A.K. Gupta v. Mr. Rajiv Sharma, Advocate, Standing counsel

On the request of Mr. Deepak Sibal, adjourned to 3rd March, 2010”. Criminal Revision No. 2564 of 2006 3 Counsel for the petitioner has submitted that he had approached this Court at very initial stage and had assailed the order at first available opportunity, however, no stay was granted by this Court. Therefore, now petitioner cannot be non-suited on this ground. I have considered this submission, yet this Court is of the view that once the trial has proceeded and 14 witnesses have been examined, this Court cannot come to the rescue of the petitioner. What is to be noticed in this case is that all the charges have been framed with an aid of Section 120-B IPC. A grievance has been raised in the present revision petition that in the charge sheet, the period of offence specified and mentioned is during the years 1995 to 1997. Mr. N.K. Sanghi, Advocate, appearing for the petitioner, has further contended that for a period of three years, the charges could not be framed in the manner which has been resorted to by the trial Court as there is a serious breach of Section 219 Cr.P.C. Counsel has stated that Section 219 Cr.P.C. specifies that when a person is accused of more offences than one of the same kind committed within the span of twelve months from the first to the last of such offences, then the person can be charged for any number of charges not exceeding three. Attention of the counsel for the petitioner was drawn to Section 220 Cr.P.C., which states that if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, the accused can be charged and tried at one trial for every such offence. In the present case, various officials had conspired and have been charged for offence under Section 120-B IPC. When a conspiracy Criminal Revision No. 2564 of 2006 4 had occurred for a long period and it formulates one long transaction having series of acts together, then it is difficult to decipher as to which part of the offence was committed at what time then Section 220 Cr.P.C. is to be invoked. Section 220 Cr.P.C. takes care of Section 219 Cr.P.C. Counsel for the petitioner has failed to enlighten this Court from the evidence recorded as to what prejudice has been caused to the petitioner. Section 464 Cr.P.C. specifically states as under:-

464. Effect of omission to frame, or absence of, or error in, charge. (1) No finding sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may- (a) In the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the Criminal Revision No. 2564 of 2006 5 point immediately after the framing of the charge. (b) In the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit: Provided that if the court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction. What failure of justice has occurred, this Court is to grope in the dark. Section 216 Cr.P.C. specifically states that the Court can alter charge at any time. It is hereby observed by this Court that if during the recording of evidence or after conclusion of the evidence, the trial Court comes to a conclusion that the charge can be formulated, the Court may do so. The trial Court is not precluded to amend or alter charge at the commencement, midst or conclusion of the evidence. The argument raised before this Court that there is a serious breach of Section 219 Cr.P.C., is fallacious on all counts. Section 120-B IPC defines conspiracy. Section 10 of the Indian Evidence Act, 1872 (hereinafter referred to as “1872 Act”) and its illustration, can be read as under:-

10. Things said or done by conspirator in reference to common design. Where there is reasonable ground to believe that Criminal Revision No. 2564 of 2006 6 two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. Illustration Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the Government of India. The facts that B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A’s complicity in it, although he may have been ignorant of all of them, and although the persons by whom Criminal Revision No. 2564 of 2006 7 they were done were stranger to him, and although they may have taken place before he joined the conspiracy or after he left it. In the present case, no separate charge has been formulated. The charge of offence under Section 120-B IPC and other charges under Section 420 IPC and Section 13(2) of the 1988 Act are with the aid of Section 120-B IPC. The ambit and scope of Section 120-B IPC is too wide. It cannot be qualified by time, place and action. Illustration to Section 10 of the 1872 Act makes it explicit clear. Therefore, the argument that Section 219 Cr.PC. has not been followed is rejected as same is not attracted to the facts and circumstances of the present case. Trial is in progress. Fourteen witnesses have been examined. In view of the discussion made above, no interference is warranted. Therefore, present revision petition is devoid of any merit and the same is dismissed. March 3, 2010 “DK” (Kanwaljit Singh Ahluwalia) Judge