Pushpendra Kumar Sinha @ ... vs The State Of Jharkhand Through ...
2022 Latest Caselaw 2709 Jhar

  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      W. P. (Cr.) No. 237 of 2022
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Pushpendra Kumar Sinha @ Puspendra Kumar Sinha ... .... Petitioner Versus The State of Jharkhand through S.P., A.C.B. Ranchi ... .... Opp. Party

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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Petitioner    : M/s Pandey Niraj Rai & R.R. Sinha, Advocates
For the State         : M/s Vandana Singh, Sr. S.C.-III
                        & Priya Shrestha, Spl. P.P.
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Oral Order
04 / Dated : 18.07.2022

This writ petition has been filed under Articles 226 and 227 of the

Constitution of India for the following reliefs:

i. Quashing / setting aside of the order dated 02.05.2022 (Annexure-7)

passed in Misc. Criminal Application No. 720 of 2022 (arising out of

Vigilance (Spl.) Case No. 20/2013) by the learned Court of Sri Prakash

Jha, Special Judge, Anti-Corruption Bureau, Ranchi, whereby and

whereunder, the application dated 28.04.2022 (Annexure-6) filed by the

petitioner has been dismissed.

ii. Directing for grant of the reliefs to the petitioner as were sought for in

Misc. Criminal Application No. 720 of 2022 (Annexure-6).

iii. If in case the prosecution is unable to supply the documents

corresponding to the charges framed/altered then the charges be

accordingly dropped.

2. The petitioner filed a petition under Sections 207 and 216 of Cr.P.C.

for alteration of charge under Sections 409,420,467,471,477A and 120B of IPC

and Sections 13(2) r/w and 13 (1) (c) and 13 (1) (d) of the P.C. Act in the event

such document was not produced to alter the charge and drop the charges under

these Sections. With respect to alteration of other charges i.e. under Section

409 of IPC, since it was not disclosed in the charge about the matter in which

he was entrusted with the property and with respect to Section 120B of IPC the

name of the other co-accused Section 13 (1) (C) (d) and 13 (2) of the

Prevention of Corruption Act, 1988 (P.C. Act in short)

3. The learned Court below after hearing the parties rejected the

petition and the present writ petition has been preferred against the order of

rejection of the petition.

4. The order of the learned Court below has been challenged inter alia

on the ground that charges hinges on the identical statements of four witnesses

recorded under Section 161 of the Cr.P.C which can never be true and are

inadmissible. It is averred that the offence charged will not be made out on this

evidence. It is argued that charge under Section 120 B will not be made out

unless the other accused are also arrayed as co-accused with whom this

petitioner conspired to commit the offence. With regard to other charges it is

argued that it does not disclose necessary particulars. Charge under Section

13(1) (c) do not disclose the manner of offence which the accused had a right

under Section 213, Cr.P.C to know the manner of the commission of the

offence. Lastly it is argued that the charge be amended suitably and dropped for

non-supply of the police paper. It is argued that order of the learned trial Court

suffers from 'absurdity....and is tantamount to perversity'. It is earnestly

pleaded that it was incumbent on the part the learned Court below to ensure fair

trial as the accused had a fundamental right to fair trial .

5. Learned counsel for the State takes this Court through brief trajectory

of this case which is as under:

A. The case was lodged in the year 2013 by Ranchi Sadar Vigilance (Spl.) Case

No. 19/2013 under Sections 409, 420, 467, 468, 471 and 477A and 120B of

IPC and Section 13(2) read with Section 13(1)(c)(d) of the P.C. Act against

the petitioner and five other co-accused.

B. After filing of the FIR, W.P. (Cr.) No. 271 of 2013 was preferred for

quashing of the FIR which was dismissed as not pressed vide order dated

25.10.2018. It is submitted by learned counsel for the State that petitioner

wrongly made a statement that the case was taken up by the CBI and only to

ascertain the above fact Hon'ble High Court directed the CBI vide order

dated 15.1.2015 to file affidavit in this case and the above case remained

pending up till 25.10.19 and actually the petitioner did not pursue the case

as would be apparent from the order dated 25.10.18.

C. Thereafter Cr. Revision No. 578 of 2018 was preferred against the rejection

of discharge petition which stood dismissed vide order dated 07.05.2019

which was challenged before the Hon'ble Apex Court in S.L.P. (Cr.) No.

7338 of 2019 which was again withdrawn vide order dated 23.08.2019.

D. After framing of charge, Cr.M.P. No. 2632 of 2021 was preferred against

the order dated 18.11.2021 by the lower Court which was again dismissed

vide order dated 24.01.2022. The petitioner moved before the Hon'ble Apex

Court in S.L.P. (Cr.) No. 2569 of 2022 challenging the order dated

24.01.2022 which was again dismissed vide order dated 08.04.2022.

E. This is the fourth bout of litigation initiated at the inception and before the

trial could commence after a decade of lodging of the FIR that too for

amendment of charge and for furnishing some more documents before.

6. Two-fold arguments have been submitted on behalf of the State by M/s Vandana Singh, Sr. S.C.-III. Firstly, no right inheres to the accused to seek amendment of charge. Reliance has been placed on P. Kartikalakshmi v. Sri Ganesh, (2017) 3 SCC 347 wherein it has been held Section 216 CrPC empowers the Court to alter or add any charge at any time before the judgment is pronounced. It is now well settled that the power vested in the Court is exclusive to the Court and there is no right in any party to seek for such addition or alteration by filing any application as a matter of right. It may be that if there was an omission in the framing of the charge and if it comes to the knowledge of the Court trying the offence, the power is

always vested in the Court, as provided under Section 216 CrPC to either alter or add the charge and that such power is available with the Court at any time before the judgment is pronounced. It is an enabling provision for the Court to exercise its power under certain contingencies which comes to its notice or brought to its notice. In such a situation, if it comes to the knowledge of the Court that a necessity has arisen for the charge to be altered or added, it may do so on its own and no order need to be passed for that purpose. After such alteration or addition when the final decision is rendered, it will be open for the parties to work out their remedies in accordance with law.

Secondly, it is argued that when the police papers have already been furnished the prosecution is not expected to do anything more at this stage to assist the defence in identifying the documents to be used by it at the trial.

7. Having considered the rival submissions advanced on behalf of both the sides the present petition appears to be a ploy to further delay the commencement of trial. Some bizarre grounds unknown to criminal jurisprudence, have been taken in the present petition. The petitioner accused has raised question about the probative value of the statement of the witnesses under Section 161 Cr.P.C in page 18 of writ petition stating, "Four identical albeit separately recorded witness statements can never be true, and thus are inadmissible". At the time of framing of charge is it supposed of the Trial Court to enter into appreciation of the evidence and weigh its intrinsic and probative worth? Are the probative value of evidence and the grounds of their admissibility the same thing? It seems that the petitioner seeks to face the trial as per the charges tailored to his choice which in the understanding of this Court does not inhere in any accused. The accused cannot dictate what are the charges to be framed and what not. What the accused is entitled to, is the disclosure of materials i.e. police papers on which he is to be prosecuted and the error or infirmity in charge will have no bearing unless he has been misled and resulted in miscarriage of justice as stated in Section 215. Once the discharge petition has been rejected and attained finality, it implies that there are sufficient materials for framing of the charge by the Court and after it, to challenge the framing of charge on these grounds is a novel innovation unknown to criminal jurisprudence. It goes without saying that a meritless charge or infirmity in it, can be a strong ground for benefit to the accused at the conclusion of the trial.

8. The plea to drop the charge on the ground of non-supply of the copy of forged document at this stage after framing of charge is equally devoid of merit. Almost similar question was raised and answered in Bharat Parikh v. CBI, (2008) 10 SCC 109 :

3. The second proposition raises a question as to whether in exercise of its inherent powers, the High Court could quash the charges framed and acquit the accused on account of such non-compliance with the provisions of Sections 207 and 238 of the aforesaid Code.

6. In rejecting the said application, the learned Special Judge relied primarily on the decision of this Court in Ratilal Bhanji Mithani v. State of Maharashtra [(1979) 2 SCC 179 : 1979 SCC (Cri) 405 : AIR 1979 SC 94] in which this Court had held that once a charge is framed, the Magistrate has no power under Section 227 or any other provision of the Code of Criminal Procedure to cancel such charge and to discharge the accused. It was also observed that once charge has been framed and the accused pleads not guilty, the Magistrate is required to proceed with the trial to its logical end. In other words, once a charge is framed in a warrant case instituted either on complaint or a police report, the Magistrate has no power under the Code to discharge the accused. He can, thereafter, either acquit or convict the accused.

It has been held in AIR 1958 SC 672 B.N.Srikanthia Vs Mysore State that the imperfection in the charge is curable provided no prejudice has been shown to have resulted because of it.

9. Much has been argued about the fair trial to the accused and his fundamental right. Undeniably the accused has a right to fair trial, but the victim too do have it. In offences of defalcation and corruption committed against public exchequer, victim is intangible but nevertheless it is the collective foundation of the society represented by the State . Individuals have right but the collective too do have. One of the facet of fair trial is that guilty should be punished and it is the duty of the court to do justice by punishing the real culprit. Hon'ble Apex Court while enunciating the principles of Section 319 Cr.P.C in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 reiterated the doctrine of judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted). There is an equal responsibility on the counsel of the accused to ensure speedy trial, which is the mandate of the Constitution without resorting to delaying tactics to frustrate the object of trial.

I find and hold this writ petition being devoid of any merit and is accordingly dismissed.

The learned Trial Court shall proceed with the trial without in any manner prejudiced by the observations made hereinabove.

(Gautam Kumar Choudhary, J.) AKT