Allahabad High Court
Shivam vs State Of U.P. on 29 May, 2019
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 78 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21607 of 2019 Applicant :- Shivam Opposite Party :- State Of U.P. Counsel for Applicant :- Usha Srivastava,Arjit Srivastava,Vinod Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Mrs. Manju Rani Chauhan,J.
1. Heard Mr. Lal Chandra Mishra, Advocate holding brief of Mr. Vinod Kumar Srivastava, learned counsel for the applicant and Mr. Prashant Singh, learned A.G.A. for the State at some length.
2. Perused the material on record.
3. The present bail application has been filed by the applicant-Shivam with a prayer to enlarge him on bail in Case Crime No. 64 of 2019, under Sections 363 and 366 I.P.C. and Sections 7/8 POCOS Act, Police Station-Tirwa, District-Kannauj, during the pendency of the trial.
4. It is submitted by learned counsel for the applicant that as per the allegations made in the first information report dated 2nd February, 2019 by Mahesh Chandra son of Ram Sevak i.e. the father of the victim, namely, Saloni, on 29th January, 2019 against two persons, namely, Vishnu and Shivam (applicant herein), when the victim went to her school, namely, S.P. Mahila Mahavidyalaya, Tirwa and she did not return to her house, the first informant along with other family members tried to trace her and during search, the first informant came to know that the co-accused Vishnu son of Daya Shanker, resident of Ashok Nagar, Tirwa, Police Station and Tehsil Tirwa, Kannauj along with his friend i.e. applicant kidnapped the victim, she disappeared and could not be found. It has further been alleged that the SIM installed in the mobile phone, which was given to the victim, was of the applicant. They had made every effort to trace her but they could not succeed. Learned counsel for the applicant drawing the attention of the Court to paragraph-6 of the affidavit filed in support of the present bail application, has argued that after registration of the first information report, on 12th March, 2019, first informant, namely, Mahesh Chandra son Ram Sewak filed an affidavit before the Superintendent of Police, Kannauj, wherein he has implicated Santosh, Bablu, Sonu, Monu, Bhagwandas and Km. Komal @ Divya, whereas the victim i.e. daughter of first informant left her house along with one Ashok Kumar, S/o Jaiveer Singh, R/o Seehpur, Mauja Sitaura, Police Station-Tirwa, District Kannauj and started to live with him as husband and wife and thereafter on 30th August, 2017, Smt. Saloni and Ashok solemnized their marriage in accordance with the Hindu Rites and Customs in the Arya Samaj Temple, Shivkatra, Kanpur Nagar. Both were residing at the house of one Ram Prakash, Mohalla Talayia Land Police Station, Kotwali Fatehgarh, District-Farrukhabad. On 13th February, 2018, the first informant as well as their other family members detained Smt. Saloni in their house. Thereafter again on 27th January, 2019, Smt. Saloni left her house along with Ashok Kumar and both are residing as husband and wife at Delhi but the first informant lodged the present false, forged and baseless first information reprot against the applicant along with the co-accused Vishnu. On 9th April, 2019 statement of the wife of first informant, namely, Sandhya Devi was recorded under Section 161 Cr.P.C., wherein with some improvement she has reiterated the version of the first information report.
5. Smt. Saloni and Ashok Kumar approached the Hon'ble High Court by means of Civil Misc. Writ Petition No. 12302 of 2019, wherein Smt. Saloni clearly mentioned that her date of birth is 9th July, 1997 and she has also annexed the marriage certificate dated 30th August, 2017 along with writ petition. Smt. Saloni has also annexed the application dated 5th April, 2019, wherein it has been clearly mentioned by Smt. Saloni that the first informant has threatened her to illegally with mala fide intention implicate the entire family members of Ashok Kumar. The writ petition has been disposed of vide order dated 6th Aiprl, 2019 with following directions:
"Having regard to the facts and circumstances of the case, I am of the view that the petitioners are at liberty to live together and no person shall be permitted to interfere in their peaceful living. In case any disturbance is caused in the peaceful living of the petitioners, the petitioners shall approach the Superintendent of Police, Kanpur Dehat i.e. the second respondent, with a certified copy of this order, who shall provide immediate protection to the petitioners.
A liberty is granted to the private respondent that if the documents brought on the record are fabricated or forged, it will be open to him to file a recall application for recall of this order.
The petitioners undertake to get their marriage registered within a period of two months.
If the petitioners could not get their marriage registered within the stipulated period herein above, the protection granted under this order shall stand automatically vacated.
It is made clear that this Court has not adjudicated upon the alleged marriage of the petitioners and this order in no way expresses opinion about the validity of their marriage.
..........."
6. Copies of the writ petition as well as the order of the Writ Court are enclosed as Annexure Nos. 5 and 6 to the affidavit filed in support of the present bail application.
7. It has further been argued by the learned counsel for the applicant that the first informant had proposed to sell his house to the tune of Rs. 15,00,000/- to the father of the applicant, for which he had taken Rs. 1,65,000/- as advance and when the father of the applicant compelled the first informant to execute a register sale-deed in his favour, then the first informant lodged the present first information report implicating the applicant in order to exert pressure upon the father of the applicant not to return the advance money.
8. It has further been argued by the learned counsel for the applicant that since the victim Saloni married Ashok Kumar and lived with with him, the applicant has no concern with Smt. Saloni and he was not involved in taking away or abducting the victim. From the case diary also, except the statement of the first informant, there is no any other statements of the eye-witness or any other type of evidence against the applicant. The applicant is innocent and he has not committed any offence. The applicant has no criminal antecedents to his credit except the present one. It is next contended that there is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. The applicant is in jail since 11th February, 2019.
9. Per contra, Mr. Prashant Kumar, learned A.G.A. has opposed the bail prayer of the applicant by contending that the applicant has not come to this Court with clean hands. He has filed false affidavit annexing false and fabricated documents before this Court and also has mislead Court by contending that the victim has married and lived with one Ashok Kumar only to get an order passed in his favour.
10. Mr. Prashant, learned A.G.A. has further contended that as per the instructions received by him, the victim, namely, Saloni, D/o Mahesh Chandra son of Ram Sevak has not been recovered till date. Mr. Prashant has drawn the attention of the Court to the Adhar Card of Smt. Saloni, which is brought on record at page-47 of the paper book, wherein the description of Smt. Saloni is mentioned as follows:
"Name-Saloni Date of Birth- 09/07/1997, Father's Name- Uday Narayan, Address-Gadheva Saraiyan, Kanpur Dehat"
whereas as per the first information report as well as the charge-sheet submitted against the applicant, the description of the victim of the present case, namely, Saloni are as follows:
"Name-Saloni Date of birth-25.10.2001 (recorded in the bail rejection order dated 6th May, 2019 as per the Certificate of High School Examination-2016, which has not been enclosed along with the affidavit filed in support of the present bail application).
Father's Name-Mahesh Chandra Gupta, Add.-: Mohalla Gandhinagar, Kasba-Tirwa, Kotwali-Tirwa, Kannauj, U.P."
11. Mr. Prashant, learned A.G.A. has further contended that in response to the letter sent by the office of Government Advocate as to whether Smt. Saloni, wife of Ashok Kumar and daughter of Udai Narain is the victim of the present case or not, a letter dated 27th May, 2019 sent by Mr. Shivram Singh, Sub-Inspector, Police Station-Tirwa, District-Kannauj has been received by him and the same has also been placed before this Court, wherein it has been reported that Smt. Saloni, wife of Ashok Kumar and daughter of Udai Narain is not the victim of the present case i.e. Case Crime No. 64 of 2019, under Sections 363, 366 I.P.C. and Section 7/8 POCSO Act.
12. In view of the aforesaid, Mr. Prashant, learned A.G.A. submits that not only the deponent and applicant of the present case but also the learned counsel are responsible in filing false affidavit enclosing false documents and also have tried to mislead the Court by misrepresentation. Therefore, such persons are liable to be punished harshly and proceedings of contempt of Court may be initiated against them. In support of aforesaid contention, he has placed reliance upon a Constitution Bench judgment of the Apex Court in the case Naraindas Vs. Government of Madhya Pradesh & Ors. AIR 1974 SC 1252, wherein it has been held under:-
"Now there can be no doubt that if a wrong or misleading statement is deliberately and wilfully made by a party to a litigation with a view to obtain a favourable order, it would prejudice or interfere with the due course of the judicial proceeding, and thus, amount to contempt of court."
13. Mr. Prashant has further contended that the Apex Court has repeatedly held that filing of false affidavit and concealment of material facts amounts to interference in the administration of justice and as such is criminal contempt of Court. In Dhananjay Sharma versus State of Haryana & ors., reported in AIR 1995 SC 1795, wherein in paragraphs 39 and 40, the Apex Court has held as follows:
"39. The question, therefore, which now requires our consideration is as to what action, is required to be taken against the respondents.
40. Section 2 (c) of the Contempt of Courts Act, 1971 (for short the Act) defines criminal contempt as the publication (whether by words, spoken or written or by signs or visible representation or otherwise) of any matter or the doing of any other act whatsoever to (1) scandalise or tend to candalise or lower or tend to lower the authority of any Court: (2) prejudice or interfere or tend to interfere.............Thus, any conduct, which has the tendency to interfere with the administration of justice or the due course of judicial proceedings amounts to the commission of criminal contempt. ............"
14. Dealing with the complicity of applicants-accused and in light of the material on record, the learned A.G.A. vehemently submits that not only the present bail application is liable to be rejected but also proceedings of criminal contempt is liable to be initiated against the deponent and the applicant.
15. Having considered the submissions made by the learned counsel for the applicant, the learned A.G.A. for the State and upon perusal of the evidence brought on record as well as the complicity of the applicant, this Court prima facie finds that it is clear case of contempt of Court, therefore, this court has no other option but to issue notices against the deponent and the learned counsel to remain present before this Court on 5th July, 2019 and file their respective personal affidavits explaining as to why proceedings of criminal contempt be not initiated against them for filing false affidavit, annexing false and fabricated documents as well as misleading and misrepresenting the Court.
Thus, the learned counsel for the applicant is directed to file personal affidavits of deponent and himself explaining as aforesaid.
16. Mr. Prashant, learned A.G.A. shall also file his counter affidavit stating all the facts as stated above enclosing all the documents as may be necessary within fifteen days after service upon the learned counsel for the applicant in the registry of this Court, so that he along with deponent and applicant may file his respective personal affidavits.
17. Put up this case on 5th July, 2019 in the additional cause list for further hearing.
18. A copy of this order be provided to Mr. Prashant Kumar, learned A.G.A. for the State for necessary compliance of this order as free of cost.
Order Date :- 29.5.2019 Sushil/-