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2009 DIGILAW 3140 (ALL)

NASIR v. STATE OF U. P.

2009-09-16

VIJAY KUMAR VERMA

body2009
JUDGMENT Hon’ble Vijay Kumar Verma, J.—Heard Shri Gaurav Kakkar Advocate appearing for the applicant and AGA for the State. 2. By means of this application under Section 482, Cr.P.C., order dated 17.6.2009 passed by the Additional Session Judge Court No. 11, Moradabad in S.T. No. 24 of 2009 has been challenged. 3. By the impugned order, charge has been framed against the accused persons. 4. At the outset it is submitted by learned AGA that order framing charge is revisable under Section 397, Cr.P.C. and hence, instant proceeding under Section 482, Cr.P.C. against the impugned order is misconceived and is not maintainable. 5. In response, it is submitted by learned counsel for the applicant that order framing charge can be challenged in the proceeding under Section 482, Cr.P.C. also. 6. Having given my thoughtful consideration to the rival submissions made by learned counsel for the parties, I entirely agree with the contention of the learned AGA that order framing charge can be challenged in revision under Section 397, Cr.P.C. and hence, inherent power under Section 482, Cr.P.C. can not be invoked for challenging the order of framing charge. If any remedy is provided in any statute, then inherent power of the Court should not be invoked. The Full Bench of Rajasthan High Court has held in the case of Jarnail Singh v. State of Rajasthan, 1992 Cri LJ 810 that order framing charge is not an interlocutory order within the meaning of Section 397(2), Cr.P.C. and such order is amenable to the supervisory jurisdiction of the Court of Session and High Court under Section 397(1), Cr.P.C. The Hon’ble Apex Court has observed in the case of K.K. Patel and another v. State of Gujarat and another, 2000(41) ACC 351 that if by upholding the objections raised by a party and reversing the order under challenge, the entire proceedings pending against that party is terminated, then such order would not be an interlocutory order and revision against such order would not be barred under Section 397(2), Cr.P.C. In present case also, if the objections raised by the applicants against impugned order are accepted and impugned order is set aside, then the proceedings of S.T. No. 24 of 2009 would come to an end. Hence, in view of the observations made by Hon’ble Apex Court in the case of K.K. Patel v. State of Gujrat (supra) and the law laid down by Full Bench of Rajasthan High Court in Jarnail such case (supra), the impugned order of framing charge can be challenged in revision under Section 397(1), Cr.P.C. 7. Consequently, the application under Section 482, Cr.P.C. is hereby dismissed with liberty to file revision against the impugned order. ————