Research › Search › Judgment

Uttarakhand High Court · body

2018 DIGILAW 142 (UTT)

Kuldeep Singh v. State of Uttarakhand

2018-04-02

LOK PAL SINGH

body2018
JUDGMENT : Urgency Application IA No.2376 of 2018 is allowed. 2. By way of present C482 application, applicants have sought the following reliefs:- “(i) Quash impugned judgment and order dated 28.11.2017 (Annexure No.10) passed by the learned First Additional Sessions Judge, Haldwani, District Nainital in Criminal Revision No.128 of 2016 Kuldeep Singh & another vs. State of Uttarakhand and another. (ii) Quash the impugned order dated 04.11.2016 (Annexure No.9) passed by the learned Judicial Magistrate, First, Haldwani, District Nainital in Criminal Case No.3355 of 2014 State vs. Kuldeep Singh Bhullar & others for the offences punishable u/s 388, 195, 177 of IPC P.S. Chorgalia District Nainital (iii) Quash the entire proceedings of Criminal Case No.3355 of 2014 “State vs. Kuldeep Singh Bhullar & others for the offences punishable u/s 388, 195, 177 of IPC P.S. Chorgalia District Nainital pending in the court of learned Additional Chief Judicial Magistrate, Haldwani, District Nainital.” 3. Briefly stated, facts of the case are that a dispute arose between applicant no.1 and one Buta Singh regarding the sale of property but subsequently the parties entered into compromise. In that matter, a charge sheet was filed against the applicants for the offences punishable u/s 420, 467, 468, 471, 406, 120B of IPC and a criminal case no.3861 of 2016 State vs. Kuldeep Singh was registered in the court of Addl. Chief Judical Magistrate, Haldwani, which was however quashed by this Court in C482 petition on the basis of compromise arrived at between the parties. Thereafter, respondent no.2 lodged a report against the applicants which was registered as FIR No.33 of 2014 punishable u/s 388, 195, 177 of IPC at P.S. Chorgalia District Nainital, wherein, after completion of investigation, charge-sheet was submitted by the I.O. against all the accused persons. On the basis of charge-sheet, Judicial Magistrate took cognizance vide order dated 28.10.2014 and passed the summoning order. It appears that during the pendency of criminal case, the State Government decided to withdraw the public prosecutor from the prosecution of the aforesaid criminal case and accordingly issued a Government Order No.800/XX-3-2016-08 (29) 2015 dated 16.06.2016, addressed to the District Magistrate, Nainital. Pursuant to the said Government Order, Assistant Prosecuting Officer moved an application u/s 321 of Cr.P.C. before the learned Judicial Magistrate, Haldwani, which was rejected vide order dated 04.11.2016 holding that the public prosecutor has not pleaded that the same is being done in public interest. Pursuant to the said Government Order, Assistant Prosecuting Officer moved an application u/s 321 of Cr.P.C. before the learned Judicial Magistrate, Haldwani, which was rejected vide order dated 04.11.2016 holding that the public prosecutor has not pleaded that the same is being done in public interest. Against the said order of the Judicial Magistrate, the State Government filed a revision, which was registered as Criminal Revision No.128 of 2016, which was also dismissed by Ist Addl. Sessions Judge, Haldwani (Nainital) vide judgment and order dated 28.11.2017. 4. It is the contention of learned counsel for the petitioners that the impugned judgments and orders have been passed by the courts below without proper application of mind, despite the fact that cross case, which was the foundation of the instant case, was settled amicably between the parties by way of compromise and the same was quashed by this Court in another C482 petition. 5. Per contra, learned Deputy Advocate General supported the impugned judgments and orders and submits that the same have been passed in accordance with law. 6. I have heard Mr. B.S. Bhandari, learned counsel for the applicants and Mr. V.K. Jemini, learned Deputy Advocate General for the State. 7. 5. Per contra, learned Deputy Advocate General supported the impugned judgments and orders and submits that the same have been passed in accordance with law. 6. I have heard Mr. B.S. Bhandari, learned counsel for the applicants and Mr. V.K. Jemini, learned Deputy Advocate General for the State. 7. Before any further discussion, it would be apt to reproduce Government Order dated 16.06.2016, which is Annexure-5 to the application, which reads as under: la[;k%800@ xx &3&2016&08¼29½2015 isz"kd] vt; jkSrsyk] vij lfpo] mŸkjk[k.M 'kkluA lsok esa] ftyk eftLVsªV uSuhrkyA x`g vuqHkkx&3 nsgjknwu] fnukad% twu] 2016 fo"k;% tuin uSuhrky ds Fkkuk pksjxfy;k esa iathd`r eq0v0la0&33@2014, varxZr /kkjk&388] 195] 177 Hkk0n0fo ljdkj cuke dqynhi flag HkqYyj o vU; dks okil ysus ds lca/k esaA egksn;] d`i;k mi;qZDr fo"k;d vkids i= la[;k% 1789@20&Uk0 lgk0@2015 fn0 03&07&2015 ds lUnHkZ esa eq>s ;g dgus dk funZs'k gqvk gS fd jkT; ljdkj }kjk lE;~d }kjk fopkjksijkUr tufgr esa tuin uSuhrky ds Fkkuk pksjxfy;k esa iathd`r eq0v0la0&33@2014, varZxr /kkjk&388] 195] 177 Hkk0n0fo0 ljdkj cuke dqynhi flag HkqYyj o vU; dks okil fy;s tkus dk fu.kZ; fy;k x;k gSA 2 rn~uqlkj lEcfU/kr ekeys ds Hkkjlk/kd vfHk;kstu vf/kdkjh dks funsZf'kr djrs gq, mDr okn ls lEcfU/kr vfHk;kstu dks n.M izfdz;k lafgrk] 1973 dh /kkjk 321 ds vUrxZr lEcfU/kr U;k;ky; dh lEefr ls okil ysus dk d"V djsaA jkT; ljdkj dh fyf[kr vuqefr bl izfrcU/k ds v/khu iznku dh tk jgh gS fd bl izdj.k dk n`"VkUr vU; fdlh ekeys esa ugha fy;k tk;sxkA 3 d`I;k mijksDrkuqlkj vxzsrj dk;Zokgh djrs gq, dk;Zokgh ls 'kklu dks Hkh voxr djkuk lqfuf'pr djsaA Hkonh;] ¼vt; jkSrsyk½ vij lfpoÞ 8. Application moved by the Assistant Prosecuting Officer u/s 321 Cr.P.C., which is Annexure No.8, reads as under:- ÞU;k;ky; Jheku U;kf;d eftLVsV izFke gY}kuh ljdkj c dqynhi flag HkqYyj vkfn /kkjk 388] 195] 177 Fkkuk pksjxfy;k fo"k; & izkFkZuki= vUrxZr /kkjk 321 egksn;] mijksDr ekeys esa vkt dh frfFk fu;r gSA mijksDr eqdnes dks mRrjk[k.M ljdkj us vius vkns'k la[;k 800@ xx &3&2016&08¼29½2015 ds ek/;e ls yksd fgr esa lE;~d fopkjksijkUr okil ysus dk fu.kZ; fy;k x;k gSA ftls vuqdze esa eq>s mDr izkFkZuki= /kkjk 321 U;k;ky; Jheku esa eqdnes dks U;k;ky; Jheku dh vuqefr ls okil ysus gsrq vknsf'kr fd;k x;k gSA izkFkZuki= U;k;ky; Jheku esa iszf"kr gSA nhik jkuh lgk;d vfHk;kstu vf/kdkjh lyaXud 1 la;qDr funs'kd fof/k dk vkns'k dh izfrA 2 vij ftykf/kdkjh uSuhrky ds vkns'k dh izfrA 3 vij lfpo mRrjk.M ds vkns'k dh izfrAÞ 9. From a perusal of the aforesaid Government Order, it would reveal that no reason has been assigned by the State Government as to in which public interest, it granted permission for withdrawal of prosecution case. Offence punishable under Section 388 IPC is of serious nature and the maximum punishment prescribed under this Section is ten years. That apart, the application which has been moved by the Public Prosecutor for withdrawal of the prosecution shows that the Public Prosecutor has acted on the dictates of the State Government and she appears to have not acted in good faith and also not formed an independent opinion for withdrawal of the case. The courts below were absolutely right in not giving permission under Section 321 Cr.P.C. for withdrawal of prosecution. 10. In the light of aforesaid, this petition u/s 482 Cr.P.C. lacks merit and the same is hereby dismissed.