C.B.I vs Karimullah Osan Khan

Case Name: C.B.I vs Karimullah Osan Khan  

Court: Supreme Court

Bench: K.S. Radhakrishnan, Vikramajit Sen 

Facts of the case

The 1993 bomb blasts in Mumbai resulted in the loss of 257 lives, injuries to 713 individuals, and extensive property damage. The State Police initially registered 27 criminal cases related to the bomb blasts, which were later transferred to the CBI. The CBI filed a charge-sheet against 189 accused persons, with 44 shown as absconding. The Designated Court framed charges of criminal conspiracy under various sections, including the TADA (P) Act, IPC, Arms Act, Explosives Act, and Explosives Substances Act. Karimullah Osan Khan, the respondent accused, was declared a proclaimed offender but was later arrested in 2008. During further investigation, Khan made a confession admitting his role in the criminal conspiracy. The CBI filed a supplementary charge-sheet against Khan, but inadvertently omitted to mention certain charges related to the TADA Act and IPC. The CBI filed an application under Section 216 of the CrPC to add charges of murder (Section 302 IPC) and other offenses under the IPC, Explosives Act, and TADA Act.

Issues raised before the Court:

• Whether there was evidence to add charges related to the agreement to commit terrorist acts and the use of explosive substances.
• Whether there was evidence of causing death, injuries, and property damage during the commission of the terrorist acts.
• Whether the charges requested by the CBI should be altered and added.

Arguments of the Appellant:

The (CBI) filed an application under Section 216 of the Code of Criminal Procedure (CrPC) to alter the charges against the respondent in a criminal case. 

The appellant contended that the charge against the respondent should be modified because the supplementary charge-sheet filed against him was in continuation of the original charge-sheet, and the evidence available during the abscondence of the respondent and other accused could be used against him at the stage of charge or modification of the charge. The appellant also highlighted that the delay in the case was not solely attributable to the prosecution, as the respondent was absconding for about 15 years.

In this context, the appellant referred to Section 216 of the CrPC, which allows any court to alter or add to any charge before the judgment is pronounced. The appellant cited the case of Jasvinder Saini and others v. State (Government of NCT of Delhi) (2013) 7 SCC 256, which clarified that the court’s power to alter or add any charge is unrestricted as long as it is done before the judgment is pronounced. The court can exercise this power even after the completion of evidence, arguments, and reserving the judgment, but it should ensure that its orders do not prejudice the accused.

The appellant argued that Section 216 CrPC confers jurisdiction on the court to alter or add charges if there is some material before the court that has a connection or link with the charges sought to be amended. 

• Judgment:

In this case, the Designated Court rejected an application by the Central Bureau of Investigation (CBI) to alter the charges against the respondent. The reasons given by the court for rejecting the application were:

a) The application was filed after the closure of evidence, causing delay in the proceedings.

b) The charge could not be framed against the absconding respondent.

c) Previous court orders and the distinct nature of charges against the respondent were cited as final and conclusive.

d) The voluntariness of the respondent’s confession needed to be tested during the trial.

e) The evidence of a particular witness was deemed inadequate.

f) Insufficient material existed to charge the accused as a member of a criminal conspiracy.

g) The prosecution was criticized for delays in pursuing appropriate remedies.

h) There was no material indicating the accused’s membership in a terrorist assembly.

The Supreme Court examined the scope of Section 216 of the Code of Criminal Procedure (CrPC), which allows courts to alter or add charges before judgment is pronounced. They observed that the power conferred by this section is wide and can be exercised in the interest of justice, provided there is material linking the charges sought to be amended or added. The court also noted that the alteration or addition of charges should not prejudice the accused.

In light of the facts of the case, including the respondent’s 15-year period of abscondence, the court held that the Designated Court should have exercised its power under Section 216 CrPC and allowed the application to alter the charges. The confession made by the respondent during the investigation was considered significant, and the court emphasized that it should be dealt with in accordance with the law. The Supreme Court set aside the impugned order, allowed the CBI’s application, and directed the Designated Court to proceed with the case in accordance with the law.

Conclusion:

The Supreme Court concluded that the Designated Court erred in rejecting the application to alter the charges, and the case should proceed with the modified charges against the respondent. The court has the power to alter and add charges as per Section 216 of the CrPC even after the completion of evidence, arguments, and judgement, but all this should happen keeping in mind the interest of justice and would not cause any prejudice to the accused. In the present case, on the basis of facts and circumstances, i.e., that the respondent had been absconding for more than 15 years, initially he was not charged with the crimes for which he should have been charged, and those crimes are interrelated and interconnected with sufficient material and elements on record. In an earlier case, the charges of criminal conspiracy under Section 3(2) of the TADA Act, along with Section 120-B of the Indian Penal Code (IPC), and other related offences were omitted against the respondent. Only he was charged with criminal conspiracy against the respondent under Section 120-B of the Indian Penal Code (IPC) read with Section 3(3) of the TADA Act. After taking into account all of these factors, the court decided that this is a case where the court should have used its authority under Section 216 CrPC and approved the plea for a charge modification submitted by the CBI on December 26, 2009. The contested order is thus annulled. The Designated Court is instructed to continue pursuing the matter in line with the law after granting the application submitted by CBI under Section 216 CrPC.

written by Bhavika Adwani intern under legal vidhiya