisite charges, at any stage prior to the conclusion of the trial ( **Bhimanna v. State of Karnataka : AIR 2012 SC 3026** ). 16. The court can change or alter the charge if there is defect or something is left out. It can be done at any time before pronouncement of judgment. If the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge ( **Anant Prakash Sinha v. State of Haryana : AIR 2016 SC 1197** ). 17. In **P.Kartikalakshmi v Sri Ganesh : (2017) 3 SCC 347** , it has been held that the power vested under Section 216(1) of the Code is exclusive to the Court and there is no right in any party to seek for addition or alteration of charge by filing any application as a matter of right. It was held that Section 216(1) of the Code is an enabling provision for the Court to exercise its power under certain contingencies which come to its notice or brought to its notice. It was made clear in this decision that, neither the de facto complainant nor the accused or for that matter the prosecution has any vested right to seek any addition Crl.M.C.No.5428/2020 9 or alteration of charge. 18. However, in **Anant Prakash Sinha** (supra), it had been held that there was no fault on the part of the trial court in entertaining the application filed by the informant seeking addition of charge. It was held that the informant had, in a way, only brought to the notice of the trial court the defect in framing of the charge which could have been rectified by the court suo motu. 19. There is no real conflict between **Kartikalakshmi** (supra) and **Anant Prakash Sinha** (supra). **Kartikalakshmi** (supra) only holds that neither the de facto complainant nor the accused or the prosecution has any vested right to seek any addition or alteration of charge and that the power under Section 216(1) of the Code is exclusively confined to the Court. But, **Anant Prakash Sinha** (supra) makes it clear that, by filing an application seeking addition or alteration of charge, the informant only brings to the notice of the trial court the defect in framing the charge to enable the court to rectify it. Crl.M.C.No.5428/2020 10 20. What is the test to be applied in deciding whether any alteration or addition of charge is necessary? **Anant Prakash Sinha** (supra) holds that, the test is, alteration or addition of charge must have foundation on the material available on record. It can be on the basis of the complaint or the first information report or accompanying documents or the material brought on record during the course of the trial or evidence adduced during the course of the trial. It is not to be understood that unless evidence has been let in, charges already framed cannot be altered. 21. In a case instituted on a complaint, addition of charge could be done only if there are materials either in the complaint or in the evidence adduced to justify such action (See **Harihar Chakravarty v. State of W.B : AIR 1954 SC 266** ). 22. The court can exercise the power of addition or modification of charges 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 (See **C.B.I v. Karimullah Osan Khan : AIR 2014 SC 2234** ). Crl.M.C.No.5428/2020 11 ## 23. In **Nallapareddy Sridhar Reddy** (supra), it has been ## held as follows: _“The alteration or addition of a charge may be done if in the opinion of the court there was an omission in the framing of charge or if upon prima facie examination of the material brought on record, it leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the alleged offence. The test to be adopted by the court while deciding upon an addition or alteration of a charge is that the material brought on record needs to have a direct link or nexus with the ingredients of the alleged offence”._ 24. An analysis of the decisions referred to above leads to the conclusion that the test to be applied in exercising the power under Section 216(1) of the Code to add a charge is the existence of sufficient materials on record which have direct link, nexus or connection with the ingredients of the offence. 25. In the instant case, the grievance of the petitioners is that the impugned order does not disclose what are the materials on record which have got a direct nexus or link with the ingredients of the offence punishable under Section 202 I.P.C Crl.M.C.No.5428/2020 12 ## which is proposed to be added against them. 26. In the impugned order, the trial court has only stated that “the materials produced by the prosecution show sufficient elements to attract offence under Section 202 I.P.C against A2 to 5.” The trial court has not indicated what are the materials on record which contain sufficient elements attracting the offence under Section 202 I.P.C against the petitioners. 27. Normally, when the trial court initially decides to frame charge against the accused, there is no legal requirement that it shall pass an order specifying the reasons as to why it opts to do so. Framing of charge itself is _prima facie_ order that the trial court has formed the opinion, upon considering the police report and other documents and after hearing both sides, that there is ground for presuming that the accused has committed the offence concerned (See **Kanti Bhadra Shah v. State of West Bengal : AIR 2000 SC 522** ). 28. However, when the trial court exercises the power under Section 216(1) of the Code, that too, at a stage after examination of the accused under Section 313 of the Code, to Crl.M.C.No.5428/2020 13 add a charge for an offence which the prosecution has not alleged against the accused, it is necessary that the trial court shall specifically indicate the materials on record which form the basis for adding a new charge. The court must ensure that there exists convincing materials on record to add a new charge and indicate with certainty what those materials are. In the instant case, the trial court has not indicated with certainty as to what is the material on record which, _prima facie_ , shows that the petitioners have committed the offence punishable under Section 202 IPC. Keeping the accused in dark of those materials would cause serious prejudice to them. Annexure-A6 order is liable to be set aside for this reason. 29. Consequently, the petition is allowed and Annexure- A6 order is set aside. If found necessary, the trial court is at liberty to pass fresh orders for addition of charge against the petitioners or other accused, keeping in mind the observations made in this order in the previous paragraph. ## (sd/-) **R.NARAYANA PISHARADI, JUDGE** **jsr** Crl.M.C.No.5428/2020 14 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - **ANNEXURE A1 TRUE COPY OF THE F.I.R IN CRIME NO.1015/2013 OF THE VALAPATTANAM POLICE STATION ALONG WITH THE COMPLAINT WITH ENCLOSURES SUBMITTED BY THE 1ST PETITIONER (EXTS.P64,P64(A),P64(B) AND P64(C) IN CC 173/2016.** - **ANNEXURE A2 TRUE COPY OF REPORT DATED 28.01.2014 MARKED AS EXT.P65 IN C.C. 173/2016.** - **ANNEXURE A2(a) TRUE COPY OF REPORT DATED 28.01.2014 MARKED AS EXT.P66 IN C.C.173/2016.** - **ANNEXURE A3 TRUE COPY OF THE GIST OF THE ALLEGATIONS CONTAINED IN THE COPY OF THE FINAL REPORT DATED 14.06.2016 IN C.C.173/2016 SUPPLIED TO THE PETITIONERS.** - **ANNEXURE A4 TRUE COPY OF THE COURT CHARGE DATED 19.03.2018 IN C.C.NO.173/2016.** - **ANNEXURE A5 TRUE COPY OF THE QUESTIONS AND ANSWERS UNDER SECTION 313 CR.P.C.IN RESPECT OF THE 2ND ACCUSED AND THE STATEMENT OF THE 2ND ACCUSED IN C.C.173/2016 (1ST PETITIONER HEREIN).** **ANNEXURE A6 CERTIFIED COPY OF THE ORDER DATED 29.09.2020 IN C.C.NO.173/2016 ON THE FILE OF THE COURT OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THALASSERY.** TRUE COPY PS TO JUDGE