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HC dismisses petition u/s 561-A CrPc for quashing proceedings
HC imposes Costs Rs. 10, 000 to Petitioner
3/21/2013 1:43:41 AM

561-A No.26/2008.
Date of order :08.03.2013
Ravi Kumar Mahajan and others v. State and others


Hon'ble Mr. Justice Mansoor Ahmad Mir-Judge.
Appearing counsel:

For the petitioner (s) : Mr. Virender Bhat, Advocate.
For the respondent(s) : Mrs. Z.S.Wattali, Dy.AG.

1.Petitioners have invoked jurisdiction of this Court in terms of Section 561-A Cr.P.C. for quashment of entire proceedings drawn against them in FIR No.470/2000 of Police Station, Gandhi Nagar for the commission of offence under Section 420 Ranbir Penal Code (for short, RPC) and also sought setting aside of order dated 15.03.2003 passed by 2nd Additional Munsiff, Judicial Magistrate, First Class, Jammu in case titled State v. Parshotam Kumar and others on the grounds taken in the petition.
2. This petition is on the board of this Court for the last about five years. Petitioners sought interim direction, which came to be granted vide order dated 25.02.2008 by providing that proceedings before the trial Court qua the petitioners shall remain stayed. On perusal of the records of trial Court, it appears that the petitioners have, by all means, made to cause delay in the trial and succeeded to that effect on the following reasons.
3. The report was lodged in Police Station, Gandhi Nagar by one Vinod Kumar. Police swung into action and FIR No 470/2000 was registered in the said Police Station for the commission of offence punishable under Section 420 RPC and, accordingly, investigation in the case was conducted.
4. During investigation, police recorded the statement of thirteen witnesses and concluded investigation by presenting challan against the accused including the petitioners for the commission of offence punishable under Section 420 RPC.
5. All the accused except Ravinder Aggarwal appeared before the trial Court on 08.01.2001 and proceedings under Section 512 Code of Criminal Procedure (for short, Cr.P.C.) were drawn against said Aggarwal and file was posted for arguments on 24.02.2001. Right from 24.02.2001, all the accused had not caused appearance till 08.01.2002, and on 19.02.2002 accused except Romesh Chander were present. On 18.03.2002, Ramesh Chander was again absent and had sought exemption, which prayer was granted. Case was put up for arguments on 06.04.2002, and on 18.05.2002 arguments were heard and ultimately, charges were framed against the accused on 25.02.2003. It appears that in the intervening period, accused, namely, Baljinder Gill son of M.M.Gill was not present and proceedings under Section 512 Cr.P.C. were drawn against him and general warrants of arrest were also issued against him for securing his presence.
6. Trial Court after scanning the entire evidence passed a detailed order dated 15.03.2003.
7. Accused questioned order dated 15.03.2003 by medium of revision petition before 3rd Additional Sessions, Judge, Jammu after a lapse of three years, i.e., on 22.05.2006, which came to be dismissed on 13.08.2007.
After a lapse of more than six months, petitioners filed petition on hand on 11.02.2008, which came up for consideration before the Court on 25.02.2008 on which date notice was issued and proceedings before the trial Court qua the petitioners were stayed. It was also provided that trial Court shall be at liberty to proceed against the co-accused of the petitioners who are absconding, and proceedings under Section 512 Cr.P.C. have also been initiated against them. This is how the petitioners have given a slip to law.
8. I fail to understand that as to why the trial Court has not proceeded under Section 512 Cr.P.C against those accused, who have been declared absconders and drawn proceedings under Section 514 Cr.P.C. against the sureties, and passed necessary orders.
9. I have examined the relevant records and the statements recorded under Section 161 Cr.P.C. as also final charge sheet presented by the Investigating Officer before the trial Court and am of the considered view that prima facie at this stage case is made out against the petitioners and other co-accused for the commission of offence punishable under Section 420 RPC.
10. Framing of charges in an interlocutory order cannot be questioned by medium of revision which is taken away, and jurisdiction under Section 561-A Cr.P.C. cannot be invoked as substitute of such remedy.
11. It is worthwhile to mention here that the petitioners/accused have not questioned lodging of FIR, conducting of investigation and presentation of charge sheet till today. It appears that filing of this petition is just to cause delay in conducting the trial.
12. It would be appropriate to reproduce Section 561-A Cr.P.C herein:-
"561-A. Saving of inherent power of High Court.
Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
13. This remedy can be invoked/pressed into service or may be exercised in the following circumstances:-
i) To pass orders in order to give effect to an order passed under Cr.P.C;
ii) to prevent abuse of process of Court;
iii) to otherwise secure the ends of justice; and
iv) to prevent mis-carriage of justice.
14. The Apex Court in Som Mittal vs Govt. of Karnataka, reported in 2008 AIR SCW 1003, and M. N. Ojha vs Alok Kumar Srivastav, reported in AIR 2010 SC 201, while laying down the tests, has held that the remedy under Section 561-A Cr.P.C. (corresponding to Section 482 Cr.P.C of Central Code) and inherent power should not be exercised by the Courts in a routine manner, rather has to be exercised sparingly, carefully with caution and in rarest of rare cases. Court has not to function as a Court of appeal or revision.
15.This Court also in a case, Mian Abdul Qayoom vs State & others, 561-A Cr.P.C. 98/2010, decided on 31.12.2010, reported in 2011 (1) JKJ 470 (HC), has held that the Courts should refrain from making prima facie decision at the infancy stage or in a case where all the facts are incomplete and hazy.
16.Applying the aforesaid tests, it can be safely said that the petitioners have failed to carve out a case.
17.In the given circumstances, I am of the considered view that the trial Court has passed a well reasoned order and needs no interference. Accordingly, this petition is dismissed along with connected Cr.M.P. Petitioners are saddled with costs of Rs.10,000/-. Trial court is directed to proceed under Section 512 Cr.P.C. against those accused, who have been declared absconders, their sureties under Section 514 Cr.P.C. and also to conclude the trial within three months from today and report compliance.
18.Registry to send down the records along with copy of this order.

(Mansoor Ahmad Mir)
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