C482/747/2009 of JAGDISH AND ORS Vs STATE AND ANR

IN THE HIGH COURT OF UTTARAKHAND ATNAINITAL

Criminal Misc. Application No. 747 of 2009 (Under Section 482 Cr.P.C.)

Jagdish and others

…..….…… Applicants

versus

State of Uttarakhand and another

......……. Respondents

Mr. Pratiroop Pandey, Advocate, present for the petitioners/applicants. Mr. P.S.Soun, learned AGA, assisted by Ms. Meena Bohara, Brief Holder, present for the State/respondent no.1. Mr. Siddhartha Bisht, Advocate, present for the respondent no. 2.

U.C. Dhyani, J. (Oral)

The applicants, by means of present application under Section 482 Cr.P.C., seek to quash the charge-sheet dated 31.12.2008 as well as cognizance order dated 27.01.2009 passed by the Judicial Magistrate, 1[st] Class, Roorkee, District Haridwar, in Criminal Case No. 377 of 2009 (case crime no. 443 of 2008), under Sections 420, 406 and 506 IPC, PS Kotwali Roorkee, District Haridwar.

2. Informant/respondent no. 2 lodged first information report against the accused-applicants on 24.10.2008, at PS Kotwali, Roorkee, which was registered as case crime no. 443 of 2008, under Sections 420, 406 and 506 IPC. After the investigation, charge-sheet against the accused-applicants was filed for the selfsame offences. Cognizance was taken and the accused-persons were

summoned to face the trial. Aggrieved against the same, present application under Section 482 Cr.P.C. was moved.

3. No counter affidavit has been filed on behalf of respondent no. 2. Respondent No. 1 has, however, filed the counter affidavit.

4. The sole contention of the learned counsel for the applicants is that the dispute is purely civil in nature and the remedy lies in the Civil Court.

5. The case of respondent no. 2 is that an agreement was executed between the respondent no. 2 and the applicants for consideration of Rs. 2 lacs for execution of sale-deed by the applicants in favour of respondent no. 2 in respect of piece of land. Since respondent no. 2 was an outsider, therefore, permission of the Government of Uttarakhand was required to facilitate the execution of sale-deed in his favour. The allegation of the respondent no. 2 is that the applicants did not cooperate in obtaining the permission from the Government of Uttarakhand.

6. Even if the entire allegations made by the respondent no. 2 in the first information report be taken to be true on it’s face value, no offence is made out against the applicants. Hon’ble Supreme Court in Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330 and Amit Kapoor vs. Ramesh Chander and another, (2013) 1 Supreme Court Cases (Cri) 986 has held that if the foundation of any offence is not laid against the applicants, the Court should

exercise it’s inherent jurisdiction to prevent the abuse of the process of the Court. This Court is inclined to agree with the contention of the learned counsel for the applicants that the dispute is purely of civil nature, no ingredients of any offence are made out and therefore, this Court should intervene in exercise of it’s inherent jurisdiction under Section 482 Cr.P.C.

7. Inherent jurisdiction under Section 482 of Cr. P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid in the Section itself. The facts of this case successfully pass those tests.

8. Application under Section 482 Cr.P.C. is, therefore, allowed. The charge-sheet dated 31.12.2008 as well as cognizance order dated 27.01.2009 passed by the Judicial Magistrate, 1[st] Class, Roorkee, District Haridwar, in Criminal Case No. 377 of 2009, under Sections 420, 406 and 506 IPC, PS Kotwali Roorkee, District Haridwar, are hereby quashed.

Kaushal

(U.C.Dhyani,J.) 30.09.2013