Madhya Pradesh High Court
Rakesh Kumar Gupta vs The State Of Madhya Pradesh on 7 September, 2021
Author: Sheel Nagu
Bench: Sheel Nagu
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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 02 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:-
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(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 04 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 05 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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SMT VALSALA
VASUDEVAN
2021.09.14
11:42:47
+05'30'