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Uttarakhand High Court · body

2018 DIGILAW 260 (UTT)

Harish Kalra v. Suresh Bala

2018-05-11

LOK PAL SINGH

body2018
JUDGMENT : Lok Pal Singh, J. Present criminal miscellaneous application under Section 482 of Cr.P.C., has been filed by the applicants for quashing the cognizance order dated 20.9.2016 passed by the learned Additional Chief Judicial Magistrate, Kashipur in Criminal Case No. 2376 of 2016, “Surendra Bala vs. Harish Kalra & others” under Sections 452, 323, 504, 506 of IPC, as well as order dated 13.11.2017, passed by the learned 1st Additional Sessions Judge, Udham Singh Nagar in Criminal Revision No. 243 of 2016. 2. A perusal of the application moved by the applicants, it would reveal that this is the second criminal miscellaneous application. Earlier the criminal misc. application No.1755 of 2017 under Section 482 Cr.P.C. was filed by the applicants to quash the same cognizance order dated 20.9.2016. His Lordship Justice Sudhanshu Dhulia did not interfere and dismissed the application vide judgment dated 18.12.2017. However, it was directed that in case, the applicants appear before the Court below within a period of one week from the date of passing the order, their bail application shall be considered, as far as possible, on the same day itself, on its merit in accordance with law. The relevant portion of judgment dated 18.12.2017, passed by His Lordship Justice Sudhanshu Dhulia is being reproduced herein below : “2. An application under Section 156 (3) of CrPC was filed by the respondent before the learned Magistrate, which was treated as a complaint case by the learned Magistrate. Consequently, after recording the statement of the complainant under Section 200 CrPC and the statement of witnesses under Section 202 CrPC, the learned Magistrate has summoned the present applicants under Sections 452/323/504 and 506 of IPC vide order dated 20.09.2016. Aggrieved, applicants preferred a revision before the revisional court, which has also been dismissed by the revisional court vide order dated 13.11.2017. Hence, the present application under Section 482 CrPC before this Court. 3. Considering the overall facts and circumstances of the case, at this stage, no interference is being called for by this Court. 4. However, in case the applicants appear before the court below within a period of one week from today, their bail application shall be considered, as far as possible, on the same day itself, on its merit in accordance with law. 5. Consequently, the application filed under Section 482 of CrPC stands disposed accordingly.” 3. 4. However, in case the applicants appear before the court below within a period of one week from today, their bail application shall be considered, as far as possible, on the same day itself, on its merit in accordance with law. 5. Consequently, the application filed under Section 482 of CrPC stands disposed accordingly.” 3. A direction was issued to the applicants herein to appear before the Trial Court within one week from the order dated 18.12.2017, but despite the specific direction issued by the Court, applicants did not appear before the learned Trial Court. Subsequent thereto, the applicants filed a time extension application with the prayer that as they could not surrender before the Magistrate concerned within the time stipulated, pursuant to the order dated 18.12.2017, the time to surrender granted to them earlier be extended. Said application was dismissed vide order dated 12.01.2018. The relevant portion of order dated 12.01.2018 is reproduced herein below : “The present application filed under Section 482 of Cr.P.C. was disposed of by this Court vide order dated 18.12.2017 with the liberty to the applicants to appear before the court concerned within a period of one week. The applicants have not complied with the order dated 18.12.2017 and have filed a time extension application (MCRC No.5 of 2018) before this Court for extension of time. No reasonable explanation is being given as to the non compliance. Considering the fact that the applicants have not complied with the order dated 18.12.2017 passed by this Court, no interference is being called for by this Court in the matter. Consequently, time extension application (MCRC No.5 of 2018) stands dismissed.” 4. Now the second criminal miscellaneous application under Section C-482 Cr.P.C. has been filed by the applicants for the same relief whereof the earlier application under Section 482 of Cr.P.C., was dismissed and subsequent thereto, time extension application was also dismissed. It is mentioned in the first paragraph of present C-482 application that this is the second criminal miscellaneous application. The inherent powers under Section 482 and Section 483 of Cr.P.C., can be invoked to avoid abuse of process of law and provisions have been made therein to protect the innocent. 5. It is mentioned in the first paragraph of present C-482 application that this is the second criminal miscellaneous application. The inherent powers under Section 482 and Section 483 of Cr.P.C., can be invoked to avoid abuse of process of law and provisions have been made therein to protect the innocent. 5. From the perusal of the averments made in the present criminal miscellaneous application under Section C-482 Cr.P.C., in view of this Court second criminal miscellaneous application for the same relief is not maintainable as the same is nothing but abuse of the process of the Court. 6. Having considered the facts and circumstances of the case and after hearing learned counsel for the applicant, this Court is of the view that this second criminal misc. application under Section 482 Cr.P.C. is liable to be dismissed and heavy cost should be imposed upon the applicants who are misusing or abusing the process of law. 7. Applicants are directed to deposit a cost of Rs.5,000/- in the Advocates Welfare fund of the Bar Association of Uttarakhand within two weeks. In case, the cost is not deposited by the applicants, the Registrar General shall send a letter for recovery of the cost amount to the Collector Rudrapur, Udham Singh Nagar to recover the cost from the applicants as land revenue. 8. It is trite law that the High Court a the time of hearing application under Section 482 Cr.P.C. arrived to the conclusion that there is no substance in the application / petition and declined to grant any relief to the applicant and dismiss the C-482 petition, thereafter, the Court becomes functus officio and cannot issue any further direction to the applicants to surrender before the trial court within a certain period and thereafter further direction that the trial court shall decide the bail application of the applicant on the same day, or as expeditiously as possible, or enlarge the applicant on interim bail till the bail application of the applicant is decided by the Sessions Judge / or other superior court. 9. My view is fortified by the judgment of Hon’ble Apex Court rendered in the case of State of Telangana vs Habib Abdullah Jeelani and others, (2017) 2 SCC 779 . Paragraph 24 and 25 of the said judgment are relevant in the context of present case. The same are excerpted hereunder for convenience : “24. 9. My view is fortified by the judgment of Hon’ble Apex Court rendered in the case of State of Telangana vs Habib Abdullah Jeelani and others, (2017) 2 SCC 779 . Paragraph 24 and 25 of the said judgment are relevant in the context of present case. The same are excerpted hereunder for convenience : “24. It has come to the notice of the Court that in certain cases, the High Courts, while dismissing the application under Section 482 Cr.P.C., are passing orders that if the petitioner-accused surrenders before the trial Magistrate, he shall be admitted to bail on such terms and conditions as deemed fit and appropriate to be imposed by the Magistrate concerned. Sometimes it is noticed that in a case where sessions trial is warranted, directions are issued that n surrendering before the trial Judge concerned, the accused shall be enlarged on bail. Such directions would not commend acceptance in light of the ratio in Rashmi Rekha Thatoi vs State of Orrissa, (2012) 5 SCC 690 and Gurbaksh Singh Sibbia vs State of Punjab, (1980) 2 SCC 565 , etc., for they neither come within the sweep of Article 226 of the Constitution of India nor Section 482 Cr.P.C. nor Section 438 Cr.P.C. This Court in Ranjit Singh vs State of M.P., (2013) 16 SCC 797 has observed that the sagacious saying “a stitch in time saves nine” may be an apposite reminder and this Court also painfully so stated. 25. Having reminded the same, presently we can only say that the types of orders like the present one, are totally unsustainable, for it is contrary to the aforesaid settled principles and judicial precedents. It is intellectual truancy to avoid the precedents and issue directions which are not in consonance with law. It is the duty of a Judge to sustain the judicial balance and not to think of an order which can cause trauma to the process of adjudication. It should be borne in mind that the culture of adjudication is stabilized when intellectual discipline is maintained and further when such discipline constantly keeps guard on the mind.” 10. It is the duty of a Judge to sustain the judicial balance and not to think of an order which can cause trauma to the process of adjudication. It should be borne in mind that the culture of adjudication is stabilized when intellectual discipline is maintained and further when such discipline constantly keeps guard on the mind.” 10. Since the applicants are not appearing before the Trial Court and delaying the proceedings of the case, the Magistrate concerned shall pass necessary orders, in accordance with law, if they fail to appear before the Magistrate concerned within fifteen days from the production of certified copy of this order. 11. Present Criminal Miscellaneous application under Section 482 of Cr.P.C. stands dismissed. 12. A copy of this order be sent to the Magistrate concerned.