Desh Deepak Sharma & Anr v. Harsh Khosla

1. The present petition till para 9 is verbatim same as Crl. M.C. No' Zgggl10ll fi}ed by the Petitioner and that is how in the first paragraph it is stated that the Petitioners are filing the present petition to challenge and for quashing of the order dated 24th August, 2011 passed by Shri Rajinder Kumar, learned Metropolitan Magistrate declining the application of the petitioners for quashing and closing of cases though the prayer in the petition is for quashing the order dated 8th Septemb et,2011 in complaint CRL.M.C.3086/2011 Page 1 0f 6 2011:DHC:12572 Case No. 589/1 of 2010 entitled as Harsh Khosla vs. Desh Deepak Sharma. It is further stated that subsequent to the dismissal of the application on 3'd September,20ll the Petitioners moved an application for putting the matter for final arguments as there was no occasion for cross-examination of the Petitioners under Section 313 Cr. P.C. as there was no evidence on record. Learned Metropolitan Magistrate issued notice of the said application to the Respondent while clirecting the matter to be taken up at 11.30 a.m. on 8th Septembe r, 20lI for disposal of the application. When the counsel for the Petitioners reached the Court on 8th September,20Il he was informed that the application has been disposed of. On this the learned counsel for the Petitioners has alleged to have pointed out that the case was fixed for disposal of the Petitioners' application and he was yet to be heard in the matter. According to the learned counsel the learned Metropolitan Magistrate then fixed the matter though the learned Metropolitan Magistrate had already dismissed the matter and there was no point in arguing the same. The Petitioners were also not permitted inspection and it was directed that they can inspect the record at 4.00 p.m. When the Petitioners inspected the record at 1.00 p.m. on 8th September, 20II no order dismissing the application was found on record. According to the Petitioners the attitude of CRL.M.C. 3086/2011 Page[2] of 6 the learned Metropolitan Magistrate was contrary to the cannons of justice. Thus by the present petition the Petitioners seek quashing of the order dated 8th September, 2011 passed by the learned Metropolitan Magistrate.

2. The orders passed by the learned Metropolitan Magistrate on 8th September,20ll are reproduced as: - "CC No. 58911 8. 59011 PS Paschim Vihar 08.09.2011 At 11.30 AM. Present: ComPlainant in Person. Both the accused in person. Reply filed by the complainant to the application filed by the accused persons. Copy supplied. Passover for 5 minutes sought by the accused persons on the ground that the counsel is coming. sd/- (Rajinder Kumar) MM-07 (West)lDelhi. At 11.35 AM Present: ComPlainant in Person. Both the accused in person. Again Passover sought. Heard. At this stage, it is submitted by the complainant that the application has been filed by the accused p"rronr just to delay the proceedings and the same be dismissed Heard. Record perused. Vide order dated 24.08.2011, an application filed by the accused persons for closing the present case, already stands dismissed and thereafter the matter was fixed for SA. CRL.M.C. 3086/2011 Page 3 of[6] \ Accordingly, no ground made out to allow the application. Hence, the same is dismissed. At this stage, Passover sought by the accused persons on the ground that the counsel is coming. Be awaited by 12.00 Noon. sd/- At 11.s0 AM At this stage, file taken up again on the appearance of both the parties. Present: Complainant in person. Both the accused along with counsel. At this stage, the Ld. Defence counsel is apprised about the order of dismissal of the application. At this stage, it is submitted by the Ld. Defence counsel that he wish to seek a remedy against the order of dismissal of his application without listening his arguments. It is submitted by the Ld. Defence counsel that the accused persons do not intend to answer the question U/s 313 Cr.P.C. at this stage. Submission allowed. Put up for SA on 16.09.2011at 11.30 AM. sd/- 08.09.2011"

3. Thus it is apparent that at 11.30 a.m. the learned counsel was not present and a Passover was sought. When the matter was taken up at 11.35 a.m. learned counsel for the accused, that is, the Petitioners was still not CRL.M.C. 3086/2011 available and after hearing the parties and perusing the record, the learned Trial Court dismissed the application of the Petitioners as according to him it was just to delay the proceedings. Despite dismissal of the application a Passover was sought by the accused persons and the matter was kept for

12.00. At 11.50 A.M. learned counsel for the Petitioners/accused reached. He was apprised of the order of the dismissal when the learned counsel for the Petitioners stated that he wishes to seek a remedy against the order of dismissal of his application without being heard. He further stated that the accused persons do not intend to answer the question under Section 313 Cr.P.C. at this stage. A perusal of the order sheet and the application would show that by the application filed on 3'd September,20ll which was fixed for reply and arguments on 8th September, 2OII at 11-.30 A.M., the Petitioners sought the same relief which was sought by the earlier application on which the order of dismissal was passed on 24'h August, 20II. The prayer in the application was for putting up the matter for final arguments as there was no occasion for examination of the Petitioners under section 313 Cr.P.C. as there was no evidence on record. This issue had already been adjudicated by the learned Trial Courl while dismissing the earlier application on24th August, 2011. CRL.M.C. 3086/2011 t

4. I have reproduced the entire facts as stated by the learned counsel for the petitioners and the order sheet only to show that the conduct of the petitioners is to frustrate the trial by moving one application after another and to avoid recording of the statement under Section 313 Cr.P.C. being recorded. This Court exercising its jurisdiction under Section 482 Cr.P.C. will not permit the ulterior manifestation of the petitioners of not permitting the trial Court to proceed as per the procedure laid down in the Criminal Procedure Code. One after another applications are being filed and consequent to their dismissal petitions are being filed before this Court only to scuttle the due process of the law. The present petition is a clear abuse of the process of the court and hence deserves to be dismissed. Petition and application are dismissed. IMre ' MUKTA GUPTA.

J. SEPTEMBER 1.5,20II tvn'