Allahabad High Court
Akash And 2 Others vs State Of U.P. And Another on 17 May, 2023
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:107824 Court No. - 71 Case :- APPLICATION U/S 482 No. - 18248 of 2023 Applicant :- Akash And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Dinesh Kumar Gupta Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
1. List revised.
2. Heard Sri Dinesh Kumar Gupta, learned counsel for the applicant, Sri B.B. Upadhyay, learned counsel for the State and perused the material brought on record.
3. The present application U/S 482 Cr.P.C. has been filed by the applicants Akash, Sahil, Smt. Mukesh with the prayer to quash the entire criminal proceeding of complaint case no. 22 of 2020, Sneha Sharma alias Bulbul Sharma vs. Akash and others, under Sections 376, 420, 506 I.P.C. and Sections 3/4 & 16/17 POCSO Act, P.S. Bhawanpur, District Meerut pending in the court of Additional Sessions Judge/Special Judge Ananya Nyayalaya POCSO Act, Meerut along with summoning order dated 30.9.2021 passed by Additional Sessions Judge/Special Judge Ananya Nyayalaya POCSO Act, Meerut and with the further prayer to stay the further proceedings of said case.
4. Learned counsel for the State at the very outset argued that the applicant no. 1 Akash had previously approached this Court challenging the order of summoning dated 30.9.2021 before this Court in Criminal Misc. Application U/S 482 No. 1719 of 2022 (Akash vs. State of U.P. and another) which was rejected by a co-ordinate Bench of this Court vide order dated 7.2.2022, copy of the said order has been produced which is taken on record, the applicant nos. 2 Sahil and the applicant no. 3 Smt. Mukesh had also approached this Court by filing a Criminal Misc. Application U/S 482 Cr.P.C. No. 1614 of 2022 (Sahil and another vs. State of U.P. and another) which was dismissed as not pressed by a co-ordinate Bench of this Court vide order 18.5.2022 after two orders were passed, copies of the said orders have been produced which are taken on record. It is argued that there is no recital in the affidavit that the applicants had previously approached before this Court by means of said two applications U/S 482 Cr.P.C. It is submitted that in para-2 of the affidavit which is of the applicant No. 1 Akash it is stated that this is the first criminal misc. application under Section 482 Cr.P.C. against the summoning order and no other criminal misc. application/criminal revision/criminal misc. writ petition/criminal transfer application is pending or filed in any court of law either at this Hon'ble Court or at its Lucknow Bench. It is submitted that as such the applicants do not deserve any order from this Court but the present petition being misuse of process of Court be dismissed with exemplary cost on the applicants.
5. On being countered, learned counsel for the applicants could not dispute the said fact and states that he had no knowledge about the same at the time of filing of the present petition and neither did the applicants disclose about filing of said applications under Section 482 Cr.P.C.
6. After hearing the learned counsel for the parties and perusing the records, it is evident that the applicant no. 1 Akash had previously approached this Court for challenging the summoning order by means of Application U/S 482 Cr.P.C. No. 1719 of 2022 (Akash vs. State of U.P. and another) in which on 07.2.2022 the following order was passed by a co-ordinate Bench of this Court:-
"This is an application under Section 482 Cr.P.C. for quashing of the summoning order dated 30.09.2021 in Complaint Case No. 22 of 2020 (Sneha Sharma @ Bulbul Sharma Vs. Akash & others) under Sections 376, 420, 506 I.P.C. and 3/4 POCSO Act.
It is argued on behalf of the applicant that he had been falsely implicated. This matter pertains to one sided love. The allegations are false as the opposite party no. 2 is only Class-3 passed and how the applicant can manage the appointment for opposite party no. 2 as he is neither in Police department nor has influence in this regard. It is argued that the girl is 18 years of age. The medical certificate of the Chief Medical officer is appended at page-'35'. There is no evidence regarding abortion of the girl. In the statement before the Magistrate concerned under Section 164 Cr.P.C. appended at page-'39' she has admitted that no rape has been committed on her and after this final report has been submitted in the case. Thereafter, again a complaint was filed by the opposite party no. 2 wherein the present applicant has been summoned under Sections 376, 420, 506 I.P.C. and 3/4 POCSO Act.
It is further argued that the applicant had married with one Yamini on 13.08.2020 and the registration of this marriage was done on 01.09.2020. After this marriage, she i.e. opposite party no. 2 has stated in her statement under Section 164 Cr.P.C. on 15.10.2020 that no rape has been committed on her by the present accused. The only grievance to the opposite party no. 2 is that one sided love could not success and the applicant got married with other girl namely Yamini so the prayer to quash the summoning order is made.
Learned A.G.A. has argued that both the parties were in love and when the opposite party no. 2 became pregnant, her pregnancy was got terminated by the applicant. When he refused to marry with the girl, the girl had filed an F.I.R. against him and during investigation the applicant solemnized marriage with the opposite party no. 2. On this basis only she gave statement under Section 164 Cr.P.C. on the basis of which final report was filed and as again the applicant has refused to keep her as wife, the complaint has been filed by the opposite party no. 2 for the offence under Section 376 I.P.C. The girl was minor on the date of occurrence as her date of birth is 07.08.2003, hence prayer is made to reject the present application.
From perusal of the file, it is clear that it is admitted fact that both the parties were having friendship and according to opposite party no. 2 the applicant on the pretext of marriage exploited her and developed physical relations with her. She became pregnant but her pregnancy was terminated by the applicant and when an F.I.R. was lodged by the girl, the boy under pressure married her and on the basis of said marriage only, she gave statement under Section 164 Cr.P.C. It has been stated in the statement that as Akash had married her and as she is living with the applicant Akash so she is withdrawing her case and she also withdrew her allegation of committing rape on her by the present applicant. Though, it is claimed by the applicant that he had married to some other girl on 13.08.2020 before the statement of opposite party no. 2. The marriage was registered on 01.09.2020 and after this marriage the statement under Section 164 Cr.P.C. has been recorded wherein she has denied the allegation of rape against the present applicant.
If we go through the statement of the girl under Section 164 Cr.P.C. it is very much clear that she has denied the offence of rape committed by the applicant only in the circumstances when the applicant had married with the opposite party no. 2 and only because of marriage the opposite party no. 2 withdrew her allegations under Section 376 Cr.P.C. against the applicant and final report was submitted. The girl had filed complaint again on 24.11.2020 with the same allegation wherein the present applicant has been summoned under Sections 376, 420, 506 I.P.C. and 3/4 POCSO Act.
This Court is not under obligation to enquire into the facts of the case in the jurisdiction under Section 482 Cr.P.C. From perusal of the record, it appears that prima-facie a cognizable offence is made out against the applicant. Therefore, in my opinion the application is liable to be rejected.
The application is, therefore, rejected."
7. The applicant nos. 2 Sahil and 3 Smt. Mukesh had also previously approached this Court by means of Application U/S 482 Cr.P.C. No. 1614 of 2022 (Sahil and another vs. State of U.P. and another) in which on 07.2.2022 the following order was passed by a co-ordinate Bench of this Court: - :-
"Learned A.G.A. to serve notice on O.P. No. 2.
List on 14.2.2022 as fresh."
8. On 19.4.2022 the following order was passed by a co-ordinate Bench of this Court:-
"Counter affidavit filed today is taken on record.
Learned counsel for the applicants is present.
Learned AGA submitted that notice has been served on opposite party no.2.
The name of Sri Ajay Kumar Mishra, Advocate is shown in the list but neither he is present nor his Vakalatnama is on record.
If any Vakalatnama filed by Sri Ajay Kumar Mishra, Office to trace out the same and place it on record.
Put up this case on 29.04.2022 as fresh.
Learned counsel for the applicant may serve the notice on Ajay Kumar Mishra, Advocate by the next date."
9. On 18.5.2022 the following order was passed by a co-ordinate Bench of this Court:-
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10. I have heard learned counsels for parties and perused the records.
11. Paragraph 2 of the affidavit which has been sworn by the applicant no. 1 Akash Verma reads as under:-
"2. That this is the first Criminal Misc. Application under Section 482 Cr.P.C. being filed by the applicant before this Hon'ble Court against the summoning order dated 30.9.2021 passed by Additional Sessions Judge/Special Judge Ananya Nyayalaya, POCSO Act Meerut in complaint case no. 22 of 2020 under section 376, 420, 506 I.P.C. and 3/4 POCSO Act Police Station Bhawanpur District Meerut. No any other Criminal Misc. application/Criminal Revision/Criminal Misc. Writ petition/Criminal Transfer Application is pending or filed in any court of law either at this Hon'ble Court or at its Lucknow Bench."
12. A litigant is expected to approach the Court with clean hands. The applicants had previously filed Application U/S 482 No. 1719 of 2022 and Application U/S 482 No. 1614 of 2022. Copies of the said orders have been placed before this Court which are also quoted above. The same is a clear concealment of fact of a relevant and important fact. Affidavit in the present application is of the applicant no. 1 Akash Verma himself.
13. It is settled law that a litigant who comes to Court with unclean hands is to be thrown out at the very first instance.
14. Even in the case of Bhaskar Laxman Jadhav & Ors vs Karamveer Kakasaheb Wagh : (2013) 11 SCC 531, it has been observed that it is the duty of the litigant to approach the court with clean hands and disclose all the facts relevant to the present matter. He cannot choose what to disclose and what not to disclose. The Apex Court has even observed therein that a reference of a certain fact is not disclosure. It has been held that mere passing reference is not disclosure. In the present case filing of 482 Cr.P.C. application prior to filing of the present 482 Cr.P.C. application has been conveniently concealed as is evident from the para-2 of the affidavits itself. This Court thus holds that filing of the present application under Section 482 Cr.P.C. is by concealment of a relevant and vital fact.
15. This Court thus looking to the factual position and in the backdrop of legal position, dismisses the present application under Section 482 Cr.P.C.
16. At this stage, learned counsel for the applicants apologized for not disclosing the said relevant and vital fact.
17. Looking to his apology this Court does not proceed further to take any action against the applicants but with a word of caution to them be more serious and cautious in filing petitions in any Court in future.
(Samit Gopal,J.) Order Date :- 17.5.2023 {Naresh}