Chhatrapal vs State Of U.P. And Another
2022 Latest Caselaw 4910 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 66
 

 
Case :- CRIMINAL REVISION No. - 2154 of 2022
 

 
Revisionist :- Chhatrapal
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Diwakar Tiwari
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Budhwar,J.

Heard Sri Diwakar Tiwari, learned counsel for the revisionist as well as Sri P.K. Bhardwaj, learned AGA for the State.

This is a revision under Section 397/401 Cr.P.C. instituted by the revisionist herein challenging the judgment and order dated 16.11.2021 passed by learned Additional Chief Judicial Magistrate, Court No.5, Aligarh in Criminal Case No.1016 of 2008 (State Vs. Chhatrapal), arising out of Case Crime No.190 of 2008, under Sections 420, 467, 468, 471 IPC, Police Station Gabhana, District Aligarh pending in the Court of learned Additional Chief Judicial Magistrate, Court No.5, Aligarh.

Learned counsel for the revisionist has invited the attention of the Court towards annexure no.1, page 33 of the paper book so as to contend that the opposite party no.2 who happens to be the complainant has lodged FIR before the Police Station Gabhana, Aligarh being FIR No.117 of 2008 dated 22.08.2008 under Sections 420, 467, 468, 471 IPC relatable to commission of the offence dated 11.12.1995 against the revisionist and one Saudan Singh with an allegation that the uncle of the complainant being Chotey was the owner of the Gata No.74, rakba 0.588 hactare and the same was recorded in his name and he expired on 18.09.1986 and consequent to the death of the uncle of the complainant, the revisionist along with one Gurudayal, Chatrapal and Sheodan committed forgery and on the basis of a forged unregistered will dated 11.12.1995 entered into the possession also got recorded their name in the revenue records on 7.1.2020. It has been further alleged that the proceedings were also initiated and drawn by the opposite party no.2/complainant which was decided in favour of the complainant on 28.2.2005 holding that the will itself was forged and the recording of the name in the revenue records was also illegal and appeal to the said extent was also instituted by the revisionist fraction which came to be dismissed on 26.12.2005 against which further appeal has been preferred which according to the learned counsel for the applicant is pending consideration and it is listed on 19.7.2022. It has been further alleged in the FIR that by virtue of the order dated 26.12.2006 passed by the revenue court, direction was issued to lodge proceedings against the revisionist fraction. It has been further alleged in the FIR that the revisionist has also threatened to kill complainant. Learned counsel for the revisionist has invited the attention of the Court towards annexure no.2, page 40 of the paper book so as to contend that on 31.08.2008, charge sheet has been submitted against the revisionist and others and thus the revisionist had no option but to prefer an application under Section 482 Cr.P.C being application under Section 482 Cr.P.C. No.151 of 2010 in which on 24.1.2008 following order was passed:-

"This is an application for recall of the order dated 12.1.2017 by which the application under Section 482 Cr.P.C. was dismissed for want of prosecution.

Cause shown for non-appearance is sufficient.

Restoration application is allowed and the order dated 12.1.2017 is hereby recalled and the application under Section 482 Cr.P.C. is restored to its original number."

"Heard learned counsel for the applicants, Shri Moti Lal, learned counsel for opposite party no. 2, learned Additional Government Advocate for the State and perused the record of the case.

This application under section 482 Cr.P.C. has been filed for quashing the charge-sheet dated 31.8.2008 of Criminal Case No. 10/6 of 2008 (State Vs. Chatarpal), arising out of Case Crime No. 190 of 2008, under Sections 420, 467, 468, 471 I.P.C., Police Station Gabhana, District Aligarh.

From the perusal, it appears that on the basis of material collected by the I.O., the prima facie offence is made out, therefore, there is no illegality in filing the charge-sheet. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this court under Section 482 Cr.P.C. Only in cases where the Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, this power may be exercised to prevent the abuse of process of miscarriage of justice.

Accordingly, prayer of the applicants is refused.

However, in view of the submissions, considering the facts and circumstances of the case, it is also provided that in case the applicants move an application for discharge through counsel within two weeks, the same shall be disposed of by the trial court by a speaking order in accordance with law within two weeks thereafter.

For a period of four weeks or till the disposal of application, which ever is earlier, no coercive action be taken against the applicants.

With the aforesaid direction, this application is disposed of."

Thereafter a discharge application has also been preferred by the revisionist before the court below which has been eventually rejected by the court below by virtue of the order dated 16.11.2021 which is subject matter of challenge in the present revision.

According to Sri Tiwari, the entire proceedings culminating into lodging of the FIR, submission of the charge sheet and rejection of the discharge application itself tantamount to run on wrong premises particularly in view of the fact that the entire dispute is civil dispute which does not come within the purview of criminal dispute in that regard. Elaborating the said submission, further submission has been made by learned counsel for the revisionist that even in fact once the matter is subjudice before the court of law in an appeal so carried out by the revisionist and the date has been fixed on 19.07.2022 then the revisionist is entitled to be granted benefit of interim protection at the stage when the discharge application has been rejected.

Countering the said submissions, Sri P.K. Bhardwaj, learned A.G.A has argued that even in fact in the earlier spate of allegation which emanated in filing of the application under Section 482 Cr.P.C. which came to be decided on 24.01.2018 limited interim protection was accorded to the revisionist and only liberty was granted to the revisionist to file discharge application. It has been further argued that cognizable offence have been made out and further the fact that though the revisionist was granted liberty to file discharge application but the interim protection was accorded therein for a period of four weeks or till disposal of the discharge application whichever is earlier. According to Sri Bhardwaj, the FIR also discloses the cognizable offence and further the fact that even in fact on 26.12.2016 an order has been passed which is stated in the FIR and which is not disputed by the revisionist to the effect that proceedings were directed to be lodged on account of allegations of forgery in that regard. According to Sri Bhardwaj merely because certain proceedings are pending but in absence of any recital so made in the revision as well as any document available on record that any stay order has been passed in the said petition, the revisionist cannot get any benefit therefrom.

I have considered the rival submissions of learned counsel for the parties and perused the record. This Court finds that the court below while deciding the discharge application has taken note of the contention sought to be raised by the revisionist and the court below was oblivious of the fact that it was exercising revisional jurisdiction which is not akin to appellate jurisdiction. So much so the court below while passing order under challenge had considered the fact that cognizable offence is made out without going into the matter while scrutinizing the evidence and the defence. So far as the arguments of learned counsel for the revisionist that he had already preferred an appeal against the order pursuant whereof direction has been issued for lodging of criminal proceedings, the same is of no help to the revisionist as no interim protection has been accorded and only as per the saying of the revisionist date has been fixed. The observations and the views of the Court further stands amplified from the judgement in the case of State of Karnataka Vs. M.R. Hiremath (2019) 7 S.C.C. 515.

Sri Diwakar Tiwari, learned counsel for the revisionist at this stage has further made a submission that a direction be issued to the court below to decide the bail application of the revisionist.

Needless to point out that it is always open for the revisionist to prefer an appropriate application seeking bail and the court has no reason to disbelief that in case any application is preferred by the revisionist, the same will have considered and dealt with in accordance with law and any of the observations made in the present revision stands confined to the decision on the discharge and may not be treated to be a ground to be an impleadment in consideration of the bail which shall be considered after looking into all the aspects of the matter.

The present revision lacks merit and is, accordingly, dismissed.

Order Date :- 3.6.2022

Gaurav