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Judgment
K.N. Phaneendra, J.—The present petition is filed for setting aside the order dated 12.09.2013 passed by II Additional A.C.M.M., Bangalore in C.C. No. 22977/2005 in allowing the application filed u/s 216 of the Code of Criminal Procedure and also in framing the charges u/s 6 of the Dowry Prohibition Act and also to set aside the orders in Crl.R.P. 367/2013 passed by the Fast Track Court-15, Bangalore, dated 19.03.2014 in confirming the orders of the Magistrate.
The respondent No. 2 Smt. Saritha Reddy is present before the Court.
I have heard the arguments of the learned counsel for the petitioners, learned State Public Prosecutor and also respondent No. 2.
The records disclose that on earlier occasion respondent No. 2 Smt. Saritha Reddy approached this Court in Crl.P. 6732/2011 wherein this Court made certain observations that the Court can add, frame charges or alter the charges under Sections 216 of the Code of Criminal Procedure at any point of time before pronouncing the judgment. This Court has kept open the option to the learned Magistrate to pass appropriate orders after the evidence being recorded and if the Magistrate feels that he should frame charges u/s 6 of the Dowry Prohibition Act also he is at liberty to do so.
Learned counsel for the petitioner relies solely on the ground the trial Court has incorporated Section 6 of the Dowry Prohibition Act by altering the charges r/w Section 149 of Code of Criminal Procedure against all the accused persons.
On perusal of the impugned orders passed by the learned Magistrate in C.C. No. 22977/2005, it shows that the learned Magistrate has categorically discussed in detail the factual matrix of this particular case. It is specifically stated that the prosecution has sought for incorporating Section 6 of the Dowry Prohibition Act by altering the charges u/s 216 of Code of Criminal Procedure. The learned Magistrate has considered the facts of the case stating that the records produced by the prosecution in the charge sheet on perusal of the documents and also statements of witnesses revealed that all the accused persons have forced the complainant to transfer the amount, which was in her name in Kurnoor Karnataka Bank Branch into the Joint account of accused No. 2 & herself.
The learned counsel contended that it is only between the complainant and the accused No. 2 the transaction alleged ought to have been taken place. If at all charges have to be framed it should only be framed against accused No. 2 and not against all the accused persons r/w Section 149 of Indian Penal Code. However, the observations made by the learned Magistrate, which is also upheld by the Presiding Officer FTC-15'', Bangalore, that the allegation is not against accused No. 2 alone, but it is against all the accused persons, that is to say all the accused persons have forced the complainant to transfer the amount jointly in the names of complainant and accused No. 2 and to see that the Fixed Deposit receipt shall be jointly in the names of the complainant and accused No. 2. Whether this particular act of the complainant and accused No. 2 attracts Sections 6 of the Dowry Prohibition Act has to be thrashed out by the learned Magistrate at the time of appreciating the evidence on record. Therefore, I do not find any strong reasons to interfere so far as incorporating Section 6 of the Dowry Prohibition Act by way of altering the charges.
Learned Counsel for the petitioner drew my attention that the trial Court at the time of passing the orders tentatively recorded the same findings with regard to the commission of the offences by the accused''. Whatever observations made by the learned Magistrate in this regard shall not be taken into consideration by the learned Magistrate at the time of disposing of the matter on merits as those observations are deserved to be expunged. He has to independently assess the evidence on record and he has to independently come to a conclusion without being persuaded by the orders already passed by him and any observation made by the learned Magistrate while disposing of the application u/s 216 of the Code of Criminal Procedure shall be taken only for the purpose of disposing of that application.
On careful perusal of the order passed by the learned Magistrate, it reveals that the learned Magistrate has invoked Section 149 of Indian Penal Code.
Section 149 of Indian Penal Code refers to common object i.e., committing offence aiming at a common objection. But here the question of common objection does not arise. However, the records as well as the charge sheet papers would disclose that the accused is alleged to have committed the offence punishable u/s 498A of Indian Penal Code and however, the offences with common intention to harass the complainant. Therefore, Section 34 of Indian Penal Code is the appropriate provision ought to have been invoked by the learned Magistrate. Therefore, instead of Section 149 of Indian Penal Code the learned Magistrate can invoke Section 34 of Indian Penal Code.
The learned Magistrate is further directed to proceed with the case in accordance with law.
With this observation, the petition stands disposed of.