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2008 DIGILAW 428 (MP)

MANJU LATA TIWARI v. STATE OF MP

2008-03-17

R.C.MISHRA

body2008
Judgment R.C.Mishra, J. ( 1. ) These petitions, under Section 482 of the Code of Criminal Procedure (for short the Code), are interlinked as arisen from the orders-dated 07.11.2007 and 22.11.2007 (for short the first and second order) passed by the Special Judge (under the Prevention of Corruption Act, 1988) [hereinafter referred to as the Act], Rewa in Special Case No.97/98. ( 2. ) In that case, cognisance of the offences punishable under Sections 420, 467, 468, 471 read with Section 120-B of the IPC and Section 13(l)(d) read with 13(2) of the Act was taken on 04.11.2004 upon the charge-sheet submitted by Dy. Superintendent of Police (SPE), Lokayukt arraigning 9 persons including the petitioners as accused. However, for the reasons recorded in the order-dated 17.08.2005, the then trial Judge charged only three accused namely R.P. Tiwari, Dr. Pradeep Mishra andD.P. Singh with the offences punishable under Sections 120-B and 420 of the IPC and also under Section 13(l)(d) read with 13(2) of the Act whereas charges of the offences under the IPC only were framed against the remaining six accused including the petitioners. All the accused abjured the guilt and they were., accordingly, tried on the respective charges. However, on 30.10.2007, while hearing the final arguments, learned trial Judge, expressing an opinion that prima facie the offence under the Act was also made out against all the six accused charged with the offences punishable under IPC only, proceeded to afford them an opportunity of hearing. Thereafter, vide the first order in question, he added the offence under Section 13(l)(d) read with 13 (2) of the Act to the earlier charges framed against the petitioners and the identically placed co-accused namely Gokaran Kushwaha, Kaushlesh Dwivedi and Kaushal Saket. Subsequently, by the second order under challenge, the applications, under Section 217 of the Code, moved on behalf of the petitioners, for recalling all the prosecution witnesses and those filed by co-accused Gokaran Kushwaha and Kaushal Saket, for re-summoning some of them was rejected. ( 3. ) The first order has been sought to be quashed inter alia on the ground that the learned Judge had grossly erred in reviewing the earlier order, passed on 17.08.05, impliedly discharging the petitioners and three other accused in respect of the offence under the Act. ( 3. ) The first order has been sought to be quashed inter alia on the ground that the learned Judge had grossly erred in reviewing the earlier order, passed on 17.08.05, impliedly discharging the petitioners and three other accused in respect of the offence under the Act. However, the contention deserves to be rejected as apparently misconceived simply because, under Section 216 of the Code, an existing charge can be altered or added to at any time before the judgment (Hasanbhai Valibhai Qureshi vs. State of Gujarat (2004) 5 SCC 347 ). Moreover, charge can be altered even at appellate stage (Kantilal Chandulal Mehta vs. State of Maharashtra AIR 1970 SC 359 ). But, the alteration or addition of any charge, in the words of Lord Porter, is always subject to 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 (Thakur Shah vs. Emperor AIR 1943 PC 192). In this view of the matter, no interference is called for with the first order. ( 4. ) Adverting to the second order, it may be seen that the prayer to recall the prosecution witnesses was rejected on the ground mat no prejudice was going to be caused to the petitioners or the similarly placed co-accused as the allegation that the offending acts in question were committed during discharge of their duties as public servant was never put to challenge during cross-examination. However, the provisions of Section 217 of the Code are almost peremptory and the interests of the prosecution as well as of the defence have to be safeguarded by permitting them to further examine or cross-examine the witness already examined, as the case may be, and by affording them an opportunity to call other witnesses (Ranbir Yadav vs. State of Bihar (1995) 4 SCC 392 referred to). Further, true ambit and scope of Section 217 of the Code has already been examined by a single Bench of this Court in Vikas vs. State of M.P. 2001 CrLJ 3665 . Further, true ambit and scope of Section 217 of the Code has already been examined by a single Bench of this Court in Vikas vs. State of M.P. 2001 CrLJ 3665 . Dipak Misra J, who authored the judgment, while making reference to the corresponding recommendation of Law Commission in its 41st report leading to introduction of the material change in sub-section (a) of Section 217 of the Code, explained the effect thereof in the following words :- "On a purposeful reading of the provision keeping in view the backdrop of revision in the provision it becomes quite clear that unless there is an attempt to re-examine a witness for the purpose ofvexation or delay or in defeating the ends of Justice the Court ordinarily should allow the recall or re-summon and examination of witnesses with reference to such alteration or addition of charge." ( 5. ) In Vikass case (supra), the under-mentioned ruling of a Division Bench of Kerala High Court in Moosa Abdul Rehman vs. State of Kerala 1982 CriLJ 2087 was also quoted :- "It has to be borne in mind in terms of Section 217, Criminal Procedure Code whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecution and the accused shall be allowed to recall or re-summon, and examine, any witness who may have been examined, unless the Court for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or defeating the ends of Justice." ( 6. ) Accordingly, an application for recalling the witnesses in the light of any additional charge could be disallowed only on three grounds namely (i) vexation (ii) delay and (iii) defeating the ends of justice. But, none of these has been specifically mentioned as the ground for rejection of the prayer made on behalf of the petitioners. Further, the reasoning given by him can also not be sustained in view of the fact that the ingredients of the offence punishable under Section 13(l)(d) read with Section 13{2) of the Act are altogether different from the corresponding offence under the IPC with which the petitioners were charged initially. Thus, it is the second order only mat squarely attracts exercise of inherent powers to secure ends of justice. Thus, it is the second order only mat squarely attracts exercise of inherent powers to secure ends of justice. ( 7. ) In the result, the petitions are allowed in part. The first order is affirmed whereas the second order is set aside and the petitioners1 applications, under Section 217 of the Code, are allowed. The trial Judge is, accordingly, directed to re-summon the prosecution witnesses for further cross-examination as per the prayer made by the petitioners and to proceed with the trial in accordance with law. ( 8. ) Copy of the order be retained in the connected petition. Petition allowed in part.