Allahabad High Court
Suresh Chandra Mishra & Another vs State Of U.P. & Another on 9 July, 2010
Author: Vinod Prasad
Bench: Vinod Prasad
1
A.F.R.
Reserved
Crl. Misc. Application No. 32141 of 2009
Suresh Chandra Mishra and others .............. Applicants
..........Vs. ...........
State of U.P. And others ................... Respondents
Hon'ble Vinod Prasad, J.
(Order on Recall Application No. 345423 of 2009) I have heard learned counsel for the applicants as well as learned AGA on the recall application filed by the two applicants in the above Criminal Misc.
Application, U/S 482 Cr.P.C., of my order dated 17.12.2009. The recall application has been filed by the two applicants Suresh Chandra Mishra and his son Neeraj @ Raju Mishra, who are accused in case no. 9264/2009 relating to crime no. 332-A of 2006, under Section 302 I.P.C., P.S. Kalyanpur, District Kanpur Nagar pending before C.M.M., Kanpur Nagar titled as State Vs. Suresh Chandra Mishra and another. Prima facie they have been found to be the culprits of murdering their own son/ brother by the I.O. Before adverting to the merits of the recall application some background facts are essential to be recorded.
Respondent no. 2 Smt. Prem Kumari Mishra @ Ashu Mishra is the daughter-
in-law of applicant No. 1 Suresh Chandra Mishra being wife of his eldest son Sushil Mishra, with whom she had tied knots in the month of February 1989. Admittedly, Sushil Mishra lost his life in the Halett hospital because of poisoning and/or consuming of some poisonous substance on 25.4.2006. According to the case of the applicants, in respect of death Sushil Mishra, an FIR was lodged against his widow Prem Kumari Mishra and her paramour by applicant no. 1 being crime no.
332 of 2006, under Section 306 I.P.C. on 1.6.2006. The offence was investigated 2 and concluding it, police charge sheeted widow respondent no. 2 along with her paramour Ashwani Kumar Tripathi on 2.11.2006 under Section 306 I.P.C.
In respect of the murder of her husband, widow respondent no. 2 invoked Metropolitan Magistrate's power by moving an application under Section 156(3) Cr.P.C. for getting her FIR of murder case registered. Initially application of respondent no. 2 was rejected by C.M.M., Kanpur Nagar vide it's order dated 24.6.2006 against which Criminal Revision No. 163/2006 (Smt. Prem Kumari Mishra Vs. State) was preferred before the Sessions Judge, Kanpur Nagar, which too was rejected by Additional Sessions Judge, Court No. 16, Kanpur Nagar vide its order dated 5.9.2006. Both the aforesaid rejection orders( one by C.M.M. and the subsequent order by the Lower Revisional Court) were challenged by the widow in Criminal Miscellaneous Writ Petition No. 12865/2006 (Prem Kumari Mishra Vs. State of U.P.) before this court, which was allowed on 4.12.2006. Both the impugned orders dated 5.9.2006 and 24.6.2006 were quashed and the matter was sent back to C.M.M., Kanpur Nagar to decide application of the petitioner widow for registration of her FIR afresh.
It seems that after the order passed by this Court, FIR of respondent-widow was registered as crime no. 332-A of 2006, under Section 302 I.P.C. at P.S. Kalyanpur, District Kanpur Nagar on 5.2.2007 at 8.30 P.M. In the said FIR, Suresh Chandra Mishra and his son Neeraj @ Raju Mishra, the two applicants were arrayed as accused. According to the version by the widow, inked in nut shell, deceased used to earn Rs. 50-60/- per day and her father-in-law, applicant no. 1 was a driver in COD, Kanpur Nagar. Mother-in-law of the widow had also died.
Accused persons were alcoholic. The character of the applicant no. 1 was also questioned by respondent no. 2. It was alleged that on 15.4.2006 when the deceased was away from his house, even an attempt was made to outrage her modesty by applicant no.1. Because of the said incident, there was verbal dual 3 between applicant no. 1 and his son, the deceased. On 25.4.2006 when the widow return from her mother's house at 9.00 P.M. then the deceased informed her that he was feeling very uneasy. He was rushed to Abhishek Nursing Home, where the doctor informed that it is a case of poison and the deceased be transported to Halett hospital. On that day, after some treatment in the Halett Hospital , deceased lost his life in the night. In Halett hospital also, widow was informed that the deceased was administered poison in his meal.
FIR of the widow was investigated by the police and a Final Report No. 32/2007 was submitted. Aggrieved by the same widow respondent no. 2 filed a protest petition on 1.10.2008 before C.M.M., Kanpur Nagar, who vide his order dated 20.5.2009, rejected the final report and summoned the two applicants Suresh Chandra Mishra and Neeraj @ Raju Mishra for the offence of murder under Section 302 I.P.C. in the aforesaid crime to face the trial in the concerned case no.
9246 of 2009. Since, the applicants did not compear in Court, NBW against them was issued by C.M.M., Kanpur Nagar on 20.7.2009 fixing 20.8.2009 for their appearance.
It was at this stage that the two accused persons Suresh Chandra Mishra and Neeraj @ Raju Mishra approached this Court on 10.9.2009 by filing Criminal Miscellaneous Application No. 24615 of 2009, under Section 482 Cr.P.C. with the prayer that proceeding of case no. 9264 of 2009 relating to crime no. 332-A of 2006 (Prem Kumar Mishra Vs. Suresh Chandra Mishra and another), under Section 302 I.P.C. pending in the Court of C.M.M., Kanpur Nagar be quashed. It was further prayed that the order dated 20.5.2009 passed by C.M.M., Kanpur Nagar in the aforesaid case be also set aside. Further prayer by the two applicants were for stay of further proceeding of the aforesaid case no. 9264/2009. The aforesaid Criminal Miscellaneous Application though filed on 10.9.2009 could not be taken up for admission, because of enormous heavy filing of fresh matter under 482 4 Cr.P.C. in this court.
The two applicants Suresh Chandra Mishra and Neeraj @ Raju Mishra without disclosing fact of filing and pending of their earlier Application, filed another(second) Crl. Misc. Application under Section 482 Cr.P.C. being Criminal Miscellaneous Application No. 24792 of 2009 through another counsel. They never contacted their earlier counsel nor made any endeavour to get their earlier Criminal Miscellaneous Application heard for admission. It is recorded here that to dupe this court not only the two applicants changed their advocate but they also changed the deponent as in the earlier Criminal Miscellaneous Application Neeraj @ Raju Mishra was the deponent whereas in the subsequent Criminal Miscellaneous Application Suresh Chandra Mishra was the deponent. This second Criminal Miscellaneous Application No. 24792 of 2009 came up for admission before another Hon'ble Judge of this Court on 18.9.2009 and His Lordship was pleased to pass following order:-
"This Criminal Miscellaneous Application under Section 482 Cr.P.C. has been filed with the prayer to stay the operation of order dated 20.5.2009 and the further proceedings of case no.9264 of 2006, under Section 302 IPC, P.S. Kalyanpur, District Kanpur Nagar.
Heard learned counsel for the applicants and learned AGA and perused the record.
Learned counsel for the applicants submitted that regarding the death of son of the applicant no.1 F.I.R. was lodged against opposite party no.2. In counter blast an application was moved under Section 156(3) Cr.P.C. by opposite party no.2 implicating the applicants. After the direction of learned Magistrate concerned, the first information report was lodged. After investigation the final report was submitted. Thereafter on protest petition the applicant were summoned. The prayer is for consideration of bail application on the same day.5
In view of the fact of the present case, it is provided that if applicants appear and surrender before the court below and move bail application within forty days from today, then the same shall be considered, as expeditiously as possible, in accordance with law, in view of the law laid down by Full Bench of this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004(57) ALR 390 and affirmed by Hon'ble Supreme Court in Lal Kamlendra Pratap Singh Vs. State of U.P. and others 2009(2) Crime 4 SC after affording the opportunity. For a period of thirty days or till filing of the bail application whichever earlier, no coercive action shall be taken against the applicants.
With the aforesaid observation this application is finally disposed off."
After dismissal of the aforesaid second Criminal Miscellaneous Application 24792 of 2009 that the first Criminal Miscellaneous Application No.24615 of 2009 was pressed for admission before another Hon'ble Judge on 10.11.2009. At the time of admission widow's counsel appeared and pointed out filing of another 482 Application by the same applicants for the same relief and finding the attempt by the applicants to be a fraud and cheating that on that day itself another Hon'ble Judge passed following orders:
"Sri R.S. Yadav, holding brief of Sri R.S. Mishra, learned counsel for the applicant/petitioners is present.
Sri Adarsh Kumar, learned counsel for the respondents has pointed out that this is second 482 Cr.P.C. petition for the same relief and the first 482 Cr.P.C.
petition No.24792 of 2009, which was dismissed on 18.9.2009. The records of the aforesaid Criminal Miscellaneous Application No.24792 of 2009 was summoned and after perusal of the same, it is revealed that the present 482 petition is for the same relief, as placed earlier. Accordingly, the present 482 Cr.P.C. petition is 6 dismissed with cost of Rs.3,000/-."
The two applicants did not deposit the cost imposed on them in the above order nor they appeared in the court to face trial of a murder case and to thwart the course of justice like an unscrupulous litigant they preferred yet another third Criminal Miscellaneous Applications under Section 482 Cr.P.C. being Criminal Miscellaneous Application No.32141 of 2009 through a third Advocate. This third Criminal Miscellaneous Application came up for admission before me on 14.12.2009. At the time of admission it was detected that the two applicants had already filed two earlier Criminal Miscellaneous Applications under Section 482 Cr.P.C., for the same relief, which fact they had suppressed from this court and therefore, the third Criminal Miscellaneous Application was directed to come up along with earlier two Criminal Miscellaneous Applications. After looking into the records, the third Criminal Miscellaneous Application (Criminal Miscellaneous Application 32141 of 2009) was dismissed on 17.12.2009 by this bench by passing following order:
"Sri L.M. Singh, learned counsel for the applicants made a statement that boththe applicants have cheated him and did not inform him that he had filed earlier two applications in this Court for the same relief being Criminal Miscellaneous Application No.24615 of 2009, Suresh Chandra Mishra @Manney and another vs. State of U.P. and another through R.S. Mishra, Advocate and Criminal Miscellaneous Application No.24792 of 2009, Suresh Chandra Mishra and another vs. State of U.P. and another through A.C. Nigam, Advocate. Both the aforesaid Criminal Miscellaneous Applications have been dismissed. It was, therefore, fairly conceded by Sri L.M. Singh, learned counsel for the applicants that their client have cheated them and got them filed this present application. Photocopy of the internet information regarding the above two earlier Criminal Miscellaneous Applications have been supplied today in Court, which is taken on record and will form the part of the record.
Applicants are the accused for murder charge. They are being prosecuted in Case No.9264 of 2009 relating to Crime No.332-A of 2006, under Section 302 IPC, P.S. Kalyanpur, District Kanpur Nagar, pending in the court of C.M.M. Kanpur Nagar. The perusal of the record indicates commission of offence and therefore, prosecution of the said case cannot be quashed. Earlier also the applicants have become unsuccessful on two occasions in getting the prosecution quashed. The offence is of 2006 and three years have lapsed. The intention of the applicants clearly indicates that they are impediment in dispensation of justice and they have got no respect for the Court of law and the orders passed by this Court.7
In view of the above, this Criminal Miscellaneous Application stands dismissed with a cost of Rs.1,00,000 (Rs. One lac only) imposed on each of the two applicants to be realized by C.M.M. Kanpur Nagar within a period of one month from today. C.M.M. Kanpur Nagar is directed to get the aforesaid two accused, namely, Suresh Chandra Mishra and Neeraj @ Raju Mishra arrested forthwith and lodged them in jail. He is further directed to commit their case to the court of sessions for trial. Court of Sessions is directed to expedite the trial and make an endeavour to conclude the same within four months on day today basis without giving any adjournment to the accused persons.
Since conduct of the applicants in the past has been very unscrupulous, I direct the trial court that till the conclusion of the trial, both the applicants shall not be released on bail in the aforesaid crime number.
This applications is dismissed with the aforesaid directions. Copy of this order is directed to be Faxed to the trial court, C.M.M. Kanpur Nagar."
After aforesaid order was passed, that the two applicants filed a recall Miscellaneous Application No. 345423 of 2009 on 21.12.2009 with the prayer to recall above order dated 17.12.2009, in its entirety and permit the applicants to remain on the same bail bonds granted to them by the Sessions Judge, Kanpur Nagar. Before the recall application could be heard winter vacation intervened. During pendency of the recall application that on the 2nd of Jan' following year that the two applicants surrendered before CMM Kanpur Nagar and in that respect they, on 5.1.2010, moved a supplementary affidavit with the averments that in pursuance of the order dated 17.12.2009 both the applicants have surrendered before Incharge Chief Metropolitan Magistrate, Kanpur Nagar on 2.1.2010 and were remanded to judicial custody. The application for surrender filed by both the applicants was appended as Annexure No. SA-1, which is dated 2.1.2010 and the order of the even date passed by the I/C Metropolitan Magistrate to take them in custody was appended as Annexure No.SA-2. Vide SA-3, a medical certificate of applicant no.1 was annexed therewith.
In the back ground of above facts, that the counsel for the applicant was heard on the recall application.
Learned counsel for the applicant in the recall application has contended those very submissions which are contained in the recall application without adding any thing further. His whole endeavour was that the fine imposed be scored out. The counsel argued that since the applicants have surrendered that the cost be removed. He also pointed out medical report of applicant no. 1 to contend that the order be recalled.
Learned AGA per contra, had refuted all the contentions and pointed out 8 that the applicants are guilty of prevarication and mendacity. They had played fraud upon the Court and have knowingly suppressed relevant and most material facts from this Court of approaching this court on earlier two occasions and albeit they are accused of a murder case yet they are an impediment in dispensation of justice by resorting to their nefarious design. Their act was not a damnum but is that of an unscrupulous litigant who have not the slightest regard for the orders passed by this Court. They are guilty of suppressio vari and their act is not a licet. It was concluded by AGA that the dockets of this Court is flooded with such types of insalubrious practice resorted to by unscrupulous litigants and, therefore, this recall application be dismissed with heavy cost as the applicants have forfeited their right to have any sympathetic consideration.
I have considered the arguments of both the sides .
Perusal of record reveals that applicants at every stage attempted to thwart course of justice and install prosecution of a murder case. They have approached this court repeatedly for the same relief, though couched in other words, without disclosing facts of filing of their earlier 482 Applications. Counsel for the applicant also could not raise any grievance against the order of dismissal of 482 Application on merits of the matter. Thus on the face of record , according to case of applicants themselves, they are guilty of prevarication and filing of sucessive Applications supressing relevant and most important material from this court. Their whole conduct is that of an unfair litigant. In fact they have made categorical averment in paragraph 21 as follows:
"That it appears that the Counsel for the applicants made the statement to this effect before the Hon'ble Court at the very outset on the turn of this case. On making query by the Court, the Counsel for the applicants made a categorical statement that his client (the deponent) did not narrate the said factum of filing of two petitions on behalf of two applicants before this Court, to him. Hon'ble Vinod Prasad, J. was pleased to pass the order on 17.12.2009, by which the applicants' application (Criminal Misc. Application No.32141 of 2009) has been dismissed for the reason of concealment of the facts of the filing of two earlier petitions which have already been disposed off by this Hon'ble Court. For the said reason this Hon'ble Court was pleased to impose the cost of Rs.1,00,000/- each on the two applicants to be realized by Chief Metropolitan Magistrate, Kanpur Nagar within a period of one month from the said date. Further two accused applicants Suresh Chandra Mishra and Neeraj @ Raju Mishra be arrested forthwith and lodged in jail and also that the two applicants shall not be released on bail in the aforesaid 9 crime number and Chief Metropolitan Magistrate, Kanpur Nagar is directed to commit the case to the Court of Sessions for trial and the Court of Sessions is directed to expedite the trial by making an endeavour to conclude the proceeding of trial within four months on days to day basis without giving any adjournment to the accused persons."
Thus, it is perceptibly clear that when the third Criminal Miscellaneous Application No.32141 of 2009 was filed the applicants were already in the knowledge of dismissal of their earlier two Applications under section 482 Cr.P.C. with the same prayer. At the time of passing of order on 17.12.2009, the aforesaid two earlier orders were perused by me. This recall application could not have been filed by the two applicants in above facts and circumstances for the reason that the order dated 17.12.2009 was passed while finally disposing off their third Criminal Misc Application Under section 482 Cr.P.C. on merit as well and therefore bar under section 362 Cr.P.C. applied as a final order disposing of Criminal Miscellaneous Application 32141 of 2009 was passed. Cancelling bail and imposing cost was a part of the order finally disposing off a case and any final order passed by a Court could not have been reviewed or rescinded or recalled in view of the aforesaid bar of section 362 Cr.P.C. Even power under section 482 Cr.P.C. could not have been exercised to overcome that bar. It seems that the whole endeavour of filing this recall application was to get the cost removed. While arguing recall application no objection was raised for dismissal of the 482 Application on merits of the case nor any material collected during investigation was filed giving scope for such argument. In fact it was conceded that on merits applicants have no case as in respect of death of the deceased there are two versions and which version is correct have to be tested by the trial court by allowing both the parties to lead evidences. Under 482 Cr.P.C. disputed questions of facts could not have been decided.
Additionally, this recall application filed by the two applicants had already become infructuous on the date when it was heard for the relief of allowing the applicants to remain on the same bond because prior to that date itself the applicants had already surrendered on 2.1.2010 and hence the direction for taking applicants into custody, as was contained in the order dated 17.12.2009, had already been given effect to and was already complied with. Therefore only the paryer for removal of cost remained pending. A bail cancellation order, contained in a final order and forming part of that final order disposing of the case finally, also could not have been recalled or reviewed by this court against the bar 10 contained in section 362 Cr.P.C.
This recall application of the applicants is also misconceived because after surrender the applicant could have moved bail application before this Court under section 439 Cr.P.C. They were in the knowledge of bar under section 362 Cr.P.C.
The recall application is also misconceived because the applicants were an accused in a 302 I.P.C. case in which the incident had occurred three years prior and aforesaid period had already lapsed without even trial been commenced because of unfair practice adopted by the applicants. Expeditious disposal of trial is not only the fundamental right of an accused but is equally a fundamental right of the victim as well. It is also to be noted that while filing 482 Application each time, the applicants never filed complete material against them collected during investigation in support of their prayer for quashing and each time their 482 Application was based on concealment of material facts on the merits of the controversy.
Recall application by the two applicants is also misconceived because on the earlier two occasions the applicants had cheated this Court and by playing fraud they had attempted to obtain orders from two different Hon'ble Judges, by filing 482 Applications changing different advocates and deponents. Apex court has held time and again that fraud makes the whole proceeding void and one who does not come with clean hands deserves no sympathy. In Bhaurao Dagdu Paralkar v. State of Maharashtra: AIR 2005 SUPREME COURT 3330 it has been held as under :-
"14. In that case it was observed as follows :
"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'. It 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 11 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............."
16.Suppression of a material document would also amount to a fraud on the Court. (See Gowrishankar v. Joshi Amba Shankar Family Trust, (1996 (3) SCC 310) and S. P. Chengalvaraya Naidu's case (supra)."
In S. P. Chengalvaraya Naidu v. Jagannath: AIR 1994 SUPREME COURT 853, Apex court has observed as follows:-
"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. 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."
Recall application by the applicants is also misconceived for the reason that the applicants have not challenged the earlier two orders passed by this Court, which had already attained finality. It is recollected here that the order passed on 18.9.2009 in Criminal Miscellaneous Application No.24792 of 2009 related with the merits of the summoning order with the prayer to set it aside. By order dated 20.5.2009 protest petition was allowed and the applicants were summoned U/S 302 IPC and that aforesaid 482 Application was not restricted only with the innocuous prayer of grant of bail.
While disposing off the third Criminal Misc. Application it surfaced that the applicants were an impediment not only in expeditious disposal of trial but they 12 have no regard for the orders passed by this courts and their psyche was that of being above the law and since this court found that allowing them to remain on bail will only impede course of justice and fair and impartial trial will be a far cry that this court was constrained to cancel their bail and pass strict order against them with further direction that their case be committed to Sessions Court and be decided in four months period. For prevarication and fraud played by them the cost was imposed to keep the procedure of dispensation of justice unpolluted.
Now coming to the submission to remove the cost imposed by this bench in the order dated 17.12.2009, it is to be noted that on earlier occasion also applicant was imposed with cost. It was never stated at the Bar that the applicants have deposited that cost with the trial court. Abusing power of this court repeatedly and then flouting the order passed by this court undermines the majesty and authority of this pious institution and any body who smudge it does not deserve any sympathy. Not once but twice by dextrous manuvours two Hon'ble Judges have been cheated. The conduct of the applicants did not permit them to have any interim relief from this Court as they were guilty of filing repeated applications before this Court for the same relief through various counsel without disclosing the fact of filing of earlier Criminal Miscellaneous Application and hence, the two applicants were guilty of prevarication and concealment of material fact. It is recollected that during pendency of their first petition 24615 of 2009, they filed another petition Criminal Miscellaneous Application 24792 of 2009 and in the subsequent petition they did not inform the Court that they had already field an earlier petition through another Advocate, which was pending consideration. At the time of arguing their second 482 Application, they never requested the court to call for the first Application as well nor they made any attempt to get their first 482 Application decided before filing another for the same relief. While filing their third 482 Application, they concealed fact of filing of two earlier 482 Applications.
Further, on merits, the entire facts and circumstances were against the applicants and they were prima facie found to be an accused of a murder case in which life imprisonment is the minimum sentence. The excuse offered by the applicants for moving this recall application shows only their clandestine design not to allow the trial of a murder case to proceed. At this point I would like to point out that this Court is innundated with more than seventy thousand Criminal Miscellaneous Applications and often we come across second or third Criminal Miscellaneous Application filed by the same accused or other co-accused for the same relief. Those accused persons, who have played fraud with the Court and 13 endeavoured to cheat and smudged the pious procedure of dispensation of justice deserve no sympathy. If the accused in the same crime number are allowed to file successive applications without making fair disclosure of filing of earlier applications they are not entitled for any relief whatsoever.
For the aforesaid reasons, this recall application is dismissed as being not maintainable and barred under Section 362 Cr.P.C. and also being meritless. Dt.9th July 2010 Rk/AKG/