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2017 DIGILAW 248 (UTT)

SUSHIL KUMAR DHIMAN v. STATE OF UTTARAKHAND

2017-04-19

U.C.DHYANI

body2017
JUDGMENT U.C. Dhyani, J. (Oral) 1. By means of present Application under Section 482 Cr.P.C., the applicant seeks to quash the impugned order dated 24.12.2016 passed by 4th Additional Sessions Judge, Haridwar in Criminal Revision No. 70 of 2016, Sushil Kumar vs. state of Uttarakhand & another. A further prayer has been made to stay the further proceedings of Complaint Case No. 1287 of 2011, Smt. Renu vs. Sushil, pending in the Court of Judicial Magistrate, 1st, Roorkee, District Haridwar. 2. Accused-applicant was summoned to face the trial for the offences punishable under Sections 354, 452, 504 and 506 IPC by learned Judicial Magistrate, Roorkee. 3. When the trial proceeded, the statements of complainant, and her witnesses were recorded under Section 244 Cr.P.C. Charge was framed. At the state of cross-examination under Section 246 Cr.P.C. complainant and her witnesses could not turn up in the court and, therefore, an application for adjournment was moved. Such opportunity was closed. The case was fixed for defence evidence, and therefore, an application was moved on behalf of the complainant to recall the complainant and her witnesses for their cross-examination. Such an application was allowed by learned Judicial Magistrate (Trial Court). Aggrieved against the same, accused-applicants preferred Criminal Revision which was allowed and the matter was remanded to the Trial Court vide order dated 24.12.2016 by learned 4th Additional Sessions Judge, Haridwar. Aggrieved against the same, present Application under Section 482 Cr.P.C. has been filed. 4. Learned Revisional Court has passed the following Order: “Criminal Revision filed by the revisionist (accused-applicant herein) is allowed. The order dated 15.12.2015 passed by the Court below (Trial Court) is set aside. The matter is remanded back to the Trial Court to apply Section 246 Cr.P.C. and proceed to decide the same in accordance with law …………………………………..” 5. The Court finds that there is no illegality in the order impugned in view of the following provision of law. 6. Section 246 Cr.P.C. reads as follows: “246. Procedure where accused is not discharged- 1. If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. 2. The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make. 3. If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon. 4. If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under Sub-Section (3) he shall be required to stale, at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith whether he wishes to cross-examine any, and if so, which, of the witnesses for the prosecution whose evidence has been taken. 5. If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. 6. The evidence of any remaining witnesses for the prosecution shall next be taken and after cross-examination and re-examination (if any), they shall also be discharged.” 7. Learned Revisional Court has done exactly the same. 8. This Court finds no illegality in the Order impugned. C482 Petition , therefore, fails and is summarily dismissed.