IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL MISC. APPLICATION NO.885 OF 2010 (U/s 482 of Cr.P.C.) Charanjeet Singh …………Applicant Versus Kali Ram …………Respondents Dated: September 22, 2010 Mr. I.P. Kohli, Advocate for the applicant HON. DHARAM VEER, J. By means of this application moved u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), the applicant has prayed to direct the Judicial Magistrate-I, Dehradun to expedite the Complaint Case No.2206 of 2010, Charanjeet Singh v. Kali Ram. Heard learned counsel for the applicant and perused the entire material in file. Learned counsel for the applicant drawn the attention of this Court towards Section 143(3) of the Negotiable Instruments Act, 1881 which reads as under:- “143(3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint.” In view of the above-said quoted section, learned counsel for the applicant argued that the trial court ought to have decided the above-said case by now, however, the above-said case is pending in the trial court from a long time due to which the applicant is facing hardship. 2 After considering the entire facts and circumstances of the case and on perusal of Section 143(3) of the Act as well as on consideration of the argument advanced by the counsel for the applicant, I am of the view that the court below should be directed to decide the case expeditiously. For the reasons as aforesaid, the application u/s 482 Cr.P.C. is disposed of with the direction to the Judicial Magistrate-I, Dehradun to decide the proceedings in Complaint Case No.2206 of 2010, Charanjeet Singh v. Kali Ram, pending before him expeditiously preferably within a period of six months. (Dharam Veer, J.) 22.9.2010 RG 3 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL MISC. APPLICATION NO.881 OF 2010 (U/s 482 of Cr.P.C.) Sunder Lal …………Applicant Versus State of Uttarakhand and another …………Respondents Dated: September 22, 2010 Mr. Dinesh Chauhan, Advocate for the applicant Mr. Amit Bhatt, Addl. GA for the State HON. DHARAM VEER, J. By means of this petition, moved under Section 482 of The Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioner/applicant has sought quashing of the order dated 8.9.2010 passed by Sessions Judge, Haridwar in Misc. Criminal Revision No.439/2010 as well as the order dated 31.8.2010 passed by Judicial Magistrate, Haridwar in Criminal Complaint No.808/2009, under Section 138 of the Negotiable Instruments Act, 1881 (for short, the Act). Heard learned counsel for the parties and perused the material available in file. The case of the applicant is that respondent no.2 Ashwani Kumar filed a complaint before Chief Judicial Magistrate, Haridwar against the applicant Sunder Lal on 16.7.2008 under Section 138 of the Act. On the basis of that complaint, a complaint case no.443 of 2008, Ashwani Kumar v. Sunderlal, was registered and the learned Second Special Judicial Magistrate, Haridwar vide his order dated 24.7.2008 took cognizance of the offence u/s 138 of the Act against Sanjay Gupta. In compliance of the summoning order, applicant Sunder Lal appeared in the trial court and thereafter he was examined u/s 251 Cr.P.C and 313 Cr.P.C. After that 4 the case was fixed for final arguments. According to the applicant Sunder Lal, at the time of preparing final arguments of the case, his counsel came to know that there is name of one Sanjay Gupta in the order of cognizance dated 24.7.2008 and not the name of Sunder Lal (present applicant). Thus, on 30.7.2010, the applicant moved an application before the trial court alleging that the order of cognizance was passed against one Sanjay Gupta and not against the applicant, therefore, the entire trial conducted against the applicant is illegal. Vide order dated 31.8.2010, learned Judicial Magistrate, Hardiwar, rejected the said application observing that the said mistake was a clerical mistake and it can be corrected u/s 362 Cr.P.C. and accordingly amended the name of the applicant Sunder Lal in place of Sanjay Gupta in his earlier order dated 24.7.2008. The applicant challenged that order in the court of Sessions but the same was also dismissed vide order dated 8.9.2010. Hence, the present petition. Learned counsel for the applicant argued that the Judicial Magistrate, Haridwar, under the garb of Section 362 of Cr.P.C., in fact, has altered his order dated 24.7.2008 which is not permissible in the eye of law. I do not find force in the argument put forth by learned counsel for the applicant. From a perusal of the complaint as well as the order dated 24.7.2008, it is ample clear that the error which was corrected by the learned Magistrate was only clerical in nature and this is permissible under Section 362 Cr.P.C. and so there is no infirmity in the order passed by learned Magistrate dismissing the application moved by the applicant and in the order of the revisional court affirming that order. From the above discussions and in the background of well-settled proposition of law, I am of the considered view that impugned order dated 8.9.2010 passed by Judicial Magistrate, Haridwar as well as the order dated 31.8.2010 passed by Sessions Judge, Haridwar are correct and justified and require no interference by this Court. 5 For the reasons recorded above, the application u/s 482 Cr.P.C., being devoid of merit, is dismissed in limine. (Dharam Veer, J.) 22.9.2010 RG 6 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Restoration Application No.705 of 2010 Miscellaneous Application No.3507 of 2010 In CRIMINAL MISC. APPLICATION NO.515 OF 2006 (U/s 482 of Cr.P.C.) Rajendra Prasad and another …………Applicants Versus State of Uttarakhand and another …………Respondents Dated: September 22, 2010 HON. DHARAM VEER, J. Mr. Pawan Mishra, Advocate for the applicants. Mr. Amit Bhatt, Additional Government Advocate for the State/respondent no.1. Ms. Geeta Parihar, Advocate for respondent no.2. This is restoration application no.705 of 2010 filed by the applicants for restoration of the petition u/s 482 Cr.P.C., which was dismissed for non-prosecution on 2.8.2010. The ground for absence on the date fixed by the Court is sufficiently explained in the affidavit accompanying the restoration application. The restoration application is allowed. The application u/s 482 Cr.P.C. stands restored to its original number. Supplementary counter affidavit filed by the applicants is taken on record. Miscellaneous application no.3507 of 2010 stands allowed accordingly. By means of this petition, moved under Section 482 of The Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioner/applicant has sought quashing of the order dated 24.5.2006 passed by Judicial Magistrate, IInd, Dehradun as well as the proceedings of criminal case no.1267 of 2003, Devendra 7 Kumar Mittal v. Ram Bharose and another, under Section 420 of The Indian Penal Code, 1860 (for short, IPC). Heard learned counsel for the applicant and perused the affidavit, counter affidavit and supplementary counter affidavit. Brief facts of the case are that respondent no.2 Devendra Kumar filed a complaint in the court of C.J.M., Dehradun on 14.12.1992 against the applicants with the allegations that on 21.8.1990 the applicants had executed a registered agreement to sell in favour of the complainant towards the sale of total 0.34 acre of land on the sale consideration of ` 50,000.00, in which it was decided that the applicants shall get the sale deed of land executed in favour of the complainant upto 31.12.1992, for which the complainant paid ` 30,000.00 as earnest money to the applicants. It is further alleged that on 18.10.1992 when the complainant went to see the land in dispute, he could know that the said land has been sold to one Dr. Anil Kumar by the applicants. Thereafter, the complainant went to enquire the matter from the applicants but they did not meet him. It is further alleged that from the very beginning it was the intention of the applicants to grab the money of the complainant and to committed fraud upon him. Thereafter, this complaint was filed before IInd Additional Munsif Magistrate, Dehradun before whom the complainant examined himself u/s 200 Cr.P.C. and u/s 202 Cr.P.C. Balwant Singh and Bhagwat Prasad were got examined. After hearing learned counsel for the parties and perusing the material available, learned IInd Additional Munsif Magistrate, vide his order dated 27.1.1993, dismissed the complaint u/s 203 Cr.P.C. Against the said order dated 27.1.1993, the complainant preferred a revision in the court of Sessions, which was allowed by Additional Sessions Judge, Ist, Dehradun, vide its judgment and order dated 1.10.1999 and the order dated 27.1.1993 was set aside and the trial court was directed to decide the complaint after summoning the applicants u/s 420 IPC. After remand of case, the statement of respondent no.2 was recorded u/s 244 Cr.P.C. before Special Judicial Magistrate, IInd, Dehradun and on 24.5.2006, learned Special Judicial Magistrate, IInd, Dehradun directed to frame the charge u/s 420 IPC against the 8 applicants and fixed the date for framing of charge on 16.6.2006. Against the said order dated 24.5.2006, the applicants have preferred the present petition u/s 482 Cr.P.C. before this Court. Learned counsel for the applicants argued that on the basis of the allegations made in the complaint, offence u/s 420 IPC is not made out against the applicants. I do not find force in the argument put forth by learned counsel for the applicants. From a perusal of the contents of the complaint as well as the statement recorded u/s 244 of Cr.P.C. and after going through other papers available in file, I am of the view that prima facie a case under section 420 IPC is made out against the applicants. From the above discussions, it reveals that the disputed questions of facts are involved in the instance case. This Court while exercising its jurisdiction u/s 482 Cr.P.C. cannot decide the factual disputes. That is a function of the trial court, who will decide the case after recording the evidence adduced before it and also on the basis of the appreciation of the evidence as per law. For the reasons recorded above, there is no force in the application. The C482 application is dismissed accordingly. (Dharam Veer, J.) 22.9.2010 RG 9 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Delay Condonation Application No.1013 of 2010 Restoration Application No.766 of 2010 In CRIMINAL MISC. APPLICATION NO.207 OF 2007 (U/s 482 of Cr.P.C.) Smt. Suman and three others …………Applicants Versus State of Uttarakhand and another …………Respondents Dated: September 22, 2010 Mr. Manoj Bisht, Adv. holding brief of Mr. Ajay Veer Pundir, Adv. for the applicants Mr. Amit Bhatt, Addl. GA for the State Mr. Manish Arora, Advocate for respondent no.2 HON. DHARAM VEER, J. Mr. Manoj Bisht, Adv. i/b Mr. A.V Pundir, Advocate for the applicants. Mr. Amit Bhatt, Addl. GA for the State. Mr. Manish Arora, Advocate for respondent no.2. This is Delay Condonation Application No.1013/2010 for condonation of delay in moving the restoration application No. 766/2010 for restoration of the petition u/s 482 Cr.P.C., which was dismissed for non-prosecution on 26.7.2010. For the reasons stated, the delay condonation application is allowed. Delay in filing the restoration application no.766/2010 is condoned. Also heard on restoration application. The ground for absence on the date fixed by the Court is sufficiently explained in the affidavit accompanying the restoration application. The restoration application is allowed. The application u/s 482 Cr.P.C. stands restored to its original number. Heard. 10 By means of this petition, moved under Section 482 of The Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioner/applicant has sought quashing of the summoning/cognizance order dated 2.3.2007 under Sections 323/504/506 of The Indian Penal Code, 1860 (for short, IPC) passed by Judicial Magistrate, Roorkee in case no.481 of 2007. Heard learned counsel for the applicant and perused the material available in file. Brief facts of the case are that respondent no.2 filed a complaint before J.M., Roorkee against the applicants stating therein that the complainant (respondent no.2) is a retired 4th Class employee from Army and is of 72 years. Lalit Kumar Pahwa was the only son of the complainant and applicant no.1 is the widow of his son and other applicants are father, mother and uncle of applicant no.1. It is further alleged that on 2.2.2006 at about 8 PM when the complainant was outside his house then all the applicants beaten him with the intention to grab the property of the complainant. With the same averments, the present complainant was filed by the complainant. In support of the complaint, the complainant examined himself u/s 200 Cr.P.C. and u/s 202 Cr.P.C., Mahendra Singh and Asharam were got examined. After hearing learned counsel for the parties and perusing the material available, learned Judicial Magistrate, Roorkee, vide order dated 17.5.2006, dismissed the complaint under Section 203 Cr.P.C. Against the said order dated 17.5.2006, the complainant preferred a revision before Sessions Judge, Haridwar, who, vide his judgment and order dated 25.11.2006, allowed the revision and set aside the order dated 17.5.2006 and remanded the matter back to Judicial Magistrate, Roorkee for consideration of the matter afresh. Thereafter, the learned Judicial Magistrate, Roorkee, vide order dated 2.3.2007 took the cognizance of the offence under Sections 323, 504 and 506 IPC and also summoned the applicants. Being aggrieved by the said summoning order dated 2.3.2007, the applicants preferred the present petition u/s 482 Cr.P.C. before this Court. 11 From a perusal of the contents of the complaint and after going through other papers available in file, I am of the view that prima facie a case under the aforesaid sections is made out against the applicants. Even otherwise, the trial court will decide the case after recording the evidence of the complainant as well as of the accused persons and also on the basis of the appreciation of the evidence as per law. It is well settled that while exercising jurisdiction under section 482 of the Cr.P.C., this Court would not ordinarily embark upon the enquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial court. If the allegations made in the complaint are taken at their face value and accepted in their entirety, I am of the view that the applicants have rightly been summoned by the trial court. The trial court will decide the case after recording the evidence adduced before it. I am of the view that in the present case there is neither any miscarriage of justice nor any abuse of process of court. For the reasons recorded above, there is no force in the application. The C482 application is dismissed accordingly. Interim order dated 31.8.2007 stands vacated. (Dharam Veer, J.) 22.9.2010 RG 12 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL MISC. APPLICATION NO.885 OF 2010 (U/s 482 of Cr.P.C.) Charanjeet Singh …………Applicant Versus Kali Ram …………Respondents Dated: September 22, 2010 Mr. I.P. Kohli, Advocate for the applicant HON. DHARAM VEER, J. By means of this application moved u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), the applicant has prayed to direct the Judicial Magistrate-I, Dehradun to expedite the Complaint Case No.2206 of 2010, Charanjeet Singh v. Kali Ram. Heard learned counsel for the applicant and perused the entire material in file. Learned counsel for the applicant drawn the attention of this Court towards Section 143(3) of the Negotiable Instruments Act, 1881 which reads as under:- “143(3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint.” In view of the above-said quoted section, learned counsel for the applicant argued that the trial court ought to have decided the above-said case by now, however, the above-said case is pending in the trial court from a long time due to which the applicant is facing hardship. 13 After considering the entire facts and circumstances of the case and on perusal of Section 143(3) of the Act as well as on consideration of the argument advanced by the counsel for the applicant, I am of the view that the court below should be directed to decide the case expeditiously. For the reasons as aforesaid, the application u/s 482 Cr.P.C. is disposed of with the direction to the Judicial Magistrate-I, Dehradun to decide the proceedings in Complaint Case No.2206 of 2010, Charanjeet Singh v. Kali Ram, pending before him expeditiously preferably within a period of six months. (Dharam Veer, J.) 22.9.2010 RG 14 RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL MISC. APPLICATION NO.750 OF 2006 (U/s 482 of Cr.P.C.) C.S. Mehta …………Applicant Versus State of Uttarakhand and another …………Respondents Dated: August 30, 2010 HON. DHARAM VEER, J. By means of this petition, moved under Section 482 of The Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioner/applicant has prayed to delete the remarks made against the petitioner by Sessions Judge, Pauri Garhwal in order dated 11.9.2006. Heard Sri L.P. Naithani, Senior Advocate with Sri B.S. Negi, learned counsel for the applicant and Sri Amit Bhatt, Additional Government Advocate for respondent nos.1 and 2. Learned senior counsel appearing for the petitioner submitted that the present application has been filed only for the limited purpose of expunging certain remarks/strictures made by learned Sessions Judge, Pauri Garhwal against the petitioner, without giving any opportunity of hearing to him, which is against the principle of natural justice. He further argued that the remark of learned Sessions Judge would create a serious consequence on the future career of the petitioner. From a perusal of the impugned order dated 11.9.2006 passed by Sessions Judge, Pauri Garhwal in Bail Application 15 No.77 of 2006, it transpires that while disposing the bail application of accused Virendra Singh Rawat, learned Sessions Judge, Pauri Garhwal, without given any opportunity to the petitioner, made certain castigating remarks against the petitioner and Finance officer, which reads as under:- “This entire scenario is enough to speak in volumes with documentary evidence collected by Investigation Officer that active conniving cooperation of the Registrar and Financial Officer of the University giving a long rope to Sri Rawat for committing these gross financial irregularities was not for nothing but for some consideration on several counts best known to the duo. That’s why the Investigation Officer in his letter dated 18.8.2006 to the Vice Chancellor of the University has requested for administrative action against these two big officers i.e. Financial Officer Sri Soban Singh Nagnyal and Registrar Sri Chandra Singh Mehtra. Perhaps it is for the reason that without the green signal of higher authorities, he felt himself helpless to take these officers under the clutches of long hand of the law.” It is a settled law that no strictures can be passed without giving any opportunity of hearing. In the instant case, learned Sessions Judge has not given any reasoning on the basis of which he came to the above conclusion. Further, neither any notice was issued to the petitioner nor any opportunity of hearing was given to him. For the reasons recorded above, I am of the view that the strictures/remarks made by learned Sessions Judge, Pauri Garhwal against the petitioner, behind his back is totally uncalled for and is not warranted. I, therefore, have no hesitation to order expunction of the remarks made in above-quoted paragraph of the impugned order. Above- quoted paragraph is expunged from the order dated 16 11.9.2006 passed in Bail Application No.77 of 2006. The C482 application is allowed to the above extent only. Interim order dated 22.9.2006 stands vacated. (Dharam Veer, J.) 30.8.2010 RG 17 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) CRIMINAL MISC. APPLICATION NO.1010 of 2006 (U/s 482 of Cr.P.C.) Harish Chandra Sharma …………Applicant Versus State of Uttarakhand and another …………Respondents (2) CRIMINAL MISC. APPLICATION NO.982 of 2006 (U/s 482 of Cr.P.C.) Madho Singh Rawat …………Applicants Versus State of Uttarakhand and another …………Respondents (3) CRIMINAL MISC. APPLICATION NO.1011 of 2006 (U/s 482 of Cr.P.C.) Sambhu Prasad Sati …………Applicants Versus State of Uttarakhand and another …………Respondents Dated: August 12, 2010 Mr. Tapan Singh, Advocate for the applicants Harish Chandra Sharma and Sambhu Prasad Sati Mr. Lokendra Dobhal, Advocate for the applicant Madho Singh Rawat Mr. Amit Bhatt, Addl. GA for the State Mr. D.C.S. Rawat, Advocate for respondent no.2 HON. DHARAM VEER, J. Since all these applications u/s 482 Cr.P.C. have been filed against the same charge sheet and proceedings of Criminal Case No.313 of 2006, hence, all these applications are being disposed of by this one and common order. 18 By means of these applications, moved under Section 482 of The Code of Criminal Procedure, 1973 (for short, Cr.P.C.), the petitioners/applicants have sought quashing of the charge sheet as well as proceedings of Criminal Case No.313 of 2006, State v. Madho Singh, relating to offences punishable under Sections 420, 467, 468 and 471 of the Indian Penal Code, 1860 (for short, the IPC). Heard learned counsel for the parties and perused the affidavit and counter affidavit. Brief facts of the case are that respondent no.2 moved an application before Sub Divisional Magistrate, Kotdwar, District Pauri Garhwal stating therein that on 30.1.2006 when he perused the Khatuni of Village Devrampur, he came to know that by preparing forged will of his father and aunt, the applicant Madho Singh Rawat in collusion with the officers of Tehsil Kotdwar, during the lifetime of his father and aunt, has mutated his (Madho Singh Rawat) name over the land of his father and aunt. On the basis of this application, the FIR was lodged against the applicants u/Ss 420/468/471 of IPC. After lodging of the FIR, the matter was investigated by the I.O. and on completion of investigation, the I.O. submitted charge sheet against the applicants under Sections 420, 467, 468 and 471 of IPC, on the basis of which, learned Magistrate summoned the applicants and thereafter criminal proceedings were initiated against them. Against the said charge sheet and criminal proceedings, the applicants have preferred the present applications u/s 482 Cr.P.C. before this Court. From a perusal of the contents of the complaint and after going through other papers available in file, I am of the view that prima facie a case under the aforesaid sections is made out against the applicants. Even otherwise, the trial court will decide the case after recording the evidence of the complainant as well as of the accused and also on the basis of the appreciation of the evidence as per law. It is well settled that while exercising jurisdiction under section 482 of the Cr.P.C., this Court would not ordinarily embark upon the enquiry as to whether the evidence in question 19 is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial court. If the allegations made in the complaint are taken at their face value and accepted in their entirety as well as on the basis of the evidence collected by the I.O. during investigation, I am of the view that the charge sheet is rightly submitted against the applicants and the criminal proceedings are accordingly rightly initiated against them. The trial court will decide the case after recording the evidence adduced before it. I am of the view that in the present case there is neither any miscarriage of justice nor any abuse of process of court. For the reasons recorded above, there is no force in the applications. The C482 applications, being devoid of merit, are dismissed accordingly. Interim orders dated 12.12.2006 and 1.12.2006 stand vacated. (Dharam Veer, J.) 12.8.2010 RG 20 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL MISC. APPLICATION NO.225 OF 2007 (U/s 482 of Cr.P.C.) Swami Hans Prakash and four others …………Applicants Versus State of Uttarakhand and another …………Respondents Dated: August 12, 2010 Mr. Anurag Bisaria, Advocate for the applicants Mr. Amit Bhatt, Addl. GA