Heard Sri Rahul Dubey, learned counsel for the revisionists and Sri B.B. Upadhyay, learned A.G.A. for the State.
Sri Arvind Srivastava, learned counsel for the opposite party No. 2 is not present even when the matter is taken up in the revised list.
The present revision has been preferred against the order dated 26.03.2015 passed by Judicial Magistrate, Court No. 11, Jhansi in Case No. 1409 of 2014, arising out of Case Crime No. 99 of 2012 (State Vs. Dr. Emenual Josef Oriel and others) under Section 406 I.P.C., Police Station Nawabad, District Jhansi.
Learned counsel for the revisionists has argued that initially, the matter was agitated before this Court in Criminal Misc. Writ Petition No. 14484 of 2013 (Harendra Kumar Masih Vs. State of U.P. & 7 others) in which the order dated 16.05.2013 was challenged by which the Additional Sessions Judge, Court No. 14, Jhansi had allowed the Criminal Revision No. 307 of 2012 (Dr. Emenual Josef Oriel and others Vs. State of U.P. and another) and had set aside the order dated 27.11.2012 passed by the court below and had remanded the matter back to be decided afresh after hearing the parties against which the said writ petition was filed which was disposed of vide order dated 18.07.2013. The said order is quoted herein below:-
" Heard learned counsel for the parties and perused the record.
By means of this writ petition, the petitioner has prayed for quashing the order dated 16.05.2013 passed in Criminal Revision No. 307 of 2012.
The revisional court has observed that there are no allegation of entrustment of property against the remaining accused except Dr. Emenual Josef Oriel, so there can be no breach of trust by other accused persons namely respondents no. 3 to 8. In these circumstances, the trial court would hear the parties counsel on the point of framing of charge for the offence punishable under section 406 IPC against Dr. Emenual Josef Oriel.
With this observation, the petition is finally disposed of."
It is argued that subsequently, the court below by misreading the order dated 18.07.2013 passed by this Court has passed the impugned order whereby it has observed that this Court has given an observation that offence against the respondent Nos. 3 to 8 are made out and has as such rejected the application for discharge filed by the accused Nos. 1 and 2, under Section 406 I.P.C. and accused Nos. 3 to 8, under Section 120-B I.P.C. and had directed to frame charges under the said Sections.
Learned counsel for the revisionists has further argued that one of the accused Dr. Emenual Josef Oriel / revisionist No. 1 in the Criminal Revision No. 307 of 2012 had filed an Application U/S 482 No. 26700 of 2016 which was dismissed vide order dated 06.10.2016 passed by this Court. The said order is quoted herein below:-
"Heard learned counsel for the applicant and learned A.G.A. for the State.
Present application has been filed for quashing the order dated 30.07.2016 passed by the Additional Civil Judge (Senior Division), Court No. 1/Additional Chief Judicial Magistrate, Jhansi in Case No. 882 of 2014 arising out of Case Crime No. 99 of 2012, under section 406 IPC, PS Nawabad, district Jhansi, whereby charges have been framed against the applicant.
Submission of learned counsel for the applicant is that the prosecution is false and there is no evidence worth name against the applicant.
I have considered the submissions and perused the record.
Admittedly, the discharge application of the applicant has been rejected by the court below against which the applicant has approached this Court by filing Application u/s 482 Cr.P.C. which is stated to be still pending. The present application is against the framing of charge. There was no interim order operating against rejection of discharge application.
Insofar as the framing of charge is concerned, it is the settled law that at this stage inadequacy of the evidence is not to be considered. Further, interference with the order of framing of charge is only an exception. In the present case, I do not find any exceptional circumstances so as to exercise powers under Section 482 Cr.P.C. A reference may be made in this regard to the decisions of Hon'ble Apex Court in Radhey Shyam Vs. Kunj Bihari, 1989 Supp. (2) SCC 572 and State of Punjab Vs. Kasturi Lal, (2004) 12 SCC 195.
Accordingly, present application stands dismissed."
Against the said order dated 06.10.2016, a Special Leave to Appeal (Crl.) No. 531 of 2017 (Dr. Emmanueal Joseph Oriel Vs. State of U.P. and another) was filed before the Apex Court which was disposed of and the proceedings against the said accused were ordered to be closed vide order dated 06.10.2017. The said order is quoted herein below:-
" Heard learned counsel for the parties.
We are satisfied that there is no justification to proceed with the criminal proceedings against the petitioner. Accordingly, the said proceedings shall stand closed.
The special leave petition is, accordingly, disposed of.
Pending application (s), if any, shall also stand disposed of."
Learned counsel for the revisionists has argued that since the revisionist Dr. Emenual Josef Oriel, accused No. 1 in the charge-sheet and the evidence as collected during investigation was seen by the Apex Court and the proceedings were ordered to be closed in so far as he is related, the proceedings against the accused No. 2 who is the revisionist No. 2 and the other revisionists who are the accused No. 3 to 8 in the first information report against whom charge-sheet under Section 120-B I.P.C. has only been submitted and since the accused No. 1 with whom there was a dispute of title with the first informant going on, the other revisionists needed to be discharged as there was no evidence whatsoever coming forth against them.
Learned A.G.A. opposed the prayer but could not dispute the fact as the order has been passed by the Apex Court in the matter of Dr. Emenual Josef Oriel by which the proceedings against him has been closed.
The order impugned is set aside.
The present revision is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 4.2.2021 AS Rathore (Samit Gopal,J.)