Wazid vs State Of Uttarakhand & Another

Sharad Kumar Sharma, J

A very interesting and a very peculiar situation, which has developed in the present C482 application is that the present applicant is named in Case Crime No. 9 of 2010, which was registered on 06.01.2010 at Police Station Bhagwanpur, Tehsil Roorkee, Haridwar, along with as many as seven other co-accused persons and in the FIR in question, which was registered as FIR No. 9 of 2010 on 16.01.2010 as many as seven accused persons have been named in the FIR for their involvement in commission of an offence under Section 420 of IPC. After having gone through the contents of the FIR the main allegation pertaining to the commission of the offence has been leveled as against the present applicant, who had been involved in the actual money transfer, who had acted as a custodian, and the money which was involved in the transaction which has been complained of in the FIR as registered before Thana Bhagwanpur, Haridwar.

As against the said offence a chargesheet was submitted being Chargesheet No. 19/10 dated 03.03.2010, in which the applicant is yet again shown to be as an accused person responsible for the commission of an offence, and as a consequence thereto, he had been summoned by the Court of Judicial Magistrate/Additional Civil Judge (J.D.), Roorkee, Haridwar on 20.03.2010 in Criminal Case No. 435 of 2010 'State vs. Wazid & Others' under Section 420 of IPC.

Arising out of the same offence and as registered against the other co-accused persons there were number of other C482 applications, which were filed before this Court. The details of which are given hereunder:

(i) The C482 application No. 1158 of 2014 'Parvej & Another vs. State of Uttarakhand & Another' filed by Parvej and Mohseen, the same was decided by the Coordinate Bench of this Court by the judgment dated 17.09.2014, whereby, this Court has granted the permission to the accused persons to get their offence compounded by moving an appropriate application before the Court concerned. However, the proceedings of Criminal Case No. 435 of 2010 'State vs. Wazid & Others' qua the said applicants were quashed.

(ii) In another C482 application being C482 Application No. 659 of 2014 'Aftab & Others vs. State of Uttarakhand & Another', which was preferred by Aftab another co-accused, who is the son of Late Jamshed Alam. The said C482 application which too was arising out of the Criminal Case No. 435 of 2010 emanating from Case Crime No. 9 of 2010 was decided by this Court by the judgment dated 01.09.2014, whereby, the Court while exercising its power under Section 482 has decided the C482 application in the same fashion as it has been decided in the case of co-accused Muntazir and the chargesheet and the summoning order qua the applicant to the C482 application No. 659 of 2014 under Sections 420, 406/34 of IPC was quashed qua the said accused persons.

(iii) In another C482 application No. 1116 of 2014 'Parvej & Another vs. State of Uttarakhand & Another' filed by Parvej and Mohsin, the said C482 application came for consideration before the Coordinate Bench of this Court, wherein, the said C482 application was disposed of with the direction that the accused person would surrender themselves before the Court below within one week from the date of the order and their bail application was directed to be considered as expeditiously as possible without unreasonable delay.

(iv) In continuity thereto, there was yet another C482 application being C482 application No. 696 of 2010 was 'Muntazir vs. State of Uttarakhand & Another', who yet against another co-accused, which came up for consideration before the Coordinate Bench of this Court and the Court vide its judgment dated 19.12.2013 had allowed the C482 application while considering the role of the accused persons, therein has quashed the cognizance order dated 20.03.2010, and consequently, the Criminal Case No. 435 of 2010 'State vs. Wajib & Others' qua the applicants to the said C482 application was set aside.

What is important to be considered at this stage is that while deciding the C482 application on 19.12.2013 in fact the latitude which was shown by the Court for quashing the proceedings for the other co-accused was on account of the fact that as per the findings, which has been recorded by the Coordinate Benches of this Court, it is the present applicant, who has been leveled with the main allegation and main role was assigned to him, pertaining to his involvement in the exchange of the money, which was complaint of by the complainant, wherein, he has submitted that it was Wajib and not Muntazir to whom the money was actually entrusted. Thus as per the findings affirmed in other C482 applications in fact main role has been assigned to Wazid.

Another C482 application arising of the same offence by the other co-accused, i.e. C482 Application No. 636 of 2010 'Parvej & Another vs. State of Uttarakhand & Another' preferred by Parvej & Another on 01.08.2013, the Coordinate Bench of this Court had dismissed the C482 application, vide its judgment dated 01.08.2013, thereby rejected the Restoration Application No. 96 of 2013. The Court recorded the following findings:

"3. The allegations of forgery and cheating made against the applicants in the FIR dated 16.01.2010 are worth taking note of. After the investigation of the case, charge-sheet was submitted against the accused persons, on which cognizance was taken by learned I Addl. Civil Judge (Jr. Div.)/Judicial Magistrate, Roorkee. It is settled law that the factual aspects need not be gone into by the Court in exercise of it's jurisdiction under Section 482 of Cr.P.C."

As far as the present C482 application is concerned, in view of the findings, which has been recorded in the earlier C482 application, i.e. 696 of 2011 in its paragraph 3 and 6, it is rather the applicant, who has been assigned with the main role in the commission of the offence under Section 420 of IPC for which he was summoned by the impugned order dated 20.03.2010 passed by the Judicial Magistrate/1st Additional Civil Judge (J.D.), Roorkee, District Haridwar, which is under challenge in the present C482 application. Paragraph 3 and 6 are quoted hereinbelow:

"3. It was alleged that in June, 2006, co-accused Wazid came to Bihari Garh and instigated the informant to purchase a piece of land. When the deal was finalized, complainant gave Rs. 10 lacs. Later on, the complainant came to know that the land was not notified. Due to this reason accused Mausin returned Rs. 3 lacs, but the balance of Rs. 7 lacs was not returned by Wazid and Muntazir.

Learned counsel for the applicant submitted that even if the contents of the first information report be admitted to be true, no offence was made out against the applicant Muntazir, in as much as, the money was entrusted by the complainant to Wazid and not to Muntazir. It is further submitted that the nature of dispute is civil in nature and therefore, petition under Section 482 Cr.P.C. filed on behalf of Muntazir should be allowed."

Considering the fact that according to the finding, which has been rendered by the Coordinate Bench judgments of this Court and even on considering the FIR since it is the present applicant, who has been leveled with the main allegation with regards to his involvement in the transaction complained of illegal transfer of money, this Court is not inclined to interfere in the present C482 application, hence, same is disposed of with the direction that in case if the applicant surrenders before the Court below, i.e. the Court of 1st Additional Civil Judge (J.D.)/Judicial Magistrate, Roorkee, District Haridwar, within a period of two weeks from today and files his bail application, the bail application would be considered within a period of three days.

Subject to the above observation and considering the fact of the earlier orders passed by this Court in other C482 application, this C482 application lacks merit and the same is, accordingly, dismissed.