IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. App. No. 458 of 2005 Anirudh Kumar Sharma, S/o Sri Praduman Kumar Sharma. …… Petitioner. Versus State of Uttaranchal. ..…. Respondent Mr. S.K. Agarwal, Senior Counsel assisted by Mr. S.S. Bhandari, Advocate for the petitioner. Mr. Amit Bhatt, Addl. G.A for the respondent-State. Hon’ble J.C.S. Rawat, J. Mr. S.K. Agarwal, Senior Counsel assisted by Mr. S.S. Bhandari, Advocate for the petitioner. Mr. Amit Bhatt, Addl. G.A for the respondent-State. 2. The present petition has been filed under Section 482 Cr.P.C by the petitioner for quashing the proceedings of the Special Criminal Case No. 09/2003 titled as State Vs. Anirudh Kumar Sharma filed u/s 13 (1- E) and 13 (2) Prevention of Corruption Act, 1988 pending in the court of Special Judge (Anti Corruption)/Addl. Session’s Judge, Nainital. 3. The learned Special Judge (Prevention of Corruption Act), Nainital vide its order dated 20.04.2005 (annexure-1 to the petition) has framed charge against the petitioner which reads thus: CHARGE “I, G.K. Sharma, Special Judge (Prevention of Corruption Act), Nainital do hereby charge you Sri Anirudh Kumar Sharma as follows: That in between 01.1.88 to 30.9.93 you purchased 12 Bigha & 4 Biswa agricultural land in the name of your wife Smt. Deepa Sharma having no income of her own on consideration of Rs. 60,000.00. That on 03.2.89 you purchased in your own name 4 Bigha & 10 Biswa agricultural land on consideration of Rs. 24,000.00. That on 30.1.90 you further purchased from Jogendar Singh in your own name 3 Bigha & 10 Biswa of agricultural land on consideration of Rs. 20,000.00. That in the year 1991 you also construct a house on 183.15 Sq. Meter of land after incurring an amount of Rs. 3,16,000.00. That including the about properties from 01.1.88 to 30.9.93 you manaed to possess the properties of Rs. 15,28,313.07 either in your name or in the name of your wife, whereas your income from the disclosed sources either from salary or advances was Rs. 9,39,054.40. Therefore you possess the property amounting of Rs. 5,89,000.00 otherwise than your disclosed sources which is an offence u/s 13 (1-E) read with Section 13 (2) of Prevention of Corruption Act 1998 and I am competent for the trial of this case. You are hereby directed that you will be tried by this court.” 4. The learned Senior Counsel for the petitioner challenged the order of framing of charge as well as the charge levelled against the petitioner on the grounds that; the total value (in terms of rupees) of all the transactions referred above comes to rupees four lacs twenty thousand only; these transactions materialized in the span of three years and in any circumstance, it cannot be termed as expenditures beyond known sources of the petitioner’s income; it cannot be said that the petitioner being an employee obtained the properties by illegal means; in the year 1990, the petitioner started construction of his house and borrowed interest free loan of rupees one lac fifty thousand in September, 1990 from Sardar Baldev Singh who is an agriculturist and the bank account of Sardar Baldev Singh was submitted to the Investigating Officer for verification; in the month of September, 1990, the petitioner also took an interest free loan of rupees ninty eight thousand from one of his brother-in-laws namely, Vibhas Sharma through a cheque of S.B.I, Dehradun and the statement of account of Vibhas Sharma was also submitted to the Investigating Officer which was found genuine; the petitioner again took an interest free loan of rupees ninty seven thousand three hundred ten through a cheque of PNB from his another brother-in-law Vipin Sharma and the account statement of Vipin Sharma was also furnished to the Investigating Officer; the petitioner also borrowed a sum of rupees one lac eighty three thousand from his maternal uncle (Mausa) through a cheque and the statement of Sri. R.N. Upadhyay (Mausa of the petitioner) was also recorded by the Investigating Officer; the petitioner’s wife also sold a land of rupees one lac sixteen thousand in the year 1990 which was gifted to her by her father/petitioner’s father-in-law; the petitioner’s mother-in-law has transferred a sum of rupees 1,41,940.80 to her daughter/petitioner’s wife at the time when the petitioner’s house was under construction in the form of F.D.R prepared in the year 1992 which was deposited straight away in the account of petitioner’s wife in P.N.B; the Investigating Officer investigated the matter on the accounts submitted to him by the petitioner but he did not come to the conclusion that these amounts had not ever been invested by the petitioner in the purchase of the properties or utilizing the money in the aforesaid things. 5. The learned Addl. G.A refuted the contentions of the learned Senior Counsel for the petitioner. He further submitted that in paras 12, 16 & 19 of the counter affidavit, it has been specifically stated the petitioner has not taken prior permission of the Government or the competent authority for the aforesaid loans and the petitioner did not comply with the legal formalities before taking the aforesaid loans, as such the amounts could not be taken into consideration. It was further submitted that the learned Special Judge (Prevention of Corruption Act) had rightly framed charge against the petitioner. It is also alleged in the charge that the properties which are alleged to be earned by the petitioner during the period January, 1988 to September, 1993, are beyond the known sources of the petitioner’s income. 6. Heard the learned counsel for the parties and perused the record. For the disposal of the petition, it would be appropriate to quote Section 219 Cr.P.C which reads as under: ‘219. Three offences of same kind within year may be charged together: (1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three. (2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (45 of 1860) or of any special or local law: Provided that, for the purposes of this section, an offence punishable under section 379 of the Indian Penal Code (45 of 1860) shall be deemed to be an offence of the same kind as an offence punishable under Section 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence.’ 7. Section 219 Cr.P.C is an enabling provision. However, joint trial of the accused for offences of same kind is permissible, the separate trial can be held for separate offences. But when a person is accused of more offences than one, which is of the same kind committed within a space of twelve months from the first to the last of such offences, the accused may be charged with, and tried at one trial for, any number of them not exceeding three. Thus, the charge which has been framed by the learned Special Judge (Prevention of Corruption Act), Nainital is bad in law. Though, it is needless to mention that the Court may alter any charge at any time before the judgment is pronounced. Section 216 Cr.P.C gives ample power to the Court to alter or amend a charge either by the trial court or by appellate court provided the accused has not to face charge for new offence. Thus, the charge levelled against the petitioner is not in confirmity with the provisions of Section 219 Cr.P.C, as such the charge is liable to be quashed. 8. Thus, the petition is liable to be allowed. The learned Senior Counsel for the petitioner further emphasized that the petitioner had submitted the entire accounts to the Investigating Officer but the Investigating Officier did not consider it at all. As I am quashing the charge already framed by the learned Special Judge, the points raised by the learned Senior Counsel for the petitioner can be considered by the Special Judge at the time of framing of the charge. The Special Judge at the time of taking cognizance of the offence/framing of the charge, has to see as to whether there is sufficient ground to proceed with the case or there is evidence which leads to take an inference that the petitioner is guilty of commission of the offence. Though the Special Judge cannot see the documents which the petitioner would file at the time of framing of the charge, however, if the petitioner has submitted certain documents before the Investigating Officer and the same has not been believed or disbelieved by the Investigating Officer or his conclusions are erroneous, definitely the Special Judge can draw different opinion from the opinion of the Investigating Officer. The Special Judge can ignore the conclusions arrived at by the Investigating Officer at the time of framing of the charge. It is a settled position of law that the Special Judge is not bound to the opinion of the Investigating Officer and he is competent to exercise his discretion in this behalf irrespective of the view expressed by the police in its report, and decide whether an offence has been made out or not. 9. In view of above, the petition is allowed. The charge framed against the accused on 20/04/2005 is hereby quashed. The learned Special Judge is directed to frame the charge against the petitioner afresh after hearing the parties and the petitioner will be at liberty to raise all these pleas indicated in the petition before the trial court at the time of the framing of the charge. The learned Special Judge is required to pass a speaking order in this regard after considering the contentions raised in this petition at the time of framing of charge in accordance with law. (J.C.S. Rawat, J.) 15.12.2008 V.K.