Allahabad High Court
Amit Kumar Nigam vs State Of U.P. And Another on 2 January, 2023
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 64 Case :- APPLICATION U/S 482 No. - 1082 of 2022 Applicant :- Amit Kumar Nigam Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mahtab Alam,Varsha Singh Counsel for Opposite Party :- G.A.,Sheikh Moazzam Inam Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Mahtab Alam learned counsel for the applicant, learned AGA for the State and Sri Sheikh Moazzam Inam learned counsel for opposite party No. 2.
2. Present application has been filed to quash the criminal proceedings of Case No. 6683 of 2020 (State Vs. Akhilesh Kumar Gupta and Others) arising from Case Crime No. 143 of 2018 under Sections 419, 420, 406, 452, 386, 504 and 506 IPC, Police Station Chauk, District Varanasi and the charge sheet dated 07.10.2018 filed in the aforesaid case, pending in the court of Special Chief Judicial Magistrate, Varanasi.
3. On 03.12.2022, following order was passed:-
"This Court has passed following order on 02.12.2022 -:
"1. This application is filed by two Advocates, namely, Ms. Varsha Singh and Sri Mahtab Alam on behalf of Applicant-Amit Kumar Nigam with following prayer:
"It is, therefore, Most Respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and quash the criminal proceeding of Case No. 6683 of 2020 (State vs. Akhilesh Kumar Gupta and others) Case Crime No. 143 of 2018 Under Sections 419, 420, 406, 452, 386, 504 and 506 IPC. Police Station Chauk, District Varanasi, in pursuance to the charge sheet dated 7.10.2018 pending in the court of Special Chief Judicial Magistrate, Varanasi (Annexure No. 3 to this application) in respect of the application (Annexure No. ), and / or to pass such other and further order which this Hon'ble Court may deem fit and proper, under the facts and circumstances of the case.
It is further prayed that further proceedings of Case No. 6683 of 2020 (State vs. Akhilesh Kumar Gupta and others) Case Crime No. 143 of 2018 Under Sections 419, 420, 406, 452, 386, 504 and 506 IPC. Police Station Chauk, District Varanasi, in pursuance to the charge sheet dated 7.10.2018 pending in the court of Special Chief Judicial Magistrate, Varanasi in respect of the applicant (Annexure No. 3 to this application)."
2. In the affidavit sworn by applicant himself, he has declared in para 2 as under:
"2. That this is the first Criminal Misc. Application of the applicant Under Section 482 Code of Criminal Procedure on behalf of the applicant filed before this Hon'ble Court for the same cause of action."
3. Both the counsels for applicant are not present.
4. Sri Sheikh Moazzam Inam, Advocate appearing for Opposite Party No. 2, has pointed out that earlier the applicant herein, Amit Kumar Nigam alongwith two co-accused, Akhilesh Kumar Gupta alias Sonu and Saroj Gupta, have filed Application under Section 482 No. 26283 of 2021 on 23.11.2021, i.e., prior to filing of present application, which was filed on 04.12.2021. Said application was dismissed as withdrawn vide order dated 18.07.2022 and for reference the order is reproduced as under:
"Learned counsel for applicant and learned counsel for opposite party no. 2 are present.
Learned counsel for applicant submitted that he does not want to press this application and the same may be dismissed as withdrawn.
Accordingly, this application under Section 482 Cr.P.C. is dismissed as withdrawn."
5. Two applicants of above referred Application under Section 482 No. 26283 of 2021, namely, Akhilesh Kumar Gupta alias Sonu and Saroj Gupta, have filed another application being Application under Section 482 No. 1612 of 2022 with following prayer:
"It is, therefore, Most Respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and quash the criminal proceeding of Case No. 6683 of 2020 (State vs. Akhilesh Kumar Gupta and others) Case Crime No. 143 of 2018 Under Sections 419, 420, 406, 452, 386, 504 and 506 IPC. Police Station Chauk, District Varanasi, in pursuance to the charge sheet dated 7.10.2018 pending in the court of Special Chief Judicial Magistrate, Varanasi (Annexure No. 3 to this application) in respect of the applicants (Annexure No.4), and / or to pass such other and further order which this Hon'ble Court may deem fit and proper, under the facts and circumstances of the case.
It is further prayed that further proceedings of Case No. 6683 of 2020 (State vs. Akhilesh Kumar Gupta and others) Case Crime No. 143 of 2018 Under Sections 419, 420, 406, 452, 386, 504 and 506 IPC. Police Station Chauk, District Varanasi, in pursuance to the charge sheet dated 7.10.2018 pending in the court of Special Chief Judicial Magistrate, Varanasi in respect of the applicant (Annexure No. 3 to this application)."
6. Application under Section 482 No. 1612 of 2022 is still pending before this Court. A copy of the application is placed on record by counsel for Opposite Party No. 2 and it has also a declaration in para 2 of the affidavit as under:
"2. That this is the first Criminal Misc. Application of the applicant Under Section 482 Code of Criminal Procedure on behalf of the applicant filed before this Hon'ble Court for the same cause of action."
7. The above contentions are verified from record available before this Court.
8. It appears that applicant herein, Amit Kumar Nigam and applicants in other applications, namely, Akhilesh Kumar Gupta alias Sonu and Saroj Gupta as well as the Advocates who have filed these applications, i.e., Ms. Varsha Singh and Sri Mahtab Alam, are trying to mislead this Court.
9. Put up this application alongwith Application under Section 482 No. 1612 of 2022 tomorrow, i.e., 03.12.2022 at 02.00 PM.
10. Let non-bailable warrants be issued to applicants, Amit Kumar Nigam son of Rajendra Prasad Nigam; Akhilesh Kumar Gupta alias Sonu son of Ved Prakash Gupta and Saroj Gupta wife of Ved Prakash Gupta, all residents of CK 48/179, Hadha, Police Station Chauk, District Varanasi. They shall be arrested and produced before this Court tomorrow at 02.00 PM.
11. Registrar (Compliance) is directed to send a copy of this order immediately to Commissioner of Police, Varanasi for compliance.
12. Ms. Varsha Singh and Sri Mahtab Alam, Advocates are also directed to appear before this Court at 02.00 PM. In case of default, the Court may pass adverse order against them, even recommendation for cancellation of their enrollment."
Today, Amit Kumar Nigam, Akhilesh Kumar Gupta and Smt. Saroj Gupta, applicants are produced in custody. Sri Mahtab Alam and Ms. Varsha Singh, learned counsel are also present.
The vakalatnama filed along with these applications were perused by applicants in person in presence of advocates and learned A.G.A.-I Sri Chandan Agarwal and they vehemently denied that they have not signed these vakalatnamas. Therefore, these applications are filed without any proper authority and it is nothing but a fraud upon Court.
Ms. Varsha Singh, one of learned counsel submits that she will file an affidavit before this Court today with a declaration that these vakalatnamas were given to her by a local counsel at Varanasi Sri Rakesh Kumar Gupta S/o Sri Kamlesh Prasad Gupta R/o S-30/130K-4A, Nepali Bagh, Shivpur, Tarna, Varanasi, U.P.- 221003 who has verified signatures also.
Sri Mahtab Alam, the other counsel submits that he has never contacted with clients, however, both counsel have tendered unqualified apology that they will remain cautious in future and will not repeat this kind of mistake.
Considering above submissions and also considering their respective practice which is more than 10 and 20 years, at this stage, this Court is not passing any adverse order, however, they will file whatsoever they have stated by way of an affidavit before this Court today before 2.30 PM.
The applicants in person submit that the dispute has been amicably settled which is confirmed by counsel for opposite party No.2 Sheikh Moazzam Inam. The applicants have submitted that they have still in confidence with present counsel namely, Sri Mahtab Alam and Ms. Varsha Singh and they are not engaging any other advocate and learned counsel for parties submits that they will file a consolidated affidavit before this Court so that proceedings may be quashed within a period of two weeks from today.
However, serious aspect of this case is that counsel, namely, Rakesh Kumar Gupta, Advocate of district Varanasi has prima facie committed a fraud upon the Court that he has verified signatures of applicants who are present in person which they have vehemently denied.
Therefore, let Rakesh Kumar Gupta, Advocate of district Varanasi be summoned through bailable warrant which shall be executed by today and police is directed that it will be served upon him by tomorrow. In case of objection, police is at liberty to approach Chief Judicial Magistrate with a prayer to issue non bailable warrant and learned Court concerned is at liberty to issue the same.
Put up as fresh on Monday i.e. 05.12.2022 at 2.00 PM.
In these circumstances, non bailable warrant issued against applicants are hereby recalled and police is directed to take them back safely from where they were taken into custody and learned A.G.A.-I shall ensure their safe custody.
Registrar Compliance is directed to communicate this order to Chief Judicial Magistrate, Varanasi immediately.
The affidavit to be filed today shall be part of record."
4. Today, upon instructions, learned counsel for the opposite party No. 2 states that the opposite party No. 2 confirms the fact of the dispute having been settled between the parties. He further states that the real dispute between the parties was civil in nature arising from certain money dispute. Those have been settled amicably between the parties inasmuch as the entire amount being claimed by the opposite party No. 2 namely Rs. 15 Lakhs has been paid out to the opposite party No. 2 to his full satisfaction.
5. In such circumstances, it does appear that the criminal prosecution may have been launched arising from misunderstandings and misgivings and not on account of real occurrence.
6. In Application U/S 482 No. 17467 of 2022 (Dharamveer And 5 Others Vs. State of U.P. and Another), decided today, it has been observed as under:
"6. From a perusal of the record, it appears, the real dispute between the parties were civil and private in nature and criminal prosecution arose incidentally and not as a natural consequence of the real occurrence. It is further apparent that the parties have entered into a compromise and they further appear to have settled their aforesaid real disputes amicably. The opposite party no. 2, who would be a key prosecution witness, if the trial were to proceed, has declared his unequivocal intent to turn hostile at the trial. In such circumstances, it is apparent that merits and truth apart, the proceedings in trial, if allowed to continue, may largely be a waste of precious time by the learned court below.
7. The court cannot remain oblivious to the hard reality that the facts of the present case and other similar cases present where, though the allegations made in the FIR do appear to contain the ingredients of a criminal offence, however, in view of settlement having been reached, the chances of conviction are not only bleak but, if such trials are allowed to continue along with all other trials that lie piled up practically in all criminal courts in the state, the continuance of trials in cases such as the instant case may only work to the huge disadvantage of other cases where litigants are crying for justice.
8. In normal circumstances, the court would be loathe to accept some of such compromise arrangements. However, that course does not commend to the court in view of the high pendency of criminal cases and the high propensity to lie and state falsehood that appears to be otherwise rampant in the society - where desire to take revenge appears to sometime over shadow the pure pursuit of justice; where winning a legal battle matters more than doing the right thing; where teaching lesson to one's adversary often appears to be the only purpose of instituting a criminal proceeding.
9. Thus, looking at the prevalent tendencies in the society, a more pragmatic, and less technical approach commends to the court - to let some criminal prosecutions such as the present case be dropped, for the sake of more effective, efficient and proper trial in other cases where the litigants appear to be serious about their rights and more consistent in their approach.
10. Considering the facts and circumstances of the case and the submissions advanced by learned counsel for the parties regarding the compromise entered into between the parties and taking all these factors into consideration cumulatively, the compromise between parties be accepted and further taking into account the legal position as laid down by the Apex Court in the case ofNarinder Singh & Ors. vs. State of Punjab & Anr. (supra), Yogendra Yadav vs. State of Jharkhand (supra) and Parbatbhai Aahir Vs. State of Gujarat (supra) the entire proceedings of the aforesaid case are hereby quashed.
11. The present 482 Cr.P.C. application thus may be allowed, subject however to payment of cost to be deposited by the parties before the High Court Legal Services Committee, Allahabad, within a period of three weeks from today. Such cost has to be imposed to let the parties (in this case) in particular and the society in general know that the courts cannot remain a mute spectator to unscrupulous and errant behaviour of its members. A society that will allow its members to misuse its courts, will ultimately suffer and pay a huge cost. Litigants, both genuine and bogus, will always continue to stand in a common queue. The courts have no mechanism to pre-identify and distinguish between the genuine and the bogus litigants. That differentiation emerges only after the hearing is concluded in any case, hearing requires time. In fact, even if the courts were to take punitive action against a bogus litigant, then, being bound by rules of procedure and fairness, such cases are likely to require more time to be devoted to them than a case of two genuine litigants."
7. In such circumstances, though no useful purpose would be served in allowing the prosecution to continue any further, however, no firm conclusion may be reached, at this stage, as to complete falsity of the allegations made against the applicants. The present 482 Cr.P.C. application thus stands allowed, subject however to payment of cost Rs. 5,000/- (2,500 on each private party) to be deposited before the High Court Legal Services Committee, Allahabad, within a period of three weeks from today.
8. The Legal Services Committee exists and works for the benefit of those litigants for whom court procedures are difficult to afford. It provides a crucial and essential service to the society itself. It thus appears proper to direct payment of the amount of cost to the Legal Services Committee, as a reminder and warning to the society and its members to introspect and reflect at their actions and deeds and also at the consequences that follow.
9. Subject to the above, the charge-sheet dated 07.10.2018 and the proceedings of Case No.6683 of 2020 arising out of Case Crime No. 143 of 2018, under Sections 419, 420, 406, 452, 386, 504 and 506 IPC, Police Station Chauk, District Varanasi, pending in the court of Special Chief Judicial Magistrate, Varanasi are quashed.
Order Date :- 2.1.2023 Faraz