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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1127 OF 2009

C.B.I. .. Appellant

Versus

Karimullah Osan Khan .. Respondent

J U D G M E N T

K. S. Radhakrishnan, J.

1.We are, in this case, concerned with the legality of

the order passed by the Designated Court under TADA (P)

Act, 1987 for Bomb Blast Case, Greater Bombay, rejecting

the application filed by the Central Bureau of Investigation

(for short ‘CBI’) under Section 216 of the Code of Criminal

Procedure (for short ‘CrPC’) for addition of the charges

punishable under Section 302 and other charges under

the Indian Penal Code (for short ‘IPC’) and the Explosives

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Act read with Section 120-B IPC and also under Section

3(2) of the Terrorist and Disruptive Activities (Prevention)

Act, 1987 (for short ‘TADA Act’).

2.The city of Mumbai and its surrounding areas

witnessed a series of bomb blasts on 12.3.1993, whereby

257 persons were killed, 713 persons got injured and

extensive damage to properties worth approximately

Rs.27 crores was caused. The State Police registered 27

criminal cases. On 4.11.1993, a single charge-sheet was

filed in the Designated Court against 189 accused

persons, of which 44 were shown as absconding.

Investigation from the State Police was transferred to CBI

on 19.11.1993 and the CBI registered Case Crime No. RC 1

(S)/93/STF/BB. CBI, later, submitted supplementary

reports before the Designated Court under Section 173(8)

CrPC and the case was registered as Court Case No. BBC-1

of 1993. Permission for further investigation was obtained

by the CBI from the Designated Court on 25.11.1993.

During the course of investigation, the involvement of the

respondent accused, by name Karimullah Osan Khan, was

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disclosed and efforts were made to arrest him. The

Designated Court issued proclamation against him and, on

5.8.1994, he was declared as a proclaimed offender.

Later, the Designated Court, on 8.9.1994, issued warrant

of arrest against him.

3.The Designated Court framed a common charge of

criminal conspiracy on 10.4.1995 against all the accused

persons present before the Court and also against the

absconding accused persons, including the respondent -

accused No. 193 and all other unknown persons, under the

following Sections:

“1.Section 3(3) of TADA (P) Act, 1987 and

Section 120(B) of IPC r/w section 3(2) (i) (ii),

3(3), 3(4), 5 and 6 of TADA (P) Act, 1987

and r/w Section 302, 307, 326, 324, 427,

435, 436, 201 and 212 of IPC.

2.Section 3 and 7 r/w Section 25(1A), [1B(a)]

of the Arms Act, 1959.

3.Section 9-B (1),(a),(b),(c) of the Explosives

Act 1884.

4.Section 3, 4(a), (b), 5 and 6 of the

Explosives Substances Act, 1908.

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5.Section 4 of Prevention of Damage to Public

Property Act, 1984.

The Designated Court then issued an order dated

19.6.1995 for examination of the witnesses, including the

absconding accused no.193, in accordance with the

provisions contained in Section 299 CrPC.

4.Respondent accused No. 193, who was absconding

was, later, arrested in Mumbai on 22.8.2008, and was

remanded to the police custody and further investigation

was carried on. During further investigation, the

respondent accused made a confession which was

recorded under Section 15 of the TADA Act, wherein he

had admitted his role in the criminal conspiracy, for which

the above mentioned common charges had been framed.

On completion of investigation, a supplementary charge-

sheet dated 17.11.2008 was filed against the respondent

accused for offence of criminal conspiracy as well as the

offence punishable under Section 3(3) of TADA Act and

lists of additional witnesses and additional documents

were enclosed along with the supplementary charge-sheet.

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On 1.1.2009, the Designated Court framed charge of

conspiracy against the respondent accused under Section

120-B IPC read with Section 3(3) of TADA Act but, it is the

statement of CBI, that inadvertently the original charge of

criminal conspiracy under Section 3(2) of TADA Act read

with Section 120-B IPC and other offences applicable were

not mentioned. On 3.2.2009, the evidence was closed by

the CBI and on 6.2.2009, the statement of the respondent

accused was recorded. CBI, as already indicated, filed an

application on 26.2.2009 under Section 216 CrPC for

alteration of charge by addition of the charges punishable

under Section 302 IPC and other charges under the IPC

and the Explosives Act read with Section 120-B IPC and

Section 3(2) of the TADA Act. The Designated Court, on

28.4.2009, rejected the application filed by the CBI,

against which this appeal has been preferred.

5.The Designated Court framed the following points

while examining the application preferred by the CBI:

A) Is there any evidence existing on record to add

further charges against the accused for agreeing to

commit the terrorist acts by use of explosive

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substances at various places in Mumbai and for

that purpose bringing the arms to Indian shore in

furtherance of the implementation of the criminal

conspiracy?

B) Is there any evidence on record to add charges

of causing death and attempt to cause death,

injuries to human bodies and loss to properties

during commission of terrorist acts by use of

explosive substances?

C) Whether the charges as alleged deserve to be

altered and added as prayed?

6.In support of the application, CBI highlighted the

following grounds:

(1) Conspiracy was hatched to cause communal

disturbance and destabilizing the Government.

Huge quantity of arms and ammunitions was

smuggled into India by the accused persons and

used at different places in Mumbai. 27 cases were

registered and single charge-sheet came to be filed

against 189 accused persons in the Designated

Court, out of which 44 accused were shown as

absconding in the said case No. BBC 1/1993.

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(2) The Designated Court framed charges for

conspiracy on 10.4.1995 against the accused

persons who were present before it at that time, as

well as against the respondent accused whose

involvement was disclosed and charge was also

framed against him, being absconding accused.

(3) The prosecution moved an application M.A.

139/94 under Section 299 CrPC and the Court

granted the liberty to join the absconding accused

in the trial whenever he is arrested and the said

evidence was also recorded under Section 299

CrPC against the respondent accused vide order

dated 19.6.1995.

(4) The prosecution adduced evidence to show that

the respondent was deeply involved in the criminal

conspiracy which was hatched by the accused

persons to commit various terrorist activities and

the respondent accused actively participated in the

said criminal conspiracy.

(5) Mohd. Usman, who was an approver, was

examined for charge punishable under Section

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120-B IPC and the said witness identified the

respondent and also narrated his role in landing of

arms by other co-accused for the prime accused

Tiger Memon. Further, it was pointed out that the

accused had participated in the conspiratorial

meeting held by Memon before proceeding for

landing work.

(6) The accused also aided the main accused twice

in the landing operations and also in smuggling of

various arms and ammunitions in Mumbai.

Further, the respondent had also confessed about

his participation in landing arms and also about his

fleeing to Pakistan to escape from clutches of law.

(7) The confession made by him was proved by

witnesses SP Mr. Sujit Pandey and Dy. S.P. Mr.

Tyagi and that the confession was voluntary and is

admissible in evidence, when read along with the

confession of others.

7.Defence opposed the prayer for alteration of charges

stating that the same would prejudice the accused and the

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intention is to delay the trial proceedings and to see that

the accused languishes in jail. Further, it was pointed out

that the abscondance is not a ground for alteration of

charges. Further, it was also stated that the prosecution

is trying to compel the court to appreciate the entire

evidence at the fag end of the trial and pointed out that

even the evidence already adduced required

corroboration. The evidence already recorded, it was

pointed out, would not show that the respondent was a

party to the criminal conspiracy and that he had

committed any act described by Section 3(2) of TADA Act.

Further, it was also pointed out that the order passed by

the Court on 6.2.2009 in respect of other accused persons

has no bearing when an application under Section 216

CrPC is being examined, which has to be examined

independently, on the basis of the materials available in

that case.

8.We heard Shri Sidharth Luthra, learned Additional

Solicitor General, appearing for the appellant and Shri

Satbir Pillania, learned counsel appearing for the

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respondent, at length. Learned counsel highlighted their

respective stand placing reliance on the materials already

on record as well as on the interpretation of Section 216

CrPC.

9.We are, in this case, primarily concerned with the

scope of Section 216 CrPC and the power of the Court to

alter or add to the charge at any time before judgment is

pronounced. We may point out that the following are the

reasons given by the Designated Court in rejecting the

application:

(a) The application is moved after closure of

evidence and there is delay in the matter.

(b) The charge could not be framed against

absconding Respondent.

(c) The order dated 06.2.2009 in SLP (Crl.) No.

569/2009 titled CBI V. Abu Salem Ansari & Anr. and

order dated 02.12.2008 of the Designated Court is

final, and charges against the Respondent were

distinct.

(d) The voluntariness of the confession of the

Respondent has to be tested in law at Trial Court.

(e) The evidence of Mohd. Usman Ahmed Jan Khan

is not adequate.

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(f) There is no sufficient material on record to

indicate that the accused can be charged for being

member of the criminal conspiracy and it is not the

case of prosecution that the accused himself took

any active part in commission of any terrorist act

as were done by other accused who are already

charged and convicted for individual acts in earlier

Trial BBC 1/93.

(g) The delay in pursuing proper remedies at

appropriate time has become the order of the day

on the part of the prosecution which cannot be

appreciated.

(h) Still there is no material to indicate that the

accused was member of any such assembly which

had agreed to commit terrorist acts in Mumbai or

anywhere else. Even no shred of any earlier piece

of evidence or witness is cited in the charge sheet

nor is the statement of any witnesses annexed

therewith.

10.We may have to examine whether the reasons stated

above would be sufficient enough to reject the application

filed by CBI under Section 216 CrPC. As already pointed

out, initially, the investigation was started by the State

Police and, later, it was entrusted to CBI and it was during

the investigation by CBI that the involvement of the

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respondent accused was disclosed on 5.8.1994 and a

warrant of arrest and proclamation was issued against

him. On 19.6.1995, the Designated Court permitted

examination of witnesses, in which the respondent’s name

was also recorded but, since he was absconding, he could

not be examined. 7 accused persons, including the

respondent, who were absconding, were later arrested on

various days and as against 6 absconding accused persons

trials proceeded based on the charges framed by the

Designated Court, as originally contemplated. However,

only against the respondent, with same materials in hand,

charges were framed distinctly without invoking Section

3(2) of TADA Act read with Section 120-B IPC and other

provisions of IPC. The Designated Court failed to

appreciate that the supplementary charge-sheet dated

17.11.2008 filed against the respondent accused was in

continuation of the original charge-sheet filed on

4.11.1993 and the list of witnesses annexed to the

supplementary charge-sheet was shown as list of

additional witnesses. Further, the entire material available

at that time, which led to the framing of charges during

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abscondance of the respondent accused and other

accused persons, is available to the prosecution to be used

against the respondent at the stage of charge or at the

stage of modification of the charge.

11.Apart from the above factual situation, it should be

remembered that it is a case where the respondent

accused was absconding for about 15 years and, therefore,

the delay cannot be attributed to that of the prosecution

alone and, it is in the above circumstances, we have to

examine whether the application filed under Section 216

CrPC, could be rejected. Section 216 CrPC reads as follows

:

“216. (1) Any Court may alter or add to

any charge at any time before judgment is

pronounced.

(2) Every such alteration or addition shall be

read and explained to the accused.

(3) If the alteration or addition to a charge is

such that proceeding immediately with the trial is

not likely, in the opinion of the Court, to prejudice

the accused in his defence or the prosecutor in

the conduct of the case, the Court may, in its

discretion, after such alteration or addition has

been made, proceed with the trial as if the

altered or added charge had been the original

charge.

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(4) If the alteration or addition is such that

proceeding immediately with the trial is likely, in

the opinion of the Court, to prejudice the accused

or the prosecutor as aforesaid, the Court may

either direct a new trial or adjourn the trial for

such period as may be necessary.

(5) If the offence stated in the altered or added

charge is one for the prosecution of which

previous sanction is necessary, the case shall not

be proceeded with until such sanction is

obtained, unless sanction has been already

obtained for a prosecution on the same facts as

those on which the altered or added charge is

founded.”

12.This Court in Jasvinder Saini and others v. State

(Government of NCT of Delhi) (2013) 7 SCC 256, had

an occasion to examine the scope of Section 216 CrPC and

held as follows:

“11..…… the court’s power to alter or add

any charge is unrestrained provided such

addition and/or alteration is made before the

judgment is pronounced. Sub-sections (2) to (5)

of Section 216 deal with the procedure to be

followed once the court decides to alter or add

any charge. Section 217 of the Code deals with

the recall of witnesses when the charge is altered

or added by the court after commencement of

the trial. There can, in the light of the above, be

no doubt about the competence of the court to

add or alter a charge at any time before the

judgment. The circumstances in which such

addition or alteration may be made are not,

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however, stipulated in Section 216. It is all the

same trite that the question of any such addition

or alternation would generally arise either

because the court finds the charge already

framed to be defective for any reason or because

such addition is considered necessary after the

commencement of the trial having regard to the

evidence that may come before the court.

12. In the case at hand the evidence

assembled in the course of the investigation and

presented to the trial court was not found

sufficient to call for framing a charge under

Section 302 IPC. …..”

13.The Privy Council, as early as in Thakur Shah v.

Emperor AIR 1943 PC 192, spoke on alteration or addition

of charges as follows :

“The alteration or addition is always, of course,

subject to the limitation that no course should

be taken by reason of which the accused may

be prejudiced either because he is not fully

aware of the charge made or is not given full

opportunity of meeting it and putting forward

any defence open to him on the charge finally

preferred.”

14.Section 216 CrPC gives considerable powers to the

Trial Court, that is, even after the completion of evidence,

arguments heard and the judgment reserved, it can alter

and add any charge, subject to the conditions mentioned

therein. The expressions “at any time” and before the

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“judgment is pronounced” would indicate that the power is

very wide and can be exercised, in appropriate cases, in

the interest of justice, but at the same time, the Courts

should also see that its orders would not cause any

prejudice to the accused.

15.Section 216 CrPC confers jurisdiction on all Courts,

including the designated Courts, to alter or add to any

charge framed earlier, at any time before the judgment is

pronounced and Sub-Sections (2) to (5) prescribe the

procedure which has to be followed after that addition or

alteration. Needless to say, the Courts can exercise the

power of addition or modification of charges under Section

216 CrPC, 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. In other words,

alteration or addition of a charge must be for an offence

made out by the evidence recorded during the course of

trial before the Court. (See Harihar Chakravarty v.

State of West Bengal AIR 1954 SC 266. Merely because

the charges are altered after conclusion of the trial, that

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itself will not lead to the conclusion that it has resulted in

prejudice to the accused because sufficient safeguards

have been built in in Section 216 CrPC and other related

provisions.

16.We may point out, so far as the present case is

concerned, with regard to the incident occurred on

12.3.1993 (Bombay blast), trial in respect of 123 accused

persons had been concluded, out of which 100 persons

were convicted by the Designated Court and this Court

vide its judgment recorded on 21.3.2013 confirmed the

conviction of 98 accused persons in the following cases:

i.Essa @ Anjum Abdul Razak Memon vs. State

of Maharashtra cited as 2013 (4) SCALE 1;

ii.Ibrahim Musa Chauhan @ Baba Chauhan vs.

State of Maharashtra cited as 2013 (4)

SCALE 207;

iii.Ahmed Shah Khan Durrani @ A.S. Mubarak

S. vs. State of Maharashtra cited as 2013 (4)

SCALE 272;

iv.State of Maharashtra vs. Fazal Rehman

Abdul cited as 2013 (4) SCALE 401; and

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v.Sanjay Dutt (A-117) vs. The State of

Maharashtra through CBI (STF), Bombay

cited as 2013 (4) SCALE 462.”

17.Taking note of all those aspects and the fact that the

respondent was declared as a proclaimed offender and

was absconding for more than 15 years and sufficient

materials are already on record and all elements of the

crime are interconnected and interrelated, the Court

cannot simply discard the confession made by him on

27.8.2008 during investigation, which was recorded under

Section 15 of TADA Act, wherein he had admitted his role

in the criminal conspiracy, of course, that has to be dealt

with in accordance with law. Following that, the

supplementary charge-sheet was filed against the

respondent accused for offence of criminal conspiracy as

well as for offences punishable under Section 3(3) of TADA

Act and a list of additional witnesses and documents was

enclosed with that. The Designated Court framed charge

of criminal conspiracy against the respondent under

Section 120-B IPC read with Section 3(3) of TADA Act but,

inadvertently, the original charge of criminal conspiracy

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under Section 3(2) of TADA Act read with Section 120-B

and other offences, was not mentioned.

18.Looking into all those aspects, in our view, this is a fit

case where the Court ought to have exercised its powers

under Section 216 CrPC and allowed the application dated

26.12.2009 filed by CBI for alteration of charge.

Consequently, the impugned order is set aside. The

application preferred by CBI under Section 216 CrPC would

stand allowed and the Designated Court is directed to

further proceed with the case in accordance with law.

Ordered accordingly.

19.The Appeal is, accordingly, allowed.

…………………………J.

(K. S. Radhakrishnan)

.….……………………J.

(Vikramajit Sen)

New Delhi,

March 4, 2014.