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2014 DIGILAW 146 (CHH)

LALIT KUMAR PANIGRAHI v. STATE OF C. G.

2014-04-01

P.SAM KOSHY

body2014
ORDER 1. By way of the present criminal revision the applicant has challenged the orders dated 10.02.2014 and 05.03.2014 passed by the Special Judge (Prevention of Corruption Act), Durg in Special Case No. 4/1996 whereby the Court below has rejected the application preferred by the applicant under Section 243 (2) r/w s. 294 of Cr.P.C. 2. Brief facts of the case necessary for deciding the point of issue challenged by the applicant in the instant case are as under: The applicant at the relevant point of time was the Superintending Engineer of Special Area Development Authority (SADA), Bhilai. The Special Police Establishment, Office of the Divisional Lokayukt, Raipur registered an FIR against the present applicant and other co-accused persons under Section 13 (1) d & 13 (2) of the Prevention of Corruption Act, 1988 (for short 'PC Act') and also under Section 120-B of IPC. Final report was filed by the State in August, 1996 against the applicant and 16 others for the offence u/s 13(1), 13 (2) of PC Act and 109 of IPC whereas the Court below framed charge against the applicant on 07.12.1998 for the offence u/s 13 (1), 13 (2) of PC Act and the case was put to trial before the Court constituted under the said Act i.e. the Special Judge (Prevention of Corruption Act), Durg in Special Case No. 04/96. 3. The said framing of charge was challenged by some of the accused persons before the High Court in Criminal Revision 484 of 1999. Initially, the High Court passed an order to stay of the further proceedings of the Court below but subsequently in the light of the decision of the Hon'ble Supreme Court in the case of S.N. Sharma Vs. State of Rajasthan, the stay granted by the High Court was vacated in the year 2002. 4. From 2002 to December, 2013 i.e. almost 11 years of time was taken by the prosecution to conclude its evidence and in the process the prosecution examined about 20 witnesses. Thereafter the statement of the accused persons was recorded and vide order dated 22.01.2014 it was ordered that the accused persons should give the list of witnesses whom they intend to examine in support of their defence. Accordingly, vide its application dated 24.01.2014 (Annexure A-3) the present applicant moved an application submitting list of four witnesses proposed to be examined by the applicant as defence witness. Accordingly, vide its application dated 24.01.2014 (Annexure A-3) the present applicant moved an application submitting list of four witnesses proposed to be examined by the applicant as defence witness. This application was rejected by the Court below vide order dated 10.02.2014. 5. While rejecting the application of the applicant u/s 243 (2) r/w s. 294 Cr.P.C. dated 10.02.2014 (Annexure A-3) in the instant revision, the Court below in paragraph-15 of its order dated 10.02.2014 held that the witnesses sought for by the applicant are irrelevant for the reason that the applicant has not given any details/justification for calling these witnesses. The Court below also held that similar witnesses have already been examined by the prosecution and therefore, the relevancy of calling these witnesses by the applicant is not there and that the calling of these witnesses may further delay the trial. As regards one of the witnesses sought for by the applicant, the Court below held that the relevancy of this witness is not there as the evidence which the applicant intends to extract from the said witness can be adduced by producing notification of the Govt. 6. Subsequently, after passing of the order dated 10.02.2014, the applicant again filed another application (Annexure A-6) on 20.02.2014 specifically giving reasons and justifications as to why the applicant intends to call these witnesses. It is pertinent to mention here that when the second application was filed by the applicant on 20.02.2014, the applicant had given the name of only three witnesses in stead of four witnesses as was earlier sought for. This application dated 20.02.2014 was again rejected by the Court below vide its order dated 05.03.2014. It is these two orders dated 10.02.2014 and 05.03.2014 passed by the Court below which are under challenge in the instant criminal revision. 7. Counsel for the applicant submits that the impugned order passed by the Court below is totally perverse and is in sheer violation of the right conferred upon the accused persons under the provisions of Section 243 of Cr.P.C. as well as u/s 22 of PC Act. It is contended by the counsel for the applicant that by rejecting the application for permitting the accused/applicant to lead defence evidence amounts denial of a fair trial to the accused/applicant by the Court below. It is contended by the counsel for the applicant that by rejecting the application for permitting the accused/applicant to lead defence evidence amounts denial of a fair trial to the accused/applicant by the Court below. It is the contention of the counsel for the applicant that the Court below ought to have considered the aspect from a different angle also that admittedly the prosecution took more than 11 years for adducing evidence before the Court below and when the prosecution could be given 11 years for its evidence, there was no justification for the Court below to have rejected the application of the applicant only on a presumption that the application so filed by the applicant could be with an intention of delay tactics. Counsel for the applicant further went on by making a submission before this Court that in order to ensure that the accused persons do not delay the proceedings inordinately for unjustified and frivolous reasons by leading unwarranted and irrelevant evidence, this Court exercising its revisional power may chalk out a programme giving a specific date and time to the applicant to get the defence witnesses present before the Court below. This would ensure that the applicant also gets a reasonable opportunity of defence. 8. Per contra, counsel for the State vehemently opposing the prayer of the counsel for the applicant submitted that the two orders dated 10.02.2014 and 05.03.2014 do not warrant any interference for the reason that the order passed by the Court below is after due consideration of the total factual background of the case. It was contended that the Court below dealing with the provisions of PC Act has got all the powers upon it to look into the relevancy of the witnesses sought to be examined on behalf of the defence. It was also contended that a plain reading of the impugned orders would show that the Court below has minutely considered the request of the applicant and has also considered the relevancy of the witnesses sought to be examined by the applicant. It was also contended that a plain reading of the impugned orders would show that the Court below has minutely considered the request of the applicant and has also considered the relevancy of the witnesses sought to be examined by the applicant. It was argued by the State counsel that vide impugned orders the Court below has found that none of the witnesses who were sought to be examined by the applicant were found to be relevant and therefore vide order dated 10.02.2014 and 05.03.2014 the Court below has rejected the applications filed by the applicant under Section 243 (2) r/w s. 294 of Cr.P.C. 9. It was also contended by the State counsel that if we see the list of witnesses sought to be examined by the defence i.e. the applicant, it would be evident that they are not specific witnesses relating to the charge levelled against the accused/applicant but they are the witnesses who would give general information about the procedural aspects on the part of the applicant so as to establish the allegations levelled against the applicant are false and baseless. State counsel also submitted that having considered the relevancy of the witnesses and on finding them to be irrelevant it was then the Court below has rejected the applications which is fully within the power and competence of the Court below. 10. Having heard the rival contentions put forth by the counsel of either side and on perusal of the evidence that has come on record, some of the basic factual details which have to be kept in mind and which are not disputed also are the facts: (i) That the charges were framed against the present applicant and other accused persons as early as in December, 1998 and the said framing of charge was challenged by some of the accused persons in a revision before the High Court i.e. Criminal Revision No. 484 of 1999. (ii) That initially there was an interim protection by the High Court against the further proceedings of the case but subsequently in the year 2002 the said stay was vacated and the proceedings again commenced. (ii) That initially there was an interim protection by the High Court against the further proceedings of the case but subsequently in the year 2002 the said stay was vacated and the proceedings again commenced. From 2002 to December, 2013 the proceedings before the Court below was pending only for the prosecution evidence and that the matter was adjourned time and again at the behest of the prosecution and it took almost 11 years for the prosecution to adduce the evidence of 20 witnesses. (iii) That on 22.01.2014 for the first time the Court below directed the accused persons to submit their list of witnesses whom they intended to be examined as defence witness. The present applicant submitted his application on 24.01.2014 which was rejected vide order dated 10.02.2014. (iv) After rejection of the first application on 10.02.2014, the applicant I again filed another application on 20.02.2014 which was also I rejected by the Court below vide order dated 05.03.2014. 11. The grounds which the Court below has taken into consideration for rejecting the application under Section 243 of Cr.P.C. and Section 22 of the PC Act are - firstly on verification of the relevancy of the witnesses cited by the accused persons found that they are not material witnesses required for the defence of the accused persons. Secondly, the 16 other accused persons having given separate applications for the same reason appears to have been submitted with an intention of delay tactics. Lastly, that for some reasons the first application filed by the applicant had already been rejected by the Court below on 10.02.2014 and therefore the second application filed by him would not be entertain-able. 12. Out of the three witnesses one is Vijay Bakshi, the then the Account Assistant who had conducted the internal audit of the department but could not detect any irregularities, whom the applicant also intends to bring to the notice of this Court. Even the audit conducted by the department of CAG could not detect any irregularities in the said alleged disputed transaction. It is this which the defence intends to extract from this witness. 13. Similarly, the applicant intends to call the second person R.K. Rathore, the then the Executive Engineer & PIO of the Housing Board, Bhilai. Even the audit conducted by the department of CAG could not detect any irregularities in the said alleged disputed transaction. It is this which the defence intends to extract from this witness. 13. Similarly, the applicant intends to call the second person R.K. Rathore, the then the Executive Engineer & PIO of the Housing Board, Bhilai. The third person whom the applicant sought for is Sanjeev Vyohar, the then Assistant Engineer, SADA, Bhilai and in-charge of the construction of Slice 1 & 2 of the contract. The statement of this witness was recorded by the prosecution u/s 161 of Cr.P.C. but he was not produced as a prosecution witness. 14. The grounds on which the Court below has refused to call these three witnesses as is reflected from paragraph-12 of the order dated 05.03.2014 appear to be too technical ground which is not sustainable and perhaps also not proper for the reason that the Court below has held that the prayer of the applicant has already been rejected on 10.02.2014 and therefore sheer filing of the second application itself shows that intention of the applicant was for delay in proceedings. The Court below further gave a finding that since the order dated 10.02.2014 was also on the merits of the case considering the relevancy of these witnesses, the second application is not entertainable at all. 15. However, if we see the relevancy of these three witnesses, according to the counsel for the applicant, these witnesses are required to prove firstly in the case of Bijay Bakshi who had conducted the audit of the concerned work so executed which is in dispute in the instant case. Secondly, R.K. Rathore who at the relevant point of time was the Executive Engineer of the Housing Board, Bhilai to the deal with the construction. .The evidence of this witness cannot be refused on the ground that one Vikram Mahendra (PW-16) has already been examined for the reason that Vikram Mahendra was an Executive Engineer , of Housing Board, Durg and therefore, the said Vikram would not prove and justify the work done by the office of the Housing Board, Bhilai. .The evidence of this witness cannot be refused on the ground that one Vikram Mahendra (PW-16) has already been examined for the reason that Vikram Mahendra was an Executive Engineer , of Housing Board, Durg and therefore, the said Vikram would not prove and justify the work done by the office of the Housing Board, Bhilai. Similarly, the third witness Sanjeev Vyohar whom the applicant intends to call is a person whose statement was initially recorded u/s 161 Cr.P.C. before the Police during investigation but the prosecution has not brought him as a witness and that he was the in-charge of the work of Slice 1 & 2. 16. Thus, these three persons appear to be prima facie of some relevant witnesses which cannot be refused in the larger interest of justice and also in the process of providing a fair trial to the applicant. 17. Since there is already direction by the High Court in Criminal Revision for deciding the case within a stipulated period, the Court below with an object of speedy trial in its mind appears to have proceeded with the case and in the course rejected the applications of the applicant under Section 243 r/w s. 294 of Cr.P.C. denying him the right of a fair trial in as much as on the first available occasion of submitting the list of defence witnesses itself. The point which the Court below ought to have appreciated and shall have adopted a more practical approach by considering the fact that when the prosecution has been granted 11 years for leading its evidence, no prejudice would have been caused to the prosecution if the accused persons were given at least one opportunity for leading their evidence. On the contrary it would have been in the larger interest of doing substantial justice and also with an intention of providing fair trial to the accused persons. 18. On the contrary it would have been in the larger interest of doing substantial justice and also with an intention of providing fair trial to the accused persons. 18. If the Court below had granted at least one opportunity to the defence for leading its evidence and if at all if the applicant had failed to lead any evidence in spite of giving an opportunity, the Court below would have been justified in rejecting the applications under Section 243 (2) r/w s. 294 of Cr.P.C. But in the garb of a speedy trial if the applications of the applicant are rejected by the Court below even without giving the applicant an opportunity of leading evidence, the same would definitely be a case of denial of fair trial to the applicant. At best, the Court below could have fixed the time limit for each of the accused persons for leading their evidence, if any and then should have proceeded further to decide the matter. 19. The case referred by the Court below in rejecting the application of the applicant and other co-accused persons is the case of Arivazhagan Vs. State 2000(3) SCC 328 . If the Court below had read the aforesaid judgment itself carefully, perhaps it would not have rejected the applications of the applicant. In the said case the defence intended to examine about 267 witnesses and out of them the trial Court had permitted few number of witnesses to be examined which was challenged in the High Court and the High Court further enhanced the number of witnesses to be examined. The Hon'ble Supreme Court also affirming the view of the High Court further given the accused persons liberty to call for the witnesses, if the need so arises. Thus, from the said judgment itself, it is evidently clear that the Supreme Court, the High Court and the Court below in the above referred case had permitted the defence to examine sufficient number of witnesses so as to prove their innocence. Whereas in the instant case vide impugned orders the Court below has not allowed a single defence witness to be examined in the garb of a speedy trial which apparently appears to be a totally unfair approach and it clearly amounts to denial of a fair trial to the applicant. 20. Whereas in the instant case vide impugned orders the Court below has not allowed a single defence witness to be examined in the garb of a speedy trial which apparently appears to be a totally unfair approach and it clearly amounts to denial of a fair trial to the applicant. 20. The rejection of the said applications on the part of the Court below is all the more unfair for the reason that when the list of witnesses cited by accused persons is taken into consideration, it is evident that a large number of witnesses are common witnesses and as such if these number of common witnesses are taken into consideration also the total number of witnesses to be examined would further get reduced. Though the Court below has taken note of this fact but yet in order to decide the case within the period of time provided by the High Court has refused the accused persons their right which has been conferred upon them in the statute i.e. Section 243 of Cr.P.C. and Section 22 of the PC Act. Therefore the order of the Court below per se appears to be an illegal and unfair order. 21. The impugned orders dated 10.02.2014 and 05.03.2014 to the extent of the Court below rejecting the applications u/s 243 (2) r/w s. 294 of Cr.P.C. filed by the present applicant are therefore bad in law, arbitrary and illegal. 22. The Hon'ble Supreme Court on the issue of fair trial to the accused persons right from the year 1954 has in very categorical term upheld the notion, that denial to lead evidence amounts to unfair trial. In AIR 1954 S.C. 455 , the five Judges Bench of the Hon'ble Supreme Court in paragraph-10 held: "...... Whatever one may think of the merits of the appellants contention, they cannot be convicted without an opportunity being given to them to present their evidence, and that having been denied to them, there has' been no fair trial." 23. Similarly in the recent past also the Hon'ble Supreme Court has given sufficient weightage on the said principle of fair trial reiterating that sufficient opportunity of defence to prove the case should be given to the accused persons. In the matter of Natasha Singh Vs. Central Bureau of Investigation (2013)5 SCC 741 the Hon'ble Supreme Court in paragraphs-15 and 16 held: "15. In the matter of Natasha Singh Vs. Central Bureau of Investigation (2013)5 SCC 741 the Hon'ble Supreme Court in paragraphs-15 and 16 held: "15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. 16. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right." Similarly, in the matter of T. Nagappa Vs. Y.R. Muralidhar (2008) 5 SCC 633 the Hon'ble Supreme Court in paragraphs-8 and 9 held : "8. An accused has a right to fair trial. He has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognised by Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure. 9. ...... There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant." Also in the matter of Kalyani Baskar (MRS.) Vs. M.S. Sampoornam (MRS.) (2007) 2 SCC 258 the Hon'ble Supreme Court in paragraph-12 held : "12. ....... The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. "Fair trial" includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial." 24. "Fair trial" includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial." 24. Consequently, it would be in the interest of justice if the matter is remitted to the Court below with a direction that the applicant shall be permitted to call Vijay Bakshi, the then Account Assistant, Bhilai, R.K. Rathore, the then Executive Engineer & PIO of the Housing Board, Bhilai and Sanjeev Vyohar, the then Assistant Engineer and in-charge of the construction of Slice 1 & 2 of the contract as defence witnesses on his behalf. 25. Accordingly, the instant revision is allowed. The impugned orders dated 10.02.2014 and 05.03.2014 passed by the Court below are set aside to the extent of the Court below rejecting the applications of the applicant u/s 243 (2) r/w S. 294 of Cr.P.C. In turn, the applicant shall be permitted to call for three persons i.e. Shri Vijay Bakshi, Shri R.K. Rathore and Shri Sanjeev Vyohar as witness on a date to be given by the Court below. Revision Allowed.