Madhya Pradesh High Court
Ashok vs The State Of Madhya Pradesh on 25 September, 2024
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
IN THE HIGH COURT OF MADHYA PRADESH
AT Indore
CRR No. 775 of 2023
(ASHOK VS. STATE OF MADHYA PRADESH )
Dated : 25-09-2024
Applicant in person.
Shri Amit Bhatia - Public Prosecutor for the respondent/State.
Heard on I.A No.7255/2024 which is an application for recall of the order dated 2/4/2024.
2. The present Revision is filed under Section 397 of Cr.P.C r/w Section 401 of Cr.P.C against the order dated 1/2/2023 passed by the Trial Court in Session Trial No.699/2016.
3. The petitioner had filed I.A No.17239/2023 which was application under Section 340 of Cr.P.C for initiation of proceedings under section 195 Cr.P.C for offence under sections 166, 166-A, 191, 192, 193, 195, 196, 199, 200, 202, 203, 204, 209, 211, 212, 120-B of IPC against Shri Ajay Mishra ACP (crime) and Shri Mukesh Parwal, Public Prosecutor/Government Advocate for deliberately not bringing the evidence and misleading the court and therefore, inquiry should be directed to be made in terms of clause (b) of sub-clause 1 of section 195 of Cr.P.C. After making preliminary inquiry to make a complaint in writing and sent it to Magistrate of First Class having jurisdiction for inquiry and to pass an order for sufficient security for the appearance of accused persons before the Magistrate and send the accused in custody to the said Magistrate.
4. The said application was dismissed by order dated 2/4/2024 finding that no case for initiation for proceedings under Section 340 Cr.P.C is made out. The present application for recall of the order is filed mainly on the ground that the counsel for the respondents have produced a list of the cases before this Court showing as many as 17 cases.
However, the order dated 17/4/2023 passed by the Apex Court in M.A No.1755/2022 in SLP (Crl) No.1209/2019, was not cited.
5. In the application for recall of the said order has prayed following reliefs:-
It is, therefore, most respectfully and most humbly prayed as follows:
(a) issue direction to both the accuse to provide the Name of the Witnesses whose Statements was been recorded Under Section 161 and 164 of CRPC which directly concerns to Petitioner and Single Documentary Evidence relying upon to prosecute the Petitioner under Section 420, 424, 467, 468, 471, 201, 120B of IPC.
(b) Initiate Contempt of Court against Shri. Mukesh Porwal for referring earlier dismissed Judgments even after the direction issued by the Apex Court to decide the same as per its own merit without being influenced by he orders passed by this Court from time to time in the Miscellaneous applications moved by the petitioner.
(c) Issue notice to accuse Rajkumar Choudhary to file Affidavit in Reply for what purpose the money was paid to Petitioner Ashok if the Court is not satisfied with Memorandum Statement of the accuse recorded Under Section 27 of the Indian Evidence Act 1872 for reaching out to the truth in the interest of justice.
(d) Present IA for Recall of Judgement Order Dated 02/04/2024 be allowed and record all the submission made by the Petitioner on merits and pass fresh order by giving justification in the interest of Justice.
(e) Any other or further relief(s) which this Court deems fit and proper, in the facts and circumstances.
AND FOR THIS ACT OF KINDNESS AND JUSTICE, THE ABOVE NAMED PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.
6. Counsel for the State without filing the reply opposes the prayer and submits that the present application is nothing but an abuse of process of law as the applicant is filing repeatedly similar applications claiming same relief and also making allegations against the investigator and public prosecutor and the application deserves to be dismissed with heavy cost. He also submitted that the applicant had filed contempt petition Civil No.562/2024 against the public Prosecutor who had represented the State before this Court and the said contempt has been dismissed by co-
ordinate Bench with the cost of Rs.50,000/-. However the same, at the request of applicant, was reduced to Rs.5000/- on subsequent application.
7. This Court finds that under the garb of application for recall of the order, the applicant is seeking the reliefs which cannot be considered in an application for recall of the order as they were never claimed in the application.
8. Apart from that his submission that the counsel for the State ought to have mentioned the order dated 17/4/2023 passed in M.A 1755/2022 by the Apex Court, in the list of cases filed by the applicant sans merit. The said MA was filed by the applicant and upon perusal of the order, it is clear that the said MA was dismissed without notice to the respondents. The order passed by the Apex Court in M.A No.1755/2022 dated 17/4/2023 reads as under:-
1. We have heard the applicant/petitioner, who has appeared n person.
2. In our considered view the instant MA is completely misconceived and misdirected. The same is, accordingly, dismissed.
3. However, if the applicant/ petitioner has filed any case before the High Court which is pending before it, learned High Court is requested to decide the same as per its own merit without being influenced by the orders passed by this Court from time to time in the Miscellaneous Applications moved by the petitioner.
As a sequel thereto, I.A No.38969/2023 stands disposed of.
9. Thus, it cannot be held that there was any suppression on the part of the counsel for the State by not mentioning the aforesaid case in the list of cases filed by the respondent. The applicant further insisted that he has filed written documents which should be also be referred and be allowed to read the entire written submission.
10. The order dated 2/4/2024 which is sought to be recalled is reproduced as under:-
At the outset, the applicant prays for time to argue the revision on merit and submitted that he wants to argue only on IA No.17239/2023, which is an application under section 340 of Cr.P.C for initiation of proceedings under section 195 Cr.P.C for offence under sections 166, 166-A, 191, 192, 193, 195, 196, 199, 200, 202, 203, 204, 209, 211, 212, 120-B of IPC against Shri Ajay Mishra ACP (crime) and Shri Mukesh Parwal, Public Prosecutor/Government Advocate for deliberately not bringing the evidence and misleading the court and therefore, inquiry should be directed to be made in terms of clause (b) of sub-clause 1 of section 195 of Cr.P.C.
After making preliminary inquiry to make a complaint in writing and sent it to Magistrate of First Class having jurisdiction for inquiry and to pass an order for sufficient security for the appearance of accused persons before the magistrate and sent the accused in custody to said magistrate.
The other prayer is made that all the submissions made by the applicant in the present application be treated as written statement and Rs.20,00,000/- be awarded to him as cost. A reply was filed to the present revision petition. Statement was made in para 5 of the reply stating that against 13 accused persons challan has been filed on 14.07.2016, 14.09.2016, 24.07.2017 and finally challan was filed on 17.05.2018. The applicant on the basis of certain documents obtained under RTI argued that no charge sheet has been filed on 17.05.2018 and false statement was made. Since there was no specific averment in the reply to para 5 of the revision petition in this regard, this Court by order dated 21.02.2024 granted time to the counsel for the state to file additional reply explaining para 5 of the reply of the revision. In compliance to the said order, an explanation has been filed by way of affidavit vide document no.2647 by the respondent. The applicant also filed certain document on 01.04.2024 i.e. yesterday vide document no.3285 bringing certain court orders on record.
It is argued by the applicant that in para 4 of explanation/affidavit dated 11.03.2024, the respondents have admitted that the challan was prepared on 17.05.2018 and the same was filed before the court of law on 25.01.2020. Thus, they have misrepresented the date of filling of the charge sheet which is relevant date. It is also argued that alongwith affidavit/explanation at page no.42 of the charge sheet the total number of enclosures have been shown to be 31 whereas at page 43, which is also a part of the charge sheet, total number of enclosures have been shown to be 56. Thus, there is discrepancies mentioned in the charge sheet.
It is also argued that in the reply it has been stated that the applicant has been made accused on the basis of memo of co-accused and as per the memo Rs.18,00,000/- was given to him by co-accused by transferring the same to his account, which is alleged to be withdrawn by the applicant. The applicant stated that the aforesaid amount was taken by him as loan from co-accused present. He referred document "C" filed alongwith rejoinder which is memo of co-accused Rajkumar who stated that that he had given Rs.18,00,000/- to the applicant as loan. Thus, there was sufficient material to show that the amount given to the applicant was towards loan but the respondents have incorrectly stated in para 6 of the affidavit dated 03.02.2024 that there was no document to show that the amount was given as loan to him. It is also argued that the charge sheet has been made bulky of 140 pages by attaching irrelevant documents relating to other co-accused persons and the relevant documents relating to the applicant has been attached alongwith charge sheet of co-accused person. On the basis of aforesaid submission, he prayed for directing that an inquiry under section 340 of Cr.P.C read with section 195 of Cr.P.C against Shri Ajay Mishra ACP (crime) who signed the document and also advocate who is representing the state in the present case.
Learned counsel for the respondent/state vehemently opposed the application and submits that there is neither any misrepresentation nor any suppression of facts by the respondent. He argued that by affidavit filed in terms of the court order dated 21.02.2024, they have clarified in para no.4 that the charge sheet was prepared on 17.05.2018 and the same was filed before the court of law on 25.1.2020. The date 17.05.2018 was date for preparation of charge sheet. However, due to typographical mistake, it has been mentioned to be date of filling of charge sheet. It is also submitted that the applicant is unnecessarily causing hindrance in the trial and he is in habit of challenging all kind of interlocutory orders passed by the court below. He is filling applications under section 340 of Cr.P.C against the officer in-charge of the case and the counsel whosoever represents state either before the trial court or before the High Court. He has referred para 7 of the reply containing a list of cases to show that till this date as many as 17 cases have been filed by the applicant either before the Apex Court, this High Court or other High Court challenging interlocutory orders including writ petitions. The list is reproduced as under :-
क्रम ांक प्रकरण क्रम ांक न्य य ऱयीन ननर करण ररम कक म ननीय सर्वोच्च न्य य ऱय (अशोक बी SLP No. न गनगोडर वर्वरूद्ध Dismissed as
1.
म.प्र. श सन) 9523/2016 withdrawn आदे श ददन ांक 16.12.2016 म ननीय सर्वोच्च न्य य ऱय (अशोक बी SLP No. M.A. न गनगोडर वर्वरूद्ध
2. म.प्र. श सन) 9523/2016 [cr] 1209/19 आदे श ददन ांक 17.11.2022 म ननीय सर्वोच्च न्य य ऱय (अशोक बी SLP No. M.A. न गनगोडर वर्वरूद्ध
3. म.प्र. श सन) 1045/2021 [cr] 1209/19 आदे श ददन ांक 14.03.2022 म ननीय सर्वोच्च न्य य ऱय (अशोक बी SLP No. M.A. न गनगोडर वर्वरूद्ध
4. म.प्र. श सन) 1755/2022 [cr] 406/2022 आदे श ददन ांक 17.04.2023 म ननीय सर्वोच्च न्य य ऱय, नई म ननीय सर्वोच्च ददल्ऱी द्र्व र न्य य ऱय (अशोक बी म ननीय SLP No. न गनगोडर वर्वरूद्ध
5. उच्चतम म.प्र. श सन) 8865/2017 न्य य ऱय आदे श ददन ांक मध्य प्रदे श को 22.11.2017 ननर करण ब बद ननदे शशत ककय गय ।
म ननीय उच्च न्य य ऱय, म ननीय सर्वोच्च खांडऩीठ इांदौर न्य य ऱय (अशोक बी एमसीआरसी SLP No. न गनगोडर वर्वरूद्ध
6. क्रम ांक म.प्र. श सन) 40521/2018 11898/2018 आदे श ददन ांक आदे श ददन ांक 28.01.2019 18.06.2018 के वर्वरूद्ध आरोऩी के द्र्व र अऩीऱ की गई थी, जिसे म ननीय सर्वोच्च न्य य ऱय द्र्व र ननरस्त ककय गय थ।
म ननीय
सर्वोच्च
न्य य ऱय के
म ननीय सर्वोच्च
SLP (cri) No. द्र्व र आरोऩी
न्य य ऱय (अशोक बी
1209/2019 को गगरफ्त री
Miscellaneous न गनगोडर वर्वरूद्ध
7. र्व रां ट ि री
म.प्र. श सन)
application
no. (dy. No. होने से ट्र यऱ
आदे श ददन ांक
18696/2020) कोटक के समऺ
14.03.2022
उऩजस्थत होने
हे तु आदे शशत
ककय गय
(अशोक बी न गनगोडर
वर्वरूद्ध म.प्र. श सन)
M.Cr.C. no. म ननीय उच्च
8. 11898/2018 न्य य ऱय, खण्डऩीठ ननरस्त
u/s 482 Crpc
इांदौर
आदे श ददन ांक
18.06.2018
(अशोक बी न गनगोडर
वर्वरूद्ध म.प्र. श सन)
M.Cr.C. no.
9. 6851/2017 u/s म ननीय उच्च ननरस्त
न्य य ऱय, खण्डऩीठ
482 Crpc
इांदौर
आदे श ददन ांक
05.09.2017
(अशोक बी न गनगोडर
वर्वरूद्ध म.प्र. श सन)
M.Cr.C. no. म ननीय उच्च
Dismissed as
10. 10024/2022 न्य य ऱय, खण्डऩीठ withdrawn
u/s 482 Crpc
इांदौर
आदे श ददन ांक
06.04.2022
(अशोक बी न गनगोडर
वर्वरूद्ध म.प्र. श सन)
M.Cr.C. no. म ननीय उच्च
11. 49075/2022 न्य य ऱय, खण्डऩीठ Disposed
u/s 482 Crpc
इांदौर
आदे श ददन ांक
18.01.2023
(अशोक बी न गनगोडर
वर्वरूद्ध म.प्र. श सन)
M.Cr.C. no. म ननीय उच्च
12. 7309/2023 u/s न्य य ऱय, खण्डऩीठ Dismissed
482 Crpc
इांदौर
आदे श ददन ांक
24.04.2023
(अशोक बी न गनगोडर
वर्वरूद्ध म.प्र. श सन)
म ननीय उच्च
W.P.
13.
10301/2019 न्य य ऱय, खण्डऩीठ Dismissed
इांदौर
आदे श ददन ांक
26.06.2019
म ननीय उच्च
W.P. No. Disposed on
14. न्य य ऱय, खण्डऩीठ
4171/2023 19-9-2023
इांदौर
(अशोक बी न गनगोडर
वर्वरूद्ध म.प्र. श सन)
म ननीय उच्च
न्य य ऱय, मम्
ु बई,
W.P. No. Pending on
15. मह र ष्ट्ट्र
4295/2018 28-11-2023
(अशोक बी न गनगोडर
वर्वरूद्ध म.प्र. श सन)
म ननीय उच्च
न्य य ऱय, खण्डऩीठ
इांदौर
CRR Disposed on
16.
431/2017 (अशोक बी न गनगोडर 14-09-2017
वर्वरूद्ध म.प्र. श सन)
आदे श ददन ांक
11.09.2017
म ननीय उच्च
न्य य ऱय, खण्डऩीठ
Present
CRR
17. इांदौर petition which
775/2023
(अशोक बी न गनगोडर
is pending
वर्वरूद्ध म.प्र. श सन)
He further referred the order passed by the Division Bench in WP NO.10301/2019 passed on 26.06.2019, whereby, the petitioner challenged the registration of FIR and claimed other reliefs alleging violation of his fundamental rights. The said writ petition was dismissed with an observation that the petitioner, if so advised approach trial court in accordance with the procedure prescribed by law in case he feels that some evidence which is being used against him or is part of the charge sheet has not been supplied to him in respect of any other grievance as well as for early conclusion of trial. He also referred the order passed by this court in WP No.4171/2023 dated 19.09.2023. He also pointed out that the applicant has committed typographical mistake in his application IA NO.17239/2023. The reply to the affidavit where he claimed exemplary cost of Rs.2,00,000/-, however, in words he has mentioned Rs.1,00,000/- only. Thus, the applicant may also be held liable to misrepresentation of facts under section 340 of Cr.P.C. He quoted this example to demonstrate that these are typographical mistakes which are cryptic in the reply of the respondent or in the affidavit filed by the applicant himself being human error and they have to be treated to be typographical mistake only.
In the light of the aforesaid submission, he prayed for dismissal of the present application with heavy cost.
I have heard applicant and counsel for the respondent/state.
So far the contention of the applicant that the respondents have made a false statement before this Court stating that challan was filed on 17.05.2018, the respondents have clarified by filling affidavit dated 09.03.2024 stating that since that on 17.05.2018 the charge sheet was prepared and the same was filed before the court of law on 25.01.2020. Mentioning of dated 17.05.2018 as date of filling of charge sheet (challan) is nothing but typographical mistake and there was no intention to mislead or misrepresent the facts before this Court. Upon perusal of the additional affidavit and record, this court finds that there is no intentional misrepresentation or suppression of fact on the part of the officer incharge of the case or the lawyer who is representing the respondent. The said mistake was only a typographical mistake as applicant has also committed typographical mistake in the prayer clause of the reply to the affidavit. The said mistake is unintentional and does not intend to mislead the court.
So far discrepancies in the number of pages of enclosure of the charge sheet is concerned, the counsel for the state has submitted that in the present case, the charge sheet and supplementary charge sheet have been filed in respect of number of accused persons and the respondents have included only relevant pages of the charge sheet alongwith additional affidavit/explanation and therefore in one page of the charge sheet number of enclosures is mentioned as 31 and at page 43 number of enclosure is mentioned as 56. No inference can be drawn with the aforesaid mentioning of number of enclosures that there was any intention to mislead or suppress any facts before this court. Therefore, the contention of the applicant cannot be accepted that the same has been done with an intention to mislead the court or to commit fraud with the court. The contention regarding difference of amount under enclosures C and D are concerned that the applicant had taken the said amount as loan from co- accused is not relevant for adjudication of this application. The same is a matter of evidence while adjudicating the case on merit by the trial court as the same is the defence of the applicant.It is relevant to mention here that in the writ petition no.4171/2023, whereby the petitioner has sought number of reliefs, in the said case also, the applicant filed an application under section 195 of Cr.P.C against the officer in-charge of the case and the counsel who was representing the state stating that incomplete charge sheet has been supplied to him. This Court held in para 9 that no case is made out for initiation of proceedings under section 195 as the documents which are filed with the charge sheet has been supplied to the petitioner before this Court. It is relevant to mention the procedure to initiate the perjury proceedings or proceedings under section 340 of Cr.P.C before concluding the matter. Section 195 Cr.P.C provides a bar that states that no court will take cognizance of the offences under Sections 193-196 (perjury and its aggravated form) except on the complaint in writing by such court or by an officer authorised by such court. A bare reading of the section would reveal that for the offences of perjury, it would be the court that will be complainant as these offences are against the public justice. Section 340 Cr.P.C. further enumerates the procedure to be followed in respect of the offences mentioned under Section 195 CrPC provides for a bar of taking cognizance of the offences inter alia mentioned under Sections 193-196 IPC. If the court is of the opinion that it is expedient in the interest of justice that an inquiry may be conducted in respect of the offences as mentioned under Section 195 may order an inquiry and upon conclusion of such inquiry record a finding to this effect and make a complaint in writing. The Supreme Court in Surjit Singh v. Balbir Singh reported in 1996 (3) SCC 533 while explaining the scope of the inquiry under Section 340 CrPC observed as under
"Public justice demands an absolute bar of private prosecution and that power be given to the court to lay complaints under Section 340 of the Code as per the procedure prescribed therein. The object thereby is to protect persons from needless harassment by the prosecution for private vendetta; to preserve the purity of the judicial process and unsullied administration of justice; to prevent the parties from the temptation to pre-empt proceedings pending in a court and to pressure and desist parties from proceeding with the case. The bar of Section 195 is to take cognizance of the offences covered thereunder. The object thereby is to preserve the purity of the administration of justice and to allow the parties to adduce evidence in proof of certain documents without being compelled or intimidated to proceed with the judicial process. In this case, the original agreement appears to have been filed in the civil court on 9-2- 1984 long after cognizance was taken by the Magistrate.
In light of the aforesaid facts, this Court does not find any case for initiation of proceedings under section 340 of Cr.P.C.Accordingly, IA No.17239/2023 stands dismissed.
The applicant prays for time to file applications.List after six weeks."
11. Thus, this Court has decided the application after considering the facts and submissions raised by the applicant. No case is made out for recall of the order dated 2/4/2024.
12. During the course of dictation the applicant made allegations against the counsel for the State by shouting and interrupting during dictation despite repeated warnings by the Court. When the Court was going to dismiss the application he asked for transfer of the case to the other Court. The said conduct is highly deprecated. It is noticed that he is repeatedly filing petitions and applications for same relief and also filing contempt cases and applications against public prosecutors/Govt. Advocates including investigating officers on frivolous allegations. For the said reason, a co-ordinate Bench had dismissed his contempt petition with cost. Today again instead of arguing the Revision on merit, he argued only on application.
13. Accordingly, I.A No.7255/2024 for recall of order dated 2/4/2024 is dismissed with cost of Rs.50,000/- considering the conduct of the applicant.
(VIJAY KUMAR SHUKLA) JUDGE PK