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Uttarakhand High Court · body

2009 DIGILAW 568 (UTT)

SHAUKAT ALI v. shamsuddin

2009-11-19

ALOK SINGH

body2009
JUDGMENT Present application under Section 482 Cr.P.C. is filed challenging the order dated 05.06.2009 passed by Additional Chief Judicial Magistrate, Kotdwar, District Pauri Garhwal in Criminal Case No. 33 of 2009, by which learned Magistrate decided to frame charge against the applicants/accused persons under Section 506 IPC, although learned Magistrate while considering the evidence on record, decided not to frame any charge under Sections 420, 120-B and 506 IPC. 2. Brief facts of the present case are that a complaint, under Sections 406 and 506 IPC, was filed by respondent (herein as “complainant”) stating accused, despite dissolution of the Committee of Management, are collecting the money illegally and are not submitting the accounts thereof. It is further contended whenever account is called for, accused persons threatened the complainant with dire consequences. Accused persons are illegally utilizing the funds collected after the dissolution of the Committee and not submitting account. 3. Initially, learned Judicial Magistrate vide order dated 16.06.2003 summoned the accused (herein as “applicant”) to face trial under Section 120-B, 406, 504 and 506 IPC. Summoning order dated 16.06.2003 was challenged, in Criminal Revision No. 05 of 2003, before the Sessions Judge, Pauri Garhwal. Learned Sessions Judge Pauri Garhwal vide Judgment dated 30.10.2004, allowed the Revision by setting aside the summoning order dated 16.06.2003 directing the trial Court to re-hear on the application of the accused to recall the summoning order. 4. It seems that learned Magistrate rejected the application of the accused/applicants to recall the summoning order, vide its order dated 03.10.2006 on the ground that there is no provision to recall the summoning order. Thereafter, learned trial Court proceeded to examine the complainant and its witnesses under Section 244 Cr.P.C. Having recorded the statements of the complainant and its witnesses under Section 244 Cr.P.C., learned Magistrate proceeded under Section 245 Cr.P.C. to find out as to whether there is no ground to frame charges against the accused persons. 5. Vide the impugned Judgment, learned trial Court having recorded that there is no sufficient evidence against the accused persons to frame charges under Section 420, 504 and 120-B IPC, directed to discharge the accused. However, learned Magistrate observed that there is a sufficient evidence on record to proceed to frame charge under Section 506 IPC against the accused persons (applicants herein). 6. However, learned Magistrate observed that there is a sufficient evidence on record to proceed to frame charge under Section 506 IPC against the accused persons (applicants herein). 6. Learned counsel appearing for the applicants argued that as per Section 212 of Code of Criminal Procedure, charge shall contain the particular of time and place of the alleged offence. He further contended that time and place of giving life threat is not mentioned either in the statement of P.W.1 or in the statement of P.W.2 and P.W.3. Moreover, P.W.2 and P.W.3 are not eye-witnesses of the incident, rather P.W.2 and P.W.3 are talking about different incident. Learned counsel for the applicants stated that in the absence of place and time of the occurrence in the statement recorded under Section 244 Cr.P.C., it would not be possible for the Magistrate to frame charge as defined under Section 212 Cr.P.C., which reads as under : “212. Particulars as to time, place and person.- (1) the charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. (2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 219. Provided that the time included between the first and last of such dates shall not exceed one year.” 7. From the perusal of the Section 212(1) of Code of Criminal Procedure, I am of the view that it is mandatory to mention time and place of the incident in the charge. 8. Having perused the statements recorded under Section 244 of the Code, I find neither P.W.1 nor P.W.2 and P.W.3 mentioned time and place of the alleged threat. In the absence of the time and place of the occurrence, charge cannot be framed. 8. Having perused the statements recorded under Section 244 of the Code, I find neither P.W.1 nor P.W.2 and P.W.3 mentioned time and place of the alleged threat. In the absence of the time and place of the occurrence, charge cannot be framed. Moreover, contents of complaint and statements of P.W.1 to P.W.3 are of casual nature. There is no specific statement about the time and place of threat. Not only this words utter by the accused, giving life threat are also absent. 9. In view of this, impugned order is liable to be set aside and applicants are liable to be discharged. Consequently, present Application is allowed. Impugned order is set aside. Applicants are also discharged under Section 506 of Code of Criminal Procedure.