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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.