Rajesh Kumar & Anr vs The Union Of India Through ...
2021 Latest Caselaw 3445 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
              Cr.M.P. No. 139 of 2019
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       Rajesh Kumar & Anr.                   ...              Petitioners
                                Versus
      The Union of India through C.B.I./A.C.B.        ... Opposite Party
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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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      For the Petitioners     : Mr. R.S. Mazumdar, Sr. Advocate
                              : Mr. J.S. Singh, Advocate
      For the C.B.I.          : Mr. Rohit Sinha, Advocate
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      Order No.09 Dated- 15.09.2021
      I.A. No.1171 of 2021

Heard the parties through video conferencing. It is submitted by the learned Senior Advocate appearing for the petitioners that this interlocutory application has been filed with a prayer to amend the prayer of criminal miscellaneous petition no.139 of 2019 by substituting the original prayer made therein with a prayer that the order dated 07.01.2020 passed in R.C. Case No.10(A)/2015-R by learned Special Judge, C.B.I., Ranchi may be quashed whereby and where under, charges under Section 13 (2) read with Section 13 (1) (e) of the Prevention of Corruption Act, 1988 have been framed against the petitioner no.1 and the charges under Section 109 of Indian Penal Code and under Section 13 (2) read with Section 13 (1) (e) of the Prevention of Corruption Act, 1988 have been framed against the petitioner no.2.

It is next submitted that during the pendency of criminal miscellaneous petition no.139 of 2019 vide order dated 07.01.2020 in the said case, separate charges have been framed against the two petitioners. It is next submitted that therefore, the original prayer for quashing the entire criminal proceeding including the order taking cognizance dated 31.08.2018 needs to be substituted with the said prayer by way of amendment.

In response to the preliminary objection raised by the learned counsel for the C.B.I. that an application under Section 482 Cr.P.C. is not maintainable in view of the fact that the order framing charge is a revisable order, learned Senior Advocate appearing for the petitioners relied upon the judgment of Hon'ble Supreme Court of India in the case of Asian Resurfacing of Road Agency (P) Ltd. & Anr. v. CBI reported in (2018) 16 SCC 299, paragraph no.37 of which reads as under:-

"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. Xxxxxxxxxx(emphasis supplied)

Learned Senior Advocate also relied upon the judgment of Hon'ble Supreme Court of India in the case of Sanjay Kumar Rai vs. State of Uttar Pradesh & Anr. reported in 2021 SCC ONLINE SC 367, paragraph no.16 of which reads as under :-

"16. The correct position of law as laid down in Madhu Limaye (supra), thus, is that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are therefore not affected by the bar of Section 397 (2) of CrPC. Xxxxxx(emphasis supplied)

and submits that in view of the authoritative pronouncement of law by the Hon'ble Supreme Court of India, it cannot be said that order framing charge is a final order hence, the petition under Section 482 Cr.P.C. is maintainable.

Learned counsel for the C.B.I. opposes the prayer.

Considering the settled principle of law enunciated by the Hon'ble Supreme Court of India in the case of Asian Resurfacing of Road Agency (P) Ltd. & Anr. v. CBI (supra) and Sanjay Kumar Rai vs. State of Uttar Pradesh & Anr. (supra), this Court is of the considered view that there is no absolute bar for entertaining the application under Section 482 Cr.P.C. challenging the order framing charge against an accused.

Accordingly, this interlocutory application is allowed and the prayer is substituted with the original prayer for quashing the entire criminal proceeding including the order taking cognizance dated 31.08.2018.

This interlocutory application is disposed of.

(Anil Kumar Choudhary, J.)

Cr.M.P. No. 139 of 2019

Learned Senior Advocate appearing for the petitioners prays for two weeks' time to file a consolidated criminal miscellaneous petition containing the new prayer instead of the old prayer.

List this criminal miscellaneous petition after two weeks.

(Anil Kumar Choudhary, J.) Sonu/Gunjan-