Allahabad High Court
Bhola Prasad vs State Of U.P. on 13 January, 2021
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 68 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 304 of 2021 Applicant :- Bhola Prasad Opposite Party :- State of U.P. Counsel for Applicant :- Satyawan Shahi Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
1. Heard Sri Satyawan Shahi, learned counsel for the applicant and Sri Ashwani Prakash Tripathi, learned AGA for the State and perused the record.
2. This Court on 08.01.2020 passed the following order:-
"Sri Satyawan Shahi, learned counsel for the applicant and Sri Sanjay Kumar Singh, learned A.G.A. for the State are present.
From the list of fresh cases, it transpires that the applicant had previously filed a Criminal Misc. Writ Petition No. 12301 of 2020 (Bhola Prasad Vs. State of U.P. and 02 Others). There is no disclosure of the same in the present application under Section 438 Cr.P.C. and on being countered, even the learned counsel for the applicant is unaware of the same.
Learned counsel for the applicant prays for time to enquire about the same.
Put up on 12.01.2021 as fresh."
3. Learned counsel for the applicant has placed before the Court the order dated 17.11.2020 passed in Crl. Misc. Writ Petition No. 12301 of 2020, the same is taken on record. The said order is quoted herein-below:-
"Sri Pankaj Kumar Gupta, learned counsel for the petitioner snd Shri Amit Sinha, learned AGA for the State.
Learned counsel for the petitioner, at the outset, wants to withdraw this petition with liberty to file appropriate application seeking anticipatory bail before the appropriate Court.
Petition is, accordingly, dismissed as withdrawn, with the aforesaid liberty.
The party shall file a computer generated copy of this order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing."
4. Learned counsel for the applicant states that he was not informed about the filing of the writ petition by the petitioner to file anticipatory bail application and as such no averment to the said fact was mentioned in the present application under Section 438 Cr.P.C.
5. The affidavit in the present application for anticipatory bail is of the applicant himself.
6. It is highly unfortunate that a person approaches the Court and conceals a relevant and an important fact in the present matter itself which ought to have been disclosed by him full.
7. In the case of Bhaskar Laxman Jadhav Vs. Karamveer Kakasaheb Wagh Education Society : (2013) 11 SCC 531 the Apex Court while dealing with a situation of suppression of fact held as follows:
"42. While dealing with the conduct of the parties, we may also notice the submission of learned counsel for Respondent 1 to the effect that the petitioners are guilty of suppression of a material fact from this Court, namely, the rejection on 2-5-2003 of the first application for extension of time filed by the trustees and the finality attached to it. These facts have not been clearly disclosed to this Court by the petitioners. It was submitted that in view of the suppression, special leave to appeal should not be granted to the petitioners.
43. The learned counsel for the petitioners submitted that no material facts have been withheld from this Court. It was submitted that while the order dated 2-5-2003 was undoubtedly not filed, its existence was not material in view of subsequent developments that had taken place. We cannot agree.
44. It is not for a litigant to decide what fact is material for adjudicating a case and what is not material. It is the obligation of a litigant to disclose all the facts of a case and leave the decision making to the Court. True, there is a mention of the order dated 2-5-2003 in the order dated 24-7-2006 passed by the JCC, but that is not enough disclosure. The petitioners have not clearly disclosed the facts and circumstances in which the order dated 2-5-2003 was passed or that it has attained finality.
45. We may only refer to two cases on this subject. In Hari Narain v. Badri Das, AIR 1963 SC 1558 stress was laid on litigants eschewing inaccurate, untrue or misleading statements, otherwise leave granted to an appellant may be revoked. It was observed as follows: (AIR p. 1560, para 9) "???It is of utmost importance that in making material statements and setting forth grounds in applications for special leave care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. That is why we have come to the conclusion that in the present case, special leave granted to the appellant ought to be revoked. Accordingly, special leave is revoked and the appeal is dismissed. The appellant will pay the costs of the respondent."
46. More recently, in Ramjas Foundation v. Union of India, (2010) 14 SCC 38 the case law on the subject was discussed. It was held that if a litigant does not come to the Court with clean hands, he is not entitled to be heard and indeed, such a person is not entitled to any relief from any judicial forum. It was said: (SCC p. 51, para 21) "21. The principle that a person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have a bearing on adjudication of the issue(s) arising in the case."
47. A mere reference to the order dated 2-5-2003, en passant, in the order dated 24-7-2006 does not serve the requirement of disclosure. It is not for the Court to look into every word of the pleadings, documents and annexures to fish out a fact. It is for the litigant to come upfront and clean with all material facts and then, on the basis of the submissions made by learned counsel, leave it to the Court to determine whether or not a particular fact is relevant for arriving at a decision. Unfortunately, the petitioners have not done this and must suffer the consequence thereof."
8. Further in the case of Moti Lal Songara Vs. Prem Prakash @ Pappu : (2013) 9 SCC 199 the Apex Court again while dealing with a situation of suppression of a fact has held as follows:
"19. The second limb of the submission is whether in the obtaining factual matrix, the order passed by the High Court discharging the accused-respondent is justified in law. We have clearly stated that though the respondent was fully aware about the fact that charges had been framed against him by the learned trial Judge, yet he did not bring the same to the notice of the revisional court hearing the revision against the order taking cognizance. It is a clear case of suppression. It was within the special knowledge of the accused. Anyone who takes recourse to method of suppression in a court of law, is, in actuality, playing fraud with the court, and the maxim suppressio veri, expressio falsi, i.e., suppression of the truth is equivalent to the expression of falsehood, gets attracted. We are compelled to say so as there has been a calculated concealment of the fact before the revisional court. It can be stated with certitude that the accused-respondent tried to gain advantage by such factual suppression. The fraudulent intention is writ large. In fact, he has shown his courage of ignorance and tried to play possum.
20. The High Court, as we have seen, applied the principle "when infrastructure collapses, the superstructure is bound to collapse". However, as the order has been obtained by practising fraud and suppressing material fact before a court of law to gain advantage, the said order cannot be allowed to stand. That apart, we have dealt with regard to the legal sustainability of the order in detail. Under these circumstances, we are disposed to think that the power under Article 142 of the Constitution is required to be invoked to do complete justice between the parties. Cognizance of the offences had been rightly taken by the learned Magistrate and charges, as we find, have been correctly framed by the learned trial Judge. A victim of a crime has as much right to get justice from the court as an accused who enjoys the benefit of innocence till the allegations are proven against him. In the case at hand, when an order of quashment of summons has been obtained by suppression, this Court has an obligation to set aside the said order and restore the order framing charges and direct the trial to go on. And we so direct."
9. In the present case also, the fact that the applicant has approached this Court earlier in its jurisdiction under Article 226 of the Constitution of India for quashing of the first information report and stay of arrest and after withdrawing the said petition has approached this Court under Section 438 of the Code of Criminal Procedure, 1973 has not been disclosed and has been suppressed. The affidavit herein is of the applicant himself and the disclosure was necessary which came to the notice of the Court from the list of fresh cases which showed a writ petition being filed by the applicant and the same stood to be disposed of.
10. Learned counsel for the applicant at this stage prays that the present application be dismissed as not pressed with the liberty to file a better application under Section 438 Cr.P.C. with full and proper disclosure.
11. This Court does not propose to proceed against the applicant being the deponent also in the present application, however, he is put to caution to remain fair and approach court with clean hands in future.
12. The present application under Section 438 Cr.P.C. is thus dismissed as not pressed with the liberty to file a better application.
13. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
14. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
15. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 13.1.2021 M. ARIF (Samit Gopal, J.)