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2013 DIGILAW 513 (KAR)

Suresh Kumar S. K. v. State of Karnataka

2013-04-15

ANAND BYRAREDDY

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ORDER Anand Byrareddy, J.—Heard the learned Senior Advocate Shri S. Sreevatsa appearing for the counsel for the petitioner and the learned Additional State Public Prosecutor. The facts of the case are as follows: On 23.2.2010 at about 4.25 pm, the police sub-inspector of the respondent-Jeevanbhimanagar police station is said to have received information from the Police Control Room of a fire accident at Carlton Towers, a multistoried commercial complex on Old Airport road, Bangalore. A case was registered in Crime No. 69/2010 by the respondent-police for the offences punishable under Sections 338, 304, 304A read with Section 34 of Indian Penal Code, 1860 and an investigation of the cause of fire leading to the death and injury of many persons was conducted by the respondent. Pursuant to the enquiry, a charge sheet was filed on 13.5.2010 against 20 persons for the offences punishable under Sections 304 and 338 read with Section 34 of the Indian Penal Code, 1860 in Crime No. 69/2010. As the offences alleged were triable solely by a Court of Sessions, the said 20 accused were committed to the Sessions Court and the case is said to be pending in S.C. No. 1164/2010 on the file of the Fast Track Court No. 15, Bangalore city. Thereafter, there was a further investigation undertaken by the respondent police at the behest of persons inimically disposed to the petitioner and it is claimed that the petitioner was implicated on such further investigation and an additional charge sheet was filed by the respondent against the petitioner arraying him as accused no. 21. The Magistrate has taken cognizance against the petitioner and the case was also committed to the Court of Sessions in S.C. No. 1493/2010 on the file of the Fast Track Court No. 15, Bangalore city. The learned Magistrate had committed the supplemental charge sheet to the Sessions Court in S.C. No. 1493/2010 and it was thereafter, numbered as S.C. No. 1493/2010 on the file of the Fast Track Court No. 15, Bangalore city. The additional charge sheet alleges offences against the petitioner for the offences punishable under Sections 304 and 338 read with Section 34 of Indian Penal Code, 1860. The petitioner had earlier filed a Criminal Petition in Criminal Petition No. 2976/2011 before this Court seeking to quash the further proceedings in S.C. No. 1493/2010. The additional charge sheet alleges offences against the petitioner for the offences punishable under Sections 304 and 338 read with Section 34 of Indian Penal Code, 1860. The petitioner had earlier filed a Criminal Petition in Criminal Petition No. 2976/2011 before this Court seeking to quash the further proceedings in S.C. No. 1493/2010. The petition was disposed of with the following observations: The final report which includes the supplementary final report dated 26.7.2010 pending before the learned Sessions Judge is not in conformity with Section 173 Code of Criminal Procedure as Section 173 Code of Criminal Procedure does not permit the filing of final report showing the same person as a witness and also as an accused and further, Therefore I am of the considered opinion that the learned Sessions Judge cannot proceed against the petitioner who is cited as a witness and arrayed as an accused no. 21 unless this anomaly is set right. The Assistant Commissioner of Police, Halasuru Sub-division, Bangalore city, had filed an application and a memo through the State Public Prosecutor seeking clubbing of the two sessions case and for deletion of D.W. 7-petitioner herein in S.C. No. 1164/2010 and to treat him as accused no. 21 in S.C. No. 1493/2010. The petitioner had filed objections to the said application as well as to the memo filed by the prosecution, seeking clubbing of the cases. However, the Court below having passed the impugned order dated 12.3.2013, the petitioner is before this Court. 2. The learned Senior Advocate would draw attention to the decision of the Apex Court in RANJITH SINGH VS. STATE OF PUNJAB (Criminal Appeal No. 982/1998 decided on 22.09.1998). The Apex Court was considering the legal position as to whether the Sessions Court can add a new person to the array of accused and if so, at what stage and on considering the decisions in Kishun Singh and Others Vs. State of Bihar, (1993) 41 BLJR 309 , in Nisar and Another Vs. State of U.P., (1995) CriLJ 2118 and ., (1996) 4 AD SC 184 has arrived at the following opinion: 18. Now we may look at the procedure for trial before the Court of Session as laid down in Chapter XVIII of the Code which contains practically all the provisions relating to such trial. State of U.P., (1995) CriLJ 2118 and ., (1996) 4 AD SC 184 has arrived at the following opinion: 18. Now we may look at the procedure for trial before the Court of Session as laid down in Chapter XVIII of the Code which contains practically all the provisions relating to such trial. The commencing Section 225 of the Chapter only says that prosecution shall be conducted by a Public Prosecutor. The next Section 226 says that "when accused appears or is brought before the Court in pursuance of a commitment of the case under Section 209. the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. 19. It is clear that during the said stage the Court of Session can deal only with the accused who is referred to in Section 209. The accused who can appear or can be brought before a Session Court at that stage is only that accused who is referred to in Section 209. Section 227 deals with the power of the Court to decide whether that accused is to be discharged or not. If he is not discharged the Sessions Court is obliged to frame a charge against that accused as per Section 228 of the Code. Thereafter the plea of that accused has to be recorded as enjoined by Section 229. The stage of evidence collection commences only next, (vide Sections 230 and 231 of the Code.) 20. So from the stage of committal till the Sessions Court stage reaches the stage indicated in Section 230 of the Code that Court can deal with only the accused referred to in Section 209 of the Code. There is no intermediary stage till then for the Session Court to add any other person to the array of the accused. 21. Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order the only other stage when the Court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 of the Code can be invoked. And therefore, the Apex Court held that there is no other power for the Sessions Court to permit addition of a new person or persons to the array of the accused. And therefore, the Apex Court held that there is no other power for the Sessions Court to permit addition of a new person or persons to the array of the accused. Though it was not necessary for the Court to wait until the evidence is collected for exercise of such powers. The Apex Court has also observed that such situations may arise only in extremely rare cases and the Sessions Court is not altogether powerless to prevent such miscarriage of justice. If such a situation arises, it is open to the Sessions Court to send a report to the High Court detailing the situation so that the High Court can, in its inherent powers or revisional powers, direct the committing Magistrate to rectify the committal order by issuing process to such left out accused. It has hastened to add that the said procedure need be resorted to only for rectifying or correcting such grave mistakes. In view of this observation of the Apex Court and in the facts and circumstances of the present case, it is appropriate that remedial measures are resorted to in these proceedings, as apparently the procedure followed is not in accordance with law. In the result, the petition is allowed. The impugned order is quashed. It is appropriate that the Sessions Court initially send a report after taking note of the lacuna in the above circumstances and it is then for this Court to take appropriate steps to make necessary corrections by appropriate orders. With this observation, the petition is allowed. The impugned order is quashed. The learned Additional State Public Prosecutor is permitted to file his memo of appearance within two weeks.