The court affirmed that a fresh charge can be framed by the Special Court without prior hearing, adhering to previous directions, and that evidence already recorded need not be discarded.

ORDER

The petitioner is the sole accused in C.C.No.52 of 2011 pending before the Court of Special Judge (SPE/CBI), Thiruvananthapuram. When the petition filed by him seeking discharge was dismissed, he filed Crime No.3916 of 2012. Later, a charge for the offences punishable under Section 5 (2) read with (1)(e) of the Prevention of Corruption Act , 1947 and Section 13 (1)(e) and read with (2) of the , 1988 was framed against him. Then, he filed Crl.R.P.No.493 of 2019 challenging correctness of the charge. This Court as per the order dated 29.01.2025 disposed of the said Crl.M.C. and Crl.R.P. with the following directions:

“The Crl.M.C and Crl.R.P are disposed of accordingly. The charge framed against the petitioner in C.C. No. 52 of 2011 is quashed. The Special Court shall frame a fresh charge against the petitioner in the light of the findings hereinbefore and proceed with the trial in accordance with law. The Special Court shall make every endeavour to dispose of C.C.No.52 of 2011 at the earliest.”

2. In obedience to the aforesaid direction, the Special Court framed a fresh charge. Annexure-2 is a copy of the charge. The petitioner has filed this revision petition under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita , 2023 ( BNSS ) seeking to set aside Annexure-2 charge.

3. Heard the learned counsel for the petitioner and the learned Standing Counsel for the CBI.

4. The learned counsel for the petitioner would submit that when this Court quashed the earlier charge and directed the Special Court to frame a fresh charge, an opportunity of being heard should have been given to the petitioner. The trial court, however, without giving any such opportunity proceeded to frame a charge, Annexure-2. The further contention on behalf of the petitioner is that the charge earlier framed was set aside as per Annexure-1 order and therefore the evidence already recorded based on that charge has become non-est. So, the trial court should have examined the witnesses anew. The Special Court, however, proceeded with the examination of remaining witnesses and that caused prejudice to the petitioner.

5. The learned counsel for the petitioner would submit that while this Court observed in paragraph No.36 of Annexure-1 order that the petitioner would be entitled to point out the omission of any other item of income or expenditure, the Special Court should have considered that matter before framing a fresh charge by giving an opportunity of being heard to the petitioner. It is pointed out that, soon on obtaining a copy of Annexure-1 order, the Special Court proceeded to frame a fresh charge and denied an opportunity of being heard to the petitioner. It is also the submission of the learned counsel for the petitioner that the learned Special Judge was carried away by the observations in Annexure-1 order and that is a cause for further prejudice to the petitioner during the trial.

6. The learned Standing Counsel for the CBI, on the other hand, would submit that when the direction was to frame a fresh charge following the directions in Annexure-1 order, the only option of the learned Special Judge was to frame a fresh charge as directed. After hearing both sides, on the plea of discharge, Annexure-1 order was rendered and what remains is to frame a charge in conformity to the said order and not to appraise the materials. Insofar as the re- examination of already examined witnesses, it is submitted that the fresh charge amounts to only an alteration of the charge for all practical purposes and what is required is to recall already examined witnesses if there is a request by either of the parties. Thus, the learned Standing Counsel would maintain that there is no justification for interfering with the charge framed by the Special Court or the procedure followed thereafter.

7. As rightly pointed out by the learned counsel for the petitioner, the right of the petitioner to point out the omission of any other item of income or expenditure, whi