Research › Search › Judgment

Chhattisgarh High Court · body

2014 DIGILAW 68 (CHH)

KAMLESH CHANDRAKAR v. STATE OF C. G.

2014-02-14

P.SAM KOSHY

body2014
ORAL ORDER 1. Heard on admission. 2. By way of instant criminal revision, the applicant has challenged the orders dated 27.4.2013 and 7.1.2014 passed by Special Judge (Prevention of Corruption Act), Durg, in Session Trial No. 04/1996. 3. The applicant had been initially charged for an offence punishable under Section 120-13 of IPC infer alia alleging that the applicant, who was a Contractor by profession, in the course of execution of certain work order, which was issued by the Special Area Development Authority, Durg, had committed various irregularities, in connivance with others, causing financial loss to the Special Area Development Authority, Durg. 4. On the basis of the said allegations of corruption and irregularity, the applicant was prosecuted for offence punishable under Section 120-B of IPC and the trial was initiated and is going on. That, on 17.4.2013 during the course of proceedings, the prosecutor made a submission before the trial Court that the prosecution intends to alter the charge framed against the applicant as well as other accused persons and that it had expressed clearly that the prosecution intends to alter the charge to the extent of the applicant also is said to have committed an offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short, "the Act of 1988") against the accused persons. 5. Based on the said request of the prosecution, the Court fixed the case for further arguments on the said alteration of the charge on 27.4.2013. On 27.4.2013, the Court after hearing the submissions of the accused persons modified the charge already framed and after altering the same, in addition to Section 120-B of IPC an offence punishable under Section 13(1)(d) read with Section 13(2) of the Act of 1988 was also framed against the applicant and other accused persons. 6. It is this order dated 27.4.2013 which the present applicant intends to challenge at this stage as the first relief. 7. Subsequently, on 3.1.2014 (i.e. after a lapse of about nine months) the applicant had moved another application along with other accused persons before the Court below requesting the Court for calling all the witnesses who have been examined prior to 27.4.2013 for cross-examination invoking the provisions of Section 217 of CrPC. 8. 7. Subsequently, on 3.1.2014 (i.e. after a lapse of about nine months) the applicant had moved another application along with other accused persons before the Court below requesting the Court for calling all the witnesses who have been examined prior to 27.4.2013 for cross-examination invoking the provisions of Section 217 of CrPC. 8. The Court below vide order dated 7.1.2014 had rejected the said application on the ground that the application filed by the applicant/accused persons did not disclose as to which of the witnesses to which each of the applicants therein intended to be recalled; why and what is the prejudiced caused. 9. This order dated 7.1.2014 is also under challenge in the instant revision petition as the second relief. 10. Learned senior counsel appearing for the applicant submits that as regards order dated 27.4.2013 his only grievance is that the charge cannot be altered after about 15 years of trial and that substantial injustice would be caused if the applicant would be subjected to retrial again on fresh charges after a period of about 15 years. 11. As regards the rejection of application dated 3.1.2014 vide order dated 7.1.2014, learned senior counsel makes a submission that plain reading of the provisions of Section 217 of CrPC shows that the prosecutor and the accused shall be allowed to recall or re-summon, and examine of such witnesses those evidence have already been recorded. Contention of the learned senior counsel is that the term "shall" reflected under the provisions of Section 217 of CrPC has a mandatory force. Therefore, it was incumbent upon the Court to have acceded to the request of the applicant/accused persons in allowing the application and for recalling those witnesses who have been examined. 12. Learned senior counsel relies upon the judgement passed by Hon'ble Supreme Court in the case of Ranbir Yadav Vs. State of Bihar AIR (1995) SC 1219. 13. Per contra, learned counsel for the State, opposing the instant revision petition and the contentions put forth by learned senior counsel for the applicant, submits that the order dated 7.1.2014 as well as order dated 27.4.2013 cannot be said to be erroneous orders nor can it be said that the Court below has committed any irregularity in passing of the said orders. 14. 14. Learned counsel for the State further submits that, firstly, the application dated 3.1.2014 filed under Section 217 of CrPC itself has been filed at a belated stage and, therefore, the Court below has rightly rejected the same. Secondly, learned counsel for the State submits that even otherwise the application dated 3.1.2014 filed by the applicant/accused persons under Section 217 of CrPC was vague and was not specific in any respect. Therefore, the Court below was justified in rejecting the said application. 15. As regards the order dated 27.4.2013 of altering the charges and framing additional charges against the applicant/accused persons, learned counsel for the State submits that from the terms used under the provisions of Section 217 of CrPC, it is very clear that the Court may alter or add any charge at any time before passing of the judgement. Therefore, the contention that it has been framed after 15 years from the commencement of the trial would not have any force. Learned counsel for the State also in this regard relies upon the decision of Hon'ble Supreme Court made in Jasvinder Saini and others Vs. State (Government of NCT of Delhi) 2013(2) SCC 256. 16. Considering the rival contentions put forth by the counsel appearing for either side and on perusing of the material available on record, it is very clear that on 17.4.2014 when the matter was fixed for evidence of the prosecution, the prosecutor had made a request before the Court below making his intentions clear that the charge framed against the applicant and other accused persons does not seem to be proper and prosecution intends to alter the said charge. The prosecution further requested before the Court below for framing an additional charge against the applicant and the co-accused persons for offence punishable under Section 13(1) (d) read with Section 13(2) of the Act of 1988. 17. At the request of the prosecution, the Court below taking into consideration of the request had fixed the case for arguments on the question of alteration of the charge on 27.4.2013. 17. At the request of the prosecution, the Court below taking into consideration of the request had fixed the case for arguments on the question of alteration of the charge on 27.4.2013. Thereafter, on 27.4.2013, the Court below after hearing both the parties ordered for alteration of the charge and in addition to the charge already framed of Section 120-B of IPC, it further altered the charge of offence punishable under Section 13(1)(d) read with Section 13(2) of the Act of 1988 against the applicant/accused persons and the Court proceeded further. In the course of further proceedings with the Court it is clearly reflected from the order sheet dated 27.4.2013 wherein the accused persons who were present before the Court below and also the lawyers who were representing them before the Court, made a categorical statement before the Court below that they do not want to lead any evidence in respect of alteration of the charge and that they also do not intend to call any of the witnesses already examined for re-examination or for re-cross examination. Accordingly, the proceedings were thereafter fixed for further evidence of the prosecution for 1.5.2013 and on other dates. For ready reference, the submission of the applicant/accused persons before the Court below as is reflected in the order sheet dated 27.4.2013 is reproduced as under:- ^^tks la’kks/ku vkjksi esa gqvk gS muds laca/k esa vfHk;kstu vFkok cpko i{k esa ls fdlh us Hkh u rks dksbZ uohu lk{; is’k djuk O;Dr fd;k vkSj u gh iwoZ esa fojfpr gks pqds fdUgha lkf{k;ksa ds iqu% ijh{k.k vFkok iqu% izfrijh{k.k djus dk fuosnu fd;kA** 18. Further, from the records it is reflected that after passing of the order dated 27.4.2013 it was only after a period of about 9 months the present applicant and the other accused persons had moved an application under Section 217 of CrPC for recalling of all those witnesses who have been examined prior to 27.4.2013. 19. Further, from the records it is reflected that after passing of the order dated 27.4.2013 it was only after a period of about 9 months the present applicant and the other accused persons had moved an application under Section 217 of CrPC for recalling of all those witnesses who have been examined prior to 27.4.2013. 19. From the records and also from the proceedings drawn, it is evidently clear that, firstly, the applicant and the other accused persons had on an earlier occasion in very categorical terms made a statement before the Court below that they do not intend to recall any of the witnesses which have been examined, particularly, in the light of alteration of the charge and, therefore, they cannot now seek a relief of recalling of the witnesses already examined. Secondly, it is also reflected that even if the contention of the applicant is to be accepted then the request/application of the applicant ought to have been filed immediately on the date fixed after 27.4.2013. This also is not the case in the present given facts in as much as after the proceedings on 27.4.2013 the case was fixed for 1.5.2013, 8.5.2013 and 28.5.2013, but the application under Section 217 of CrPC has been filed by the applicant/accused persons only on 3.1.2014 i.e. after the period of about 9 months time. That too, at the stage where the case was fixed for the recording of the accused's evidence which is admittedly the fag-end of the trial. Therefore, the request so made by the applicant does not seem to be a bona fide request but appears to be an application moved with a sole intention of further prolonging the proceedings before the Court below. 20. Even otherwise if we see the reasons recorded by the Court below, it cannot be said to be erroneous recordings for the reason that a plain reading of the application filed by the applicant under Section 217 of CrPC (Annexure 'D' in the instant revision petition) would show that it was a vague request made by the applicant before the Court below without disclosing any details as to who are the witnesses which each of the applicants intends to examine in respect of alteration of the charge. None of the accused persons have disclosed the particular names of the witnesses who have to be examined and have also not shown any prejudice to have been caused in case if those witnesses are not recalled. 21. Case of Ranbir Yadav l (supra) relied upon by the learned senior counsel would not come to the rescue to the applicant at this juncture for the reason that firstly the application moved by the applicant does not disclose as to what prejudice would be caused in the evidence if the already examined witnesses are not recalled. Secondly, the applicant/accused persons do not have any details as to which witnesses have to be examined in respect of alteration of charge for each of the accused persons. Lastly, the applicants had already been given an opportunity for recalling of the witnesses which on 27.4.2013 itself the applicant/accused persons had in very categorical terms stated before the Court below that they do not intend to examine any further witnesses or recall any of the witnesses already examined. 22. In view of the above, stress given by the learned senior counsel on the word "shall" under the provisions of Section 217 of CrPC apparently has been complied with by the Court below on the perusal of the order sheet dated 27.4.2013. As such, there is no irregularity or failure of justice to have been done by the Court below in passing of order dated 27.4.2013 as well as order dated 7.1.2014. 23. Hon'ble Supreme Court in the case of Jasvinder Saini 2 (supra) has in very categorical terms held in para 11 of the judgement that there is unrestricted power to add or alter any charge whenever Court finds that defective charge has been made or addition of new charge becomes necessary after commencement of trial. 24. For the foregoing reasons, I do not find any merits in the contentions put forth by the learned senior counsel for the applicant. 25. The criminal revision thus fails and is hereby dismissed in limine. No order as to costs. 26. Any observation made by this Court in disposal of the present criminal revision should not have any bearing on the merits of the trial. Petition Dismissed.