Allahabad High Court
Nirmal Singh Garewal vs State Of U.P. And Another on 2 August, 2019
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 28 Case :- APPLICATION U/S 482 No. - 11932 of 2014 Applicant :- Nirmal Singh Garewal Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sikandar B. Kochar,Anoop Trivedi,Brijesh Sahai Counsel for Opposite Party :- Govt. Advocate Hon'ble Rajeev Misra,J.
Heard Mr. Sikandar B. Kochar, learned counsel for the applicant, the learned A.G.A. representing the opposite party No. 1 and Mr. Anoop Trivedi, learned senior counsel assisted by Mr. Vibhu Rai, learned counsel for the opposite party No. 2.
This application under section 482 Cr. P. C. has been filed with the prayer that a direction for further investigation in terms of Section 173 (8) Cr. P. C. be issued in respect of Case Crime No. 2568 of 2012, under sections 452 and 307 I.P.C., Police Station Kotwali, District Bareilly, to the C.B.I. or any other independent agency.
The present application came up for admission on 17.4.2014, whereby this Court passed the following interim order:-
"Heard learned counsel for the applicant and learned A.G.A. for the State and perused the record.
Notice on behalf of the opposite party no. 1 has been accepted by learned AGA. He prays for and is allowed six weeks' time to file counter affidavit.
Issue notice to opposite party no. 2, who may also file counter affidavit within the same period.
Rejoinder affidavit may be filed within two weeks thereafter.
List after expiry of the aforesaid period.
It is contended that this is cross case. In the case registered against the opposite party no. 2 at the behest of the applicant final report has been submitted against which he has preferred a protest petition which is pending before the concerned Magistrate, while the instant case in which the applicant is an accused is proceeding. He further submitted that that the investigation in the matter was done by the I.O. in an extremely unfair manner with the object of conferring undue benefit on the opposite party no. 2, who is under the influence of opposite party no. 2 and accordingly further investigation is required.
Considering the submissions made by learned counsel for the applicants, it is directed that till the next date of listing, the proceedings of the Sessions Trial no. 123 of 2013, Case Crime no. 2568 of 2012, State Vs. Nirmal Singh Garewal and others, under sections 452, 307 IPC, P.S. Kotwali, District Bareilly may go on but the judgement will not be pronounced."
Subsequently, a recall application was filed by the opposite party No. 2 and the recall application was allowed by the Court, vide detailed order dated 23.12.2014. The same is reproduced herein under:-
"This application has been moved on behalf of the opposite party no. 2, Nitin Jaiswal with the prayer to recall the interim order dated 17.4.2014 passed by this Court in the present case. The recall application is supported by a counter affidavit sworn by Sri Nitin Jaiswal, opposite party no. 2.
Rejoinder affidavit and supplementary affidavits which have been filed by Sri Sikandar B. Kochar on behalf of the applicant today are kept on record.
Learned counsel for the opposite party no. 2 submitted that the applicant Nirmal Singh Garewal, who is facing trial for the offences punishable under Sections-452 and 307 IPC in S. T. No. 123 of 2013 has obtained an ex parte interim order in his favour from this Court on 17.4.2014 in this case by suppressing material facts including the earlier orders passed by this Court in different proceedings arising out of the same session trial. He further submitted that this Court while rejecting the first bail application being Criminal Misc. Bail Application No. 364 of 2013 filed by the applicant by order dated 21.1.2013, copy whereof has been filed as Annexure-CA, had directed the trial court to conclude the trial expeditiously on day to day basis preferably within a period of six months from the date of receiving of the copy of the order of this Court. He also drew the attention of this Court to the order dated 25.7.2013 passed by this Court in Criminal Misc. Bail Application No. 17956 of 2013, copy whereof has been filed as Annexure CA 3 to the counter affidavit, by which the applicant was enlarged on bail by this Court with a specific direction to the trial court to decide the case expeditiously.
Sri Anoop Trivedi, learned counsel for the opposite party no. 2 next referred to the order of this Court dated 21.5.2013 passed in Criminal Misc. Application (U/s 482 Cr. P. C.) No. 16535 of 2013; Nirmal Singh Garewal Versus State of U. P. and another, copy whereof has been filed as Annexure CA 2, by which this Court rejected the aforesaid application filed by the applicant against the order dated 27.4.2013 passed by the Additional Sessions Judge, Court No. 1, Bareilly in Session Trial No. 123 of 2013, under Sections-452, 307/34 IPC, P. S.-Kotwali, district-Bareilly whereby application moved by the applicant before him for conducting spot inspection was rejected as well as the order dated 9.4.2014 passed by this Court whereby three applications under Section-482 Cr. P. C. nos. 3811 and 6775 of 2014 preferred by the applicant and 6095 of 2014 preferred by the complainant-opposite party no. 2 before this Court were finally disposed of with a direction to the trial court not only to proceed with the trial expeditiously but also to proceed with the trial irrespective of the pendency of any application or petition before this Court except where specific order of stay has been granted by this Court (Annexure 5 to the affidavit accompanying recall application). This Court while deciding the aforesaid applications had issued several directions to the trial court for concluding the trial expeditiously on day to day basis.
Advancing his submissions further, Sri Trivedi urged that in case abovenoted orders were brought to the notice of this Court by the applicant, he may not have succeeded in obtaining any ex parte interim order in his favour from this Court.
He lastly submitted that the applicant having failed to approach this Court with clean hands and succeeded in obtaining an ex parte interim order in his favour without disclosing the entire facts and circumstances of the case and the details of previous cases filed by him before this Court and the orders passed therein, the order dated 17.4.2014 is liable to be recalled.
Per contra, Sri Sikandar B. Kochar, learned counsel for the applicant vehemently submitted that the prayer made by the applicant in this application is founded upon allegations which have no connection with the earlier proceedings initiated before this Court by the applicant and the opposite party no. 2 and the orders passed by this Court therein and even if the litigative history between the parties was disclosed by the applicant, the same would not have made any difference to the merit of the present case. He next submitted that there is cross version of the incident also which was registered as Case Crime No. 2675 of 2012, under Sections-307, 452, 427, 504, 506, 380, 436 and 392 IPC at P. S.-Kotwali, sub-district-Sadar, district-Bareilly against the informant in the present case and several other persons.
Learned counsel for the applicant also submitted that initially after registration of Case Crime No. 2568 of 2012 against the applicant and his two sons in pursuance of the first information report lodged by the opposite party no. 2, the matter was investigated by the S. S. I. Brahmanand of P. S.-Kotwali, district-Bareilly. The investigation was later transferred to Prashant Kumar who is hand in glove with the opposite party no. 2. The aforesaid Prashant Kumar made some interpolations in the parcha prepared by S. I. Brahmanand, the earlier I. O. Strangely, the investigation of the cross case was also entrusted to him and who without making proper investigation submitted final report in the cross case against which the protest petition filed by the applicant is still pending. He next submitted that in view of the settled legal position on the issue that the cross cases should be decided together, in case the session trial in which the applicant is an accused is decided separately, the same will result in failure of justice. He also submitted that the applicant has disclosed each and every material fact necessary to enable this Court to decide whether the applicant is entitled to the prayer made by him in this application or not. There being no suppression of any material fact by the applicant, this recall application deserves to be rejected.
After having considered the submissions made by learned counsel for the parties and perused the material on record, I find that there is no dispute about the fact that a cross version of the incident which has been registered as Case Crime No. 2675 of 2012, under Sections-307, 452, 427, 504, 506, 380, 436 and 392 IPC, P. S.-Kotwali, sub-district-Sadar, district-Bareilly in which final report has been submitted and against which protest petition has been filed by the applicant is pending. There is no quarrel about the settled legal position that where there are cross cases, the same should be decided together. It is equally true that prior to moving this application, the applicant had approached this Court twice for being enlarged on bail by means of Criminal Misc. Bail Application Nos. 364 of 2013 and 17956 of 2013. He had further invoked the inherent jurisdiction of this Court by means of filing Criminal Misc. Application (Under Section 482 Cr. P. C.) Nos. 16535 of 2013, 3811 and 6775 of 2014. The aforesaid cases were disposed of by this Court with directions.
Thus, in view of the above, it transpires that the applicant has failed to disclose in this application the details of the cases filed by him before this Court earlier and the orders passed therein and although in the strict sense it cannot be said that had the aforesaid facts been disclosed in this application, this Court would not have passed any interim order in favour of the applicant but nevertheless the Court cannot ignore the fact that the applicant had failed to disclose in this application the details of the earlier cases filed by him before this Court and orders passed by this Court therein which have now been brought to the notice of this Court by the opposite party by moving the present recall application.
For the aforesaid reasons, this recall application is allowed. The order dated 17.4.2014 passed by this Court in this case is hereby recalled.
List this application before the appropriate Court on 19.1.2015."
On the matter being taken up today, learned counsel for the applicant Mr. Sikandar B. Kochar submits that the present application may be dismissed as not pressed. Prayer so made is neither opposed by the learned A.G.A. nor Mr. Anoop Trivedi, learned senior counsel assisted by Mr. Vibhu Rai, learned counsel for the opposite party No. 2. Accordingly, the present application is dismissed as not pressed.
Order Date :- 2.8.2019 HSM