Punjab-Haryana High Court
Sher Mohd. Khan vs Madan Lal And Another on 5 August, 2011
Author: Augustine George Masih
Bench: Augustine George Masih
Crl. Misc. No. M-24856 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Misc. No. M-24856 of 2008
Date of decision: .08.2011
Sher Mohd. Khan
.....PETITIONER
VERSUS
Madan Lal and another
..... RESPONDENTS
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present: Mr. Sunil Panwar, Advocate,
for the petitioner.
Mr. A.K.Tyagi, Advocate,
for respondent No. 1.
None for respondent No. 2-State of Haryana.
***
AUGUSTINE GEORGE MASIH, J.
This petition under Article 215 of the Constitution of India read with Sections 482 and 340 of the Code of Criminal Procedure has been preferred by the petitioner for setting aside/declaration as nullity the order dated 14.08.2008 passed by this Court quashing FIR No. 470 dated 18.07.1995 registered under Sections 420, 467, 468, 471 and 120-B IPC at Police Station Sadar, Gurgaon having been obtained by fraud and mis- representation and for initiation of proceedings under Section 340 Cr.P.C. against respondent No. 1 for having committed an offence referred in Section 194 Cr.P.C. against respondent No. 1.
Crl. Misc. No. M-24856 of 2008 2
Briefly the facts of the case are that a Registered Co-operative Society by the name of Chanderlok Maruti Employees Co-operative House Building Society, Chakarpur (hereinafter referred to as 'the Society") was formed. The said Society was registered with the Assistant Registrar of the Co-operative Society, Gurgaon, under the provisions of Haryana Co- operative Societies Act, 1984. The Society in furtherance of its aims and objects got constructed 200 residential flats from D.L.F. within a short period of 2 years and the allotment of flats was made by draw of lots before its general body presided over by Assistant Registrar, Gurgaon on 27.02.1994. Out of 200 flats, possession of 192 flats was delivered and remaining 8 flats could not be handed over to the members of the Society as they failed to deposit the balance payment due to the Society. Some of these members of the Society filed complaints before the Deputy Registrar of the Co-operative Societies, Gurgaon against the Managing Committee of the Society. That apart, Complaint was filed by the petitioner-Sher Mohd. Khan along with two other members of the Society to the Deputy Commissioner, Gurgaon in an open public grievance meeting against the Managing Committee. He marked the enquiry to the Additional Deputy Commissioner, Gurgaon, who, after holding an enquiry, submitted his report dated 30.05.1995. In the said report, allegations against the Managing Committee, of which Madan Lal-respondent No. 1 was also a member, were found to be prima-facie correct. The Deputy Commissioner, Gurgaon forwarded the said enquiry report to the Senior Superintendent of Police, Gurgaon. On the basis of this enquiry report, FIR No. 470 dated 18.07.1995 under Sections 420/467/468/471 IPC was registered at Police Station Sadar, Gurgaon. After completion of the investigation, challan was presented before the competent Court on 23.08.2006 and thereafter, Crl. Misc. No. M-24856 of 2008 3 charge was framed against respondent No. 1-Madan Lal and other co- accused on 18.10.1996 and the trial was going on.
On 23.11.2007, respondent No. 1 filed Crl. Misc. No. 52302-M of 2007 titled as Madan Lal vs. State of Haryana under Section 482 of the Code of Criminal Procedure praying for quashing of FIR No. 470 dated 18.07.1995 primarily on the ground that the Society filed a suit for permanent injunction seeking a decree of declaration to the effect that the report dated 30.05.1995 of the Additional Deputy Commissioner, Gurgaon is illegal, null and void, without jurisdiction, arbitrary, discriminatory, unconscionable being against the principles of natural justice and without affording opportunity of hearing to the Society and further a decree of permanent injunction restraining the Deputy Commissioner, Gurgaon from getting dismissed the Managing Committee of the Society prior to expiry of its tenure on 14.06.1997 and also from getting the members of the Managing Committee of the Society arrested under FIR No. 470 dated 18.07.1995, Police Station Sadar, Gurgaon. This civil suit was partly allowed, wherein a decree for declaration to the effect that the report dated 30.05.1995 of the Additional Deputy Commissioner is illegal, null and void and without jurisdiction and not binding on the Managing Committee of the Society and that the Deputy Commissioner, Gurgaon was not entitled to take any action against the Managing Committee of the Society under the impugned report dated 30.05.1995. The said findings of the Civil Judge (Sr. Division), Gurgaon dated 28.02.2003 had attained finality as no appeal against the said decree was filed. The findings so returned by the Civil Court having attained finality are binding on the Criminal Court. Thus, the report dated 30.05.1995 of the Additional Deputy Commissioner, Gurgaon being not in accordance with law as per the decree dated 28.02.2003, Crl. Misc. No. M-24856 of 2008 4 which was the basis for registration of the FIR, could not be allowed to be sustained and thus prayed for quashing of the FIR. The State of Haryana was only impleaded as a party-respondent and none of the complainants, who had filed the complaints to the Deputy Commissioner, Gurgaon or the Additional Deputy Commissioner, Gurgaon, were impleaded as respondents.
Upon notice issued to the State of Haryana, reply was filed by the Assistant Commissioner of Police, Sadar, Gurgaon on behalf of the State of Haryana, wherein the factual assertions of the petitioner were not denied. The case came up for hearing before this Court on 14.08.2008 when the following order was passed:-
" This is a petition under Section 482 of the Code of Criminal Procedure for quashing of FIR No. 470, dated 18.07.1995, under Sections 420, 467, 468, 471, 120-B IPC, registered at Police Station, Sadar Gurgaon, District Gurgaon (Annexure P-2) and also consequential proceedings arising therefrom qua the petitioner.
It has been contended by the counsel for the petitioner that FIR is the verbatim reproduction of the report dated 30.05.95 of the Additional Deputy Commissioner and Chief Executive Officer, District Rural Development Authority, Gurgaon addressed to the Deputy Commissioner, Gurgaon. The said report was challenged by the Society by way of civil suit before Civil Judge (Sr. Division), Gurgaon, who, vide order dated 28.02.2003, has decreed the suit. The relevant extract of the same is reproduced hereinbelow:
Crl. Misc. No. M-24856 of 2008 5
"ISSUE NO. 8 (RELIEF)
14. Upon my findings on the foregoing issues, the suit of the plaintiff succeeds and the same is hereby decreed partly. Therefore, a decree for declaration to the effect that the report dated 30.5.95 of defendant No. 2 prepared after filing of W.S. on 14.6.95 ante dated is illegal, null and void, and without jurisdiction, arbitrary and discriminatory, unconsciencable, against the principle of natural justice and affording opportunity of hearing to the plaintiff and the same is not binding upon the Managing Committee of the plaintiff and that the defendants are not entitled to take any action against the Managing Committee of the plaintiff under the impugned report dated 30.5.95 of the defendant No. 2, is hereby passed in favour of the plaintiff and against the defendants, with no order as to costs. Rest of the relief claimed by the plaintiff society is hereby dismissed. Decree sheet be drawn accordingly and file be consigned to record room after due compliance.
Sd/-
Announced. Civil Judge (Sr. Division),
28.2.2003 Gurgaon, 28.2.2003."
In the light of the above, the counsel for the petitioner contends that the findings given by the civil court are binding on the criminal court and, therefore, the contents of the FIR, which were the basis for registration of the FIR, do not hold good as the same have been held to be illegal, null and void. No appeal has been preferred and the judgment Crl. Misc. No. M-24856 of 2008 6 has become final. Since the said document, which is the basis of the FIR, is not held to be legal, therefore, the FIR itself deserves to be quashed.
The factual aspect with regard to the contents of the FIR and the report dated 30.5.95 being verbatim the same, has not been disputed and it being a settled preposition of law, that findings given by civil court are binding on the criminal court, no useful purpose would be served by proceeding with the case, which is pending before the trial court.
In view of the above, this petition is allowed. FIR No. 470, dated 18.07.1995, under Sections 420, 467, 468, 471 and 120-B IPC, registered at Police Station, Sadar Gurgaon, District Gurgaon and also consequential proceedings arising therefrom qua the petitioner, are hereby quashed."
After passing of this order, Sher Mohd. Khan, who along with two others had filed the complaint leading to holding of an enquiry by the Additional Deputy Commissioner, Gurgaon and on the basis of the enquiry report the FIR came into existence, when came to know of the above order dated 14.08.2008, filed the present petition CRM No. M-24856 of 2008, alleging therein that respondent No. 1-Madan Lal (petitioner in CRM No. 52302-M of 2007) had obtained this order from this Court by not pleading the true and correct facts and had intentionally withheld the relevant and vital information from this Court with regard to the fact that the decree dated 28.02.2003 passed by the Civil Judge (Sr. Division), Gurgaon (which became the basis for quashing the FIR) was challenged by petitioner-Sher Mohd. Khan by filing Civil Appeal No. 86 of 12.12.2003, which was allowed Crl. Misc. No. M-24856 of 2008 7 vide judgment and decree dated 16.05.2006 passed by the Additional District Judge, Gurgaon and the judgment and decree dated 28.02.2003 was set aside. Thereafter, an appeal was preferred by respondent No. 1 along with four others in this Court being RSA No. 840 of 2007 titled as Ashok Kumar Chauhan and others vs. Deputy Commissioner, Gurgaon and others on 02.03.2007, which stands admitted and is pending adjudication by this Court. These facts were not disclosed by Madan Lal-respondent No. 1 while filing CRM No.52302-M of 2007 on 23.11.2007. Even on the date, when the order dated 14.08.2008 was passed by this Court in the said Criminal Misc. application, this fact was not brought to the notice of the Court. It was rather contended by the petitioner (respondent No. 1 herein) before the Court that no appeal has been preferred against the judgment and decree dated 28.02.2003 passed by the Civil Judge (Sr. Division), Gurgaon, and the same has become final as is apparent from order dated 14.08.2008 passed by this Court while quashing the FIR.
Upon notice having been issued by this Court, reply has been filed by respondent No. 1, wherein a preliminary objection has been taken that there is no provision of review in Criminal Law. Section 362 of the Code of Criminal Procedure specifically bars review of its own judgment or final order by any Court. It has been submitted that the answering respondent was not aware of the appeal filed against the judgment and decree dated 28.02.2003 passed by the Civil Judge (Sr. Division), Gurgaon, as he was not impleaded as a party in the appeal. It is further stated that he was not aware of the filing of RSA No. 840 of 2007 in this Court till he received notice in the present petition for the reason that he was arrested on 29.11.2005 in a case bearing FIR No. 190 dated Crl. Misc. No. M-24856 of 2008 8 10.03.2005 under Sections 420/467/468/471/120-B IPC and remained in jail till 04.04.2007. The Power of Attorney was got signed from the answering respondent by his counsel Sh. Ajit Dahiya in custody only for filing a bail application. The said Power of Attorney was executed on 10.06.2006, which was attested by the learned Judicial Magistrate 1st Class, Gurgaon. He was never informed either by his counsel or the other appellants that they were filing an appeal in this Court. On the date when the Regular Second Appeal was filed in this Court i.e. 02.03.2007, he was in custody. Hence, it is totally wrong to say that the answering respondent fraudulently and deliberately concealed the material facts as he had no knowledge of the developments in the civil case and thus, made wrong submissions in the petition for quashing of FIR that the judgment and decree dated 28.02.2003 by the Civil Judge (Sr. Division), Gurgaon has become final. The fact with regard to the filing of the appeal in the High Court being RSA No. 840 of 2007 stands admitted by him in his reply filed.
Counsel for the petitioner, on the basis of the above facts and pleadings, submits that it is not disputed and rather admitted that an appeal was pending before this Court when order dated 14.08.2008 was obtained by Madan Lal-respondent No. 1 by wrongly asserting in his affidavit dated 23.11.2007, which was filed in this Court along with and in support of Crl. Misc. No. 52302-M of 2007, that the judgment and decree dated 28.02.2003 passed by the Court of learned Civil Judge (Sr. Division), Gurgaon had attained finality. This very assertion became the basis for quashing FIR No. 470 dated 18.07.1995 by this Court vide order dated 14.08.2008. It cannot be accepted that respondent No. 1 was not aware of the filing of the appeal as the Power of Attorney attached with the Regular Second Appeal, which fact has been admitted to have been executed by Crl. Misc. No. M-24856 of 2008 9 respondent No. 1, clearly indicates his knowledge. Further, CRM No. 52302-M of 2007 was filed on 23.11.2007 whereas he was released from custody on 04.04.2007 i.e. after a period of more than 7 months. Before making a positive assertion in the affidavit before this Court, he was required to verify the correct factual position, which, it cannot be believed, was not done so by respondent No. 1. Further, intentionally the complainants were not impleaded as respondents in the petition. It clearly reflects the mala-fide intention on the part of respondent No. 1. He contends that fraud avoids all judicial acts and a judgment and decree obtained by playing fraud on Court is nullity and non-est in the eyes of law and it can be challenged in any Court even in collateral proceedings. In support of this contention, reliance has been placed by him on the judgment of the Supreme Court in the case of S.P.Chengalvaraya Naidu (dead) by L.Rs. vs. Jagannath (dead) by L.Rs. and others, AIR 1994 Supreme Court 853. Placing reliance on the judgment of the Supreme Court in the case of Hamza Haji vs. State of Kerala and another, (2006) 7 Supreme Court Cases 416, he contends that the High Court, in exercise of its powers under Article 215 of the Constitution of India, has the power to undo a decision that has been obtained by a party by playing fraud on the Court. He contends that in exercise of its powers under Section 482 Cr.P.C., High Court has the power to declare its order to be a nullity or to recall the same and in such circumstances, Section 362 Cr.P.C. would not be attracted. For exercise of powers under Section 482 Cr. P.C., which is an inherent power, the only requirement is that the case should fall under one or other of the three conditions mentioned in Section 482 Cr.P.C. The present case would be a case which would fall under these conditions and was a fit case where the Court should exercise its extraordinary inherent Crl. Misc. No. M-24856 of 2008 10 powers under Section 482 Cr.P.C. In support of this contention, reliance has been placed on the judgment of the Full Bench of Rajasthan High Court in the case of Habu vs. State of Rajasthan, AIR 1987 Rajasthan 83. He, accordingly, prays for the declaration of the order dated 14.08.2008 passed by this Court to be a nullity as the same was based on fraud, mis- representation, false and misleading facts as asserted by respondent No. 1 through an affidavit before this court and has further prayed for initiation of the proceedings under Section 340 Cr.P.C.
On the other hand, counsel for respondent No. 1 has reiterated the facts, as have been stated by respondent No. 1 in his reply before this Court. He, however, has placed reliance on the judgment of the Supreme Court in the case of Hari Singh Mann vs. Harbhajan Singh Bajwa and others, (2001) 1 SCC 169, to contend that there is no provision in the Code of Criminal Procedure authorizing the High Court to review its judgment passed in a case. Reliance has also been placed on the Full Bench of the Calcutta High Court in Harjeet Singh vs. State of West Bengal, 2005 Crl. L.J. 3286, to contend that provisions of Section 362 Cr.P.C. act as a bar in recalling order passed by the Court. On this basis, he prays for dismissal of the petition.
I have heard the counsel for the parties and have gone through the records of this case as also CRM No. 52302-M of 2007 Madan Lal vs. State of Haryana and RSA No. 840 of 2007 titled as Ashok Chauhan and others vs. Deputy Commissioner, Gurgaon and others, which were summoned vide order dated 28.08.2009.
Crl. Misc. No. M-24856 of 2008 11
Before Proceeding further, the scope and ambit of Section 482 Cr.P.C. as also the jurisdiction of High Court under this Section needs to be gone into. Section 482 Cr.P.C. reads as follows:-
"482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
All Courts, whether civil or criminal, in the absence of an express provision, as inherent in their constitution, possess all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle quando lex aliquit alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). Section 482 Cr.P.C. thus, does not confer a new jurisdiction or power on the High Court. It merely safeguards all existing inherent powers possessed by it necessary to secure the ends of justice. These powers by this provision have been preserved lest it be considered that the only powers possessed by it are those which are expressly conferred by the Code and that no inherent power had survived with the passing of the Code. This Section was added so that the High Courts may not feel hesitant to exercise their inherent powers even in cases where injustice was palpable and apparent in its absence. It is a sort of reminder to the High Courts that they are not merely Courts of law but also Courts of justice and possess inherent powers to prevent and remove injustice. However, in view of Section 482 Cr.P.C., this power is not available with the subordinate Courts now. Crl. Misc. No. M-24856 of 2008 12
No legislative enactment dealing with the procedure, as exhaustive as it may be, can visualize and provide for all cases that may possibly arise. While putting into effect the procedural law, lacunae are sometimes discovered therein and it is to cover such lacunae and to deal with cases when such lacunae are discovered in the procedural law that these inherent powers are required. The Courts must, therefore, have inherent powers, apart from the express provisions of law, which are essential and necessary for their existence and for proper discharge of duties imposed upon them by law. This doctrine finds expression in Section 482 Cr.P.C.. The inherent power of the High Court is an inalienable attribute of the position it holds with respect to the Courts subordinate to it. The inherent jurisdiction of the High Court preserved under this Section is vested in it by "law" within the meaning of Article 21 of the Constitution.
The inherent jurisdiction possessed by the High Court and as envisaged under Section 482 Cr.P.C. can be exercised in three circumstances, namely:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of any Court; and
(iii) to otherwise secure the ends of justice.
Under any one or more of these three circumstances, this jurisdiction can be exercised by the High Court. Keeping in view the content, purpose and nature of this provision, it is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of the High Court's inherent jurisdiction. The powers of the High Court under this Section are extraordinary in their nature and exercised ex debito Crl. Misc. No. M-24856 of 2008 13 justitiae, that is to say, for the purpose of doing real and substantial justice, for the administration of which the Courts of law exist. But this does not mean that these inherent powers are to be exercised where such powers have been expressly taken away by legislation and also cannot be invoked which are directly covered by the specific provisions of the legislation. If a remedy is specifically available under the Statute, High Court cannot, in such situations, invoke inherent jurisdiction. These powers are to be exercised only when there is no specific provision in the Code to meet a particular situation and only when no other remedy is available to the litigant. Inherent jurisdiction cannot be exercised against the provisions of law but needs to be exercised only in cases where substantial justice is required to be done and that too, where any one or more of the three circumstances, as mentioned in Section 482 Cr.P.C., exist.
Thus, the High Court is not given, nor did it ever possess, an unrestricted, unguided or undefined power to make any order which it might please to consider, was in the interest of justice. High Court like any other Court is also strictly governed by the provisions contained in the Criminal Procedure Code and is not supposed to travel beyond those specific provisions. Its inherent powers are as much controlled by principle and precedent as are its express powers by Statute.
It is a well established and recognized principle of legal jurisprudence that an act of the Court shall not harm any party, which means total and complete justice shall be done in the case by the Court. Relief will not be granted to a party whose hands are dirty with crime and misadventure or where it has not approached the Court bona-fide or with a mala-fide intention with an effort to mislead the Court especially when the facts are misrepresented or deliberately suppressed. It can conversely be Crl. Misc. No. M-24856 of 2008 14 said that when it comes to the knowledge of the Court that an order has been obtained by these means, the Court would exercise its inherent powers to see that justice is not made a causality by recalling or setting aside such order as the case may require.
This Court in circumstances as mentioned above would not feel helpless or give an interpretation to Section 482 Cr.P.C. in a narrow campus to make itself powerless to correct its own error. Inherent jurisdiction exists for the advancement of justice and if any attempt is made to abuse that authority, so as to produce injustice, the Court has the power to prevent that abuse. One of the circumstances provided in Section 482 Cr.P.C. where inherent jurisdiction can be exercised is to prevent abuse of the process of any Court, which would include abuse of process of itself as well. In the absence of such power, the administration of law would fail to serve the purpose for which alone the Court exists, namely, to promote justice and to prevent injustice. It would be an abuse of process of law to allow an order obtained by playing fraud on the Court by intentionally mis- stating the facts and withholding the true facts from the Court to continue to operate despite true facts come or are brought to the notice of the Court.
The High Court thus, has very vast powers and such powers are restricted in situations, which have been dilated above, but that do not, in any way, put fetters in the exercise of inherent jurisdiction of the High Court in securing the ends of justice and invoking of the same is dependent upon the facts and circumstances of that particular case. These powers, thus, cannot be cast in any inflexible rule and the discretion must be exercised by the Court to prevent the abuse of process of Court and to secure the ends of justice which must prevail as the rule of law and dignity of the Courts is to be upheld and preserved. The High Court may exercise Crl. Misc. No. M-24856 of 2008 15 its jurisdiction under this Section as the order, so obtained, is ex-facie void. Normally, the inherent jurisdiction cannot be invoked by the same person for a second time as the same would not be entertainable particularly when there is no change in the facts and circumstances of the case between the passing of the earlier order and the filing of the subsequent petition under Section 482 Cr.P.C. This bar, however, would not be applicable in cases where there are fresh facts and on that basis fresh grounds are available to the petitioner.
Section 362 of the Code of Criminal Procedure, which has been pressed into service by the counsel for respondent No. 1 to contend that the Court does not have the power to recall or set aside its own order, now requires to be analyzed, which reads as follows:-
"362. Court not to alter judgment.- Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."
A perusal of the above Section leads us to a conclusion that there is a complete bar for altering or reviewing of a judgment or a final order on merits except to correct clerical or arithmetical error in the same. There is a difference between the recalling or setting aside of a judgment or an order and that of altering or reviewing it. What is forbidden is alteration or review of a final judgment or order disposing of a case but it does not prohibit the total abrogation of such judgment or order. There is thus no specific bar contained in Section 362 Cr.P.C. or any other Section of the Code against the revoking, setting aside or recall of a judgment or an order and inherent powers under Section 482 Cr.P.C. can be resorted to by Crl. Misc. No. M-24856 of 2008 16 the High Court in exceptional cases for doing so. However, one or other of the three conditions mentioned in Section 482 Cr.P.C. should be fulfilled i.e. (i) to give effect to any order passed under the Code of Criminal Procedure (ii) to prevent abuse of the process of any Court (iii) otherwise to secure the ends of justice.
Thus, for the above three reasons, wherever necessary, on fulfilling anyone or more of these conditions, the Court has power to revoke, recall or set aside its own earlier order/judgment. However, this is an exceptional power which should be sparingly used and that too where the test as laid down in the Section stands satisfied.
The question, which the Court is now required to find an answer to is;
Whether the present petition under Section 482 Cr.P.C., which has been filed by the complainant, on whose complaint, an enquiry was initiated and on the basis of the enquiry report, FIR No 470 dated 18.07.1995 was registered, a different person than the one who had filed earlier petition under this Section i.e. accused, can be entertained for recall/setting aside/revoking the earlier order dated 14.08.2008 passed by this Court quashing the said FIR or the same would be barred under Section 362 Cr.P.C.?
This petition under Section 482 Cr.P.C. is the first petition by petitioner-Sher Mohd. Khan, therefore, it will have to be seen whether it would be hit by the bar on entertainment of the present petition under the provisions of Section 362 Cr.P.C.
By now it is a settled proposition of law and has been reiterated by the Supreme Court in its various judgments that inherent power under Section 482 Cr.P.C., which is intended to prevent the abuse Crl. Misc. No. M-24856 of 2008 17 of process of Court and to secure the ends of justice, cannot be exercised to do something which is expressly barred under the Code. Section 362 Cr.P.C. puts an embargo on the Court to alter or review a judgment or a final order passed on merits after signing it, except to correct clerical or arithmetical error in the same. A second application under Section 482 Cr.P.C. is not entertainable on the instance of the same parties on the same facts with no change in circumstances as it would amount to review of an earlier order being contrary to the spirit of Section 362 Cr.P.C. (Hari Singh Mann's case (supra). But where there is change in circumstances and new facts have come into existence, the bar of this Section would not be applicable and it would thus, be in accordance with law for the High Court to exercise its inherent jurisdiction in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of Court. Reference to a judgment of the Supreme Court in Simrikhia vs.Dolley Mukherjee and Chhabi Mukherjee and another, (1990) 2 Supreme Court Cases 437, may be made where relying upon the earlier judgment of the Supreme Court in Superintendent and Remembrancer of Legal Affairs, W.B. vs. Mohan Singh and others, (1975) 3 SCC 706, this principle has been recognized.
By now, it is no more res-integra that an order, judgment or decree obtained by playing fraud on the Court is a nullity and non-est in the eyes of law. Such an order/judgment/decree passed by the Court has to be treated as a nullity by every Court, whether superior or inferior and it can be challenged in any Court even in collateral proceedings. This has been held by the Supreme Court in S.P.Chengalvaraya Naidu (dead) by L.Rs. (supra). It has further been held in para 7:-
"7. xxx xxx xxx xxx xxx The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of Crl. Misc. No. M-24856 of 2008 18 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. Property-grabbers, 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-gains 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."
Further, in para-8, it has been held as follows:-
" xxx xxx xxx xxx xxx 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 then he would be guilty of playing fraud on the Court as well as on the opposite party."
In A.V. Papayya Sastry and others vs. Govt. of A.P. and others, (2007) 4 Supreme Court Cases 221, it was held in paras 21 and 22 as follows:-
"21. Now, it is well-settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed:
"Fraud avoids all judicial acts, ecclesiastical or temporal."Crl. Misc. No. M-24856 of 2008 19
22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non-est in the eye of the law. Such a judgment, decree or order-by the first court or by the final court-has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings." Proceeding to define fraud, in paras 25 and 26 it is held:-
"25. It has been said:fraud and justice never dwell together (fraus et jus nunquam cohabitant), or fraud and deceit ought to benefit none (fraus et colus nemini patrocinari debent).
26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of "finality of litigation"
cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants."
In Kendriya Vidyalaya Sangathan vs. Ajay Kumar Das, (2002) 4 SCC 503, the Hon'ble Supreme Court has proceeded to hold that when a fraud is practiced on a Court, the order so obtained is rendered a nullity. In a case of nullity, even the principles of natural justice are not required to be complied with.
Further in United India Insurance Co. Ltd. vs. Rajendra Singh, (2000) 3 SCC 581, the Hon'ble Supreme Court proceeded to hold Crl. Misc. No. M-24856 of 2008 20 in para 16 that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No Court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.
On the basis of the above judgments of the Hon'ble Supreme Court, it can be concluded that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non-est in the eyes of law, which has to be treated as such by every Court, superior or inferior and can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings. An act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage, which could be on the basis of misrepresentation, would amount to fraud. In such situations, the most solemn proceedings stand vitiated as they are actuated by fraud which is an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. Once it is established that the order was obtained by a successful party by practicing or playing fraud, it stands vitiated and is non-existent and non- est and cannot be allowed to stand as the same is violative of the fundamental principle of law. Once it is held that by reason of commission of a fraud, a judgment, decree or order has been obtained, the same is rendered to be void vitiating all subsequent proceedings taken pursuant thereto as they would also be a nullity. In these circumstances, it would be wholly inequitable to confer a benefit on a party who is a beneficiary thereunder and the same cannot be allowed to continue and exist. A person, who approaches the Court with a claim which is based on Crl. Misc. No. M-24856 of 2008 21 falsehood, has no right to approach the Court and can be summarily thrown out at any stage of litigation as the misrepresentation, which would affect the very basis of the claim, would lead to doubt the bona-fide of a person and he cannot be permitted to pollute the stream of justice, which has to be kept pure, serene and undefiled. Thus, it becomes the duty of the Court to take steps to preserve its purity by taking remedial steps and not sit and look helplessly.
In the present case, it is true that respondent No. 1-Madan Lal was in custody in some other FIR, when RSA No. 840 of 2007 was filed in this Court on 02.03.2007. After his arrest on 29.11.2005, he was only released from custody on 04.04.2007. However before that, in FIR No. 470 dated 18.07.1995, challan was presented against him along with other co- accused on 23.08.1996 and thereafter, charge was framed on 18.10.1996. CRM No. 52302-M of 2007 for quashing of FIR No. 470 was filed in this Court on 23.11.2007, wherein it was asserted that judgment and decree dated 28.02.2003 passed by the Civil Judge (Sr. Division), Gurgaon, has become final as no appeal was preferred against the said judgment. This fact was supported by an affidavit filed by Sh. Madan Lal dated 23.11.2007. The petitioner (respondent No. 1 herein) was mandated to confirm the fact with regard to the civil litigation before making an assertion in this regard by way of an affidavit in the petition filed in this Court. It is difficult to believe that respondent No. 1 was not aware of filing of an appeal against the order passed by the Civil Judge (Sr. Division), Gurgaon, on 28.02.2003.
It would not be out of way to mention here that an appeal challenging this judgment dated 28.02.2003 was filed on 12.12.2003 by the petitioner-Sher Mohd. Khan, wherein service was effected on 02.01.2004. Respondent No. 1 although was not a party to the appeal by name but is Crl. Misc. No. M-24856 of 2008 22 resident of the Society, as is apparent from the address given in CRM No. 52302-M of 2007 and in the present petition. Respondent No. 1-Madan Lal was arrested only on 29.11.2005. The assertion thus, of respondent No. 1 cannot be accepted. That apart, respondent No. 1 was seeking quashing of FIR No. 470 dated 18.07.1995, in which apart from him, there were four other accused, namely, Sohabir Singh, Sehdev Poonia, Ashok Kumar Gehlot and Ashok Kumar Chauhan. These are the same, who are appellants along with respondent No. 1 in RSA No. 840 of 2007 and they are also members and residents of the same society as Madan Lal. After the release of respondent No. 1 from the jail on 04.04.2007, especially when the trial of all of them was going on together in a criminal case, it is unbelievable that this information of the filing of the appeal by Sher Mohd. Khan-petitioner in the present petition, acceptance of the appeal by the learned Additional District Judge, Gurgaon vide judgment dated 16.05.2006 and the filing of the Regular Second Appeal in the High Court challenging the order of the Appellate Court dated 16.05.2006 would not be to the knowledge of respondent No. 1. Even now, if the assertion of respondent No. 1 is accepted that he had given power of attorney to the counsel for filing a bail application, is accepted then also no steps have been taken by him till date to undo the act of filing the appeal in the High Court by his counsel un-authorizedly nor any action has been taken or initiated against the counsel. These facts and circumstances lead this Court to one conclusion that taking undue benefit of he being in custody, defence, which is an afterthought, now has been sought to be canvassed by respondent No. 1 as above. The correct facts were intentionally withheld by him from the Court, which had led to the passing of the order dated 14.08.2008. He succeeded in his endeavour and obtained undue benefit to which he was Crl. Misc. No. M-24856 of 2008 23 not entitled to and, therefore, cannot be permitted to retain and reap the pleasantries attained through unfair means. This order is thus, a nullity and non-est in the eyes of law as the same has been obtained by playing fraud on the Court by respondent No. 1.
When the petition filed by Sh. Madan Lal (respondent No. 2 herein) i.e. CRM No. M-52302 of 2007 is taken into consideration excluding the finality of the proceedings before the Civil Court, this Court would not have proceeded to quash the FIR. As per the reply filed by the State in that petition, it is apparent that after the presentation of the challan on 23.08.1996 against Sh. Madan Lal and others, even the charges were framed on 18.10.1996 and the petition for quashing of the FIR was filed on 23.11.2007. These facts were also not disclosed by Sh. Madan Lal in his petition and had rather pleaded therein that the findings returned in the judgment passed by the Civil Judge (Sr. Division), Gurgaon dated 28.02.2003 had attained finality as no appeal against the said decree was filed. The findings returned by the Civil Court being binding on the Criminal Court, the FIR deserved to be quashed. Had the true facts been brought to the knowledge and notice of the Court, this Court would not have passed the order dated 14.08.2008 quashing the FIR in question. This Court is convinced that the order was obtained through fraud and misrepresentation as the claim was based on the same, which led to the passing of the order in favour of Sh. Madan Lal. In the light of the judgment of the Supreme Court in the case of United India Insurance Co. Ltd (supra), this Court has the jurisdiction to recall/set aside the order on the basis of the newly discovered facts about misrepresentation and fraud.
That apart, the bar of Section 362 Cr.P.C. for a petition under Section 482 Cr.P.C. is applicable only in such cases where successive Crl. Misc. No. M-24856 of 2008 24 applications are preferred under Section 482 Cr.P.C. by the same person where the earlier petition stands decided and the judgment or final order disposing of the case stands signed by the Court in the same main case or by preferring a fresh petition under Section 482 Cr.P.C. without there being any change in the facts and circumstances. The position is totally different in the present case where, as has been held above, order dated 14.08.2008, which was passed by this Court in a petition preferred under Section 482 Cr.P.C. by Madan Lal (respondent No. 1 herein), stands allowed for quashing of FIR No. 470 dated 18.07.1995, was obtained by him by approaching this Court with unclean hands by not disclosing the true facts, rather withholding the relevant essential facts from the Court with a mala-fide intention to obtain an order by playing fraud on the Court. The claim of Madan Lal was founded on a false plea which he knew to be false and suppressed the true facts from the Court. Such mis-statement of facts would not bar the present petition under Section 482 Cr.P.C. by the complainant, and in any case, he was required to be impleaded as a respondent being a complainant and if not him, at least the Additional Deputy Commissioner, Gurgaon, whose report was considered and became the basis for FIR, should have been impleaded as a respondent. This was also done intentionally so that the correct and true facts may not come to light, exposing him and his untrue concocted story.
The true facts, as have been discussed above, were brought to the notice of this Court through the present petition which would clearly spell out that the basis for quashing of the FIR i.e. finality of the civil proceedings and the findings of the Civil Court being binding on the Criminal Court, were falsely pleaded by Madan Lal-respondent No. 1. In such circumstances, exercise of powers under Section 482 Cr.P.C. setting Crl. Misc. No. M-24856 of 2008 25 aside the order dated 14.08.2008, which is a nullity and non-est in the eyes of law as the same had been obtained by playing fraud on the Court, would not amount to altering or reviewing the earlier order dated 14.08.2008 passed by this Court and would not fall within the bar under Section 362 Cr.P.C. as provided therein.
The Hon'ble Supreme Court in R.Rajeshwari vs. H.N.Jagdish, 2008 (4) SCC 82 while considering the effect and scope of Section 362 and Section 482 held in para 15 that although a specific bar has been created in regard to exercise of the jurisdiction of the High Court to review its own order and ordinary exercise of jurisdiction under Section 482 of the Code of Criminal Procedure would be unwarranted but in some rare cases, the High Court may do so where a judgment has been obtained from it by practicing fraud on it.
There is yet another aspect which needs to be referred to here. The High Court is a Court of Record and under Article 215 of the Constitution of India, has all powers of such a Court of record including the power to punish contempt of itself. One distinguishing characteristic of superior Courts is that they are entitled to consider questions of their jurisdiction raised before them. It is thus, for the Court to consider whether any matter falls within its jurisdiction or not unlike a Court of limited jurisdiction. Court of Record can be defined as a Court where acts and judicial proceedings are enrolled and preserved for a perpetual memorial and testimony and are called the records of the Court. These records are of such high and supereminent authority that their truth cannot be questioned. Meaning thereby that these records are conclusive evidence of that which is recorded therein. The High Court, as a Court of record, has inherent power to correct the record. It, as a Court of record, has a Crl. Misc. No. M-24856 of 2008 26 duty to keep its all records correctly and in accordance with law. In case any apparent error is noticed by the High Court or brought to its notice in respect of any orders passed by it, the High Court has not only the power but a duty to correct it. This is a plenary power of the High Court being a Superior Court and a Court of Record. When favourable orders are obtained by playing fraud on the Court, the High Court, as a Court of Record, has jurisdiction to set aside the order. The High Court has inherent powers by virtue of this Article to prevent abuse of process of Court. Jurisdiction in contempt is an independent jurisdiction of original nature which also flow from this Article.
In Hamza Haji's case (supra), the Hon'ble Supreme Court in para 26, while dealing with the powers of the High Court under Article 215 of the Constitution of India, held that the High Court in exercise of its jurisdiction under Article 215 of the Constitution of India has the power to undo a decision that has been obtained by playing a fraud on the Court being a Court of record.
Therefore, this Court being a Superior Court and a Court of Record has the power to put the record straight as no Court will allow itself to be used as an instrument of fraud. It cannot close its eyes to the fact which has been brought or comes to its notice which satisfies the Court that it is being used as an instrument of fraud. Such judgment, order or decision cannot be allowed to stay nor can such an order, which is a nullity and which has been obtained by playing fraud on the Court, be sustained. The Court would not hesitate in recalling/setting aside such an order, which has been obtained on a false plea or on a claim, which the party knew to be false and suppressed documents or transactions which has relevance in deciding his claim as the same would amount to a fraud. The power Crl. Misc. No. M-24856 of 2008 27 enshrined in this Court under Article 215 of the Constitution must be exercised in such like circumstances to preserve the proceedings of the Court from being deflected or interfered with so that the Court is not used as a tool to obtain undue benefit which a person is not entitled to. To keep the stream of justice pure, serene and undefiled, it is the duty of the Court to preserve it, lest the faith of a common man is shaken on the Court.
Thus, this Court would not and cannot, in the facts and circumstances as have been narrated and discussed above, permit order dated 14.08.2008 passed by this Court quashing FIR No. 470 dated 18.07.1995 registered under Sections 420, 467, 468, 471 and 120-B IPC at Police Station Sadar, Gurgaon, to stand.
Accordingly, this petition is allowed.
Order dated 14.08.2008 passed by this Court in Crl. Misc. No. 52302-M of 2007 titled as Madan Lal vs. State of Haryana, is hereby set aside being nullity and non-est in the eyes of law, which obviously means that the trial Court shall proceed with the trial of the accused Madan Lal in FIR No. 470 dated 18.07.1995, Police Station Sadar, Gurgaon and endeavor to conclude the same at the earliest, preferably within six months from the date of receipt of copy of this order, as already more than 16 years have passed from the date of registration of the FIR without being influenced by any observation made by this Court in the order.
Copy of this order be sent forthwith to the Chief Judicial Magistrate, Gurgaon, for information and compliance.
( AUGUSTINE GEORGE MASIH )
JUDGE
August , 2011
pj
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