Cr.MMO No. 14 of 2009. 7.11.2009 Present: Mr. Virender Singh Chauhan, Advocate, for the petitioners. Mr. Sandeep Sharma, Assistant Solicitor General, for the respondent. Cr.M.P.M. No. 356/2009 in Cr.MMO No. 14/2009. The petitioners by means of Cr.MMO No. 14/2009, under Section 482 of the Code of Criminal Procedure sought to set aside the orders dated 7.1.2008 and 27.12.2008, passed by the learned Special Judge, Shimla in Sessions Trial No. 12-S/7 of 2006 in case titled C.B.I. versus Rajesh Kumar Joshi and another, against the order of framing of the charges, under the various Sections. The notice was issued to the respondents, record of the learned trial Court was also requisitioned and the matter was fixed for consideration on 27th May, 2009. On the said date, the case was repeatedly called but neither petitioners nor their counsel were present thus, the petition was dismissed for want of prosecution and the record of the learned trial Court was returned. On 10th June, 2009 an application [Cr.M.P.M. No. 356 of 2009] was moved for recalling the aforesaid order of dismissal -2- through Shri Virender Chauhan, Advocate, on the ground that the original counsel Sh. Alok Ranjan Sood had gone to United States of America in connection with his personal work and the petitioners were not aware of the date of hearing and they were not intimated with respect to the listing of the case on 27.5.2009 therefore, they could also not appear as they were under the impression that their counsel would put in appearance for them in the Court. For the negligence of their counsel, they could not be penalized. The application was resisted and contested by the C.B.I. According to them the ground taken does not constitute “sufficient cause” and the counsel representing the petitioner was duty bound to make some alternative arrangement in his absence. It was also submitted that the charges against the petitioners in the case stand framed and three prosecution witnesses have already been examined and the case is fixed for remaining PWs in the month of December, 2009. Otherwise also, the petition seeking quashing of the charges against them has become infructuous. Shri Virender Singh Chauhan, Advocate appearing for the petitioners sought time to file -3- supplementary affidavit and on 27.10.2009 filed the affidavit of the original counsel Shri Alok Ranjan Sood, Advocate wherein he contended that he had made the alternative arrangement attending his cases in the Court by instructing his junior colleague Shri Rakesh Thakur to appear for and on his behalf but when the case was fixed on 27th May, 2009 in the Court, the said Advocate could not spot/find out the case inadvertently in the Cause List in consequence of which the same was dismissed for non appearance. I have heard the learned counsel for the parties and have examined the record . In the original Cr.M.M.O. No. 14 of 2009, the petitioners sought the quashing of order of framing the charges against them. But the perusal of the record had shown that two views were possible, therefore, the plea that the order of framing of charges against the petitioners was wrong, is unsustainable. In so far as the question of restoring the petition is concerned, the plea raised by the petitioners in the original application for restoration is devoid of any merit as it does not constitute any “sufficient cause”. It is noticed that initially there was no averment that the original counsel had instructed his junior to appear for and on -4- his behalf thus the supplementary affidavit of the original counsel raising this contention is an after thought. Significantly, no affidavit of Shri Rakesh Thakur, Advocate has been filed to substantiate the plea. Therefore, the petition is dismissed. (Surinder Singh),J November 7, 2009 (cm)