Rakesh Kumar Gupta vs The State Of Madhya Pradesh
2021 Latest Caselaw 5101 MP

                                                                    01

                The High Court of Madhya Pradesh
                         MCRC 43892 of 2021
              ( Rakesh Kumar Gupta Vs. State of MP)
Gwalior, Dtd.07.09.2021
     Shri Atul Gupta, learned counsel for the petitioner.

     Shri Sushant Tiwari, learned Public Prosecutor for the respondent-

Lokayukt.

Per Justice Deepak Kumar Agarwal:

By way of the present application filed under Section 482 of the

Code of Criminal procedure, 1973, the petitioner seeks quashment of

the order dated 27.08.2021 passed by Special Judge, Shivpuri in

Special Sessions Trial No. 5/2016 whereby the application filed by

the petitioner under Section 217 of Cr.P.C. has been dismissed.

2. In nutshell, the case is that on the complaint of complainant

Hependra Kumar, an FIR was lodged against the present petitioner

under the provisions of Prevention of Corruption Act, 1988 for the

offence punishable under Sections 7, 13(1)(d)/13(2) of the Act. The

allegation against the present petitioner is that when he was posted as

ASLR of Tehsil Karera, District Shivpuri, he had demanded illegal

gratification from the complainant for demarcation of his land

situated in survey numbers 3111, 3117, 3124, 4345 and 4360.

3. The allegation against the petitioner is that he had demanded

Rs.10,000/- for himself and Rs.5000/- for the Patwari for demarcation

of the land of the complainant. On the aforesaid allegations, after

registration of the FIR and completion of investigation, charge sheet

was filed. Thereafter charge under Section 7, 13(1)(d)/13(2) was

framed against the present petitioner.

4. Learned counsel for the petitioner contended that after

examination of the prosecution witnesses and defence witnesses at the

time of final hearing, prosecution preferred an application under

Section 216 of Cr.P.C. for altercation of charge on the ground that the

accused had demanded illegal gratification from the complainant for

demarcation of land bearing survey Nos. 3111, 3117, 3124, 4345 and

4360 on the basis of which charges were framed for offence under

Section 7, 13(1)(d)/13(2) of Prevention of Corruption Act on

20.01.2017, but for the charges which were framed against the

accused, there is no mention of survey No. 4345 and 4360 in regard to

demarcation of land by way of illegal gratification. The trial Court

allowed the said application vide order dated 17.08.2021 and the

charges were amended. The petitioner is being tried for the offence

under the provisions of Prevention of Corruption Act. To rebut the

charges levelled against him, the petitioner has filed an application

under Section 217 of Cr.P.C. to cross examine the material witnesses

on the point of amended charges which was dismissed without giving

any heed to the fact that aforesaid cross examination would be

required for just and proper adjudication of trial. Being aggrieved by

the order of the trial Court, petitioner is before this Court.

5. In support of his contention, counsel for the petitioner relied

upon the following judgments:-

(i) (2016) 6 SCC 105 (Anant Prakash Sinha @ Anant Sinha Vs. State of Haryana and Another).

(ii) ILR (2008) M.P.2737 (Manjiram Vs.State of MP).

(iii) ILR (2012) M.P. 268 ( (Anita Kushwaha Vs, State of

MP & Anr.).

6. On the other hand, learned counsel for the respondent-Lokayukt

has submitted that Section 216 of Cr.P.C. gives power to the Court to

add or alter charge at any stage of trial before the judgment is

pronounced and hence, there is no illegality in the order passed by the

learned trial Court. He also contended that law does not mandate to

assign any reason for adding or altering any charge. It is further

contended that the only purpose of the accused-petitioner is to

anyhow drag the criminal trial against him.

7. Heard learned counsel for the parties at length and perused the

material available on record.

8. On going through the deposition of complainant Hependra

Kumar, it reveals that from the side of petitioner-accused in regard to

to survey numbers 4345 and 4360, on the basis of which charges were

amended, the complainant (PW-1) has been cross examined at length

upto paragraphs 31 to 37. Besides this, Rajendra Babu Sharma (PW-

9) in para 44 and Manish Kumar Sharma (PW-12) in para 10 have

also been cross-examined regarding the amended survey numbers.

9. After going through the order dated 17.08.2021 and deposition

of above witnesses, it is apparent that complainant Hependra Kumar

in his complaint has shown survey Nos. 4345 and 4360 along with

three other survey numbers and charge sheet has also been filed

regarding these survey numbers. It appears that due to mistake in

demarcation these survey numbers could not be written in the charge.

10. Section 217 Cr.P.C. deals with recall of witnesses when the

charge is altered or added by the trial Court after commencement of

the trial. Section 217 Cr.P.C. reads as under:-

217. 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--

(a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reason to be recorded in writing, considers that the prosecutor or the accused, as the case mauy be, desires to recall or re- examine such witness for the purpose olf vexation or delay or for defeating the ends of justice;

(b) also to call any further witness whom the Court may think to be material.

11. The provisions of Section 217 Cr.P.C. are not meant to frustrate

the concept of speedy justice especially in the circumstances that

amendment in charge is formal in nature. So, on this pretext, the

criminal trial cannot be permitted to be prolonged any further. The

Court may refuse to re-summon or re-examine a witness if it

considers that the application therefore, is made for the purpose of

vexation or delay or for defeating the ends of justice.

12. Having heard the learned counsel for the parties, this Court is

of the considered opinion that this petition is utterly bereft of merit

and the only purpose of the accused-petitioner is to anyhow drag the

criminal trial against him for one reason or the other.

13. The trial Court in the impugned order has categorically held

that this case is of five years old and the petitioner by filing the

application only want to delay the trial which is not justified.

Looking to the facts and circumstances of the case and on going

through the impugned order, this Court is of the considered opinion

that the trial Court has not committed any error in rejecting the

application filed by the petitioner under Section 217 Cr.P.C. Further,

looking to the facts and circumstances of the case, the cases relied

upon by the learned counsel for the petitioner would not come to the

rescue of the petitioner.

14. For the foregoing reasons, we do not find any merits in the

contentions put forth by the counsel for the petitioner. The petition

thus fails and is hereby dismissed. No order as to costs.

                   (Sheel Nagu)                 (Deepak Kumar Agarwal)
                      Judge                                Judge
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     2021.09.14
     11:42:47
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