1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 53 of 2004 & Cr.Revision No.12 of 2005. Date of Decision: August 8th, 2008. ________________________________________________________ 1. Cr. Revision No.53 of 2004. Ashlekh Kumar Vashisht. …. Petitioner. Versus State of H.P. … Respondent. ---------------------------------------------------------------------------------------- For the Petitioner : Mr. Jagdish Vats, Advocate. For the respondent : Mr. Vikas Rathore, Dy. Advocate General. ---------------------------------------------------------------------------------------- 2. Cr. Revision No.12 of 2005. R.L.Sharma. ….Petitioner. Versus State of H.P. …Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the Petitioner : Mr. Subhash Shrma, Advocate. For the respondent : Mr. Vikas Rathore, Dy. Advocate General. ______________________________________________________________ Surjnder Singh, J (oral). Heard and gone through the record. As a matter of fact, an FIR No.53/1994 was registered in Police Station Enforcement, South Zone, Shimla on 7.11.1994 under Sections 418, 420, 467, 468, 471, 477-A, 406, 409, 218, 109, 201 and 120-B of the Indian Penal Code read with Section 13(2) of the Prevention of Corruption Act, 1988. After the investigation of this Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 case, the challan titled Sate vs. Shiv Lal and 16 others was presented on 2.3.1998, in the court of Special Judge (Forests), Shimla, against 17 accused persons, namely, S/Shri Shiv Lal, S.K. Jain, D.K. Dogra, Parmil Kumar, Jai Kishan, Hira Lal, Harish Kumar, Kishre, Smt. Manju Lohana, Girdhari Lohana, Shiv Kumar, Anil Kapoor, Madan Lal, Gulshan Kumar, Smt. Ksamal Mohini, Smt. Rajni Anand and Shri Sanjay Anand, which was registered as Challan No.4-S/7 of 1998. It was contended in the report submitted under Section 173 of the Criminal Procedure Code that the investigation against other accused mentioned in the FIR was in progress, which would take some more time and a supplementary challan Part-II would be presented in the court after completing the investigation. The perusal of Zimni orders shows that the matter went on being adjourned in the court without any substantial progress, in the meantime, supplementary challan Part-II State vs. R.L. Sharma and 19 others, was presented in the same court in July, 1998. In this supplementary challan No.II, S/Shri R.L. Sharma, A.K. Vashishth, Naresh Suri, Deepak Suri, Surender Kumar, Harish Kumar Janratha, Kewal Kochhar, Gurjeet Singh, Jawala Dass, Ram Lal Dhal, Deepak Khanna, Smt. Jyoti Khanna, Smt. Anita Khanna, Smt. Anita Khanna, Suresh Kumar, Ganesh Kumar, Anil Kumar, Deepak Arora, Kanwar Prem Singh and Satish Kumar Malhotra, accused persons, they were assigned Nos.18 to 37 respectively, were impleaded as the accused. This case (challan No.II) was not 3 tagged with the main challan, but was separately taken up for trial by the trial court. The second supplementary challan Part-III State vs. Anup Singh was filed only against Anup Singh on 4.1.2001. It was ordered to be tagged, on 26.9.2003 with the main challan State Vs. Shiv Lal and others. In this case also the charges were not framed. The record shows that the supplementary challan No.II State vs. R.L. Sharma and 19 others, was not tagged with the main challan and it was being tried separately, although it arose from the same FIR No.53/1994. On 20.1.2004, the learned Special Judge (Forests) Shimla framed the charges against accused 18 to 37 including the petitioners herein, in Challan No.II aforesaid under Sections 120-B, 218, 420, 468, 471 and 477-A I.P.C. read with Section 13(2) of the Prevention of Corruption Act, 1988 and the case was listed for fixing a date for evidence on 11.5.2004. Accused R.L. Sharma and Ashlekh Kumar Vashisth accused/petitioners filed the above titled criminal revision petitions (Cr. R.53/2004 & 12/2005 respectively) assailing the order of framing the charges against them. In the concluding part of the Challan No.III, State vs. Anup Singh, in paras-74 to 78, the Dy.S.P. Enforcement, South Zone, Shimla has prayed:- “74. The sanction for prosecuting Shri A.K.Vashisht, Manager (Loan and Advance) Grade-I, H.P. Co-operative Bank, Shimla whose name was mentioned as accused No.19 in the previous challan has been sent to the 4 competent authority, but M.D. H.P. Cooperative Bank, Shimla refused to grant prosecution sanction against the accused A.K. Vashisht without discussing the reasons in details for the refusing of prosecution sanction. Hence the name of accused A.K. Vashisht has been mentioned in column No.12 of this challan instead of column No.11 which was earlier mentioned in the column No.11 of the Challan Part-II. 75. From the perusal of Technical Committee report headed by Shri P.C. Gupta, it is found that Shri O.P. Nangia, Prop. M/s Pankaj Enterprises,2116, Rajendera Jana Tower-III, NSM Azadpur, Delhi was liquidated overdraft of an amount of Rs.1694 on 18.1.95 which was outstanding against him. Therefore, the evidence is insufficient against him to prove the charge, hence the name of accused Shri O.P.Nangia has been mentioned in column No.12 of this challan. 76. The original documents i.e. cheques, letters, weekly statements, office notings etc., which were earlier mentioned in the column No.13 of the challan part-I & II and which were sent to the GEQD for comparison and expert opinion and copies of these documents were attached with the said challans have been received with the GEQD report and these all documents, mentioned in the column No.10 of this challan, alongwith GQD opinion 5 have been attached in original with this challan for perusal. 77. From the above, it is evident that the various accused persons and firms (mentioned in the challan part-I, II and in this challan) by individual and collective acts of criminal misconduct, cheating, criminal breach of trust, falsification of records etc. and in criminal conspiracy with each other and by abatement committed the offences mentioned in the challans part-I, II and in this challan. These accused persons caused total wrongful gain to themselves and total wrongful loss to H.P. State Co-operative Bank, Shimla is Rs.4,52,00,483.14 78. Therefore, it is requested that cognizance may be taken against the aforesaid accused mentioned in the column No.11 of the challans part-I,II and in this challan.” A perusal of final report under Section 173 of the Code of Criminal Procedure made in Part-III of the challan above shows that there were many documents pertaining to the accused/petitioners of Challan No.II which were included in Part-I and some were in part-III of the challan. In the instant revision petitions, filed by Shri A.K. Vashisht and Shri R.L. Sharma, the learned counsel for the petitioners herein submitted that the documents/material in part-I of the challan were not available to the accused/petitioners in Challan No.II to facilitate them to 6 effectively show that the case against them as alleged is not made out and segregating Challan No.II from the main challan has caused a material prejudice to them. Further there was no reason or justification to start the separate and independent proceedings against them when the FIR is the same and they were to meet the same case, like other accused persons whose cases were being tried together despite the fact that the supplementary challan No.III was presented against one co-accused and the Dy.S.P. while presenting the challan had requested to take the cognizance of the matter against the accused persons in the main challan, supplementary challan Nos. I and II. The plea taken by the counsel for the petitioners appears to be reasonable and quite convincing and the learned trial court did not assign any reason in its any of the orders in Challan No.II, as to why it was being kept separate. As a matter of fact, both part-II as well as Part-III of the Challan should have been tagged and taken together against the accused persons named therein alongwith the main challan State Vs. Shiv Lal and others. In no case, the supplementary challan No.II could have been segregated from the main challan, therefore, in my considered opinion, a prejudice has been caused to the petitioners herein, to present their case properly and effectively at the time of charge. Accordingly, the charges framed against them are hereby quashed and set-side and the case is remanded back to the learned trial court with the direction to tag 7 supplementary challan Part-II alongwith the main challan like Challan No.III and the matter qua the present petitioners, with respect to the role be reconsidered after hearing them, on the point of charge alongwith the accused persons in the main challan and Challan No.III and pass the appropriate orders. The petitioners are hereby directed to be present before the learned trial court on 8.9.2008 and the record of the case (all the three challans) be returned forthwith. (Surinder Singh) Judge. August 8, 2008. (Pds)