Arun Kumar Gupta vs State Of U.P. & Anr.
2021 Latest Caselaw 2875 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

										   			                High Court of Judicature at Allahabad
 
Lucknow Bench, Lucknow
 
                               ____________________________________
 
						                    Reserved "AFR"
 

 
Case :- U/S 482/378/407 No. - 3104 of 2019
 

 
Applicant :- Arun Kumar Gupta
 
Opposite Party :- State Of U.P. & Anr.
 
Counsel for Applicant :- Amit Chaudhary,Sukumar Srivastava
 
Counsel for Opposite Party :- G.A., Arun Sinha,Siddhartha Sinha
 
__________________________________________
 

 
Hon'ble Mrs. Saroj Yadav,J.

1. This petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.) has been filed by the petitioner Arun Kumar Gupta (complainant) for quashing the order dated 17.10.2018 passed in Criminal Case No. 0101210/2014, arising out of Case Crime No. 515/2014, (State of UP Versus Alok Kumar Gupta), under Sections 465, 420, 468, 471, 504, 506, 406 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.), Police Station Hazratganj, District Lucknow and seeking a direction for early disposal of the matter pending before the Chief Judicial Magistrate, Lucknow.

2. In short, the facts necessary for disposal of this petition are as follows:

The petitioner purchased a Flat i.e. Flat No. 405 in the Lotus Petals Apartments, 6/1-B Mall Avenue, Lucknow from the opposite party no. 2 (Alok Kumar Gupta) in the year 2011 and the same has been registered in the name of the petitioner (complainant). The petitioner, however, did not take possession of the said Flat after execution of the sale deed as some finishing work was still left to be done. That as per the assurance of opposite party no. 2-Alok Kumar Gupta, was to be completed by him in a short span of time. In the month of August, 2014, the petitioner/ (complainant) found that the said Flat was in illegal possession of two persons namely Sri Achal Mehrotra and Sri Rajiv Bajpai. The petitioner approached the opposite party no. 2 (Alok Kumar Gupta) and requested him to hand over the possession of the aforesaid Flat but he refused to do so. On further inquiry, the petitioner came to know that Alok Kumar Gupta (opposite party no. 2), Sri Achal Mehrotra and Sri Rajiv Bajpai have connived to defraud the petitioner (complainant). In such circumstances, the petitioner (complainant) lodged an F.I.R. against the above mentioned persons, registered as Case Crime No. 515/2014, under Sections 465, 420, 468, 471, 504, 506, 406 IPC, Police Station Hazratganj, District Lucknow. After investigation, charge sheet was submitted by the Investigating Officer and learned Chief Judicial Magistrate, Lucknow took cognizance vide order dated 01.12.2014. Against that order, the opposite party no. 2- Alok Kumar Gupta filed a petition under Section 482 Cr.P.C. bearing Criminal Misc. Case No. 2066 of 2015 (Alok Gupta Vs. State of U.P and others) before this Court and this Court vide order dated 23.07.2018 was pleased to stay the coercive measures against the accused-applicant and quash the order dated 01.12.2014 passed by the learned Chief Judicial Magistrate and directed the learned Chief Judicial Magistrate, Lucknow to pass the order afresh. In compliance of the order of the High Court dated 23.07.2018, learned Chief Judicial Magistrate, Lucknow passed a fresh order dated 14.08.2018 taking cognizance and summoned the accused-applicant to face trial for the offence under Sections 465, 420, 468, 471, 504, 506, 406 IPC and fixed the date 10th September, 2018 for appearance of the accused. The accused did not appear on the said date but on the next date fixed i.e. 15.10.2018, he moved an application for recall of the order dated 14.08.2018 of taking cognizance. Learned C.J.M. Lucknow on the application so moved passed an order dated 17.10.2018 staying the order dated 14.08.2018 passed by him. Learned Chief Judicial Magistrate, Lucknow also ordered for recalling of the process issued against the accused till further orders. Being aggrieved with the said order, the present petition has been filed by the petitioner (complainant). In this petition, an inteirm order was passed by the coordinate bench of this Court vide order dated 25.04.2019 staying the operation and implementation of order dated 17.10.2018 and proceedings in Criminal Case No. 0101210/2014, arising out of Case Crime No. 515/2014, under Sections 465, 420, 468, 471, 504, 506, 406 IPC, Police Station Hazratganj, Lucknow. Again, the order so passed was modified by this Court on 30.05.2019 to the following effect:

"Till the next date of listing, the operation and implementation of order dated 17.10.2018 shall remain stayed."

3. Heard the counsel for both the sides.

4. Learned counsel appearing on behalf of the petitioner (complainant) argued that the impugned order dated 17.10.2018 passed by the learned Chief Judicial Magistrate, Lucknow is illegal, arbitrary and without jurisdiction because in the Cr.P.C., there is no provision enabling the Magistrate to stay its own final order. Section 362 Cr.P.C. prohibits that no Court shall alter or review any judgment or final order disposing a case after signing the same except to correct a clerical or arithmetical error, hence, the impugned order should be quashed.

5. On the other hand, Shri Siddhartha Sinha, learned counsel appearing on behalf of the opposite party no. 2 argued that in the order of taking cognizance dated 14.08.2018, wrong fact was mentioned that the accused applicant moved an application and he was heard, so the opposite party no. 2 moved an application for recall of order and learned Magistrate stayed the execution of the order because the order was illegal, hence this petition should be dismissed.

6. Considered the submission of both the sides and perused the record. As far as the alteration or review of the order disposing the case or judgment is concerned, Section 362 Cr.P.C. provides as under:

"362. Court not to alter judgment.-- Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."

7. In the case of Sanjeev Kapoor Versus Chandana Kapoor & Others, Criminal Appeal No. 286 of 2020 (Arising out of SLP (CRL) No. 1041 of 2020), Hon'ble Apex Court has held as follows:

"The judgments of this Court as noted above, summarised the law to the effect that criminal justice delivery system does not cloth criminal court with power to alter or review the judgment or final order disposing the case except to correct the clerical or arithmetical error. After the judgment delivered by a criminal Court or passing final order disposing the case the Court becomes functus officio and any mistake or glaring omission is left to be corrected only by appropriate forum in accordance with law. "

8. It is settled legal position that Criminal Court after passing the judgment or final order disposing the case can not alter or review the same except to correct the clerical or arithmetical error. By the impugned order, learned Chief Judicial Magistrate has stayed the order of taking cognizance passed by him on 14.08.2018, which is not permissible under the provisions of Code of Criminal Procedure, hence the impugned order deserves to be quashed. The order dated 17.10.2018 passed by the learned Chief Judicial Magistrate, Lucknow is hereby quashed and this petition under Section 482 Cr.P.C. is, accordingly, allowed.

9. As in the present matter F.I.R. lodged and charge-sheet was filed in the year 2014 and the case is still at initial stage, after a lapse of about six years, the concerned Court below is directed to expedite the proceedings of the case pending before it in accordance with law.

Order Date :- 23.2.2021

Arun