Allahabad High Court
Dara Singh vs State Of U.P. And Another on 15 December, 2022
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 66 Case :- APPLICATION U/S 482 No. - 33833 of 2022 Applicant :- Dara Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Avadh Raj Sharma Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
1. List revised.
2. Heard Sri Avadh Raj Sharma, learned counsel for the applicant and Sri B.B. Upadhyay, learned AGA for the State of U.P. and perused the records.
3. The present application under Section 482 Cr.P.C. has been filed by the applicant Dara Singh with the following prayers:-
"It is therefore most respectfully prayed that this Hon'ble court may graciously be pleased to quash the Non Bailable Warrant dated 04.04.2022 passed by Special Judge Anti Corruption Act Court No.1, Varanasi in Session Case No. 986 of 2020 (State vs. Head Constable Vijay Bahadur Yadav and others) arising out of case crime no. 265 of 2020, Under Section 409, 411, 120-B IPC and Section 60, 63 of U.P. Excise Act and Section 7/13(1)A of Anti Corruption Act, Police Station Soraon, District Prayagraj pending in the court of Special Judge Anti Corruption Act Court No.1, Varanasi.
It is further prayed that this Hon'ble court may kindly be pleased to stay the effect and operation of the Non Bailable Warrant dated 04.04.2022 passed by Special Judge Anti Corruption Act Court No.1, Varanasi in Session Case No. 986 of 2020 (State vs. Head Constable Vijay Bahadur Yadav and others) arising out of case crime no. 265 of 2020, Under Section 409, 411, 120-B IPC and Section 60, 63 of U.P. Excise Act and Section 7/13(1)A of Anti Corruption Act, Police Station Soraon, District Prayagraj pending in the court of Special Judge Anti Corruption Act Court No.1, Varanasi.
Or pass such other or further order which this Hon'ble court may be deem fit and proper in the circumstance of the case."
4. At the very outset, learned AGA for the State has stated that the present 482 application has been filed by concealing important and vital fact that previously the applicant had filed an application under Section 482 Cr.P.C. No. 12369 of 2021 (Dara Singh Vs. State of U.P. and another) seeking quashing of charge sheet dated 22.12.2020 as well as further proceedings of the present case which was heard by a co-ordinate Bench of this Court and since learned counsel for the applicant had gave up the prayer for quashing as made therein and had prayed that a direction be given to the courts below to decide the bail application within specific time frame which was allowed and an order was passed directing the applicant to file bail application within 30 days and the court concerned was directed to decide the same expeditiously, in accordance with law. He has produced before the Court a copy of the said order dated 17.08.2021.
5. It is further argued that now the prayer in the present 482 application is to quash the non bailable warrants dated 04.04.2022 and in the meantime stay the effect and operation of the same. It is argued that the fact regarding filing of the previous application under Section 482 Cr.P.C. by the applicant challenging the summoning order and the proceedings and further the order passed therein has not been disclosed in the present 482 application which is a concealment of a relevant and vital fact. The applicant is very cleverly in para 2 of the affidavit in support of the present 482 application has stated that this is the first criminal misc. application filed on behalf of the applicant for the same cause of action. It is argued that the present application thus be rejected with exemplary cost as it has been filed by concealment of vital and relevant fact and also that facts as is arising in the matter and pleaded in the application and further seen from the copy of the order sheet of the trial court which is annexure 3 to the affidavit being from 22.12.2020 to 18.08.2022 clearly goes to show that the present 482 application is an abuse of process of law and as such deserves to be dismissed with exemplary cost.
6. On being countered learned counsel for the applicant stated that he was not made aware by his client/applicant/deponent about the previous filing of the 482 application before this Court and as such there was no disclosure about the same.
7. This Court has heard learned counsel for the parties and perusing the records and also the order dated 17.08.2021 passed in the Crl. Misc. Application 482 Cr.P.C. No. 12369 of 2021 the facts which emerge out from the records are that in the present 482 application, the prayer is to quash the non bailable warrants dated 04.04.2020 issued by the Special Judge, Anti Corruption Act, Court No.1, Varanasi in Session Case No. 986 of 2020 (State vs. Head Constable Vijay Bahadur Yadav and others), arising out of case crime no. 265 of 2020, Under Section 409, 411, 120-B IPC and Section 60, 63 of U.P. Excise Act and Section 7/13(1)A of Anti Corruption Act, Police Station Soraon, District Prayagraj.
8. The present 482 application has been filed annexing three annexures being the certified/photocopy of the First Information Report dated 10.04.2020 as well as recovery memo as being annexure 1, the photocopy of the charge sheet filed in the matter dated 13.10.2020 as annexure 2 and lastly true and certified copy of the order sheet of the trial court from 22.12.2020 to 18.08.2022 as annexure 3 to the affidavit in support of the application under Section 482 Cr.P.C. The applicant is an accused in the First Information Report and his name stands at serial no.2 in column 7 being the details of the accused. A charge sheet no. 01 dated 13.01.2020 has been submitted against the Head Constable Vijay Bahadur Yadav, Jiya Lal Nirmal, Dara Singh (the applicant) and Head Constable Raj Kumar. The certified copy of the order sheet shows that vide order dated 22.12.2020 passed by the trial court cognizance was taken upon charge sheet and the accused persons were summoned.
9. On 06.03.2021 the accused Vijay Bahadur Yadav appears before the trial court. Subsequently, vide order dated 18.09.2021 except for the accused Vijay Bahadur Yadav, bailable warrants of Rs. 10,000/- were issued against three other remaining accused including the applicant. The same continued upto 16.03.2022 and subsequently, on 27.06.2022 non bailable warrants were issued against accused Vijay Bahadur Yadav, Dara Singh and Nirmal. The said non bailable warrants are continued to be issued till 18.08.2022 which is a last date as shown in the certified copy of the order sheet of the trial court.
10. In the meantime, the applicant Dara Singh previously filed an application under Section 482 Cr.P.C. being Criminal Misc. Application U/s 482 No. 12369 of 2021 (Dara Singh Vs. State of U.P. and another) which came to be disposed of vide order dated 17.08.2021 passed by a co-ordinate Bench of this Court by which he was granted 30 days time to surrender and apply for bail and till 30 days it was directed no coercive action shall be taken against him. The said order is quoted hereinbelow:-
"Heard learned counsel for the applicant as well as learned A.G.A. for the State and perused the record.
This application u/s 482 Cr.P.C. has been filed seeking quashing of charge-sheet dated 22.12.2020 as well as further proceedings of Special Trial No. 986 of 2020(State vs. Vijay Bahadur and others) arising out of Case Crime No.256 of 2020 under section 60/63 Excise Act and 411 IPC, Police Station Soraon, District Prayagraj.
The contention of counsel for the applicant is that no offence against the applicant is disclosed and the present case has been instituted with a malafide intention for the purposes of harassment. He has also pointed out certain documents in support of his contention.
From the perusal of the material on record and looking into the facts of the case, at this stage it cannot be said that no offence is made out against the applicant. 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.
At this stage, disputed question of fact cannot be considered, therefore, in view of the law laid down by the Hon'ble Apex Court in the cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cri.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC (Cri.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cri.) 283, the prayer sought as aforesaid is refused.
After arguing the case for quite some time at length, learned counsel for the applicant himself has given up to address the Court on merits of the case and prayed, that the purpose of his client would suffice, if a direction may be given to the courts below to decide the bail application within specific time frame.
However, it is directed, that in case applicant appears and surrenders before the court below within 30 days from today and applies for bail the court below shall consider and decide the bail prayer of applicant expeditiously in accordance with law.
For the period of 30 days or till disposal of bail application, whichever is earlier, no coercive action shall be taken against the applicants.
With the above directions, present application is disposed off."
11. Now the applicant has filed the present 482 application with the prayers as quoted above. The filing of the present application under Section 482 Cr.P.C. thus is clearly an abuse of process of law. The applicant has not complied with the order dated 17.08.2021 which was a consent order passed by a co-ordinate Bench of this Court. Now without complying with the said order and remaining absconding since the filing of charge sheet after which bailable warrants were issued and then non bailable warrants were issued has come up before this Court to challenge the order dated 04.04.2022 issuing non bailable warrants. Even otherwise the applicant has not disclosed the correct, true and full facts in the present application 482 Cr.P.C. He has completely and conveniently avoided mentioning of his filing the previous 482 application and the order passed therein. The affidavit in the present 482 application is of the applicant himself. He cannot be left unpunished. This is viewed as a concealment of a relevant and a vital fact from the Court. The Apex Court in the case of Bhaskar Laxman Jadhav & Others vs Karamveer Kakasaheb Wagh Education Society and others : (2013) 11 SCC 531 has held that a litigant who comes to the Court has to approach the Court with clean hands. He cannot choose what to disclose and what not to disclose, he has to disclose all the relevant facts and circumstances from the Court. The Apex Court has even held that a passing reference of a fact is not a disclosure. The disclosure has to be full and in specific terms.
12. Thus the present application under Section 482 Cr.P.C. has been filed by concealing relevant and material fact. The filing of the present application also is an abuse of process of law. The consent order dated 17.08.2021 has not been complied with. The present application under Section 482 Cr.P.C. is thus dismissed with a cost of Rs. 50,000/- which is imposed upon the applicant who is the deponent of the present 482 application. The same be deposited within a period of two weeks from today before the Registrar General of this Court.
13. In the event, the said cost is not deposited within the aforesaid period, the Registrar General of this Court shall intimate the District Magistrate, Prayagraj about this order who shall take up the matter for realization of the same as a land revenue from the applicant. The said amount shall be realized within three weeks as land revenue from the applicant. As soon as the same is realized, the District Magistrate, Prayagraj shall transmit it to the Registrar General of this Court for its utilization as mentioned as above.
14. Accordingly, the present 482 application is dismissed with the aforesaid directions.
Order Date :- 15.12.2022 M. ARIF (Samit Gopal, J.)