Punjab-Haryana High Court
Amarjit Singh vs State Of Punjab on 9 April, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
Crl. Misc. No. M-7158 of 2011
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Misc. No. M-7158 of 2011 (O&M)
Date of decision: 09.04.2013
Amarjit Singh
....Petitioner
Versus
State of Punjab
....Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
Present: - Mr. Rajiv Kataria, Advocate, for the petitioner.
Mr. Tapan Kumar, Advocate, for the respondents.
1) Whether Reporters of the local papers may be allowed to see
the judgment ?
2) To be referred to the Reporters or not ?
3) Whether the judgment should be reported in the Digest ?
*****
PARAMJEET SINGH, J.
The petitioner was chargesheeted vide order dated 7.1.2008 (Annexure P-2) under Sections 413, 467, 471/120-B IPC. Thereafter, the chargesheet was amended vide order dated 1.2.2011 (Annexure P-6) and additional offences under Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act (hereinafter referred to as 'the PC Act') and Section 167 IPC were added in case arising out of FIR No.43 dated 5.4.2003 registered at Police Station City Faridkot.
In the instant petition, under Section 482 Cr.P.C., petitioner has sought quashing of FIR No.43 dated 5.4.2003 (Annexure P-1), chargesheet dated 7.1.2008 (Annexure P-2) and amended chargesheet dated 1.2.2011 (Annexure P-6).
Crl. Misc. No. M-7158 of 2011 -2- The brief facts of the case are that the police authorities received a complaint regarding wrongful registration of vehicles of PB- 04G series. At that point of time, petitioner was working as a Clerk at DTO office Faridkot and the petitioner was alleged to be a party to the registration of lot of vehicles of PB-04G series on the basis of false and fabricated documents. The said vehicles were being used at various places under the registration certificates issued from the registration office where the petitioner was working. After investigation, the police submitted challan against the petitioner. It has also come during the investigation that the petitioner in connivance with various persons has registered the stolen vehicles and as many as 87 bogus registration certificates have been issued pertaining to vehicles registered under PB- 04G series. In pursuance of the chargesheet, petitioner was chargesheeted under Sections 413, 467, 471/120-B IPC. However, after almost completion of the trial, learned Special Court found that his learned predecessor had framed the charge only qua the above-said offences whereas in the evidence it has come that the petitioner was working as a clerk in the transport office, as such he was a Government employee. Being a public servant, he is prima facie liable for the commission of offence of criminal mis-conduct of a public servant in discharge of his official duties punishable under Section 13(1)(d) read with Section 13(2) of the PC Act as well as for framing incorrect documents, which is punishable under Section 167 IPC. Accordingly vide order dated 1.2.2011, the charges were ordered to be added and additional charges were framed on the same day vide Annexure P-3 and Annexure P-4. On the same date also the statement of the accused was Crl. Misc. No. M-7158 of 2011 -3- recorded vide Annexure P-5 wherein petitioner did not plead guilty rather claimed trial. Another statement of the petitioner as well as the prosecutor was recorded wherein the prosecutor stated that they do not want to recall and lead any evidence in pursuance of the added charges. Similarly, statement of accused was recorded that he did not want to recall the witnesses for further cross-examination. All this has happened on one date. Now, petitioner is before this Court with a grievance that he has not been afforded adequate opportunity of defending his case and as such his right has been prejudiced which would result into miscarriage of justice.
On notice, reply to the petition has been filed by the State wherein it has defended the order of learned Special Court and it has also been stated in the reply that statement of the prosecutor as well as the accused was recorded whereby they have stated that they did not want to recall the witnesses. Hence the case was fixed for defence evidence of the accused.
Heard.
Learned counsel for the petitioner contended that the learned Special Court has completed the entire proceedings on one day. On the same day order for amendment of the chargesheet was passed and additional charges were also framed; even the statement of the prosecutor as well as the accused were recorded that no evidence was to be led by the prosecutor and the petitioner, who happened to be accused along with another person, also did not want to further cross-examine the witnesses. This has certainly prejudiced the right to defend and has also resulted into unjust and unfair trial. Under the criminal justice system, Crl. Misc. No. M-7158 of 2011 -4- the petitioner is required to be given adequate opportunity. The Special Court has acted in a hot and haste manner, as a result of which the petitioner/accused will not get a fair trial, as required by law. As per the provisions of the law, specifically the Constitution, petitioner has right to fair trial.
Learned State counsel has defended the order passed by learned Special Court by contending that accused had given a statement that he did not want to recall the witnesses for further cross-examination. Otherwise, in accordance with provisions of Section 216 Cr.P.C. no prejudice has been caused to the petitioner and the order is legal and valid.
I have considered the rival contentions raised by the learned counsel for the parties.
From the contentions raised by the parties as well as the averments in the petition, substantial issues of law, facts and Constitution arise for consideration, specifically when the issue of life and liberty of accused is involved. Admittedly, the charge was framed by the Court and subsequently the charges have been added. This is within the power of the Court to amend the charge at any stage on the basis of evidence which has come before the Court.
Before I deal with the contentions raised by learned counsel for the parties, it would be appropriate to reproduce Sections 216 and 217 Cr.P.C., which read as under: -
"216. Court may alter charge. (1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused.
Crl. Misc. No. M-7158 of 2011 -5- (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
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 reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of 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."
From the perusal of above provisions, issue arises for Crl. Misc. No. M-7158 of 2011 -6- consideration is whether the order passed by learned Special Court is in violation of provisions of Section 216(4) & (5) Cr.P.C., as the accused has not been given opportunity to recall the witnesses for further cross- examination in pursuance of addition of charge under various offences.
Another issue which arises for consideration is since the charge under the PC Act has been framed, whether Court can take cognizance without sanction as required under Section 19 of the Act.
Perusal of Section 216 Cr.P.C. clearly indicates that charge can be amended at any stage by the competent Court. Herein the charge was amended after almost full trial i.e. a stage just before pronouncement of the judgment. Once the charge is amended, the Court, in view of the provisions of Section 217 Cr.P.C., is required to recall witnesses for further examination as well as for further cross-examination subject to the condition that if the prosecutor as well as the accused give in writing, then for the reasons to be recorded Court can dispense with the requirement under Section 217 Cr.P.C. It is also required to be examined that in case, the charge is amended which substantially affects the rights of the accused then he should be afforded an opportunity to defend against the amended/added charge and also to the prosecution to prove the charge. Here is a case where the added charges are altogether different; one relating to the PC Act and another is related to the framing of incorrect documents.
In the facts of the case, this Court is of the opinion that prosecutor was also required to lead evidence and the accused should have also been afforded an opportunity to defend himself against the charge by way of further cross-examination of the witnesses of the Crl. Misc. No. M-7158 of 2011 -7- prosecution, at least, with respect to the added charges. In addition to it, since the charge under the Act has been added, Court was required to examine the aspect whether it can take cognizance without sanction under Section 19 of the PC Act. These aspects have not been considered by the Court. It appears that the Court was swayed by the fact that case is of the year 2003 and already more than ten years have elapsed and the short-cut method appears to have been applied presumably taking into consideration the principle of speedy trial. Speedy trial of course is one of the fundamental rights of the accused as well as the prosecution but it cannot be exercised in a manner which will prejudice the rights of the accused when his life and liberty is at stake. Accused certainly has a right to defend the accusations.
Another point which has come to my mind is that in such cases principle of affording adequate opportunity to defend is also necessary. It is common principle in every case which has in itself the character of judicial proceedings that every party against whom an order is to operate should have an adequate opportunity to cross-examine the witnesses in respect of added charges and has also right to lead defence evidence in that regard.
In the present case in view of the added charge, the recalling of the witnesses was necessary even if the prosecutor has made a statement that he does not want to lead any further evidence in chief. It was also necessary to afford opportunity of cross-examination to the accused. Any statement by the accused or his counsel, which adversely affects the right of defence of the accused, cannot be treated as voluntary when sufficient time has not been granted to ponder upon the consequences of Crl. Misc. No. M-7158 of 2011 -8- the same. Otherwise, the petitioner/accused would had a right conferred under the law which has resulted into unfair trial. When the petitioner/accused is not given adequate opportunity then his right to defend certainly gets affected and this certainly involves the issue of facts, law and Constitution, as it has to be categorically proved that Government official has misused his official capacity. Otherwise also, the accused has a right of cross-examination. Necessity of testing by cross-examination the veracity of the statement of the witness is fundamental principle and a vital feature of law of evidence, the accused cannot be denied his right to cross-examine the witnesses on hypertechnical grounds specifically when it will cause prejudice to the rights of accused. Cross-examination is the only opportunity to the accused to present the facts, inferences and impressions by questioning the veracity of the statement of the witnesses and also to set up the plea of defence. In this manner, by way of cross-examination, the accused directly challenges the reliability of prosecution witnesses. It is one of the fundamental and important rights of the accused. Otherwise, it will prejudice the rights of the accused.
The cumulative effect of all the observations made above is that the trial Court was mis-directed by taking into consideration that the case is old one and as a result of it erroneous order appears to have been passed as all the proceedings have been completed in one day, which is certainly a miscarriage of justice at least for the accused.
In my little understanding, the object of fair trial will be achieved if the petitioner/accused is afforded adequate opportunity to cross-examine the prosecution witnesses in view of added charges and to Crl. Misc. No. M-7158 of 2011 -9- lead defence evidence specifically when his life and liberty is involved. In such circumstances, Courts are required to look into the matter seriously and diligently.
In view of the above, order dated 1.2.2011 is set aside. Trial Court is directed to afford opportunity to cross-examine PWs by recalling them and to lead defence evidence on the added charges.
Disposed of.
Parties are directed to appear before the Court on the date, if already fixed, or on 9.5.2013.
(Paramjeet Singh) Judge April 09, 2013 R.S.