Delhi District Court
State (Govt. Of Nct Of Delhi) vs Oboh Tony on 10 November, 2016
IN THE COURT OF SH. A. K. KUHAR, ASJ/SPECIAL JUDGE;NDPS
SOUTH DISTRICT, SAKET
Criminal Revision No. 8264/2016
CNR No - DLST010019422016
State (Govt. Of NCT of Delhi) ..........Revisionist
through Public Prosecutor, Delhi
versus
Oboh Tony ..........Respondent
s/o Sh. Erhauyi, r/o Benin City, Nigeria Date of institution : 01st July 2016 Arguments concluded on : 08th November 2016 Order announced on : 10th November 2016 O R D E R
1. This Criminal Revision petition has been preferred by the State (Govt. of NCT of Delhi) against the order dated 11.04.2016 passed by Sh. Sushant Changotra, Learned Metropolitan Magistrate05, (South), Saket in case FIR No. 1231/2015, PS Mehrauli u/s 467,468,471 IPC and Section State vs Oboh Tony . Page no. 1 of 9 CR No. 8264 of 2016 14 of the Foreigners Act, 1946.
2. Vide the impugned order dated 11.04.2016, Learned Metropolitan Magistrate has opined that on the basis of charge sheet primafacie only a case for the commission of offence u/s 14 (a) of The Foreigners Act, 1946 is made out. The revisionist/State is aggrieved by this order claiming that chargesheet was filed for offences under Section 467,468 and 471 also and primafacie case was made out. The Prosecution had also pressed for the charge for the offence punishable u/s 474 IPC as well at the time of argument on charge before Learned Metropolitan Magistrate.
3. Notice of this Criminal Revision was issued to the respondent/accused Oboh Tony. Trial Court Record (TCR) has been summoned. I have heard arguments advanced by Sh. F. M. Ansari Ld. Addl. PP for the State/revisionist and Ms. Sushma Sharma Ld. Counsel for respondent and have perused the record.
4. Learned Addl. PP has argued that Section 474 IPC or Section 471 IPC are attracted in the present case as the respondent/accused has 'used' fake and forged visa stickers on his passport. He submitted that the fact that respondent/accused had obtained these visa stickers not from the concerned authorities but through an agent, itself shows that the respondent/accused had knowledge or 'reason to believe' that the State vs Oboh Tony . Page no. 2 of 9 CR No. 8264 of 2016 visa stickers on his passport are fake. It was submitted that Learned Metropolitan Magistrate has ignored this fact and did not appreciate that the knowledge and dishonest intention qua the respondent/accused could be presumed in the facts and circumstances of the case.
5. On the contrary, Learned counsel for respondent/accused Oboh Tony has submitted that no offence punishable u/s 471 IPC and 474 IPC is made out. It was submitted that respondent/accused himself has been duped and cheated by some person, who provided him visa stickers for a consideration. It was submitted that respondent/accused at best can be called negligent but he cannot be assigned criminal intent of using a forged visa stickers on his passport for want of his knowledge that visa stickers were forged.
6. The present FIR has been registered on receipt of a complaint from the Foreigners Regional Registration Office, Delhi wherein it was informed that respondent/accused Oboh Tony, who is a Nigerian National holding a valid Passport No. A04148460, was produced in the office of FRRO on account of his overstay in India after expiry of his Indian Visa bearing no. V/8860345 issued on 02.05.2013 valid till 01.07.2013. The respondent/accused was kept in Sewa Sadan Lampur, Narela Delhi for his deportation. However, on further scrutiny the visa State vs Oboh Tony . Page no. 3 of 9 CR No. 8264 of 2016 stickers on his passport at page no. 9,11,13 bearing no. V/4072685 ; No. V/8264748 and No. V/8806846 were found to be forged. On this complaint, present FIR was registered. During the investigation of the case, the respondent/accused was arrested and his disclosure statement was recorded wherein he has stated that visa stickers in question were obtained for him by a person namely, Igwe, whom he had met at Chattarpur Metro Station and now he is not aware about his whereabouts. In his disclosure statement he stated that he came to know at Sewa Sadan Lampur, Narela Delhi that his visa stickers were fake and forged.
7. Learned Metropolitan Magistrate has considered all the facts and circumstances of the case and has observed that the offence u/s 467 IPC and 468 IPC are not made out against accused. The prosecution had pressed for Section 474 IPC against respondent/accused. However, Learned Metropolitan Magistrate did not find favour with the submissions made on this ground and observed that the knowledge that the visa stickers were forged cannot be assigned to respondent/accused and it cannot be said that he was dishonestly using the fake visa stickers as genuine. Learned Metropolitan Magistrate has also observed that the prosecution cannot travel beyond the disclosure statement of the State vs Oboh Tony . Page no. 4 of 9 CR No. 8264 of 2016 accused wherein he himself has stated that he was cheated by a person namely Igwe. Apart from this disclosure statement, there is nothing on record to show that respondent/accused has any knowledge or inkling that the accused was using a fake visa stickers, therefore, offence under Section 474 IPC was not made out.
8. The revisionist/State has prayed that the impugned order dated 11.04.2016 be setaside with direction to frame charges for the offence u/s 471/474 IPC.
9. Section 471 IPC provides punishment for using forged document as genuine. The necessary ingredient to attract this offence would be that (i) accused was in possession of a forged document; (ii) the accused used the forged document as genuine fraudulently and (iii) the accused had knowledge or reason to believe that the document was forged.
10. Thus, the knowledge that the document in possession of the accused was a forged document or the circumstances indicating that the accused had reason to believe that it was a fake document, must exist before a person can be held culpable for the offence u/s 471 IPC.
11. Section 474 IPC provides punishment for keeping in 'possession' of a document as described in Section 466 IPC and State vs Oboh Tony . Page no. 5 of 9 CR No. 8264 of 2016 Section 467 IPC with the knowledge that it is a forged document and with the intention to use it as genuine. The necessary ingredients to attract the provision of Section 474 IPC would be (i) possession of a forged document of the nature as described in Section 466 IPC and Section 467 IPC; (ii) the knowledge of the accused that it is a forged document and (iii) the possession must be with the intention to use this fake document as genuine.
12. Here again, the knowledge on the part of the accused that the document in his possession is fake is a sinequanon to attract the provision of Section 474 IPC.
13. Learned Metropolitan Magistrate has dealt with this aspect in detail in the impugned order and has observed that the 'knowledge' and a fraudulent or dishonest intention cannot be presumed. Although, it can be inferred from the material evidence/record collected during the investigation. Learned Metropolitan Magistrate has also observed that apart from recording disclosure statement of the accused, no investigation has been conducted about the source from which the accused had made payment for obtaining the visa in question. Rather, Learned Metropolitan Magistrate is of the view that in view of disclosure statement to which the prosecution has restricted its case, the accused State vs Oboh Tony . Page no. 6 of 9 CR No. 8264 of 2016 could at the most be considered as negligent but such negligence is not culpable.
14. The power vested vide Section 397/399 Cr PC in the revisional Court is meant to be exercised, when there is any illegality or irregularity in the impugned order. The revisional Court revisit the issue taken up in the impugned order in the facts and circumstances of the case. However, while revisiting the issue, the revisional Court is not expected to act as Appellate Court to substitute its own opinion unless the impugned order has been passed in the ignorance of material evidence or is unreasonable, erroneous and untenable in law.
15. In Sanjaysinh Ramrao Chavan vs Dattatray Gulabrao Phalke & others (2015) 3 SCC 123 Hon'ble Supreme Court has observed that;
"Unless the order passed by the Magistrate is perverse or the view taken by the Court is wholly unreasonable or there is nonconsideration of any relevant material or there is palpable misreading of records, the revisional Court is not justified in setting aside the order, merely because another view is possible. The revisional Court is not meant to act as an appellate Court. The whole purpose of State vs Oboh Tony . Page no. 7 of 9 CR No. 8264 of 2016 the revisional jurisdiction is to preserve the power in the Court to do justice in accordance with the principles of criminal jurisprudence. Revisional power of the Court under Sections 397 to 401 of Cr. PC is not to be equated with that of an appeal. Unless the finding of the Court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the Courts may not interfere with decision in exercise of their revisional jurisdiction."
16. In view of all the facts and circumstances of the case and the law on the subject, I do not consider it to be a fit case to interfere with the impugned order dated 11.04.2016 passed by Learned Metropolitan Magistrate05, which is a subject matter in the challenge of the revision petition. There is no illegality or perversity in the order under challenge. Learned Metropolitan Magistrate has considered all the material on State vs Oboh Tony . Page no. 8 of 9 CR No. 8264 of 2016 record and discussed the same to come to a conclusion. There is no ground to substitute the view of the Learned Metropolitan Magistrate. Therefore, the Revision Petition stands dismissed.
17. Trial Court Record be sent back to the Trial Court concerned alongwith copy of this order for perusal .
18. Revision file be consigned to record room, after compliance of all other necessary formalities.
(announced in the (Ajay Kumar Kuhar)
open Court on ASJ/Special Judge (NDPS)
10 November 2016)
th
South District: Saket
State vs Oboh Tony . Page no. 9 of 9
CR No. 8264 of 2016