Judgment:
ORDER
K.C. Bhanu, J.
1. This Criminal Revision Case is directed against the Order dated 01.05.2006 made in Crl.M.P. No. 367 of 2006 in C.C. No. 3 of 2005 on the file of the Special Judge for C.B.I. Cases, Hyderabad.
2. State, represented by Central Bureau of Investigation SPE/ACB (C.B.I.) filed the petition under Section 216 Cr.P.C. in the above C.C. to alter and add charges framed against A.3 to A.5, A.7 to A.9 as follows:
1) to frame additional charge for the offence punishable under Section 420 I.P.C. against A.3;
2) to frame charge for the offence punishable under Section 109 read with 420 I.P.C. against A.4;
3) to frame charge for the offence punishable under Section 109 read with 420 and 468 I.P.C. against A.5 and A.7;
4) to frame charge for the offence punishable under Section 109 read with 420 I.P.C. in place of 420 I.P.C. against A.8;
5) to frame charge for the offence punishable under Section 109 read with 420 I.P.C. against A.9.
The Special Court allowed the said petition in part to extent of altering the second charge framed against A.3 on 04.04.2006 for the same offence and to frame additional charge against A.5 for the offence punishable under Section 468 I.P.C. The Special Judge held that in view of the fact that it is stated neither in the charge sheet nor in the documents filed along with the charge sheet about the involvement of A.3 at any stage in procuring a passport in the false name and so, the request of the C.B.I. to frame an additional charge for the offence punishable under Section 420 I.P.C. was not accepted. The Special Judge did not accept the request of the C.B.I. to frame a charge for the offence punishable under Section 109 read with 420 I.P.C. against A.4, A.5, A.7 to A.9 on the ground that there is no prima facie material against A.3 to frame charge under Section 420 I.P.C. It is further held by the learned Special Judge that deleting charge for the offence punishable under Section 420 I.P.C. framed against A.8 and in its place to frame a charge for the offence punishable under Section 109 read with 420 I.P.C. does not arise.
3. The learned Counsel for the C.B.I. contended that the charge sheet allegations would clearly go to show that A.1 impersonated as Ramil Kamil Malik, A.2 impersonated as Neha Asif Zafari and A.3 impersonated as Sana Malik Kamal, and obtained passports from the Regional Passport Office, Hyderabad during the year 2001 by furnishing false documents and this was done in connivance with A.4 and A.5, who abused their official position as public servants; that the allegations in the charge sheet made out a prima facie case for the offence punishable under Section 420 I.P.C. against A.3. He further contended that roving enquiry is not permissible, but the allegations that A.3 cheated Government of India by furnishing false documents and obtained passport, whereas A.4, A.5, A.7 to A.9 abetted the offence of cheating and therefore they are liable for prosecution under Sections 109 read with 420 I.P.C.
4. On the other hand, the learned Counsel appearing for A.3 contended that there is no material for framing a charge for the offence punishable under Section 420 I.P.C. against A.3; that false documents were not submitted by her in order to cheat the Government and also that she was not using the said passport; that the said passport was not seized from her possession; that after considering the material and the documents filed along with the charge sheet, the trial Court rightly framed appropriate charges and in the absence of any illegal or improper or incorrect framing of charges, this Court can not exercise revisional jurisdiction under Sections 397 and 401 Cr.P.C.; hence, he prays to dismiss the revision case.
5. On the other hand, the learned Counsel appearing for A.8 contended that A.8 allegedly misrepresented the Postman and obtained delivery of articles under speed post and therefore he alleged to have committed an offence punishable under Section 420 I.P.C. and that basing on the material on record the trial Court rightly framed charge under Section 420 I.P.C. against him; that there are no grounds to frame charge for the offence punishable under Section 109 read with 420 I.P.C.; hence, he prays to dismiss the revision case.
6. The learned Counsel for the petitioner relied on a decision in State of Maharashtra v. Somnath Thapa 1996 Crl.L.J. 2448 case, wherein it is held as follows: (para 32)
The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.
7. The learned Counsel also placed a strong reliance on a decision in State (NCT of Delhi) v. Navjot Sandhu alias Afsan garu 2005 Supreme Court Cases (Cri) 1715 wherein it is held as follows: (para 25)
It is settled law that a 'fundamental defect' should be found in the charges if the court has to quash them. Whether the accused was misled and whether there was reasonable possibility of prejudice being caused to the accused on account of defective charges are relevant considerations in judging the effect of wrong or deficient charges. Section 215 Cr.P.C. makes it clear that no error or omission in stating either the offence or the particulars required to be stated shall be regarded as material unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice. The test of prejudice or reasonable possibility of prejudice was applied by this Court in William Slaney case : 1956CriLJ291 in testing the argument based on the omission, error or irregularity in framing the charges. The same test was also applied in State of A.P. v. Cheemalapati Ganeswara Rao : [1964]3SCR297 . It has not been demonstrated in the instant case as to how the accused or any of them were misled or any prejudice was caused to them on account of the alleged defects in the framing of charges. No such objection was even taken before the trial Court. As pointed out in William Slaney case (para 45 of AIR) it will always be material to consider whether the objection to the nature of charge was taken at an early stage. To the same effect are the observations in Ganeswara Rao case. It is difficult to spell out with exactitude the details relating to the starting point of conspiracy. As pointed out in Esher Singh v. State of A.P. : (2004)11SCC585 it is not always possible 'to give affirmative evidence about the date of formation of the criminal conspiracy'. We do not think that if instead of mentioning 'the first week of December 2001' the wording 'before December 2001' is employed, the prosecution should fail merely for that reason. The accused can not be said to have been misled or prejudiced on that account. On the other hand, it is more than clear that the accused did understand the case they were called upon to meet. The question whether Section 120B applies to the POTA offences or Section 3(3) alone applies is not a matter on which a definite conclusion could be reached ahead of the trial. It is not uncommon that the offence alleged might seemingly fall under more than one provision and sometimes it may not be easy to form a definite opinion as to the section in which the offence appropriately falls. Hence, charges are often framed by way of abundant caution. Assuming that an inapplicable provision has been mentioned, it is no ground to set aside the charges and invalidate the trial.
8. The learned Counsel also relied on another decision in Supdt. & Remembrancer of legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors. : 1979CriLJ1390 wherein it is held as follows: (para 18)
It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh : 1977CriLJ1606 , the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of that offence.
9. The learned Counsel for the petitioner also relied on another decision in State of Bihar v. Ramesh Singh : 1977CriLJ1606 wherein it is held as follows: (para 4)
Under Section 226 of the Code while opening the case for the prosecution the prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If 'the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing', so enjoined by Section 227. If, on the other hand, 'the Judge is of opinion that there is ground for presuming that the accused has committed an offence which.. (b) in exclusively triable by the Court, he shall frame in writing a charge against the accused', as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused comitted the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.
Bearing the above principles in mind, now it has to be seen whether the material gathered by prosecution is substantiated so as to frame the additional charges as contended by the prosecution.
10. Under Section 397 Cr.P.C., the High Court or Sessions Judge may call for and examine record of any proceeding before any inferior criminal court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record. There can not be any dispute that powers of revision can not be exercised in relation to interlocutory order, but at the same time, framing of charge is not an interlocutory order. Therefore, in order to decide whether any illegality or irregularity or error in any proceedings or order made, this Court can exercise the powers under Section 397 Cr.P.C. As a broad proposition, revisional interference may be justified where (a) the decision is grossly erroneous; (b) there is no compliance with the provisions of law; (c)the finding of fact affecting the decision is not based on any material collected by investigation and the judicial discretion is exercised arbitrarily or perversely. Revisional powers of the High Court are to be exercised only to correct the injustice not merely to rectify the illegalities which do not go into the root of the matter.
11. The issue in this revision is with regard to framing of additional charges or proper charges in the place of charges already framed. It is a fundamental principle of criminal law as administered in India that there should be a separate charge for every distinct offence as the accused person must have notice of the charge which he has to meet. The object of framing of the charges is to give the accused notice of the matter he is charged with. Sometimes omission to frame a separate charge would be an incurable irregularity amounting to illegality. Sometimes total absence of charge from the beginning to end where it is incumbent that a charge must be framed is contravention of the Code of Criminal Procedure vitiates entire trial and in such a case no question of prejudice can arise. Therefore, if the material on record suggests or prima facie shows the charges or additional charges can be framed.
There can not be any dispute that the framing of charge in trial of criminal cases in which a proper charge is required to be framed, is one of the important elements in the mode of trial. At this stage, there is no need to sift or weigh the evidence. All that the Court has to consider is whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime. No more need be required into. The Court need not undertake elaborate enquiry in sifting or weighing the material nor it is necessary to dwell deep into various aspects.
12. The case of the prosecution is that A.3 impersonated as Sana Malik Kamal and obtained passport from Regional Passport Office, Hyderabad during the year 2001 by furnishing false documents and this was done in connivance with A.4 and A.5. It is further alleged that A.7 obtained 3 false residential certificates in the fake names as Ramil Kamil Malik, Neha Asif Jafari and Sana Malik Kamal for A.1 to A.3 respectively and handed over the same to A.6. Hand- writing expert confirmed signatures of A.7 on these certificates. It is further alleged that the persons by name Ramil Kamil Malik, Neha Asif Jafari and Sana Malik Kamal were not residents of the addresses given in the certificates. It is further alleged that one Faizan Ahmed, owner of M/s. Faizan Enterprises, Mumbai gave 10 passport size photographs each of A.1, A.2 and A.3 to A.9 and asked him to obtain three passports from Kurnool and gave fake names, dates of birth, etc. and in March, 2001, he visited Kurnool and entrusted this work to A.6, who is an authorized passport agent.
On 23.08.2001 two speed posts containing passports in the names of Neha Asif Jafari (for A.2) and Sana Malik Kamal(for A.3) were entrusted to one Babumiah, postman, for delivery. A.8, who is postman, approached Babumiah, verified delivery slip list and collected the two speed post articles along with third one by giving his acknowledgement on the delivery slip list stating that he knew the addressees and would personally deliver the said articles while going home. GEQD confirmed that the acknowledgement on the delivery slip in respect of speed post containing passport in the name of A.3 to be that of A.8. So also, on 27.08.2001, another speed post article containing passport in the name of Rana Kamil Malik (for A.1) was entrusted to A.8 for delivery and he delivered the same to one Salam Khan, cashier of Hotel Elite, Kurnool.
13. Necessary ingredients to constitute cheating as defined under Section 415 I.P.C. are as follows:
a) A person deceives any person;
b) He fraudulently or dishonestly induces the person so deceived-
(i) to deliver any property to any person, or
(ii) to consent that any person shall retain any property,
or
c) He intentionally induces the person so deceived to do or omit anything which he would not do or omit if not deceived and which act etc. causes or is likely to cause damage or harm to that person.
The procedure prescribed for taking passports has not been followed. The learned Counsel for the C.B.I. placed reliance on the passport standing in the name of Sana Malik Kamal, which contains photograph of A.3, whose real name is Monica Bedi. Dishonest concealment of facts is deception within the meaning of the Section. Unless there is dishonest concealment of facts, question of issue of passport to A.3 in the name of Sana Malik Kamal does not arise. Therefore, at this stage, there is a strong suspicion against A.3 to show that she cheated the Government of India in obtaining the passport.
14. As regards the other accused viz. A.4, A.5, A.7 to A.9, according to C.B.I., there are allegations against them for the offence punishable under Section 109 read with 420 I.P.C. Under Section 109 I.P.C., whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, be punished. The essential ingredients of 'abetment' as defined under Section 107 I.P.C. are as follows:
A person abets the doing of a thing who-
(a) instigates any person to do that thing; or
(b) engages with one or more persons in any conspiracy for the doing of that thing provided an illegal act or omission takes place-
(i) in pursuance of that conspiracy, and
(ii) in order to the doing of that thing; or
(c) intentionally aids, by any illegal act or omission, the doing of that thing.
15. A person who by wilful misrepresentation or by wilful concealment of fact which is bound to be disclosed, voluntarily causes or procures or attempts to cause or procure a thing to be done, is said to instigate the doing of that thing. The allegations against A.4 and A.5 are that A.1 to A.3 impersonated some persons and obtained passports from the Regional Passport Office, Hyderabad by furnishing false documents and this was done in connivance with A.4 and A.5. It is further alleged that A.4 and A.5 submitted false verification reports. Therefore, prima facie, they concealed the material fact which they are bound to disclose.
16. Originally I Town police, Kurnool registered a case for the offences punishable under Sections 417, 420 and 120B I.P.C. and 12 of the Passport Act, 1967 against A.4 to A.7 and it was revealed that A.4, A.5, A.7 and A.8 were arrested and remanded to judicial custody. Insofar as A.7 is concerned, the allegations are that he obtained 3 false residential certificates in the fake names as Ramil Kamil Malik, Neha Asif Jafari and Sana Malik Kamal for A.1 to A.3 respectively and handed over the same to A.6. A.8 who is not supposed to take the speed post containing the passports of A.1 to A.3, collected the 3 speed post articles and caused delivery. Therefore, he intentionally aided the act by taking delivery of passports though he is not entitled to do.
17. Insofar as A.9 is concerned, A.6 sent two covers addressed to A.9 through Professional Courier service and the passport size photographs of A.1 to A.3 were given to A.9 for the purpose of obtaining the 3 passports from Kurnool in fake names. Therefore, it is also an act by wilful concealment of material fact which he is bound to disclose.
18. The trial Court framed a charge against A.3 to A.5, A.7 to A.9 stating they along with A.1, A.2, A.6 and A.10 on or about 19.04.2001 at Mumbai and Kurnool, agreed to do and caused to be done an illegal act and obtained passports for A.1 to A.3 by illegal means by false and fake residential certificates and fake date of birth certificates and thereby committed an offence punishable under Section 120B I.P.C. The further charge is that A.3 cheated the Government by submitting a passport application with false names. Additional Charge to be framed against A.3 is for the offence punishable under Section 420 I.P.C. because the further case of prosecution is that she impersonated by pretending to be someother person. The passport documents filed by the prosecution would prima facie amount to impersonation within the meaning of Section 419 I.P.C. So also, against A.4, A.5, A.7 to A.9, the charge is that they committed an offence of cheating by personation with false names and therefore they committed an offence punishable under Section 109 read with 419 I.P.C. Besides the said charge, the proper charge requires to be framed against them is for the offence punishable under Section 109 read with 420 I.P.C. for the reasons stated hereinbefore.
19. Therefore, from the above discussion, it is clear that the trial Court committed illegality in not framing the appropriate charges in view of the fact that the allegations in the charge sheet would prima facie make out a case for the offences punishable under Section 420 I.P.C. against A.3; 109 read with 420 I.P.C. against A.4, A.5, A.7 to A.9.
20. The Criminal Revision Case is, accordingly, allowed directing the Special Judge to frame additional charges for the offence punishable under Section 420 I.P.C. against A.3; 109 read with 420 against A.4, A.5, A.7 to A.9 duly omitting the charge for the offence punishable under Section 420 I.P.C. against A.8.