Uttarakhand High Court
Atul Sharma vs State Of Uttarakhand on 19 August, 2025
2025:UHC:7314
Reserved on : 14.07.2025
Delivered on : 19.08.2025
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Misc.Application No.2852 of 2019
Atul Sharma ......Applicant
Vs.
State of Uttarakhand .....Respondent
with
Criminal Misc. Application No. 2847 of 2019
Deepak Sharma ......Applicant
Vs.
State of Uttarakhand .....Respondent
Presence:
Mr. R.P. Nautiyal (Sr. Adv.) assisted by Mr. Pavan Km. Nath, learned
counsel for the Applicant.
Mr. Rakesh Negi, learned brief holder, for the State.
Hon'ble Ashish Naithani, J.
1. The present criminal miscellaneous applications under Section
482 of the Code of Criminal Procedure have been instituted by two co-
accused persons, namely Deepak Sharma and Atul Sharma, assailing
the orders passed by the learned Chief Judicial Magistrate, Chamoli,
and affirmed in revision by the learned Sessions Judge, Chamoli,
whereby their respective applications for discharge were rejected.
1
Criminal Misc. Application No. 2852 of 2019, Atul SharmaVs State of Uttarakhand with Criminal Misc. Application
No. 2847 of 2019, Deepak SharmaVs State of Uttarakhand
Ashish Naithani J.
2025:UHC:7314
2. Both Applicants seek quashing of the orders refusing discharge,
as well as the entire proceedings arising out of Crime No. 211 of 2007
registered at Police Station Joshimath, District Chamoli, under Sections
166, 167, 218 and 420 of the Indian Penal Code.
3. The genesis of the criminal proceedings lies in the construction of
a hospitality project"Cliff Top Club Resort"by M/s Ski and Snow
Resorts Pvt. Ltd., a company engaged in the business of tourism and
hospitality, and having one of its operational projects located in Auli,
District Chamoli.
4. As per the facts, the land for the project was obtained lawfully
from private parties through registered sale and lease deeds and had
been converted to non-agricultural status under Section 143 of the U.P.
Zamindari Abolition and Land Reforms Act by a competent authority.
The company had subsequently registered the resort under the Sarai Act
and undertook construction work on the site.
5. During the relevant period, administrative action had been
initiated against the resort for alleged violations under the U.P.
Regulation of Building Operations Act. While the Prescribed Authority
had initially directed demolition of certain constructions, the said order
was reversed on appeal by the Controlling Authority on 28.07.1999.
6. Several years later, an FIR was lodged on 02.12.2007 by the then
Assistant Collector, 1st Class, Joshimath, alleging that the Applicants, in
their capacity as officers of the said company, had misused official
processes and connived in obtaining approvals by suppressing material
facts and submitting false representations, thereby attracting offences
under Sections 166, 167, 218 and 420 IPC. A chargesheet was
submitted on 06.09.2008, and cognizance was taken by the learned
Magistrate on 11.11.2008 in Criminal Case No. 1172 of 2008, State v.
Atul Sharma and others.
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Criminal Misc. Application No. 2852 of 2019, Atul SharmaVs State of Uttarakhand with Criminal Misc. Application
No. 2847 of 2019, Deepak SharmaVs State of Uttarakhand
Ashish Naithani J.
2025:UHC:7314
7. Both Applicants moved discharge applications before the learned
Chief Judicial Magistrate, Chamoli, which were dismissed by orders
dated 18.09.2019. The revision petitions filed against these orders,
namely Criminal Revision No. 28 of 2019 preferred by Deepak Sharma
and Criminal Revision No. 27 of 2019 preferred by Atul Sharma, were
also dismissed by the learned Sessions Judge, Chamoli, vide separate
but similarly reasoned orders dated 28.11.2019. These orders are now
under challenge in the present petitions filed under Section 482 CrPC.
8. Learned Senior counsel for the Applicantssubmits that the entire
prosecution is vitiated by malice and administrative overreach. It is
contended that the Applicants were functionaries of the company and
acted solely in their official capacity without any personal benefit or
ulterior intent. The land on which the resort was constructed was
lawfully acquired and converted for non-agricultural use, and all
permissions were either granted or were being pursued in the regular
course of business. The allegation that they acted with mens rea to
commit cheating or falsify official records is wholly unfounded.
9. It is further submitted that the construction activities that are now
sought to be criminalized had already been adjudicated in a quasi-
judicial forum under the Building Regulation Act, and the order of the
Prescribed Authority directing demolition was set aside by the
Controlling Authority. The Applicants cannot be prosecuted afresh for
matters that have already been resolved under special enactments.
Moreover, the ingredients of Sections 166 (public servant disobeying
law with intent to cause injury), 167 (public servant framing incorrect
documents), 218 (fabricating records to save a person from
punishment), and 420 IPC (cheating) are not even remotely made out
on the face of the FIR or the charge sheet.
3
Criminal Misc. Application No. 2852 of 2019, Atul SharmaVs State of Uttarakhand with Criminal Misc. Application
No. 2847 of 2019, Deepak SharmaVs State of Uttarakhand
Ashish Naithani J.
2025:UHC:7314
10. Learned counsel urge that no material has been brought on record
by the investigating agency to show that the Applicants acted
dishonestly, prepared false records, or had any personal gain from the
project. It is also pointed out that the chargesheet is conspicuously
silent on how the Applicants allegedly fabricated documents or misused
official capacity. It is argued that in the absence of foundational facts
establishing the statutory ingredients of the alleged offences,
continuation of the trial would be nothing but an abuse of the process of
law.
11. Learned Brief Holder for the State vehemently opposed the
present petitions. He submits that the FIR, the charge sheet, and the
accompanying documents clearly disclose the commission of
cognizable offences under Sections 166, 167, 218, and 420 IPC against
the Applicants. It is argued that the Applicants, being responsible
officers of M/s Ski and Snow Resorts Pvt. Ltd., had knowingly
suppressed material facts and obtained approvals and benefits in
violation of law, thereby attracting the penal provisions invoked.
12. It is contended that the land in question, though converted to non-
agricultural use, was initially subject to restrictions under the U.P.
Zamindari Abolition and Land Reforms Act, and the Applicants
deliberately misused the process to benefit their company. By
submitting misleading documents and false representations before the
revenue and building regulation authorities, the Applicants induced the
authorities to permit construction and to recognize the transfer of land
in their favour. Such acts, according to the State, prima facie constitute
the offence of cheating under Section 420 IPC and preparation of false
records under Sections 167 and 218 IPC.
13. The learned Brief Holder further submits that the stage of
discharge under Section 239 CrPC does not require a meticulous
4
Criminal Misc. Application No. 2852 of 2019, Atul SharmaVs State of Uttarakhand with Criminal Misc. Application
No. 2847 of 2019, Deepak SharmaVs State of Uttarakhand
Ashish Naithani J.
2025:UHC:7314
evaluation of the evidence or a determination of guilt. The Court is only
to consider whether the material on record, taken at face value,
discloses the ingredients of the alleged offences. In the present case, the
charge sheet supported by the FIR and official records provides
sufficient prima facie material to justify the continuation of criminal
proceedings. The delay in lodging the FIR has been explained as
arising from the discovery of irregularities during official scrutiny and
the necessity of departmental approvals for initiating prosecution.
14. It is also submitted that the Applicants cannot take shelter under
the earlier quasi-judicial orders passed under the U.P. Regulation of
Building Operations Act. Administrative or appellate findings under a
special enactment do not bar the initiation of criminal proceedings if
the ingredients of the offence are otherwise made out. The plea of
parity with co-accused who were acquitted or discharged is also
opposed on the ground that the Applicants held managerial and
decision-making roles in the company, thereby bearing greater
responsibility for the alleged illegalities.
15. The State thus prays that the petitions under Section 482 CrPC be
dismissed, as the Applicants have failed to demonstrate that the
proceedings are an abuse of the process of law or that the allegations,
taken at their face value, do not constitute any offence.
16. Heard learned counsel for the Parties and perused the records.
17. The fundamental grievance of the Applicants revolves around the
alleged absence of material disclosing the commission of any
cognizable offence, and the mechanical manner in which the learned
Magistrate proceeded to take cognizance and reject the discharge
applications. It is settled law that at the stage of discharge, what is
required is a prima facie evaluation of whether the allegations, even if
taken at face value, disclose the ingredients of the offence alleged.
5
Criminal Misc. Application No. 2852 of 2019, Atul SharmaVs State of Uttarakhand with Criminal Misc. Application
No. 2847 of 2019, Deepak SharmaVs State of Uttarakhand
Ashish Naithani J.
2025:UHC:7314
18. The discharge order must reflect application of mind to the
material in the chargesheet, and the rejection of such application must
be based on cogent reasons. Similarly, in revision, the Sessions Court
must test the legality and propriety of the Magistrate's decision, which
in the present case appears to have been done routinely without
addressing the core objections of the Applicants.
19. The charges levelled against the Applicants under Sections 166,
167, 218, and 420 IPC require distinct and specific factual foundations.
20. Section 166 IPC contemplates a public servant who knowingly
disobeys any direction of law with the intent to cause injury to any
person. Section 167 penalises a public servant who, with the intent to
cause injury, frames an incorrect document or record.
21. Section 218 relates to the preparation or framing of incorrect
records by a public servant with intent to save a person from
punishment or to conceal the commission of an offence.
22. Section 420 IPC, which deals with the offence of cheating and
dishonestly inducing the delivery of property, requires a clear act of
deception at the inception of a transaction, resulting in wrongful gain to
one and corresponding loss to another.
23. From the contents of the FIR, chargesheet, and the documents
enclosed, this Court finds no material particulars demonstrating that the
present Applicants either exercised statutory or quasi-judicial functions
at the relevant time or acted with an intent to injure, cheat, or defraud.
The allegations appear vague and sweeping, and there is a conspicuous
absence of specific overt acts attributable to either of the Applicants
that would fall within the contours of the statutory offences cited.
24. The FIR essentially proceeds on the premise that the resort
construction was carried out without appropriate sanction or in
violation of zoning regulations. However, the record shows that the
6
Criminal Misc. Application No. 2852 of 2019, Atul SharmaVs State of Uttarakhand with Criminal Misc. Application
No. 2847 of 2019, Deepak SharmaVs State of Uttarakhand
Ashish Naithani J.
2025:UHC:7314
matter had already been adjudicated under the U.P. Regulation of
Building Operations Act by competent authorities.
25. The order of demolition passed by the Prescribed Authority was
reversed by the Controlling Authority in an appeal dated 28.07.1999,
thereby legitimizing the construction, at least from the standpoint of the
said enactment.
26. What is more troubling is the inordinate delay in the lodging of
the FIR, which was filed in December 2007, nearly a decade after the
completion of the project and the relevant administrative proceedings.
The State has furnished no explanation for this delay, nor is there any
indication that new material surfaced that would have necessitated
criminal prosecution at such a belated stage. The delay, coupled with
the nature of the allegations, strongly suggests an administrative
dispute being given a criminal colour.
27. It also bears mention that criminal proceedings against another
co-accused in the same matter have already been quashed by a
coordinate bench of this Court, on an identical set of allegations and
factual backdrop. While such quashing does not, by itself, bind the
present Court, it creates a legitimate expectation of parity of treatment
unless distinguishing factors are shown. The Respondent-State has
pointed out none.
28. In the cumulative circumstances, this Court is persuaded to hold
that allowing the prosecution to continue against the present Applicants
would serve no ends of justice and would instead amount to
perpetuating an abuse of the criminal process.
ORDER
In view of the above discussion, both Criminal Miscellaneous
Applications under Section 482 CrPC are allowed.
7
Criminal Misc. Application No. 2852 of 2019, Atul SharmaVs State of Uttarakhand with Criminal Misc. Application
No. 2847 of 2019, Deepak SharmaVs State of Uttarakhand
Ashish Naithani J.
2025:UHC:7314
The impugned orders dated 18.09.2019 passed by the learned
Chief Judicial Magistrate, Chamoli, rejecting the Applicants’ discharge
applications, and the revisional orders dated 28.11.2019 passed by the
learned Sessions Judge, Chamoli in Criminal Revision Nos. 27 and 28
of 2019, are hereby quashed.
No order as to costs.
(Ashish Naithani J.)
SHIKSHA
Digitally signed by SHIKSHA BINJOLA
DN: c=IN, o=HIGH COURT OF UTTARAKHAND,
ou=HIGH COURT OF UTTARAKHAND,
SB
2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c
24b5aa08b09c12f21822fbd40bf639b1c,
BINJOLA
postalCode=263001, st=UTTARAKHAND,
serialNumber=FD80A2D028949381C52796A5
42D7FF0A9BED00E67B5283D205F18FE29BDF
5DD9, cn=SHIKSHA BINJOLA
Date: 2025.08.19 16:45:45 +05’30’
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Criminal Misc. Application No. 2852 of 2019, Atul SharmaVs State of Uttarakhand with Criminal Misc. Application
No. 2847 of 2019, Deepak SharmaVs State of Uttarakhand
Ashish Naithani J.
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