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2018 DIGILAW 946 (JK)

Kusum v. Bansi Lal

2018-11-30

SANJAY KUMAR GUPTA

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JUDGMENT : SANJAY KUMAR GUPTA, J. 1. In the instant petition, the petitioners seek quashing of order dated 06th October, 2010, passed by the learned Chief Judicial Magistrate, Kathua, whereby the petitioners along with respondent Nos. 2 to 7 have been held erroneously liable to be charge-sheeted for commission of offences under Sections 452, 147 and 427 RPC. The petitioners also seek quashing of the orders dated 09th August, 2011 and 07th September, 2011, whereby reviewing the predecessor's orders dated 25th March, 2011, 26th April, 2011 and 18th May, 2011, whereby petitioners were required to be heard on the question of charge. The petitioners have challenged the aforesaid impugned orders on the grounds that they were not heard at the time of framing of charge by the Trial Court. The Complaint of respondent No. 1, on the face of it, is unbelievable, warranting no action against the petitioners. There is no allegation of criminal trespass against the petitioners. 2. Learned counsel for the petitioners has reiterated all the grounds taken in the memo of this petition, whereas learned counsel for the respondents has supported the orders impugned. 3. I have considered the rival contention of learned counsel for the parties. 4. From the perusal of the Trial Court order (Annexure-H), it is evident that a criminal complaint under Sections 147, 149, 452, 427, 148, 504 and 506 RPC was filed by the respondents against ten accused. On 22nd May, 2002, the Court took cognizance under Sections 506, 147 and 427 RPC. Accordingly, the accused persons were called. Thereafter, evidence of the complainant was recorded and finally on 06th October, 2010, the evidence of the complainant was closed and the Court below passed the order dated 06.10.2010, which reads as follows:- “Heard the counsels for the parties. Complainant in person present. Accused except exempted through their counsel present. Heard Ld. Counsel at length. Ld. Counsel for the complainant has submitted that the case is made out for charging the accused for commission of offences under Sections 452/147/427 RPC. Whereas Ld. Counsel for the accused has submitted that there is delay of one month in lodging the complaint and there is also a dispute regarding the spot as is reflected from the evidence on record. Perusal of the evidence on record shows that the commission of offence under Sections 452/147/427 RPC by the accused. Whereas Ld. Counsel for the accused has submitted that there is delay of one month in lodging the complaint and there is also a dispute regarding the spot as is reflected from the evidence on record. Perusal of the evidence on record shows that the commission of offence under Sections 452/147/427 RPC by the accused. The submission of learned counsel for the accused that the complaint is delayed can only be discussed, while hearing final arguments. At this stage, I have just to seek prima-facie whether commission of offences made out or not. Keeping in view the evidence on record, show commission of offence under Section 452/147/427 RPC. Accused are liable to charge-sheeted for commission of offences under Sections 452/147/427 RPC. Let the file come up for charging the accused on 06.11.2010. All exempted accused shall remain present before the Court on next date of hearing. Order issued.” 5. After passing of the aforesaid order, it appears that inadvertently on 08.01.2011, Court fixed the case for arguments on the question of charge. Thereafter, the same order was repeated on 25th March, 2011 and 26th April, 2011. The Court below took cognizance against the petitioners/accused in case under Sections 506, 147 and 427 RPC. Offence under Section 147 RPC is a warrant trial case. The trial of warrant-cases in a Complaint has been given in Chapter XXI. It provides that after the Court takes cognizance in a warrant trial case, complainant has to produce the evidence. After the evidence of the complainant is completed, the Court has to proceed under Sections 253 or 254 of Cr.P.C. which read as follows:- “253. Discharge of accused (1) If upon taking all the evidence referred to in Section 252 and making such examination (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if un-rebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this Section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case, if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. 254. (2) Nothing in this Section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case, if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. 254. Charge to be framed when offence appears proved If, when such evidence and examination have been taken and made, 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.” 6. From the bare perusal of the aforesaid Sections, it is evident that after the evidence is completed by the complainant, then Magistrate has to consider the evidence available in the file and after applying judicial mind, if he finds that no case against the accused has been made out, which if un-rebutted, would warrant his conviction, the Magistrate shall discharge him. But at the same time, if 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. 7. In both eventuality the Magistrate has to apply his judicial mind. 8. In the instant case, by virtue of impugned order dated 06th October, 2010, the Court has passed the order for framing of charge under Sections 452, 147 and 427 RPC after going through the evidence on record and applying his judicial mind. 9. All the grounds taken in petition are after thought and without any basis; the impugned order clearly mentions that order has been passed after hearing counsel for both the parties at length, so argument of counsel for petitioner that he was not heard, is without any basis. Another argument of counsel for petitioners that subsequent to passing of impugned order, the court below on 25th March, 2011, 26th April, 2011 and 18th May, 2011, has again passed the order whereby it was directed that case be listed for argument on question of charge, is not tenable. Another argument of counsel for petitioners that subsequent to passing of impugned order, the court below on 25th March, 2011, 26th April, 2011 and 18th May, 2011, has again passed the order whereby it was directed that case be listed for argument on question of charge, is not tenable. Because inadvertently subsequent orders have been passed by court below, which cannot give any benefit to the petitioners; procedural laws are meant for administration of justice and not to thwart the justice delivering system. Procedural order can be rectified at any stage of proceeding, because these are irregularity which can be corrected at any stage. 10. The conduct of petitioners seems to prolong the completion of trial of complaint, because complaint has been filed on 22.05.2002 way back more than sixteen years ago; the order of framing of charge was passed on 06.10.2010 i.e. eight years ago; this matter is also pending before this court since last more than seven years. 11. In view of above, this petition is dismissed. File of trial court is sent back with direction to complete rest of trial preferably within six months from the date of receipt of record along with copy of this order.