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2020 DIGILAW 202 (UTT)

Rupesh Goyal v. State Of Uttarakhand

2020-03-13

LOK PAL SINGH

body2020
JUDGMENT Lok Pal Singh, J. - By means of present criminal misc. application, moved under Section 482 of CrPC , applicants seek to quash the order dated 18.03.2015 passed by Judicial Magistrate 2 nd , Dehradun as well as the entire proceedings of criminal complaint case no.4746 of 2013 B.S. Vohra vs. Shri Rupesh Goyal. 2. Facts leading to the filing of the present case are that the applicants purchased 174 square metre of land from the respondent no.2 through power of attorney holder Digvijay Singh wherefor sale deed was executed in the office of Sub Registrar, Dehradun on 13.12.2011. After some time, applicants came to the respondent no.2 and requested that he is facing financial problem and that he wants to sale the land. On the request made by the applicants, respondent no.2 agreed to purchase the piece of land on the same sale consideration of Rs. 17.00 Lacs and in this regard respondent no.2 issued three cheques in favour of the petitioner amounting to Rs. 10,00,000/-, Rs. 2,00,000/- and Rs. 4,00,000/- respectively, totaling Rs. 16,00,000/-. Respondent no.2 alleged that after receiving the cheque, the applicants did not execute the sale deed and cheated the respondent no.2. Despite repeated requests, when applicants did not agree to mutate the name of respondent no.2, the respondent no.2 sent a notice dated 19.02.2013 through his counsel to the applicants requesting him either to execute the sale deed in his favour or to return the advance money. The notice was served upon the applicants on 19.02.2013. Thereafter, the applicants filed a complaint u/s 156(3) of Cr.P.C. before the court of Judicial Magistrate 2nd, Dehradun, under Sections 420, 406, 120-B of IPC , which was registered as case no.4746 of 2013 B.S. Bohra vs. Rupesh Goyal. Thereafter the statements of the respondent no.2 were recorded and summons were issued to the applicants. Thereafter, the parties were heard on framing of charges. Learned Judicial Magistrate II, Dehradun, after hearing the parties, held that there are sufficient grounds to frame charge against the applicants under Sections 406 of IPC and passed an order holding that prima facie case is made out against the applicants for framing of charge under Section 406 of IPC and ordered to frame charge accordingly. 3. I have heard learned counsel for the parties and perused the entire material brought on record. 4. 3. I have heard learned counsel for the parties and perused the entire material brought on record. 4. Learned Senior Counsel appearing for the respondent no.2/complainant would submit that the impugned order, being an interlocutory order, had to be challenged by the applicants in revisional proceedings before the concerned Sessions Judge. 5. Per contra, learned counsel for the applicants would submit that the criminal misc. application u/s 482 of CrPC is maintainable against the impugned order. In support, he would place reliance on a judgment of Honble Apex Court rendered in the case of Asain Resurfacing of Road Agency Private Limited and another vs. Central Bureau of Investigation, (2018) 16 SCC 299 . He would invite attention of this Court to para-27 and 28, which are reproduced hereunder:- '27. Thus, even though in dealing with different situations, seemingly conflicting observations may have been made while holding that the order framing charge was interlocutory order and was not liable to be interfered with under Section 397(2) or even under Section 482 CrPC, the principle laid down in Madhu Limaye still holds the field. Order framing charge may not be held to be purely an interlocutory order and can in a given situation be interfered with under Section 397(2) CrPC or 482 CrPC or Article 227 of the Constitution which is a constitutional provision but the power of the High Court to interfere with an order framing charge and to grant stay is to be exercised only in an exceptional situation. 28. We have thus no hesitation in concluding that the High Court has jurisdiction in an appropriate case to consider the challenge against an order framing charge and also to grant stay but how such power is to be exercised and when stay ought to be granted needs to be considered further. 37. Thus, we declare the law to be that order framing charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 CrPC or Article 227 of the Constitution. However, the said jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered. Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 CrPC or Article 227 of the Constitution. However, the said jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered. Thus considered, the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to reappreciate the matter. Even where such challenge is entertained and stay is granted, the matter must be decided on day-to-day basis so that stay does not operate for an unduly long period. Though no mandatory time-limit may be fixed, the decision may not exceed two-three months normally. If it remains pending longer, duration of stay should not exceed six months, unless extension is granted by a specific speaking order, as already indicated' 6. Before any further discussion, it would be apt to reproduce Section 227 of The Code of Criminal Procedure (for short, Cr.P.C.), which is as under:- '227. Discharge.- If, upon consideration of the record of the case and documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceedings against the accused, he shall discharge the accused and record his reasons for so doing.' 7. The law with regard to framing of charge is no more res integra having been settled in catena of decisions. Under Section 227 of Cr.P.C., the trial court has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. 8. Insofar as the judgment cited by learned counsel for the applicant is concerned, the ratio of the judgment is that the power of the High Court to interfere with an order framing charge and to grant stay is to be exercised only in an exceptional situation. 8. Insofar as the judgment cited by learned counsel for the applicant is concerned, the ratio of the judgment is that the power of the High Court to interfere with an order framing charge and to grant stay is to be exercised only in an exceptional situation. It is the settled law that the factual controversy need not be gone into by this Court in exercise of its inherent jurisdiction u/s 482 of CrPC. Inherent power could be exercised only when there is abuse of the process of court or where interference is absolutely necessary for securing the ends of justice. It must be exercised very sparingly where proceedings have been initiated illegally, vexatiously or without jurisdiction. 9. The applicants in the present case have failed to show that the proceedings initiated against them are abuse of process of law and that the interference of this Court is absolutely necessary for securing the ends of justice. In the case at hand, the trial court, after hearing the parties and on perusal of material available, has recorded its prima facie satisfaction before passing the order impugned. 10. In view of foregoing discussion, there is no merit in the present criminal misc. application u/s 482 Cr.P.C. Same is hereby dismissed. Interim order dated 19.08.2015 stands vacated.