SRI VIKRAM BALLARI v. CENTRAL BUREAU OF INVESTIGATION

day a complaint comes to be registered by one Smt. Mallavva Goudar alleging offence punishable under Section 302 of the IPC on the murder of her husband Yogesh Goudar, who was a member of Zilla Panchayat, Dharwad, against unknown persons. The complaint was registered before the Sub-Urban Police Station, Dharwad. The Police conduct investigation and file a charge sheet against 6 persons on 09-09-2016. The concerned Court took cognizance of the offence against those 6 accused for offences punishable under Sections 143, 147, 148, 120B, 302, 201 r/w Section 149 of the IPC and committed the case to the Court of Sessions. The Court of Sessions in terms of its order dated 14-09-2017 registers the case as S.C.No.50 of 2017 and frames charges against accused Nos. 1 to 6. The trial continued 6 for 2 years between 2017 and 2019 during which 63 witnesses were examined.

3. The mother and brother of the deceased prefers writ petitions before this Court in Writ Petition Nos.58183-58184 of 2017 seeking further investigation from the hands of the Central Bureau of Investigation (‘CBI’). The said writ petitions come to be dismissed on 01-03-2019. This becomes final, as the Apex Court in a challenge to the said order also dismissed the petitions. During the pendency of trial, an application comes to be filed by the brother of the deceased under Section 319 of the Cr.P.C. to array additional accused into the web of trial. This also comes to be dismissed. In the meanwhile, Government of Karnataka, in terms of its order dated 06-09-2019 accords sanction for conduct of further investigation at the hands of the CBI in respect of the crime in Crime No.135 of 2016. It is here the CBI enters the scene. The CBI on 24-09-2019 registers a fresh FIR in RC 17(S)/2019/CBI/ACB/BLR against accused Nos. 1 to 6 and other unknown persons for the offences punishable under Sections 143, 147, 148, 120B, 302, 201 r/w Section 149 of the IPC. Accused No.1 prefers writ petition before this Court 7 in Writ Petition No.51012 of 2019 seeking quashment of order dated 06-09-2019 entrusting the matter to the CBI. This Court dismissed the petition in terms of its order dated 19-11-2019. Then begins complete investigation by the CBI.

4. First supplemental charge sheet was filed arraigning 14 accused in all, as against 6 that were arraigned earlier. A second supplemental charge sheet was filed arraigning 3 more accused on 30-01-2021. It is here the then Minister in-charge of Dharwad District comes into the web of trial as accused No.15. Investigation did not stop. A third supplemental charge sheet was filed by the CBI arraigning 4 more accused as accused Nos. 18 to 21. In all, the trial now is against 21 accused. The Special Court takes cognizance of all the supplemental charge sheets mentioned hereinabove. The issue in the lis at this juncture does not concern merit of the matter before the concerned Court. The CBI which had conducted further investigation and filed three supplemental charge sheets is said to have been in gross variance of the charge sheet that was filed by the State before entrustment of the matter to the hands of the CBI. The concerned Court initiates proceedings under Section 216 of the 8 Cr.P.C. for alteration of charge and passes an order under Section 216(4) for conduct of trial and for the said purpose prosecution was given liberty to examine witnesses as contemplated under Sections 230 and 231 of the Cr.P.C. in terms of its order dated 28-06-2024. It is this order of direction for conduct of new trial or re-trial under Section 216(4) of the Cr.P.C., for which the prosecution is permitted to examine witnesses as obtaining under Sections 230 and 231 of the Cr.P.C. is what has driven these accused to this Court at this juncture.

5. Heard Sri C.V. Nagesh, learned senior counsel appearing for the petitioners in Criminal Petition No.7467 of 2024; Sri R. Nagendra Naik, learned counsel appearing for the petitioner in W.P.No.18539 of 2024 and Sri P.Prasanna Kumar, learned Special Public Prosecutor representing the CBI in both these cases and Sri B N Jagadeesha, learned Additional State Public Prosecutor appearing for the State.

6. The learned senior counsel Sri C V Nagesh has vehemently contended that conduct of trial under Section 216(4) of the Cr.P.C. would amount to a de-novo trial; new trial or a re- 9 trial, result of which would be effacement of entire evidence that is on record, as on the date of passing of the order. Therefore, he would contend that it is the power of the Appellate Court to order re-trial or de-novo trial and not the concerned Court invoking its power under Section 216(4) of the Cr.P.C. He would seek to place reliance upon following judgments to buttress his submissions: (i) NASIB SINGH v. STATE OF PUNJAB1 (ii) AJAY KUMAR GHOSHAL v. STATE OF BIHAR2 (iii) SUNITA DEVI v. STATE OF BIHAR3 The learned senior counsel would further contend that the power under Section 216 is restricted to examination of witnesses. It cannot stretch to grant of permission to the prosecution under Sections 230 and 231 of the Cr.P.C. to examine the witnesses all over again. To buttress his submission on the said issue, he would seek to place reliance upon the following judgments: (i) JASVINDER SAINI v. STATE (GOVT. OF NCT OF DELHI) - (2013) 7 SCC 256 ORDER Application filed by the accused No.1 to 6 under Sec.231 of Cr.P.C., is hereby disposed off by directing the prosecution to conduct the trial as enumerated under Sec.216(4) of Cr.P.C. Needless to mention that the earlier 59 materials placed before the IV Addl. District & Sessions Judge, Dharwad in SC No.50/2017 will be available on record and the same will be appreciated along with the materials collected in the above case. Further, the prosecution is at liberty to examine the witnesses as contemplated under Sec.230 and 231 of Cr.P.C.” If the impugned order is considered on the touchstone of the statutory provisions supra and interpretation on those provisions placed by the Apex Court in all the judgments quoted or noted hereinabove, the unmistakable inference would be, no fault being found by the order so passed by the concerned Court. The order is based upon sound reasons and the procedure necessarily to be followed is what is ordered by the concerned Court. On the entire analysis of the reasons rendered by the concerned Court, there is no warrant to interfere with the order impugned.

19. In the result, finding no merit in these petitions, the petitions stand rejected. Consequently, I.A.No.1 of 2024 also stands disposed. Bkp CT:MJ sd/- (M. NAGAPRASANNA) JUDGE