1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Writ Petition No.1222 of 2008 Shri Anil Umrao Gote Petitioner Vs. 1. The State of Maharashtra 2. Central Bureau of Investigation Respondents Mr.P.M.Pradhan for petitioner. Mr.Raja Thakare with Mr.A.M.Chimalkar for CBI. Mr.A.R.Patil, APP for State. CORAM : B.H.MARLAPALLE & J.H.BHATIA, JJ. Reserved on : June 19, 2008. Pronounced on : June 26, 2008. ORDER: 1. We have heard Mr.Pradhan, the learned counsel for the petitioner who is an accused (Accused No.45) facing trial in Special Case No.2 of 2003 before the Special Judge (under MCOC Act) at Pune. The petitioner is aggrieved by the order dated 3/5/2008 passed by the learned Special Judge holding, inter alia, that the petitioner has not been charged for all those offences, the commission of which is manifestly revealed from the contents of the charge framed on 28/6/2007. 2 2. Accused No.44 - Dilip Pandurang Kamath had approached this Court in Criminal Writ Petition No.2744 of 2006 for quashing of the charge under Section 3(2) of the MCOC Act and he had also prayed for directions to release him forthwith. While this petition was pending the learned Special Judge framed charges under Section 228 of Cr.P.C. on 26/6/2007 and out of the total sixty one accused before the Court, forty three accused including the kingpin A.K.L. Telgi (A-23) pleaded guilty to the charges framed against them and, therefore, vide the judgment and order dated 28/6/2007 the Special Court convicted and sentenced these accused. On the same day the Special Court altered the charge framed against A-37, A-38, A-45 (the present petitioner) and A-46. While A-44 was one of those 18 who continued to face the trial, Writ Petition No.2744 of 2006 came up before this Court on 17/7/2007, when this Court was pleased to, without prejudice to the right of A-44 to defend the charge under Section 3(1)(ii) of the MCOC Act, dispose off the petition and expected the MCOC Court to suo motu continue the issue of re-framing of the charges in accordance with the provisions of law. The following observations made by this Court in the 3 order dated 17/7/2007 are reproduced as under: "...Perusal of the charges framed against the petitioner does not disclose such an exercise having been undertaken by the concerned Court in respect of framing of the charges. The learned counsel appearing for the CBI fairly conceded that the charges would require re-framing. In the circumstances, without going into the issue which is sought to be raised in the petition, we leave the said issue to be decided by the concerned Court in case the same is sought to be raised by the petitioner at the time of re-framing of the charges. We expect the MCOC Court to suo motu take up the matter for re-framing of the charges in accordance with the provisions of law, bearing in mind the observations made hereinabove...." . A copy of this order was placed before the Special Court by the CBI and the learned Special Judge passed an order on 6/8/2007 and decided to 4 re-frame the charges against all the accused in the light of the observations made by this Court in the order dated 17/7/2007. Consequently the present petitioner filed Criminal Appeal No.827 of 2007 and another co-accused Mohd. Chand Mulani filed Criminal Appeal No.830 of 2007 against the order dated 6/8/2007. Vide judgment and order dated 4/10/2007 the Appeals were allowed and the impugned order to the extent it decided to re-frame the charges was set aside. The matter was remanded to the Special Court to consider first whether the charges framed on 26/6/2007 and 28/6/2007 against all the accused disclosed any defect or error and if so satisfied then proceed to re-frame the charges. The CBI filed an application at Exhibit 1994 on 22/1/2008 before the Special Court praying for re-framing of charges and on the same day the learned Special Judge re-framed the charges against A-44. On 10/4/2008 the present petitioner filed an application at Exhibit 2040 raising the grievance that the prosecution was conducting the trial in contravention of the directions and orders passed by this Court in Criminal Appeal No.827 of 2007. The learned Special Judge heard both these applications and by his order dated 11/4/2008 the application at Exhibit 2040 filed 5 by the petitioner was disposed off whereas hearing on the application at Exhibit 1994 filed by the CBI was deferred. 3. The impugned order came to be passed on 3/5/2008 on the first issue, namely, the charge framed on 26/6/2007 and modified on 28/6/2007 suffers from errors or defects and, therefore, the charge is required to be corrected. So far as the petitioner is concerned, the Special Court noted that on 26/6/2007 charges Seventy Eighthly to Eighty Fourthly were framed against him and on 28/6/2007 the learned Special Judge had altered the charges Eightisecondly, Eighty Thirdly and Eighty Fourthly by passing an order in that behalf below Exh.1. Charge Eighty Secondly was for an offence under Section 3(1) (ii), Charge 83rdly was for an offence under Section 3(4), whereas the charge 84thly was for an offence under Section 24 of the MCOC Act. By deleting these three charges, the learned Special Judge framed a single charge Hundred Fiftiethly only under Section 24 of the MCOC Act against the petitioner on 28/6/2007. The said charge Hundred Fiftiethly sets out the following acts allegedly committed or indulged into by him:- 6 (a) Associated with accused no.23 A.K.L. Telgi in his printing of counterfeit Government stamps and stamp papers at Mudran Off Set Press at 22, Mint Road, Mumbai; (b) Provided A.K.L. Telgi all services of an expert, for example Uday Savant for printing counterfeit Government stamps and stamp papers; (c) Caused wrongful loss to the National Exchequer and wrongful gain to the organized crime syndicate; (d) rendered help to accused No.23 for getting closer to India Security Press Officials with the object of deriving classified information from India Security Press as regards printing technology; (e) Got ill-gotten money of Rs.30 lacs for payment of bills of hotel Ritz at Churchgate, Mumbai; 7 (f) Contacted accused no.23 when he was in Bangalore jail on phone. . It is thus clear that the charges under Section 3(1) (ii) and Section 3(2) of the MCOC Act were deleted as per the order dated 28/6/2007, though the Special Court in the impugned order noted that the commission of the said acts was revealed through voluminous material brought in support of the charges. The learned Special Judge recorded his findings about the errors/defects in the charge as under:- "25. After having noticed the facts as are perceived from the contents of the charge Hundred Fiftiethly framed by the learned predecessor, the argument advanced on behalf of C.B.I. has to be accepted that the accused has not been charges for all those offences, the commission of which is manifestly revealed from the contents of the said charge." 8 4. Mr. Pradhan the learned counsel for the petitioner submitted that once the charge was framed on 28/6/2007, it was not permissible for the successor Judge to review the earlier order and hold that it suffered from errors/defects, unless during the trial of the cases some evidence had come on record in support of such a conclusion. The charge framed on 26/6/2007 was altered on 28/6/2007 on the basis of the voluminous material placed on record and, therefore, the learned Special Judge could not review by the impugned order, the order passed by his predecessor. Mr. Pradhan submitted that the successor Judge had no authority in law to set aside the earlier order passed on 26/6/2007 by the predecessor Judge and, therefore, the impugned order is without jurisdiction and void ab initio. He also submitted that the impugned order is against the principles of natural justice and the learned successor Judge took on himself to re-frame the charges, including alteration and/or addition, as contemplated by Section 216 of Cr.P.C., unless evidence had come on record during the course of trial. It was further submitted that the charge has been amended only in respect of selected accused, 9 namely, A-22, A-31, A-32, A-43, A-45, A-49, A-52, A-56, A-61 etc. 5. The submissions made by Mr. Pradhan, on the face of it, appears to be impressive, but on the perusal of the order passed by this court in Criminal Appeal No. 827 of 2007, which was filed by the petitioner, on 4/10/2007, it is clear that the learned Special Judge proceeded to pass the impugned order strictly in compliance of the directions issued by this court and admittedly, the petitioner did not challenge the order dated 4/10/2007 passed by this court in his appeal. The learned Special Judge was, therefore, bound by the said order. Some of the relevant observations made therein are as under:- ".......The intention of the legislature is, therefore, clear that it is not only that the accused should get fair and proper trial but at the same time, the case of the prosecution, if needs to be considered, should not be ignored without proper opportunity being afforded for adjudication in that regard. 10 This being the intention of the legislature, it cannot be heard to say that even when the matter is at the trial stage and if the court finds that the charge which is framed contains any error or defect, that it cannot be re-framed or that the defect cannot be cured or corrected. Being so, the power of the Court to re-frame the charge, moment any defect in the charge is pointed out to the court, cannot be denied to the court...... .......Merely because no appeal was filed against the charges framed on 28/6/2007, that cannot come in the way of the trial court in re-framing the charges in case the defect or error in the charges is pointed out to the court......." . In para 11 of the said order, this court observed as under:- "11. As far as Section 228 of Cr.P.C. is concerned, it nowhere prohibits or bars re-framing of the charges framed against the 11 accused persons. The contention that charge once framed, after hearing the parties, would give finality to the stage of framing of the charge, cannot be accepted. The framing of charge is in the interest of the accused to enable the accused to know the substance of accusation against the accused person in order to enable him to put forth his case with reference to the allegation against him by the prosecution and for the advantage of the prosecution to be aware of the nature of evidence which is required to be produced on record in order to establish the accusation against the accused. It does not decide any right or interest of the accused vis-a-vis the accusation made against him/her. It is merely a step in the proceedings against the accused to specify the allegation against the accused person for enabling the prosecution to lead evidence and allowing the accused to put forth his say in the matter. That being an interlocutory stage in the proceeding of a criminal trial, mere framing of charge against the accused person does not decide any right or interest vis-a-vis the offence alleged to 12 have been committed, and therefore, it cannot be said that framing of charge would attain finality once such charge is framed in exercise of powers under Section 228 of the Cr.P.C. On the contrary, as already observed above, the specific provision comprised under Section 464(2) would disclose the intention of the legislature that charges are essentially required to be framed not only for the benefit of the accused but also to make it known to the prosecution as to the basic ingredients of the offence which are to be established by the prosecution in order to bring home the accusation against the accused. The expression "hearing as aforesaid" which is found in Section 228 of the Cr.P.C. refers to the proceedings in relation to the discharge of the accused in cases where the materials placed before the court do not reveal sufficient cause for proceeding further against the accused person. It does not amount to debar the court from exercising its power to re-frame the charges against the accused person in case where the occasion for re-framing arises." 13 6. We must also note that the order of re-framing of charge may be interfered if it demonstrates that it has caused prejudice to the petitioner and as of now that stage has not yet arrived in as much as the second part of the order, namely, re-framing of the charge against the petitioner has not yet been passed. In our opinion, therefore, the challenge to the impugned order at this stage is unsustainable. 7. Hence, the petition fails at the threshold and the same is hereby rejected summarily. (J.H.BHATIA,J.) (B.H.MARLAPALLE,J.)