Allahabad High Court
Vineet Kumar S/O Sri Veer Singh vs State Of U.P. And Amit Kumar S/O Sri ... on 23 May, 2007
Equivalent citations: 2007CRILJ3891
Author: Vinod Prasad
Bench: Vinod Prasad
JUDGMENT Vinod Prasad, J.
1. Vineet Kumar the revisionist is aggrieved by the two orders of even date 19.12.2003 passed by II Additional Sessions Judge, (Court No. 5) Bijnor in Criminal Misc. Application No. 8 of 2003 State v. Amit Kumar, declaring the accused respondent No. 2 Amit Kumar to be a juvenile under Section 14 of the Juvenile Justice (Care and protection of 1 Children) Act 2000 and granting him bail in S.T. No. 337 of 2002 Under Section 302, 34, 504, 506 I.P.C., P.S. Kotwali Dehat district Bijnor vide his Bail Application No. 1421 of 2003, Amit Kumar verus State, for the said offences.
2. Prelude to the whole proceedings lies in a FIR (annexure No. 1) lodged by the revisionist Vineet Kumar on 4.4.2002 at 11.15 a.m. in respect of the murder of his brother Vinay Kumar alias Neetu, by Spade on the same day at about 9.30 a.m. by accused Amit Kumar respondent No. 2 alongwith Brijesh and Baljor as his socio criminises. The FIR of the revisionist was registered as Crime No. 116 of 2002 Under Section 302/504/506 IPC at P.S. Kotwali Dehat, district Bijnor. Amit Kumar respondent No. 2 was arrested and put in jail. To seek his release he moved his bail application before the Sessions Judge, Bijnor but the same was rejected on 19.7.2002. He then approached this Court vide bail application notice No. 14636/02 Amit v. State of U.P. on 26.7.2002. It is relevant to point out that no ground of being juvenile was taken in the aforesaid bail application. It further transpires that the respondent accused failed to obtain bail from this Court as well through the aforesaid notice of bail application.
3. After a gap of one year and four months, when the case of respondent accused was committed to the court of Sessions for trial as S.T. No. 337/02 State v. Amit and Ors. then the respondent accused moved an application on 6.8.2003 that he was a juvenile on the date of the murder and therefore he should be declared as such and be treated in accordance with Juvenile Justice (Care and protection of children) Act 2000, herein after referred to as Act. He also sought his release from jail on the said ground by filing a bail application. Application for declaration of juvenile is annexure No. 2 to the affidavit filed in support of this revision. Alongwith the said application he had filed the photocopy of the Scholar Register and transfer certificate form of Raja Jwala Prasad Arya Inter College Bijnor in which his date of birth was mentioned as 10.8.1985. It was also mentioned in the said transfer certificate that the last institution attended by the scholar was Sri Krishna Uchch Prathamik School, Dwarikapuri district Bijnor.
4. Since the Board was not constituted in Bijnor by that time under the Act, therefore, Additional Sessions Judge, court No. 5, Bijnor, in accordance with Section 6(2) of the Act, exercised the power of the Board and started an inquiry for determining the age of respondent accused. In the said inquiry informant examined P.W. 1 Iftkar Ahmad Nakavi, the Principal of Sri Bidur Guru Grih Inter College, Dara Nagar, Vidurpuri, Bijnor. From the said institution the respondent accused had filled the form for High School Examination in the year 2001 and was allotted the Roll No. 2261259 and his examination center was Janta Inter College Dhokhlapur, district Bijnor. The said witness had proved the marks sheet etc. of the said examination alongwith the tabulation sheet as was feeded in the computer by Board of High School U.P. According to the said tabulation sheet sent by the Board. The date of birth of respondent accused was entered as 10.8.1983. He had further deposed that the said date of birth was entered by the candidate himself and birth certificate was also appended by him at the time of filling of the form for his appearance in High School Examination as a private candidate.
5. The Additional Sessions Judge examined Sanjai Kumar the Head Master/Principal of Sri Krishna Uchch Prathimik School Dwarikapuri as P.W. 2. It was this institution in which the respondent accused was alleged to have studied before taking admission in Raja Jwala Prasad Arya Inter College Bijnor as was mentioned in T.C. of the said Raja Jwala Prasad Arya Inter College Bijnor relied upon by the accused. The aforesaid witness Sanjay Kumar Head Master stated before the court that he is the Principal of the School (Sri Krishna Uchch Prathimik School) since 1996 and he had brought the Scholars Register from the year 1995 to 1998. The registers were in two bindings which was in the hand writing of the concerned clerk. Both the aforesaid registers were verified by him from time to time. In both the registers the name of respondent No. 2 as a student in the aforesaid school was not entered and respondent No. 2 was never a student of his school. He further evidenced that transfer certificate which is alleged to have been issued from his institution (annexure No. 6) relied upon by the accused was never issued from his institution and was a forged document. He has filed the photocopy of the original register as Ext. Ka 1 and Ka 2. He had denied that any record of his institution was stolen and in his cross-examination he had clearly stated that respondent No. 2 never studied in his institution. He further deposed that no transfer certificate was issued from his school to respondent No. 2 accused and since from the date he joined the institution the register was kept intact. He had denied the suggestion that in the said scholars register the name of any student may be missing. The court had made certain inquiries from him regarding torn off pages of the aforesaid register.
6. Trial court also examined Sunil Kumar junior clerk of Local Body Panchayat as P.W. 3 who had proved the voters list of village Faridpur Man of Ward No. 181 in which the name of the respondent accused was mi mentioned at serial No. 1038 in which the age of respondent accused was entered as 18 years.
7. The learned trial court further examined Mathura Singh Daftari of R.J.P. Inter College Bijnor as P.W. 4. It also examined Dharam Veer Singh Saini Advocate as P.W. 5 who had deposed that he is the Manager of Shri Krishna Uchch Prathmik School Dwarikapuri since day of its inception in the year 1994. He had further evidenced that transfer certificate (annexure No. 6) filed by the accused respondent was never issued from his institution and no student by the name of Amit Kumar s/o Brajesh had studied in his institution. He further evidenced that if it is alleged that annexure No. 6, the transfer certificate was issued from his institution then that transfer certificate is a forged document.
8. The trial court also examined Amar Nath Pandey, the Senior Assistant of High School and Intermediate Board Examination, Regional Office as P.W. 6. He had stated that the examination form filled by the candidates for High School Examination is being received in his office which is processed by computer and after one year the original form is weeded out. He further evidenced that Roll No. 2261259 was allotted to Amit Kumar whose parents were Smt. Santoshi Devi and Brajesh Kumar and in the said form the date of birth of the candidate was entered as 10.8.1983. He proved the said entry and the relevant document He had also filed the original marks sheet of High School Examination of respondent No. 2. Both the aforesaid documents (High School Marks Sheet and the tabulation register) have been filed cumulatively as annexure No. 5 to the affidavit filed in support of this revision.
9. Accused respondent was also got medically examined by the inquiry Judge and in his medical examination report his age was determined to be 19 years vide annexure No. 10 to the affidavit. It is made clear that the medical examination of the accused was got done on 9.12.2003 by C.M.O. Bijnor.
10. When the proceeding for determination of age was going on against the respondent accused then in the midst of the said proceedings he had filed his bail application in the aforesaid crime number for being released on bail.
11. In the proceedings for determination of age some papers of Civil Suit No. 1 of 2002 pending before Civil Judge (J.D.) Bijnor, Veer Singh v. Amit Kumar were also filed in which the age of Amit Kumar was mentioned as 19 years.
12. The copy of sale deed was also produced before the trial court in which the age of the respondent accused Amit Kumar was mentioned as 7 years in 1988 and according to this sale deed on the date of the incident of murder of Vinay Kumar @ Neetu accused Amit Kumar respondent No. 2 was aged about 21 years. Copies of both the documents of civil suit and sale deed have been filed as annexure 11 and 12.
13. During the pendency of the aforesaid inquiry some threats were also given by the father of the respondent No. 2 to the revisionist regarding which he had filed a transfer application before the Sessions Judge Bijnor as Transfer Application No. 8 of 2003 in which the Sessions judge had fixed 5.1.2004. Photocopy of the transfer application dated 19.12.2003 and the order of the Sessions Judge passed thereon on the same day have been filed as annexure 13 and 14 to the affidavit filed in support of this revision. After filing of the transfer application the revisionist approached to the Inquiry Judge Court No. 5 that the inquiry be stayed because of making of the said transfer application, but the Additional Sessions Judge passed the impugned order on 19.12.2003 declaring the respondent accused No. 2 Amit Kumar s/o Brajesh Kumar to be a juvenile and granted him bail on the said date without hearing the revisionist. The said order dated 19.12.2003 declaring respondent No. 2 to be a juvenile and granting him bail in the aforementioned crime for the offence of murder is under challenge in this revision.
14. One more fact which requires to be mentioned here is that it is averred that the retirement of Additional Sessions Judge Chandra Bhan II was due on 31.12.2003 and therefore, he malafidely had passed the impugned order on 19.12.2003.
15. On such facts revision was filed in this Court in which the counter affidavit has been filed by Ram Nath Verma Sub Inspector of P.S. Kotwali Dehat Bijnor. No counter affidavit however, was filed by respondent No. 2 Amit Kumar inspite of opportunity being afforded to him though he is represented by Sri S. Shahnawaj Shah Advocate.
16. In the counter affidavit it has been stated by Sri Ram Nath Verma Sub-Inspector that the Board had not been constituted Under Section 14 of the Act and therefore inquiry was conducted by the Additional Sessions Judge and he had further stated only this much that the impugned order is legal and justified.
17. To the counter affidavit filed by the aforesaid Sub Inspector, a rejoinder affidavit has also been filed by the revisionist.
18. On such facts I have heard Sri Mahipal Singh learned Counsel for the revisionist in support of this revision and Sri Section Shahnawaj Shah learned counsel for the accused respondent and Sri Sudhir Kumar learned AGA.
19. Sri Mahipal Singh learned Counsel for the revisionist contended that the respondent No. 2 has been illegally declared to be a juvenile by the Additional Sessions Judge Court No. 5 Bijnor and he has also granted him bail illegally by passing impugned order and both the orders deserve to be set aside. Sri Singh further contended that the entry made in the transfer certificate of Raja Jwala Prasad Arya Inter Collect Bijnor regarding the age of respondent accused as 10.8.1985 was based on the earlier transfer certificate issued by Shri Krishna Uchch Prathmik School Dwarika Puri as is mentioned in the said transfer certificate of Raja Jwala Prasad Arya Inter College Bijnor, but the transfer certificate which was supplied to Raja Jwala Prasad Arya Inter College Bijnor alleged to have been issued by earlier institution Shri Krishna Uchch Prathmik School was a forged document. He, therefore, submitted that entry regarding the age of the respondent accused in Raja Jwala Prasad Arya Inter College was a forged entry based on forged document and therefore, the same entry was a fraud and misrepresentation. He further contended that any certificate issued by the said institution (Raja Jwala Prasad Arya Inter College) is a shame document and cannot be taken into consideration for any purpose. Sri Singh in support of his argument has invited the attention of the court on the statement of Sanjay Kumar P.W. 2 the Principal of Shri Krishna Uchch Prathmik School Dwarika Puri and the statement of Dharmveer Singh Saini P.W. 5 who is the Manager of the said institution and also on the documents annexure 7 and 8 to the affidavit. Sri Singh further contended that the respondent appeared in the High School Examination from Vidur Guru Grih Inter College Dara Nagar and while filling the form for High School Examination he had mentioned his age to be 10.8.1983. He further submitted that the aforesaid age has been duly proved and established by the evidence of Iftakar Ahmad Nakvi, the Principal of the said institution (Vidur Guru Grih Inter College) vide annexure No. 3. Amar Nath Clerk of Board of High School and Inter Mediate Examination Regional Office P.W. 6 has proved the marks sheet of respondent No. 2 and the tabulation register of the Board which have been filed as annexure 5. Learned Counsel further submitted that the "leaving certificate" filed by the accused respondent of Shri Krishna Uchch Prathmik School Dwarikapuri annexure No. 6 on the basis of which his date of birth was entered in Raja Jwala, Prasad Arya Inter College was a shame document as has been clearly stated by the Principal and Manager of the said institutions and therefore, the observations made by Additional Sessions Judge relating to the entry in the Register of Raja Jwala Prasad Arya Inter College is wholly illegal as it is based on a forged document. He concludingly contended that the respondent accused who is the main assailant in a day light murder case of causing death of the brother of the revisionist alongwith two of his associates has been wrongly declared to be a juvenile and has been illegally granted bail by the Additional Sessions Judge. He further submitted that at the very inception of legal proceedings of bail no plea was taken by the respondent accused that he was a juvenile and it was only after more than a year that it stuck to his mind to seek bail on the ground of being juvenile on the basis of forged document in which he is succeeded and the learned 8, Additional Sessions Judge Court No. 5 Bijnor committed a manifest error of law in relying upon the forged document and declaring him to be a IP juvenile and granting him bail. He, therefore, submitted that the impugned order be quashed and respondent accused be taken into custody in the aforesaid crime.
20. Learned Counsel for the respondent accused on the contrary contended that the impugned order is justified and there is a bar of Section 49(2) of the Act and the age which has been determined by the inquiry Judge cannot be set aside.
21. I have heard learned Counsel for the parties at great length and have perused the material on record.
22. First of all I take up the objection of the learned Counsel for the respondent that Section 49(2) of the Act is a bar in setting aside the impugned order and his age which has been determined by the learned Additional Sessions Judge, Court No. 5 has to be taken to be the correct age of the respondent accused. For a proper consideration of the submissions of the learned counsels for the respective sides Section 49(2) of the Act is quoted below:
49. Presumption and determination of age:- (1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be.
(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom by the competent authority to be the age of person so brought before it, shall for the purpose of this Act, be deemed to be the true age of that person.
23. From the reading of the aforesaid section it is perceptibly clear that if a person is produced before the competent authority and if he appears to be a juvenile then the competent authority is mandated by law to hold an inquiry to determine as to whether the person is a juvenile or not and will determine his age. The competent authority is also mandated to take such evidence as may be necessary for determination of age of that person who has been brought before it. However, the filing of the affidavit in the said inquiry for determination of age has not been countenanced by the statute as the words "but not an affidavit" used under that section prohibits relying up on affidavits and taking it as a piece of evidence in such an inquiry. The section also mandated that the age of a person be determined "as nearly as may be". This indicates that the age of the accused be determined as for as possible to his real age.
24. Sub-section (2) of Section 49 however, provides that no order passed by the competent authority under Sub-section (1) will become invalid "merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or a child." The said Sub-section further provides that the age of a person determined by the competent authority for the purpose of this Act "be deemed to be the true age of that person."
25. The aforesaid discussion clearly brings out that the applicability of Sub-Section (2) of Section 49 of the Act will arise when there has already been a determination age by a competent authority and the said determination of age cannot be set aside by a subsequent proof. The words "subsequent proof used under this Sub-section (2) indicate the proof, which was not available with the competent authority at the time of determination of the age during the said proceeding. Those words "Subsequent proof indicates those proofs, which were discovered subsequently after age of the person has already been determined by the competent authority. Thus it is clear from the above analytical analysis that if the person has been declared to be a juvenile by the competent authority then he cannot be declared otherwise on the basis of subsequent material which was not available during the conducting of inquiry by the competent authority and was not produced before him. Such new material will not make the order passed by competent authority illegal and the age which has already been determined by him will be the true age of the person concerned.
26. This Sub-section (2) however, does not mean that the competent authority while determining the age of a person is entitled to pass an illegal order ignoring the material already existing before him or pass an order wrongly and illegally on the basis of such a material. If objection of the learned Counsel for the respondent is accepted then it will close the chapter for any higher court to examine the correctness of the findings recorded by the competent court in respect of determination of the age of a person. This can never be the law. It is reminded that Under Section 52 of the Act appeal is maintainable against an order passed by a competent authority before the Sessions Judge and a revision is maintainable Under Section 53 of the Act before this court. If the objection of the learned Counsel for the respondent accused and his submission is taken to be correct then it will take out the power of higher court even of this Court to examine the correctness of findings recorded by the competent authority which will be contrary to Section 397/401 Cr.P.C. in conjunction with Section 53 of the Act and will create an anomalous situation and will be an impediment in dispensation of justice. Hence the same cannot be accepted. There has to be a harmonious construction of various provisions of statutes so as to avoid contradictory interpretation of various provisions of statutes to avoid confusion in interpretation of the law. The courts are meant to obliterate the discrepancy and confusion in interpretation of various provisions of statutes and not to create anomalies. In such a view the objection of Sri S. Shahnawaj Shah learned Counsel for the accused is not well founded and is repelled.
27. Coming to the impugned order, it is to be noted that the accused respondent got his admission in Raja Jwala Prasad Arya Inter College Bijnor on the basis of a transfer certificate alleged to have been issued by Shri Krishna Uchch Prathmik School Dwarika Puri. The said transfer certificate utilized by the accused was a forged and shame document as is clear from the evidence of Sanjay Kumar Principal of the aforesaid institution P.W. 2 and Dharmveer Singh Saini the Manager P.W. 5. Thus it was well established before the inquiry Judge that the document which founded the basis of entering the age of the accused respondent in Raja Jwala Prasad Arya Inter College Bijnor was a forged document. The inquiry Judge, therefore, committed a blunder sin relying upon the said entry in Raja Jwala Prasad Inter College Bijnor.
28. Further from the material on record it is also established that besides the statement of the aforesaid Principal and the Manager of Shri Krishna Uchch Prathimik School revisionist had filed other documents in respect of age of respondent accused as the document of civil proceedings of Original Suit No. 1 of 2002 in which the age of the respondent accused was mentioned as 19 years in the year 2002. The murder in question also occurred in the same year in which the respondent accused was the main assailant. Further it is clear from the sale deed filed by the revisionist (annexure No. 7) that in the year 1988 the age of the respondent accused in the sale deed was mentioned to be 7 years. Calculating from the sale deed the age of the accused at the time of the murder in the year 2002 will be about 21 years.
29. Further from the medical examination of the accused respondent conducted by CMO Bijnor dated 19.2.2003 it is clear that on the date of his medical examination the accused was 19 years of age. Thus there were ample evidence on the record before the Additional Sessions Judge to record a positive finding that the accused was not a juvenile.
30. Further the affidavit filed in support of this revision remains un rebutted. In the absence of any counter affidavit filed by the accused respondent No. 2 it is established that the respondent accused never claimed himself to be a juvenile at the time of filing of his first bail application before lower court as well before this court. It was only when he failed to secure the release on bail at the first instance that he indulged into surreptitious device of securing his bail by resorting to fabricated document and getting himself declared to be a juvenile on the bases of such forged document. Juvenile Justice Act is meant for the benefit of juvenile offenders. This act has got a very noble purpose of bringing juvenile offenders into main stream of law abiding citizen. The juvenile offenders have to be treated sympathetically and should not be clubbed with criminals and incarcerated into Jail. The purpose of in acting the Act is as follows:
An Act to consolidate and amend the law relating to juveniles in conflict with law and children in need of, care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child's friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation I through various institutions established under this enactment.
31. With such an avowed object the interpretation of various provisions of the Act is to be done in such a way as to bring forth the object of the Act in forefront and its provisions are not being misused by the murders and the dacoits. It is not the purpose of the Act to provide a shield to the culprits and create a defence in their favour to save them from the clutches of law.
32. In the present case the respondent accused committed a baring act in murdering the brother of the informant by assaulting him, by spade alongwith two of his associates. He knew that he was not a juvenile. He got himself declared to be juvenile on the basis of forged documents. Inquiry Judge did not look into the facts of the case properly and passed a wholly illegal order.
33. From the perusal of the impugned order it also transpires that learned Additional Sessions Judge Court No. 5 Bijnor intentionally misinterpreted the evidence recorded by him while conducting the inquiry and recorded the findings contrary to the evidence on record. He has recorded perverse findings on the basis of a forged transfer certificate. The very fact that the accused respondent filed forged document alongwith his application to get himself declared to be a juvenile was sufficient enough to reject his such prayer by the trial Judge. Surreptitious device adopted by respondent No. 2 was the single most important reason to reject Iris claim of being declared a juvenile. The reason which was given by the Additional Sessions Judge for disbelieving the Principal and Manager of Shri Krishna Uchch Prathmik School and disbelieving the independent witness Iftikhar Ahmad Nakvi Principal Vidur Guru Grah Inter College Dara Nagar and Amar Nath Pandey P. W. 6 clerk in the Board Office of High School and Intermediate Examination to say the least is not only illegal but is wholly perverse and motivated. Further the inquiry Judge forgot that the evidence of PW 2 and that of PW 5 clearly indicated that there was no Principal by the name of M.K Saini who, according to the accused, had issued him the transfer certificate in Sri Krishan Uchchc Prathmik School. The inquiry Judge recorded a wholly perverse finding that the document produced by P.W. 1 Inftikhar Ahmad, the Principal of the school from where the accused had filled the form for his High School Examination is not duly proved. It is to be noted that once form for High School Examination is filled it is sent to the Board for issuing of admit card and for fixing of centres. It is not retained in the school from where it is filled. Further in the form the date of birth is filled by the candidate himself. It was for the accused to establish as to whether he was juvenile or not. The burden of proof lied on him as he had asserted the said fact in accordance with Sections 101, 103 of The Indian Evidence Act 1872. It was for him to prove that the recorded age in the High School Board was not right. The acused has failed to discharge the said burden. Further the enquiry Judge adopted a wholly perverse reasoning shifting the burden on the prosecution to prove that the accused was not a juvenile. The claim which the inquiry Judge was examining was that of the accused and not of the prosecution. Inquiry Judge/Additional Session's Judge should have also resorted to Section 114 of the Evidence Act and should have thought of natural course of human conduct in filling of the form for High School Examination which he did not do at all; His reasons that the pages of register brough by P.W. 2 and evidence of P.W. 5 - The Principal and Manager of Sri Krishna Uchch Prathmik School can not be accepted is wholly perverse. There cannot be any negative evidence. The evidence has to be always positive. Once the accused had not studied in that institution as was stated by theses two witnesses then it was for the accused to establish that fact, by cogent and relieable evidence by producing mark sheet or attendence register etc. which burden he failed to discharge. Further these witnesses were independent witnesses who had no animous against the accuseU Their depositions should not been brushed aside in such a cavelier manner as has been done by the inquiry Judge/Additional Sessions Judge. Further in the voter's list the age of the mother may be wrongly mentioned instead of the age of accused. How and on what reasoning the inquiry Judge found that the age of the accused is wrongly recorded in the voter's list and not that of his mother is also a riddle. Inquiry Judge/Additional Session's Judge, it seems, forgot that the plea of being a juvenile was resorted to only when the accused had failed to secure his release on the merits of the case on an earlier occassion. Further under Section 106 of The Evidence Act, the date of birth of the accused was in his special knowledge and it for him to prove that fact and it was not for the prosecution to disprove it. More over the tabulation register with the Board was an electronic record and therefore it was incumbent for the inquiry Judge to have taken 'A recourse to Section 90A of The Evidence Act. Much can be said against the conduct of the inquiry Judge on the fact and in the manner in which he had passed the impugned order but keeping in mind the judicial decorum and discipline I eschew that exercise by observing that the whole approach of the Additional Session's Judge in passing the impugned order is illegal and perverse. His reasonings for allowing the claim for respondent accused of being a juvenile is tainted with malafides. He has passed the order one sided and bereft of sound reasoning. His impugned order dated 19.12.2003 therefore cannot be sustained and is liable to be set aside.
34. Coming to the evidence of D.W. 1 Anurag Bharadwaj, D.W. 2 Smt. Santosh I only say this much that D.W. 2 is the mother of accused respondent. She never came out with plea of accused being a juvenile at the earliest occasion. She never informed any body that the respondent was a juvenile. The evidence of D.W. 1 was contrary to the evidence led by the informant and the basis of evidence of D.W. 1 was the forged entry which was relied upon by the inquiry Judge. His evidence also disclosed that the entry, which was made in his college, was based on the transfer certificate alleged to have been issued by the earlier institution which, as discussed above, was forged. Thus their evidences does not help the accused at all and the Additional Session's Judge, Court No. 5 committed blunder in relying upon it. The oral evidence of mother was over wellhemgely negated by the documentary evidences lead by the informant and therefore there was no justification for the inquiry Judge to rely upon that.
35. Before parting with this order I may make it clear that if fraud has been committed in any proceeding then the whole proceedings gets vitiated. Therefore, no justification can be attached to legalize an illegal order which is tainted by fraud. In the present case the transfer certificate of Raja Jwala Prasad Inter College Bijnor relied upon by the Additional Sessions Judge was genesised by a fraud entry! It has been held by Apex Court in many a binding precedents that if fraud creaps in any proceeding then the whole proceeding becomes void and illegal. Some of those cases are referred to here in below:
Bhaurao Dasadu Pamlkar v. State Of Maharastra A.I.R. 2005 S.C. 3330.
12. "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on Court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. (See Ram Chandra Singh v. Savitri Devi and Ors. 2003 (8) S.C.C. 319).
1. "Fraud" and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, 'wing me into the easy-hearted man and trap him into snares' has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary "fraud" in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal Dictionary, "fraud" is defined as an 'intentional perversion of truth for the purpose of inducing' another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Indian Contract Act, 1872 defines "fraud" as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact, which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. In a leading English case i.e. Derry and Ors. v. Peek (1886-90) All. E.R. 1, what constitutes "fraud" was described thus: (All. E.R. P. 22 B-C) "fraud" is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false". But "fraud" in public law is not the same as "fraud" in private law. Nor can the ingredients, which establish "fraud" in commercial transaction, be of assistance in determining fraud in Administrative Law. It has been aptly observed by Lord Bridge in Khawaja v. Secretary of State for Home Deptt. (1983)1 All. E.R. 765, that it is dangerous to introduce maxims of common law as to effect of fraud while determining fraud in relation of statutory law. "Fraud" in relation to statute must be a colourable transaction to evade the provisions of a statute. If a statute has been passed for some one particular purpose, a Court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond it scope. Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administration law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. The misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which the power can be exercised. But nondisclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in commercial transactions nondisclosure of every fact does not vitiate the agreement. "In a contract every person must look for himself and ensures that he acquires the information necessary to avoid bad bargain". In public law the duty is not to deceive. (See Shrisht Dhawan (Smt.) v. Shaw Brothers 1992 (1) S.C.C. 534.
AIR 1994 SC 853 S.P. Chensalvarava Naidu v. Jagannath
7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case. Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Propertygrabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the, illegal-sains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.
8. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the Court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to got an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Exhibit B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Nonproduction and even non-mentioning of the release deed at the trial tantamounts to paying fraud on the Court. We do not agree with the observations of the High Court that the appellants-defend ants could have easily produced the certified registered copy of Exhibit B-15 and nonsuited the plaintiff A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side than he would be guilty of playing fraud on the Court as well as on the opposite party.
36. In view of the discussions made above this criminal revision is allowed. Both the impugned orders dated 19.12.2003 passed by II Additional Sessions Judge (Court No. 5) Binjor in Misc. Application No. 8 of 03 State of U.P. v. Amit Kumar Under Section 14 of the Act and in Bail Application No. 1421 of 2003 Amit Kumar v. State, declaring respondent No. 2 Amit Kumar s/o Brajesh Kumar resident of village Pamadawali, P.S. Bankpur Kotwali Dehat district Bijnor to be a juvenile and granting him bail in the aforesaid offences under Sections 302/34/504/506 IPC PS Kotwali Dehat, Bijnor relating to crime number 116 of 2002, are hereby set aside. Respondent accused is declared to be a major and his bail in the aforesaid crime number is cancelled. Trial court is directed to issue non-bailable warrant of arrest against him and get him arrested and lodge him in Jail in the aforesaid crime number.
37. Stay order dated 30.1.2004 passed by this Court as is extended from time to time stands vacated.
38. Let a copy of this order be certified to the trial court forthwith who is directed to make the compliance of this order and report to this Court regarding the said compliance within a month from today.