Bombay High Court
Arif Ali vs The State Of Maharashtra on 2 November, 2012
Bench: Shrihari P. Davare
1 crwp699.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL WRIT PETITION NO. 699 OF 2012
Arif Ali s/o Yusuf Ali Sayyed,
age 39 years, occ. Service,
R/o 32-A, Avishkar Colony,
Chalisgaon Road, Dhule ...Petitioner
ig [Orig. Accused]
VERSUS
The State of Maharashtra,
through Anti Corruption Bureau,
Dhule ...Respondent
.....
Shri K.C.Sant, advocate for the petitioner
Shri B.J.Sonawane, A.P.P. for the respondent
.....
CORAM : SHRIHARI P.DAVARE, J.
DATE OF RESERVING
THE JUDGMENT : 23.10.2012
DATE OF PRONOUNCEMENT
OF THE JUDGMENT : 02.11.2012
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ORAL JUDGMENT : -
1] Heard respective learned counsel for the parties.
2] Rule. Rule made returnable forthwith. With the
consent of the learned counsel for the parties taken up for final
hearing at the admission stage itself.
3] The petitioner herein has preferred the present
petition under Article 227 of the Constitution of India and also
under Section 482 of the Code of Criminal Procedure, praying
that the order passed by the learned Special Judge, Dhule
below application Exh. 54 in Special Case No. 19 of 2011 on
12.7.2012 be quashed and set aside.
4] The factual matrix giving rise to the present petition is
as follows :-
The petitioner is the original accused in Special Case
No. 19 of 2011 and is being tried therein for the offences
punishable under Sections 7, 13(1)(d) and 13(2) of the
Prevention of Corruption Act, 1988, by the learned Special
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Judge, Dhule.
The petitioner is a police constable and it is alleged
that the petitioner demanded and accepted an amount of Rs.
70,000/- from one Biharilal Punamchand Agrawal as reward to
return the documents and key of complainant's goods carriage
Truck bearing No. MH-18/M-8222 and he allegedly obtained
pecuniary advantage by corrupt or illegal means or otherwise
abusing the position as a public servant. Accordingly, on the
basis of the complaint, the prosecution is initiated against the
petitioner and case was registered against him under Special
Case No. 19 of 2011 and copy of the complaint lodged by the
complainant, namely Biharilal Punamchand Agrawal is annexed
at Exh. 'A'.
5] The charge against the accused was framed by the
learned Additional Sessions Judge, Dhule on 15.3.2011, for the
offences punishable under Sections 7, 13(1)(d) and 13(2) of the
Prevention of Corruption Act, 1988. The copy of the said
charge is annexed at Exh.'B'. Thereafter, the prosecution led
it's evidence and evidence of prosecution was closed on
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5.4.2012. Thereafter, defence witnesses were also examined
and the said case was posted on 11.4.2012 for arguments.
However, thereafter the said case was adjourned from time to
time on one or the other pretext and it was adjourned to
7.5.2012, on which date the petitioner/accused, filed his written
arguments, copy thereof is annexed at Exh.'C'.
6]
Thereafter, learned A.P.P. sought adjournments for
arguments on 17.5.2012 and on 20.5.2012 and the matter was
adjourned to 11.6.2012 for arguments. However, on 11.6.2012,
learned A.P.P. preferred application Exh.54 and requested the
learned trial court to alter the charge by adding the word
'motive' before the word 'reward' in the said charge, which
remained to be mentioned inadvertently in the said charge.
Copy of the said application is annexed at Exh.'D'.
7] Learned trial court obtained the reply/say of the
petitioner herein which was filed by him at Exh.55 and thereby
opposed the said application vehemently contending that the
petitioner has also filed written arguments and the defence of
the petitioner was made open, and hence, the respondent has
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preferred the afore said application to fill in lacuna in the
prosecution case and submitted that grave prejudice would be
caused to the petitioner, and therefore, urged that the said
application be dismissed. However, learned trial court passed
an order below the said application Exh.54 on 12.7.2012 and
thereby allowed the said application and directed that the
charge be altered and copy of the said order is annexed at Exh.
'F'. Hence, the petitioner has approached this court by filing the
present petition and impugned the said order, dated 12.7.2012
therein.
8] Learned counsel for the petitioner argued that the
power given under Section 216 of the Code of Criminal
Procedure to alter the charge needs to be exercised in judicious
manner and such power cannot be exercised at the belated
stage, more particularly, when the defence of the petitioner was
made by filing written arguments by him. He also submitted
that the charge was framed in the present case on 15.3.2011,
and thereafter, the prosecution adduced its entire evidence and
defence has adduced its evidence and even the accused has
filed written arguments and thereafter the prosecution has
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preferred the present application Exh.54 for alternation of
charge at the belated stage and it is apparent that the said
application was filed malafidely. He also canvassed that
perhaps learned trial court has lost sight of the fact that granting
application Exh.54 at the belated stage caused serious
prejudice to the petitioner.
9]
Moreover, learned counsel for the petitioner further
submitted that application Exh. 54 has been preferred by the
learned A.P.P. on 11.6.2012 in a casual manner, wherein it is
prayed that the word 'motive' is remained to be mentioned
before the word 'reward' in the said charge, and therefore, the
said word 'motive' be mentioned before the word 'reward in the
said charge by altering the said charge.
10] Learned counsel for the petitioner further argued that
the definition of Section 7 of the Prevention of Corruption Act,
1988 contemplates that, "whoever, being, or expecting to be a
public servant, accepts or obtains or agrees to accept or
attempts to obtain from any person, for himself or for any other
person, any gratification whatever, other than legal
7 crwp699.12
remuneration, as a motive or reward."
11] Learned counsel for the petitioner further submitted
that even if the word 'motive' is added before the word 'reward'
in the charge, dated 15.3.2011, the sentence would be,
"gratification other than legal remuneration as a motive reward
to return the documents and key", which would not convey any
meaning, and accordingly, he submitted that even the learned
A.P.P. has not prayed for addition of word 'motive or' before the
word 'reward', and hence, according to the learned counsel for
the petitioner, the said application itself is faulty and even after
alternation of charge as prayed for by the learned A.P.P. in the
said application, it will not convey any meaning and the purpose
of the prosecution would not be served.
12] Moreover, learned counsel for the petitioner further
submitted that the communication, dated 18.10.2012 produced
by the learned A.P.P. discloses that even after alteration of the
charge as granted by the learned trial court, the prosecution
does not desire to adduce any further evidence, which leads to
the position that the prosecution has preferred the said
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application only for the compliance of technical requirement and
not beyond that. In the circumstances, learned counsel for the
petitioner urged that the impugned order, dated 12.7.2012 be
quashed and set aside by allowing the present petition.
13] In support of his submissions, learned counsel for the
petitioner cited following judicial pronouncement of this court in
the case of Ravishankar s/o Jagannath Prasad Tiwari vs
State of Maharashtra, reported at 2006 (2) Mh.L.J. (Cri.) 855,
which is as follows :-
" The charge of offence punishable under section
66(1)(b) of the Bombay Prohibition Act or section
117 of the Motor Vehicles Act, for which
imprisonment prescribed is less than one year, was
sought to be added seventeen years after the
incident. This amounts to persecution and not
prosecution. Without showing any justification for
making such application belatedly at the stage of
addressing the final arguments, the Assistant
Public Prosecutor invoked the powers of High
Court, and unfortunately without considering the
necessity to put an end to an 18 year old case, the
Magistrate merrily acceded to the request,
disregarding the objections of the defence. He
should have considered that after the entire trial
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was over addition of such charge would have
prejudiced to the defence. It is equally unfortunate
that the Additional Sessions Judge failed to
exercise the powers vested in him and refused to
correct the error in Magistrate's acceding to such
an improper request. Petition allowed. Orders
passed by the Magistrate allowing the application
and that passed by the Additional Sessions Judge
dismissing the revision application, are set aside."
14] Learned counsel for the petitioner also placed
reliance on the judicial pronouncement of the Apex Court in the
case of Hasanbhai Valibhai Qureshi vs State of Gujarat and
others, reported at AIR 2004 SC 2078, which is as follows :-
"10. Therefore, if during trial the trial Court on a
consideration of broad probabilities of the case
based upon total effect of the evidence and
documents produced is satisfied that any addition or
alteration of the charge is necessary, it is free to do
so, and there can be no legal bar to approximately
act as the exigencies of the case warrant or
necessitate."
15] Learned A.P.P. countered the said arguments and
opposed the present petition vehemently and submitted that the
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charge in the Special Case No. 19 of 2011 was framed on
15.3.2011 by the learned Additional Sessions Judge, Dhule,
wherein the word 'motive' before the word 'reward' remained to
mentioned inadvertently, and therefore, to rectify the said
charge, the learned A.P.P. has preferred the application Exh.54
under Section 216 of the Code of Criminal Procedure, and there
is no ulterior motive of the prosecution in preferring the said
application. He also pointed out that it is specifically mentioned
in the said application that word 'motive' is remained to be
mentioned before the word 'reward' in the said charge due to
inadvertence, and therefore, the said word 'motive' is required
to be mentioned before the word 'reward' in the said charge,
and accordingly, he has preferred the said application for
alteration of the charge under Section 216 of the Code of
Criminal Procedure at Exh.54 before the pronouncement of
judgment, and therefore, there is no question of causing any
prejudice to the petitioner. Even he submitted that the learned
trial court has taken care of the said aspect and granted liberty
to the petitioner to recall and re-examine the witnesses with
reference to such alteration or addition in the charge.
11 crwp699.12
16] Accordingly, learned A.P.P. submitted that interest of
the petitioner/accused has been well protected by the learned
trial court while allowing the said application Exh.54. It is also
observed in the impugned order, dated 12.7.2012 that Section
216 of the Code of Criminal Procedure provides that the court
may alter or add to any charge, at any time, before judgment is
pronounced and Section 217 of the Code of Criminal Procedure
provides an opportunity to the prosecution and accused to
recall or re-summon and examine with reference to such
alteration or addition any witness who may have been
examined, and further, as mentioned herein above, the learned
trial court has safeguarded the interest of the petitioner, and
hence, no interference is called for in the impugned order.
Accordingly, he urged that present petition be dismissed.
17] I have perused the present petition, its annexures,
more particularly charge, dated 15.3.2011 framed by the
learned Additional Sessions Judge, Dhule in Special Case No.
19 of 2011 and application Exh. 54, dated. 11.6.2012 preferred
by the learned A.P.P. in Special Case No. 19 of 2011
requesting to alter the charge, reply dated 21.6.2012 of the
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respondent to the said application Exh. 54 and the impugned
order, dated 12.7.2012 and heard the rival submissions
advanced by the learned counsel for the parties and considered
the judicial pronouncements cited by the learned counsel for the
petitioner.
18] At the out set, it is the matter of record that the
charge was framed in Special Case No. 19 of 2011 by the
learned Additional Sessions Judge, Dhule on 15.3.2011.
Thereafter, the prosecution adduced the entire evidence and
even the prosecution had closed its evidence on 5.4.2012, even
thereafter the defence witnesses were also examined and the
said case was posted on 11.4.2012 for arguments, and further it
was posted on 18.4.2012, 23.4.2012 and 7.5.2012.
Accordingly, the accused submitted his written arguments on
7.5.2012 and the said case was adjourned to 11.5.2012 and
learned A.P.P. sought adjournments for arguments and case
was adjourned to 17.5.2012. Again learned A.P.P. sought
adjournment on 17.5.2012 for arguments and the said matter
was posted on 25.5.2012. Further learned A.P.P. sought time
for arguments and the said matter was adjourned to 11.5.2012.
13 crwp699.12
19] Accordingly, on 11.6.2012, learned A.P.P. preferred
the very application Exh.54 requesting to grant permission for
alternation of charge. Thus, firstly although charge was framed
on 15.3.2011, application for alteration of charge was preferred
by learned A.P.P. 11.6.2012 i.e. almost after the lapse of 1 year
and 3 months and the prosecution has not given any plausible
explanation for the said delay. Secondly, a bare perusal of the
contents of the application Exh. 54, dated 11.6.2012 discloses
that no specific cogent and convincing ground has been
mentioned in the said application, except alleged inadvertence
for preferring the said application at the belated stage and the
alleged ground of inadvertence put forth by the learned A.P.P.
is a general ground. It is stated in the said application that the
word 'motive' is remained to be mentioned before the word
'reward in the said charge due to inadvertence, and therefore,
prosecution be permitted to mention the said word 'motive'
before the word 'reward in the charge by altering the said
charge, otherwise it would affect on the case.
20] The petitioner herein has filed reply to the said
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application and pointed out that the petitioner/accused has filed
his written arguments and perhaps after reading the said written
arguments, the learned A.P.P. has preferred the application
below Exh.54 for alteration of charge to fill in the lacuna and as
a measure to seek adjournment for argument. The petitioner
also asserted that if the said application is allowed at such a
stage i.e. after filing written arguments by the petitioner/accused
and if the charge is altered, it would affect the defence of the
petitioner/accused which would cause prejudice to him and
would divest the right which is vested in him after opening his
defence by filing written argument, and he opposed the said
application vehemently. However, it appears that the learned
trial Judge while allowing the said application Exh. 54 by order,
dated 12.7.2012, did not deal with the very objection raised by
the petitioner/accused that the petitioner/accused has already
filed written argument and perhaps after reading the same the
learned A.P.P. has preferred the present application Exh. 54
for alteration of charge to fill in the lacuna and the said
objection raised by the petitioner remained unanswered in the
impugned order.
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21] Besides, it is useful to reproduce the definition of
Section 7 of the Prevention of Corruption Act, 1988, which is as
under :-
"7) Public servant taking gratification
other than legal remuneration in respect of an
official act :- Whoever, being, or expecting to be
a public servant, accepts or obtains or agrees to
accept or attempts to obtain from any person, for
himself or for any other person, any gratification
whatever, other than legal remuneration, as
a motive or reward for doing or forbearing to do
any official act or for showing or forbearing to
show, in the exercise of his official functions,
favour or disfavour to any person or for
rendering or attempting to render any service or
disservice to any person, with the Central
Government or any State Government or
Parliament or the Legislature of any State or
with any local authority, corporation or
Government company referred to in clause (c)
of Section 2, or with any public servant, whether
named or otherwise, shall be punishable with
imprisonment which shall be not less than six
months but which may extend to five years and
shall also be liable to fine."
22] Hence, the very said definition of Section 7 of the
Prevention of Corruption Act, 1988 contemplates, "a public
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servant taking gratification other than legal remuneration in
respect of an official act, as a motive or reward".
23] The charge, dated 15.3.2011 framed in the present
case is as follows :-
" That you accused being a public servant i.e.
Police Constable at Songir police station, Taluka
and District Dhule on 22.7.2010 demanded and
accepted bribe of Rs.70,000/- from the
complainant Biharilal Punamchand Agrawal for
yourself gratification other than legal
remuneration as a reward to return the
documents and key of complainant's Goods
Carrier Truck bearing No. MH-18/M-8222 which
was loaded of wheat bags, from your custody and
thereby committed an offence punishable under
section 7 of Prevention of Corruption Act, 1988
and within my cognizance."
24] Looking to the charge and coming to the very
application Exh. 54 preferred by the learned A.P.P., wherein
prayer was made that the word 'motive' be added before the
word 'reward' in the said charge by altering the same.
Accordingly, learned trial court allowed the said application by
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impugned order, dated 12.7.2012. Even assuming, as per the
said impugned order, the word 'motive' is added before the
word 'reward in the charge, dated 15.3.2011, as emphasis
supplied in the charge quoted herein above, the said charge
would read as, "gratification other than legal remuneration as a
'motive reward' to return the documents and key", which will not
convey any meaning and the said sentence would be
meaningless sentence after adding word 'motive' before the
word 'reward'.
25] In fact, the learned A.P.P. should have preferred the
application for adding the words 'motive or' before the word
'reward', but he has preferred an application only for addition of
word 'motive' only before the word 'reward'. Hence, it is
apparently clear that the application Exh. 54 has been preferred
by the learned A.P.P. on 11.6.2012 for alteration of charge in
casual manner, perhaps as a tool to seek the adjournment for
the argument, since he has already sought number of
adjournments for argument and even the petitioner/accused
has already filed his written argument on record. Hence, the
impugned order, passed by the learned trial court on 12.7.2012
18 crwp699.12
on the basis of such application, dated 11.6.2012 preferred by
the learned A.P.P. in routine and casual manner will not serve
any purpose of the prosecution, and therefore, it also appears
that the said application was preferred just for the technical
compliance to add word 'motive' before the word 'reward' as a
device to seek the adjournment for argument.
26]
Undisputably, learned A.P.P. preferred the application
Exh. 54 under Section 216 of the Code of Criminal Procedure.
Section 216 of the Code of Criminal Procedure prescribes that
any court may alter or add to any charge at any time before
judgment is pronounced. Hence, it appears that the learned
Trial Judge after considering the nature of said Section 216 of
the Code of Criminal Procedure that charge can be altered or
added at any time before the judgment is pronounced, has
allowed the application Exh. 54, observing that Section 216 of
the Code of Criminal Procedure provides that the court may
alter or add to any charge, at any time, before judgment is
pronounced. Even he further observed that Section 217 of the
Code of Criminal Procedure provides an opportunity to the
prosecution and accused to recall or re-summon and examine
19 crwp699.12
with reference to such alteration or addition any witness who
may have been examined, and it is further observed that the
prosecution cannot move application for alteration of charge.
27] However, it appears that the learned trial court seems
to have overlooked the very generic meaning and the import of
the word 'may' used in Section 216 of the Code of Criminal
Procedure. The legislature has used the word 'may' in the said
Section and the word 'may' used by the Legislature does not
signify that a court can alter or add to any charge liberally
without any propriety and justification for the same, at any stage
of the trial. The very application Exh. 54 preferred by the
learned A.P.P. for alteration of charge, dated 11.6.2012 does
not spell out propriety to alter or add in the charge. No doubt, in
view of Section 216 of the Code of Criminal Procedure, there is
no bar of the stage and charge may be altered at any time
before the pronouncement of the judgment by any court, but the
necessity/propriety and justification to alter or add to any charge
is required to be crystalised, but so did not happen in the
present case.
20 crwp699.12
28] Thus, it is apparent that the very application Exh. 54,
dated 11.6.2012 preferred by the learned A.P.P. requesting for
permission to alter the charge has been preferred in routine and
casual manner, without any convincing justification and without
spelling out any necessity/propriety for proposed alteration of
the said charge, and material objections raised by the
petitioner/accused in his reply Exh. 54 were not considered
while passing the impugned order and further learned Trial
Judge has not adverted to very generic meaning and import of
word 'may' in the definition of Section 216 of the Code of
Criminal Procedure that any court may alter or add any charge
at any time before judgment is pronounced, and passed the
impugned order thereby divesting the rights of the
petitioner/accused which are vested in him by filing written
arguments and opening his defence, by grant of such
application, and therefore, same deserves to be quashed and
set aside by allowing the present petition.
29] In the said context, my view is fortified by the
judgment of this court in the case of Ravishankar s/o
Jagannath Prasad Tiwari vs State of Maharashtra, reported
21 crwp699.12
at 2006 (2) Mh.L.J. (Cri.) 855 (supra). Reliance also can be
placed on the judgment of the Apex Court in the case of
Ravishankar s/o Jagannath Prasad Tiwari vs State of
Maharashtra, reported at 2006 (2) Mh.L.J. (Cri.) 855 (cited
supra).
30] Besides, it also cannot be overlooked that the learned
A.P.P. filed communication, dated 18.10.2012 annexing the
letter, dated 11.10.2012 thereto, which reflects that even after
grant of application Exh. 54 by impugned order, dated
12.7.2012 the prosecution does not desire to examine any more
witnesses, and the said communication is self-explanatory and
speaks for itself and clarifies the position that the learned A.P.P.
preferred the application Exh. 54 requesting to alter the charge
just for the technical compliance and perhaps for the sake of
seeking adjournment on the said date and not beyond that, and
therefore also, the impugned order deserves to be quashed and
set aside.
31] In the result, present petition is allowed in terms of
prayer clause 'C' thereof and the impugned order, dated
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12.7.2012 passed by the Additional Sessions Judge, Dhule
below Exh. 54 in Special Case No. 19 of 2011 stands quashed
and set aside.
32] Rule is made absolute in the afore said terms.
ig (SHRIHARI P. DAVARE),
JUDGE.
dbm/crwp699.12
