Court No. - 65
Case :- APPLICATION U/S 482 No. - 19962 of 2019 Applicant :- Smt. Babli Devi And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Anoop Trivedi Counsel for Opposite Party :- G.A.
Hon'ble Karuna Nand Bajpayee,J.
Learned counsel for the applicants is permitted to make necessary correction in the memo of application.
This application under Section 482 Cr.P.C. has been filed seeking quashing of the order dated 06.5.2019 as well as 03.7.2018 passed by learned Additional Chief Judicial Magistrate, Court No. 1, Ghaziabad in Case No. 430 of 2014, as well as the entire proceedings of the aforesaid case under Sections 420, 406, 323, 504, 506 I.P.C., arising out of Case Crime No. 1086 of 2013, P.S.- Loni, District- Ghaziabad.
Heard learned counsel for the applicants.
The only submission raised by learned counsel for the applicant is that though the matter was fixed up to hear the discharge application under Section 239 of Cr.P.C. and the opportunity in that regard was also given to the accused but on the last date fixed the accused could not appear in the court for the reasons of being badly indisposed and had also informed his counsel in that regard. But it appears that the counsel for reasons of his being stuck-up in some other case could not appear before the court when the case was called out. In this background the application moved on behalf of the applicants in that regard got dismissed.
Thereafter the application seeking recall of the order was moved which has also been rejected by the court below. Submission is that at the time of framing of charge it is the right of the accused of being heard and though the accused and his counsel must have been present in the court but if for some unavoidable circumstances they could not do so, the view taken by the court below is too strict and is likely to result in grave prejudice to the vested rights of the accused as they shall not be in a position to defend themselves adequately and avail their rights to seek discharge. Submission of learned counsel is that in such circumstances an opportunity of being heard may be given to the accused on the point of framing of charge/seeking discharge.
Heard learned A.G.A. and perused the record.
The perusal of the record shows that the order that has been passed by the court below cannot be said to be illegal and it is not difficult to understand that in the circumstances where for reasons of being remiss the accused or his counsel does not appear in the court, the courts do feel inclined to dismiss the application in non- prosecution. But this Court is of the view that the principles of natural justice and the concept of fairness sometimes make it expedient that an opportunity may be given to the accused whereby he may be heard by the court below before adjudicating upon some important facet of the trial. In the facts and circumstances of the case this Court in order to meet the ends of justice, if not for any other reason, deems it proper to provide one opportunity of being heard to the accused on the point of framing of charge/seeking discharge as that course appears to be more appropriate and in keeping with the first principles of fair play and natural justice in the peculiar facts and circumstances of the case.
It is being clarified that if the opportunity, as is being granted by this Court, is not availed on the first date fixed in this regard and the accused or their counsel does not appear in the court to avail this opportunity, no further opportunity in this regard shall be granted.
Accordingly, the impugned order dated 03.7.2018 passed by learned Additional Chief Judicial Magistrate, Court No. 1, Ghaziabad in Case No. 430 of 2014, under Sections 420, 406, 323, 504, 506 I.P.C., arising out of Case Crime No. 1086 of 2013, P.S.- Loni, District- Ghaziabad stands quashed.
If the charges have not already been framed, the applicants would have the liberty to appear through counsel for this purpose and move fresh application seeking discharge within ten days from today. If such application is moved, the court below shall fix up a date and hear the counsel on the point of framing of charge/discharge and then proceed further after passing appropriate order in accordance with law as it may deem fit.
The application stands allowed in aforesaid terms.
Order Date :- 30.5.2019 Naresh