Uttarakhand High Court
20 November vs State Of Uttarakhand And Another on 20 November, 2024
Author: Vivek Bharti Sharma
Bench: Vivek Bharti Sharma
2024:UHC:8646
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc Application No. 613 of 2024
20 November, 2024
Tushar Lohani --Petitioner
Versus
State of Uttarakhand and another --Respondents
Presence:-
Mr. Tribhuwan Chandra Pandey, Advocate for the petitioner.
Mr. Pratiroop Pandey and Mr. Devender Singh, learned Assistant
Government Advocate for the State/respondent no.1.
Mr. Sandeep Tiwari, learned counsel for respondent no.2 through V.C.
Hon'ble Vivek Bharti Sharma, J.(Oral)
This C528 petition is filed for quashing the
impugned judgment and order dated 20.09.2024 passed
by the learned District and Sessions Judge, Champawat
in Criminal Revision No.23 of 2024 (Annexure No.6 to the
petition) as well as order dated 18.06.2024 passed by the
learned Judicial Magistrate, Tanakpur, District
Champawat in Criminal Case No.900 of 2023 (Annexure
No.4 to the petition) and further to quash the entire
proceedings of Criminal Case No.900 of 2023 (Case Crime
No.148 of 2022), 'State Vs. Tushar Lohani' under Sections
406, 506 of I.P.C. pending before the Court of learned
Judicial Magistrate, Tanakpur, District Champawat.
2. Brief facts of the case are that respondent
no.2/complainant lodged FIR No.148 of 2022 under
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Sections 406, 506 of I.P.C.(as the Penal Code then was) at
Police Station Tanakpur, District Champawat (Annexure
No.1 to the petition) against the petitioner/accused; that,
vide order dated 18.06.2024, the Judicial Magistrate,
Tanakpur, District Champawat disallowed the
application for discharging the petitioner/accused and he
was directed to appear for framing of the charges under
Section 406, 506 of I.P.C. on 19.07.2024.
3. Counsel for the petitioner/accused would
submit that necessary ingredients of the offence as
defined under Section 406 of I.P.C. are not made out
from the evidences placed along with the charge sheet,
therefore, revision was filed in the court of District and
Sessions Judge Champawat; that, the District and
Sessions Judge Champawat by the impugned order dated
20.09.2024 dismissed the revision of the petitioner
/accused, hence, this petition has been filed.
4. Counsel for the petitioner/accused would rely
upon the judgments as quoted in the judgment of the
Trial Court on the point of entrustment and would
submit that petitioner /accused has taken ₹35,22,132/-,
however, respondent no.2/complainant alleges that a
total amount of ₹39,95,200/- has been given to the
petitioner/accused.
5. The allegations in the FIR are that the
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petitioner/accused took this money by stating that he
has contacts in a Housing Society in Delhi and, therefore,
he can purchase a residential apartment by exercising
his influence. The petitioner /accused claimed that he
would get an apartment for respondent
no.2/complainant at a very low price and would secure
admission for the son of respondent no.2/complainant in
the Guru Govind Singh Indrapratha University for which
some admission charges are to be paid and, for this
purpose, respondent no.2/complainant gave him
₹20,000/-. However, the petitioner/accused never got
any residential apartment transferred in the name of
respondent no.2/complainant.
6. The order of the Trial Court is very detailed
order and it has considered all the aspects of the
entrustment on which the charges against the accused
have to be framed.
7. In the considered view of this Court at the time
of framing charges the Court has only to see that whether
any prima facie case is made out from the evidences
placed along with charge sheet against the accused or
not. For this purpose, the Trial Court is not required to
make detailed inquiry into all the aspects as it is done at
the time of passing final judgment.
8. The allegation of entrustment of amount to the
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petitioner/accused is present in the FIR itself and the
petitioner /accused himself admits that he has taken
₹35,22,132/- albeit not for purchasing house for
respondent no.2/ complainant but for the purpose of
marriage of the daughter of respondent
no.2/complainant. All these facts are matter of evidence
which cannot be considered at the time of framing of
charges. The Trial Court is not supposed to make inquiry
about possible defence of accused at the time of framing
of charges. The judgment of the Trial Court and the
Revisional Court of District and Sessions Judge,
Champawat is correct in facts and law. Therefore, there
is no force in this petition.
9. It is trite that the powers under Section 528
BNSS have to be exercised sparingly, carefully and with
caution and only to prevent abuse of process of any
Court or otherwise to secure ends of justice. In view of
this Court, this is not the fit case where the powers u/s
528 BNSS should be exercised.
10. In view of the above, this Court is not inclined
to interfere in the impugned orders. Accordingly, present
C528 petition lacks merits and the same is hereby
dismissed in limine.
11. From perusal of the order of the Trial Court, it
is evident that on 18.06.2024, the application for
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discharge was disallowed and date was fixed for
appearance of accused for framing the charges.
It is observed that in many cases as a matter of
practice whenever an application for discharge is made
by an accused and the same is disallowed, the next date
for framing of charges is fixed, even if accused is present
before the Court.
In the considered view of this Court when the
Trial Court has considered all the facts and law at the
time of hearing on the application for discharge and
passes order rejecting it, then the charges can be framed
on the same day. Fixing the date for this purpose is an
unnecessary wastage of time and delays the trial.
Therefore, all the Trial Courts of the State are directed to
secure the presence of the accused and to frame charges
on the same day when application for discharge is
disallowed.
12. Let a copy of this judgment be circulated to all
the Trial Courts of the State for compliance.
(Vivek Bharti Sharma, J.)
20.11.2024
SS
SUKHBANT SINGH
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND,
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postalCode=263001, st=UTTARAKHAND,
serialNumber=2D8B71B8D8E345F6B7F95B1DD4FB4BEBD2B7D72C42261361AED33172F1
52148D, cn=SUKHBANT SINGH
Date: 2024.11.26 11:12:17 +05'30'
