Zarif Ahmad @ Bablu vs State Of Uttarakhand And Another
2022 Latest Caselaw 3615 UK

  IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Miscellaneous Application No. 1934 of 2022


Zarif Ahmad @ Bablu                           ...... Petitioner

                                Vs.

State of Uttarakhand and Another            ..... Respondents


Presents:-
Mr. Hem Chandra Joshi, Advocate for the petitioner.
Mr. Lalit Miglani, A.G.A. for the State of Uttarakhand.



                          JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The challenge in this petition is

made to the chargesheet dated 17.01.2019 framed

against the petitioner under Sections 420, 467, 468,

471, 323, 504 and 506 IPC in Criminal Case No.1213 of

2017, State of Uttarakhand Vs. Zarif and Others, by the

court of Judicial Magistrate, Bazpur, District Udham

Singh Nagar ("the case"), as well as the judgment and

order dated 12.05.2022, passed in Criminal Revision No.

39/2019, Zarif Ahmad Vs. State of Uttarakhand, by the

court of III Additional Sessions Judge, District Udham

Sing Nagar ("the revision"), by which the charge dated

17.01.2019, framed in the case, has been upheld.

2. Heard learned counsel for the parties and

perused the record.

3. Facts, necessary to appreciate the

arguments, briefly stated, are as follows: The respondent

no.2 ("the informant") filed an application under Section

156(3) of the Code of Criminal Procedure, 1973 ("the

Code") before the court of Judicial Magistrate, Kashipur,

District Udham Singh Nagar. According to it, the

petitioner took the informant Bombay on 11.03.2014.

The petitioner had prepared visa of the informant, but

when the informant was to leave for Singapore, it was

revealed that the visa was forged. The informant had

deposited Rs. 70,000/- on 11.03.2014, in an account of

the petitioner. The informant asked the petitioner as to

why did he prepare forged visa? The petitioner assured

that he would get valid visa for the informant, but, the

petitioner did not make the visa. The informant asked

return of the money, which he had paid to the petitioner,

but it was not returned. This is one part of the case. The

other part related to the incident of 05.08.2014.

According to the application of the informant, on that

date, at 7:30, in the evening, the petitioner and others

attacked the informant and his father, due to which they

sustained injuries. It is this application, which was

allowed and the FIR was lodged, in which charge sheet

has been submitted against the petitioner and others for

the offences punishable under Sections 420, 467, 468,

471, 323, 504 and 506 IPC. In fact, a chargesheet has

been filed with the different offences against different

accused.

4. The Court, at this stage, is examining the

case against the petitioner alone. In the case, on

17.01.2019, charges were framed against the petitioner.

It was unsuccessfully challenged in the revision. Hence

the petition.

5. Learned counsel for the petitioner would

submit that, in fact, Rs. 70,000/- were paid by the

informant to an agent. The money had already been

returned to the informant on 03.08.2014. Thereafter, an

application for lodging an FIR under Section 156(3) of

the Code was filed by the informant in 05.08.2014.

According to learned counsel, with regard to the incident

of 05.08.2014, the petitioner had also filed an

application under Section 156(3) of the Code on

05.11.2014. It is argued that parties are proceeding

towards amicable settlement.

6. This is a petition under Section 482 of the

Code of Criminal Procedure, 1973 ("the Code"). The

jurisdiction is much wide, but also guided by the

principles of law, as laid down by the Hon'ble Supreme

Court in the catena of decisions. The Court refrains to

burden this judgment with the cases. Suffice it to say, in

case prima facie case is made out, no interference is

generally made in this jurisdiction. A mini trial is not

conducted. The truthfulness or otherwise of the

witnesses is not assessed, at this stage.

7. In fact, it is also settled law that the court

should be much slow in interfering with the order

framing charge. In the case of Amit Kapoor Vs. Ramesh

Chander and Another, (2012) 9 SCC 460, the Hon'ble

Supreme Court, in Paras 12 and 13, observed as

hereunder:-

"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not

exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits."

"13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the CrPC."

8. In the case of Asian Resurfacing of Road

Agency Private Limited and Another Vs. Central Bureau

of Investigation, (2018)16 SCC 299, the Hon'ble Supreme

Court further observed, "Thus considered, the

challenge to an order of charge should be entertained

in a rarest of rare case only to correct a patent error

of jurisdiction and not to reappreciate the matter."

9. It is the categorical case in the FIR that the

petitioner gave a forged visa to the informant. When the

informant was about to leave for Singapore, it was

revealed that the visa, given by the petitioner, was

forged. It is also the case of the informant that for

procuring visa to the informant, the petitioner persuaded

him and obtained Rs. 70,000/-, which was deposited in

the account of the petitioner on 11.03.2014. The

petitioner has been charged under Sections 420, 467,

468 and 471 IPC. They are with regard to making of

forged visa to the informant. It may be noted that, in

fact, the petitioner had obtained Rs. 3,60,000/- from the

informant. Nothing has even been shown on behalf of

the petitioner that these charges are wrong. It is

categorical case that the informant was cheated by the

petitioner. The petitioner prepared forged visa. FIR was

filed and these allegations were found true by the

Investigating Officer. There is no reason to make

intervention on those aspects.

10. There is another story with regard to the

incident of 05.08.2014. According to the FIR, on that

date, the petitioner and others attacked and injured the

informant and his father. Charge under Sections 323,

504 and 506 IPC are framed accordingly. In fact, it has

impliedly been accepted by the petitioner that an

incident took place on 05.08.2014 because in the month

of November, 2014, according to the petitioner, he had

also filed a report and an application under Section 156

(3) of the Code. This application is Annexure-6 to the

petition. The incident took place on 05.08.214.

Admittedly, the FIR lodged by the informant was much

prior than the FIR lodged by the petitioner. Who is

aggressor and who is defender, or as to whether it was a

free fight? These would be the questions, which would be

determined at the trial of these cases.

11. Having considered, this Court is of the view

that there is no reason to make any interference in this

matter. This petition is devoid of merits. Accordingly, the

petition deserves to be dismissed at the stage of

admission itself.

12. The petition is dismissed in limine.

(Ravindra Maithani, J.) 15.11.2022 Ravi Bisht