Trial Court May Simultaneously Add Charges Under Ss. 409, 420 IPC If Facts Unclear As To Which Offence Committed: Kerala High Court

The Kerala High Court has recently held that a trial court may incorporate charges under both Sections 409 and 420 of the Indian Penal Code when it is doubtful as to what offence has been committed.Dr. Justice Kauser Edappagath pronounced the decision while considering an original petition filed under Article 227 of the Constitution. A journalist, who was a stranger to the proceeding before the trial court challenged the order dismissing a petition under Section 239(1) of the BNSS seeking addition of a charge.The prosecution allegation was that the 3rd respondent/1st accused, who was a Thondy clerk (property section clerk), entered into a criminal conspiracy with the 4th respondent/2nd accused, who was an advocate representing an accused in a Sessions Case. Pursuant to the conspiracy, the 1st accused handed over a material object involved in the Sessions Case to the 2nd accused. After the receipt of the same was endorsed in the Thondy Register, the 2nd accused took the object outside the court, altered it and resubmitted it after a gap of around 4 months. This was received by the 1st accused and forwarded to the Sessions Court as if it was the original one. It is alleged that the said acts were done in an attempt to garner an acquittal for the client of the 2nd accused. Thus, they were charged under the offences punishable under Sections 120B [Conspiracy], 420 [Cheating and dishonestly inducing delivery of property], 201 [Causing disappearance of evidence of offence or giving false information to screen offender], 193 [Punishment for false evidence], 217 [Public servant disobeying direction of law with intent to save person from punishment or property from forfeiture] r/w Section 34 [Common intention] of the IPC.In 2022, the High Court quashed the proceedings but it was clarified that competent authority is not precluded from pursuing the prosecution by complying with the correct procedure. Though the petitioner and another journalist, M.R. Ajayan, sought for impleadment, the same was not allowed.This decision was challenged by the 2nd accused and M.R. Ajayan. The Apex Court restored the criminal proceedings and directed that the trial be completed within a year. When locus standi of the journalist was challenged, the Supreme Court was of the opinion that since there were allegations regarding tampering with the court's order, locus is not important especially since the prosecution was not carrying forward the matter. Subsequently, trial was conducted and the case was posted for arguments. At this stage, the public prosecutor filed a petition under Section 239(1) BNSS (Section 216 of the Cr.P.C.) to add Section 409 IPC [Criminal breach of trust by public servant, or by banker, merchant or agent] to the existing charge. However, the trial court dismissed the petition. It gave two reasons: one was that the offence under Section 409 IPC was not prima facie made out and, the other was that the offences under Sections 420 and 409 IPC cannot co-exist simultaneously in the light of the Apex Court decisions in Arshad Neyaz Khan v. State of Jharkhand and, Delhi Race Club (1940) Ltd and Others v. State of Uttar Pradesh, wherein it was held that Sections 420 and 406 [Criminal breach of trust] IPC cannot be charged at the same time.Aggrieved by the dismissal, the petitioner had come before the High Court since the prosecution did not challenge the order.Here also, locus standi of the petitioner was challenged but referring to the precedents laid down by the Supreme Court on the subject of locus standi of strangers to oppose withdrawal of prosecution, the High Court felt that the same principles can be applied in this case also.Relying on Apex Court decision in Abdul Wahab K.v. State of Kerala (AIR 2018 SC 4265), and the High Court decision in George Alexander v. State of Kerala, it further opined that High Court can exercise power of superintendence under Article 227 to correct the illegality of order of a subordinate court even when brought to its notice by a stranger.It also observed that as per Section 221 CrPC/Section 230 BNSS, the trial court has the power to alter or add to any charge at any time before the judgment is pronounced, even after the completion of evidence.Next, the Court went on to see if the ingredients of Section 409 IPC were prima facie made out in the case. Looking at the facts, it was of the opinion that prima facie, it was attracted.The Court observed:“The property clerk, by virtue of his office, is the custodian of all the properties kept in the property room/thondi room. When the property involved in the case is kept in the property room/thondi room, there need not be a separate order of entrustment entrusting the property to the property clerk...The forensic examination report produced and marked before the trial court would also show that the material object was subjected to tampering…the materials on record suggest that the 1st accused, who by virtue of his office was the custodian of the ...

Trial Court May Simultaneously Add Charges Under Ss. 409, 420 IPC If Facts Unclear As To Which Offence Committed: Kerala High Court

K. Salma Jennath

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