The court upheld the dismissal of applications to recall witnesses, affirming that the accused were aware of the charges and had already cross-examined the witnesses, thus no prejudice was established.

ORDER :

Mr. Sudesh Bansal, J. - Petitioners of both the present petitions are accused in Sessions Case No.02/2013 (State of Rajasthan v. Shivnarayan & Ors.) pending before the Special Court, Prevention of Corruption Act, Cases Alwar and have challenged a common order dated 13.02.2024 dismissing their applications filed under Section 217 Cr.P.C. and thereby refusing to recall the prosecution witnesses for cross-examination by petitioners, after addition/alteration of charges against them. Thus, in both petitions, order under challenge is common and identical issue has been raised, hence, both petitions have been heard together and would stand decide by this common order.

2. Briefly stated, factual matrix of the case, as culled out from the record and not in dispute to the extent that on the basis of news item, published in Daily Newspaper "Alwar Jharokha", in month of March, 2000, a complaint was registered by the Anti Corruption Bureau (for short "ACB") and investigation was initiated. The complaint was in respect of allegations of connivance between officials of the Public Health Engineering Department (for short "PHED") and other persons to create bogus firms and thereby accepting tenders from such bogus firm, at the higher rates, in PHED, that too without following tender process and in utter violation to the Financial and Accounts Rules. It was alleged that without obtaining the delivery of goods, the bills were cleared in favour of firms which cause loss of Rs. 2,13,795/- to the State Government and provided extraneous financial benefits to the firms. After thorough investigation, as many as five Government employees of PHED department namely (i) Shivnarayan AEN, (ii) Girraj Prasad AEN, (iii) Harlal AEN, (iv) Satish Divisional Store Keeper, (v) Chandraswaroop Sharma Supervisor were found to be in collusion with (vi) Bhupenra Sharma Proprietor of firm Krishna Electronics, (vii) Abhishesh Sharma Proprietor of firm Popular Engineering, and (viii) Atul Gupta Proprietor of M/s Atul Sales Corporation and it transpired that without following the tender process, their bids were accepted for supply of goods at higher rates and goods allegedly supplied by these firms in PHED were not physically verified, thus, a clear case of criminal conspiracy among all above named persons was found proved by ACB and charge-sheet for offence under Sections 13 (1) (c) (d) and 13 (2) of Prevention of Corruption Act r/w Section 120B IPC was filed.

3. After filing of charge-sheet, vide order dated 25.05.2015 charges were framed. In the order dated 25.05.2015, against five Government employees of PHED, charges for offence under Sections 13 (1) (d) & 13 (1) (2) of PC Act were framed and against three persons who were Proprietors of firms, charges for offences under sections 12 of PC Act r/w Sections 109 & 120B IPC were framed. Thereafter, prosecution and defence evidence have been concluded and at the stage of final argument, learned Public Prosecutor moved an application dated 14.12.2023 under Section 216 Cr.P.C., pointing out that erroneously or inadvertently, charges for offence under Section 120B IPC against Government employees of PHED could not be framed and charges for offence under Sections 13 (1) (d) & 13 (1) (2) of PC Act r/w Section 120B IPC could not be framed against other three accused persons and prayer was made to alter charges against accused persons accordingly.

4. It may be noted that out of five Government employees of PHED, one accused Chandraswaroop Sharma (supervisor) passed away during the trial and out of three Proprietors of firms, Bhupendra Sharma, Proprietor of firm Krishna Electronics also passed away, hence, criminal proceedings against both accused persons were dropped.

5. It appears that petitioners opposed the application under Section 216 Cr.P.C., however the trial Court vide order dated 30.01.2024 allowed the application with following observations:-

6. It is noteworthy that the order dated 30.01.2024, whereby and whereunde