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2009 DIGILAW 338 (JK)

Gh. Ali Dar v. State Of J. &K.

2009-07-15

MANSOOR AHMAD MIR

body2009
1. Appellant has challenged the judgment and order of conviction and sentence dated 30th of May, 2006 passed by the court of Special Judge, Anti-Corruption, Srinagar, whereby and whereunder appellant came to be convicted and sentenced for the commission of offence punishable under Section 5(1)(e) read with Section 5(2) of Prevention of Corruption Act, 2006 on the grounds taken in the memo of appeal. Brief Facts: Vigilance Organization Kashmir had received the source information that Ghulam Ali Dar (appellant/accused) has indulged in corrupt practice during his posting as Executive Engineer, Power Development Department (PDD) and has raised huge assets beyond his known sources of income. On this the Vigilance Organization conducted secret enquiry and lodged FIR, conducted investigation and found accused involved in the commission of offence punishable under Sections 5(1)(e) and 5(2) of Prevention of Corruption Act, 2006 and presented the final report/ against him before the court of Special Judge, Anti-Corruption, Kashmir. 2. It appears that during investigation check period was taken from the year 1988 to 1997 and it is alleged that the accused has raised assets during the said period. 3. The charge was framed against the accused vide order dated 26th of September, 2001. Accused pleaded not guilty and claimed to be tried. 4. Prosecution examined all the witnesses cited in the calendar except PW Nos. 17, 41, 42, 43, 59, 60, 61, 66 and 73. The prosecution evidence came to be closed and statement of accused came to be recorded in terms of Section 342 of Criminal Procedure Code, for short Code, vide order dated 13th of May, 2005. Accused has chosen not to lead any evidence in defence and accordingly file was posted for final arguments on 25th of May, 2005. The trial court heard arguments on 30.05.2005, 13.06.2005 and file was posted for further arguments on 16th of June, 2005. 5. It appears that trial court while hearing the arguments noticed that the then learned Presiding Officer had left some blank space and has not recorded the check period in the charge sheet. It rectified the error by filling up the blanks and also by mentioning the check period. It also appears, as per minutes of the file, the charge came to be framed and read over and explained to the accused on 26th of September, 2001 but date recorded is 11th July, 2001 instead of 26th of September, 2001. It rectified the error by filling up the blanks and also by mentioning the check period. It also appears, as per minutes of the file, the charge came to be framed and read over and explained to the accused on 26th of September, 2001 but date recorded is 11th July, 2001 instead of 26th of September, 2001. The trial court also rectified the said error. 6. It is worthwhile to mention herein that trial court has not framed fresh charge and has not read over and explained the contents of the charge to the accused afresh. It is apt to reproduce the charge as it was before making necessary corrections in terms of order dated 16th of June, 2005: "I, Hasnain masoodi, Special Judge Anticorruption Kmr. Do hereby charge you Ghulam Ali Dar S/O Gh. Nabi Dar r/o Housing Colony Rawalpora Srinagar as under: That you during the period .as public servant by resorting to corrupt practice and by abuse of your official position acquired assets in the shape of immovable property, furniture and fixtures, furnishings, electronic gadgets, maruti car, textile items and cash deposits detailed in the charge sheet of the value of Rs.27,33,738.00 and during the same period incurred an expenditure of Rs.11,31,368.00 on verifiable and non-verifiable items as against your income from all known sources to the tune of Rs.12,78,897 and thus assets found in your possession together with the expenditure so incurred by you exceeded your known sources of income by anamount of Rs.21,74,252.00. that you acquired a double storied house with anatiq at Housing Colony Rawalpora by using name of your sister Mst. that you acquired a double storied house with anatiq at Housing Colony Rawalpora by using name of your sister Mst. Halima who was not possessed of sufficient resources to purchase the house and failed to reflect the acquition of said asset in your annual property returns; that you acquired a plot of land measuring kanals 16 marlas at Kharpora Tral unde the garb of mutation u/s 4 and 8 of Agrarian Reforms Act and a plot of land measuring 3 kanals and 16 marlas at Nowgam Byepass Srinagar; that you also acquired a plot of land measuring 13 marlas at Palora Jammu during your service tenure without reflecting the same in the annual property returns; that you by acting in the aforestated manner committed offences punishable u/s 5(1)(e) P.C. Act 2006 and section 14 r/w 5(2) P.C. Act within cognizance of this court and I hereby direct that you be tried by this court in the said charges. Sd/- Dt;11.7.2001 Special Judge Anti Corruption Kmr." 7. In terms of order dated 16th of June, 2005, blank spaces at para-2 of the charge sheet came to be filled up with the words "w.e.f. 1.1.88 to 31.12.97" and words "after subtracting Rs.412,000/- as cash in hand/ savings from pay and Orchard income, prior to check period" came to be added. The date of charge sheet was recorded as 11th of July, 2001 instead of 26th of September, 2001. The trial court made a note about the insertions. 8. The statement of the accused was also recorded on the same date at the back of the charge sheet but the date was also wrongly reflected and instead of 26th of September, 2001 it was reflected as 11th of July, 2001. 9. It is apt to reproduce the note recorded by the trial court on the charge vide order dated 16th of June, 2005. "Note= Insertion made at two places on this side and on one place on reverse of this page is as per I.O. dt=16/6/05. Sd/- 16/6/05" 10. While going through the charge sheet, it is crystal clear that the charge was not framed against the accused regarding fiat car and recovery of cash. 11. "Note= Insertion made at two places on this side and on one place on reverse of this page is as per I.O. dt=16/6/05. Sd/- 16/6/05" 10. While going through the charge sheet, it is crystal clear that the charge was not framed against the accused regarding fiat car and recovery of cash. 11. It appears that learned counsel for the appellant argued that the accused came to be convicted for possessing the fiat car and for recovery of Rs.6,92,700/- in cash though no charge sheet was framed against the accused thereby stands materially prejudiced. Learned counsel for the accused heatedly argued that the trial court has not conducted the trial in accordance with the procedure. The entire proceedings are illegal and have seriously caused prejudiced to the accused. While elaborating the arguments, he argued that the accused came to be charge sheeted vide order dated 26th of September, 2001 and trial court without following the due procedure made some corrections/ rectifications and filled in the blanks in the charge sheet vide order dated 16th of June, 2005. It was obligatory on the part of the trial court to frame fresh charge in order to rectify the errors. Neither fresh charge was framed nor read over and explained to the accused. 12. Learned counsel for the State while rebutting the arguments contended that there was no need to frame fresh charge and to read over and explain the same to the accused. The errors which came to be rectified have not caused any prejudice to the accused and said errors/ omissions have not caused failure of justice. 13. It is profitable to reproduce Sections 227, 228 and 231 of the Code herein: "227. Court may alter charge,--(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. 228. When trial may proceed immediately after alteration.--If the alteration or addition made under section 227 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 charged had been the original charge. 231.Recall of witnesses when charge altered,--Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or resummon, and examine with reference to such alteration or addition, any witness who may have been examined, and also to call any further witness whom the Court may think to be material." 14. Section 227 of the Code mandates that court has power to alter/ add to any charge at any time before judgment is pronounced but the trial court is under legal obligation rather duty bound to read over and explain the said charge to the accused. 15. Section 228 mandates that the Court has to frame an opinion whether said alteration/ addition/ rectification/ omission or error is not likely to prejudice the defence or the prosecutor in the conduct of the case. 16. Section 231 mandates that it is duty of the trial court to provide opportunity to the prosecutor and the accused to recall any witness who may have been examined and also to call any further witness whom the court may think to be material. 17. The aforesaid provisions of the Code describe the procedure and the trial court has to follow the said procedure. Trial court has not recorded right from 16th of June, 2005 till passing of the impugned judgment that said fill in the blanks, errors and omissions have not caused prejudice to the accused. 18. It is also not recorded anywhere by the trial court that the charge was read over and explained to the accused after making said rectifications, alterations and fill in the blanks. Trial court has miserably failed to follow the mandate of Section 231 of the Code. It is necessary to record that neither the prosecutor nor the accused was given opportunity to recall or summon any witness who were already examined and also to call any further witness. 19. The trial court has failed to spell out the case of the defence and the reasons that how it has not caused prejudice to the accused. 20. Calcutta High Court in case titled Surajmal Sharma & Ors. Vs. The State, reported as AIR (37) 1950 Cal.471, has laid down what procedure is to be followed after making alteration/ addition / rectifications/ omissions/ error or fill in the blanks. 20. Calcutta High Court in case titled Surajmal Sharma & Ors. Vs. The State, reported as AIR (37) 1950 Cal.471, has laid down what procedure is to be followed after making alteration/ addition / rectifications/ omissions/ error or fill in the blanks. It is apt to reproduce para-11 of the said judgment herein: "11. It has to be noticed that while S.227, Criminal P. C., by itself only requires that every such alteration shall be read and explained to the acused, the learned Magistrate did not merely read and explain to the accused but apparently asked them whether they were guilty and the accused said that they were not guilty of the charge as altered. This plea of guilty or not is taken under S.255, Criminal P.C., and after this has been done, the procedure which has to be followed is laid down in S.256 and in the subsequent sections of the Code of Criminal Procedure. 21. Allahabad High Court in case titled Kapildeo Upadhya Vs. State, reported as AIR 1954 Allahabad 557, after discussing the mandate of relevant provisions of law, laid down what procedure is to be followed by the trial court, when error or omission is rectified. It is apt to reproduce relevant portion of para-15 herein: "15. .After the alteration of the charges too he is to be given a further opportunity to cross-examine the prosecution witnesses and to produce such evidence as he may desire." 22. Apex Court in case tilted Willie (William) Slaney Vs. State of Madhya Pradesh, reported as AIR 1956 SC 116 and Chittaranjan Das Vs. State of West Bengal, reported as AIR 1963 SC 1696 held what is the scope and object of the Code and what is the effect of disregard of the provision of the Code. 23. Keeping in view the ratio laid down in the judgments (supra), it was duty of the trial court to follow the procedure strictly and read over and explain the charge afresh to the accused and ask him whether he was interested to examine any witness already examined or whether he had to examine further witnesses. The said procedure has not been followed at all. Thus has caused prejudice to the accused. 24. Kerala High Court in case titled Moosa Abdul Rahiman and anr. Vs. The said procedure has not been followed at all. Thus has caused prejudice to the accused. 24. Kerala High Court in case titled Moosa Abdul Rahiman and anr. Vs. State of Kerala, reported as Cr.LJ 1982 Kerala 2087 held that if the charge is altered, omission/ errors are rectified and conviction is recorded without recalling witnesses recorded earlier, conviction is illegal. It is apt to reproduce paras-7 & 8 of the said judgment herein: "7. It has to be borne in mind in terms of Sec. 217 Crl.P.C. 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 resummon, 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. In his order dated 10-11-1980 rejecting the 2nd appellants application dated 3-11-1980, the learned Sessions Judge has not stated that it was considered that the application was made for the purpose of vexation or delay or defeating the ends of justice. No such reason having been recorded, and there being nothing to indicate that the learned Sessions Judge had considered that it was made for the purpose of vexation or delay or defeating the ends of justice, the application filed by the 2nd appellant in assertion of his statutory right under Sec. 217 Crl. P. C. ought to have been allowed; that is especially so considering the gravity of the charges which include one for murder, besides the direction in the section being mandatory in character. 8. In the light of the legal position and the facts and circumstances of the case referred to above, we feel constrained to allow this appeal; we do so setting aside the convictions and sentences passed against the appellants (accused 1 and 2) without in any way disturbing the order of acquittal passed under the very same judgment in so far as it relates to the 3rd accused, and remanding the matter to the Court below with a direction to allow the resummoning/ recalling of the witnesses as had already been or might be requested for by the appellants. The trial will be continued from the stage at which the charge was amended according to law with particular reference to Sec. 216 Crl.P.C. The learned Sessions Judge would give top priority to the trial of this case and dispose it of as expeditiously as possible, at any rate within three months from the date of receipt of the records in his Court. The office will send down the records forthwith." 25. Admittedly, the trial court has not framed charge against the accused viz-a-viz fiat car and recovery of cash though stands convicted for the said fiat car and cash. This has also caused serious prejudice to the accused. 26. In the given circumstances, I am of the considered view that this appeal merits to be allowed and impugned judgment merits to be set-aside and case needs to be remanded to the trial court with the direction to frame charge afresh, read and explain to the accused, allow the prosecution and accused to re-examine witness(es) already examined and allow prosecution to examine any further witness, if material. In case the opportunity is availed by the prosecutor or by the accused then further statement of the accused in terms of Section 342 of the Code be recorded if required. The accused be also given an opportunity to examine witness(es) in defence and thereafter hear the arguments and conclude the case. The entire exercise be done within a period of six months. 27. It is made clear that any observation made by this court or by the trial court while recording the impugned judgment shall not influence the trial courts mind in any way. 28. Accordingly, this appeal is allowed, impugned judgment and order of conviction and sentence is set-aside and case remanded back. Parties are directed to cause appearance before the trial court on 27.07.2009 The time frame fixed (supra) shall commence from 27.07.2009. 29. Registry to send down the record along with a copy of this judgment for information.