Aftab And Another vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J

Though, the law postulates that the High Court should be slow in exercising its extraordinary jurisdiction under Section 482 of the Code of Criminal Procedure and the only latitude or the scope under which the said extraordinary power could be exercised by the High Court would be only when there happens to be an apparent abuse of process of courts of law.

In the case at hand, the basic genesis of the entire controversy was that a Case Crime No.610 of 2009, allegedly for commission of an offence under Sections 420, 323 and 504 of IPC was registered at P.S. Kotwali Manglaur, District Haridwar, as against the present applicant and the other co-accused persons who are the party in the connected C-482 application.

The grievance of the applicants is that as against the registration of the said criminal proceeding on 30.12.2009, in relation to an incident which is said to have chanced on 11.06.2003, in fact, the narration of story in the FIR happens to be in the shape of a civil dispute, where it is contended that the accused persons had agreed to sell the property as referred therein after having received the advance money which is said to have been extended by the complainant and despite of having accepted the advance money the sale deed of conveyance was not executed. Consequently it has resulted into the registration of the said FIR.

On perusal of the FIR, what is revealed is that the said FIR was lodged against as many as five accused persons, out of which, as it has been informed by the learned counsel for the applicant that three accused persons have already met with the sad demise.

In the present C-482 application, it is contended by the revisionist that though the dispute completely entailed a civil transaction which was entered between the parties, but yet the matter was investigated upon by the Investigating Officer on the registration of the Case Crime No.611 of 2009, and on conclusion of the investigation, a charge-sheet was submitted against the applicant and other deceased co-accused persons on 20.02.2010 of their involvement in commission of the offence being Charge-Sheet No.72/2010. It is on submission of the said charge-sheet before the Court of Judicial Magistrate-I, Roorkee, District Haridwar, that Criminal Case No.3875 of 2014, State vs. Aftab and others, under Sections 420, 323 and 504 IPC, has been registered in which the present applicants have been summoned by the impugned summoning order dated 24.02.2010. When the C-482 application was filed, this Court had granted an interim order to the effect that the proceeding before the court below would be adjourned on an application to be filed by the applicant and consequently, the same remain pending till date.

The complainant/respondent no.2 was directed to be noticed by this Court's order dated 24.12.2014, on which the steps were taken by the applicant and it is reported by the Registry on 28.01.2015 that respondent no.2 had been served personally through CJM, Saharanpur, but despite of an effective service, he has not put in appearance to contest the proceeding where a challenge is given by the petitioner to the cognizance order dated 24.10.2010 and the entire criminal proceedings which has been registered as Criminal Case No.3875 of 2014, State vs. Aftab and others (new Criminal Case No.808 of 2010) and the consequential summoning order dated 24.02.2010 by the applicant to the present C-482 application.

Considering the fact that on scrutiny of the FIR and pertaining to the set of allegations which has been levelled therein, they apparently constituted to be a dispute of a civil nature as it entails the claim of the complainant, which he has sought to be redressed by execution of sale deed, to press for getting the sale deed executed in pursuance to the alleged agreement for sale mentioned in the FIR and in lieu thereof, which the consideration is also contended to have exchanged hands between the parties i.e. seller and the purchaser of the property. Even if, we scrutinize the summoning order, the court of Judicial Magistrate, Roorkee he has rather passed cyclostyle order of summoning the accused persons even without an application of mind to the effect as to whether at all looking to the set of allegations whether the offences under Sections 420, 323 and 504 of IPC is at all made out against the applicant or not. Even for a moment, if it is presumed that after the submission of the charge-sheet, if at all, even the criminal offence is made out but since despite of service the respondent has not put in appearance to contest the matter on merits. It would be deemed that the entire controversy as raised by the complainant/respondent has now been diluted due to the death of three other co-accused persons who were also instrumental in getting the agreement for sale executed and in the exchange of the sale consideration.

Considering the fact that the C-482 application is not being opposed by the complainant/respondent by filing a counter affidavit and denying the pleadings despite service of notice and coupled with the fact that the nature of controversy involved is of a civil nature and also considering the fact that most of the co-accused persons have already met with the sad demise, even then too the agreement for sale cannot be put to execution in the absence of the other signatories to the agreement for sale these changed circumstances would render the agreement for sale as non executable, until and unless the dispute is resolved by the Civil Court.

In that view of the matter, this Court is of the view that in fact looking to the conduct of respondent no.2, he himself might have lost his interest in pursuing the matter which he intended to initiate by registering of the Case Crime No.611 of 2009.

Consequently, the C-482 application is allowed. The Criminal Case No.3876 of 2014, State vs. Aftab and others, under Sections 420, 323 and 504 of IPC registered at P.S. Kotwali-Manglaur, District Haridwar, and the consequential Criminal Case No.808 of 2010, State vs. Aftab and others, pending before the Judicial Magistrate, First Class Roorkee deserves to be quashed and the same is accordingly quashed.

Accordingly, the present C-482 application is allowed.