Nasir and Others vs State of U.P. and Another

Vijay Kumar Verma, J.—Heard Shri Gaurav Kakkar, advocate appearing for the applicant and A.G.A. for the State.

By means of this application u/s 482, Code of Criminal Procedure order dated 17.6.2009 passed by the Additional Session Judge Court No. 11, Moradabad in S.T. No. 24 of 2009 has been challenged.

By the impugned order, charge has been framed against the accused persons.

At the outset it is submitted by learned A.G.A. that order framing charge is revisable u/s 397, Code of Criminal Procedure and hence, instant proceeding u/s 482, Code of Criminal Procedure against the impugned order is misconceived and is not maintainable.

In response, it is submitted by learned Counsel for the applicant that order framing charge can be challenged in the proceeding u/s 482, Code of Criminal Procedure also.

Having given my thoughtful consideration to the rival submissions made by learned Counsel for the parties, I entirely agree with the contention of the learned A.G.A. that order framing charge can be challenged in revision u/s 397, Code of Criminal Procedure and hence, inherent power u/s 482, Code of Criminal Procedure cannot be invoked for challenging the order of framing charge. If any remedy is provided in any statute, then inherent power of the Court should not be invoked. The Full Bench of Rajasthan High Court has held in the case of Jarnail Singh Vs. State of Rajasthan, that order framing charge is not an interlocutory order within the meaning of Section 397(2), Code of Criminal Procedure and such order is amenable to the supervisory jurisdiction of the Court of Session and High Court u/s 397(1), Code of Criminal Procedure The Hon''ble Apex Court has observed in the case of K.K. Patel and Anr. v. State of Gujarat and Anr. (XLI)2000 ACC 351: 2000 (2) ACR 1658 (SC), that if by upholding the objections raised by a party and reversing the order under challenge, the entire proceedings pending against that party is terminated, then such order would not be an interlocutory order and revision against such order would not be barred u/s 397(2), Code of Criminal Procedure In present case also, if the objections raised by the applicants against impugned order are accepted and impugned order is set aside, then the proceedings of S.T. No. 24 of 2009 would come to an end. Hence, in view of the observations made by Hon''ble Apex Court in the case of K.K. Patel v. State of Gujarat (supra) and the law laid down by Full Bench of Rajasthan High Court in Jarnail Singh case (supra), the impugned order of framing charge can be challenged in revision u/s 397(1), Code of Criminal Procedure.

Consequently, the application u/s 482, Code of Criminal Procedure is hereby dismissed with liberty to file revision against the impugned order.