Gujarat High Court
Ashwinbhai Kantibhai Patel vs State Of Gujarat on 7 January, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/CR.MA/11812/2018 JUDGMENT DATED: 07/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 11812 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ASHWINBHAI KANTIBHAI PATEL
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR MA PAREKH(1088) for the Applicant(s) No. 1
MR SHAKEEL A QURESHI(1077) for the Respondent(s) No. 2
PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 07/01/2022
ORAL JUDGMENT
1. Heard learned Advocate Mr. M. A. Parikh for the applicant and learned APP Ms. M. D. Mehta for the respondent-State, learned Advocate Mr. Shakeel A. Qureshi for respondent no. 2.
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2. By way of this petition, the petitioner has prayed for quashing of an FIR being C. R.-I-33 of 2017 lodged at the Khambhat Rural Police Station, Dist. Anand on 02.07.2017 for offences punishable under Sections - 406, 465, 467, 468, 471, 181, 193, 199, 420 and 120B of the Indian Penal Code.
3. Learned Advocate Mr. Qureshi on behalf of the respondent no. 2
- original complainant, has raised a preliminary objection as regards the maintainability of the present petition more particularly, on two counts that is on the count of suppression of material fact and on the count of a second quashing application for the same purpose not being maintainable.
3.1 Learned Advocate Mr. Qureshi would elaborate by submitting that the present petitioner had preferred Criminal Miscellaneous Application No. 28713 of 2017 praying for the very self- same reliefs and whereas vide an order dated 27.11.2017, learned Co- ordinate Bench of this Court had permitted the petitioner to withdraw the said petition. Learned Advocate Mr. Qureshi would submit that the petitioner had not mentioned this very crucial aspect in the petition and since the same amounts to suppression of a very material fact only on that ground, this Court may reject the petition.
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R/CR.MA/11812/2018 JUDGMENT DATED: 07/01/2022 3.2 Learned Advocate Mr. Qureshi would further submit that since the present petitioner is praying for a relief of quashing, which prayer had been made in the first round of litigation as referred to herein above and whereas since the petitioner had withdrawn the said petition, he would not be entitled to file the present petition. Learned Advocate Mr. Qureshi would submit that therefore, also this Court may not entertain this petition.
4. As against the same, learned Advocate Mr. Parikh, on behalf of the petitioner, would submit that the preliminary objections raised by the respondent no. 2-original complainant, may not be considered at all by this Court more particularly since according to the petitioner, the petitioner has very 'candidly' mentioned in his affidavit in rejoinder about the fact of the petition with regard to quashing having been filed herein before and having been withdrawn before this Court. Learned Advocate Mr. Parikh would also submit that the law with regard to a second quashing petition is also well settled in as much as according to the learned Advocate Mr. Parikh, a second quashing petition, can be entertained by this Court more particularly there be no bar against filing of a subsequent petition under Section- 482 of the Code of Criminal Procedure.
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R/CR.MA/11812/2018 JUDGMENT DATED: 07/01/2022 4.1 Learned Advocate Mr. Parikh would rely upon the decision of the Honourable Apex Court in case of All India State Bank Officers Federation Through Its President Versus Union of India, reported at 1990 (Supp 1) SCC 336, on basis of which judgment, learned Advocate Mr. Parikh would submit that the Hon'ble Apex Court, by way of the said judgment has laid down the law that even in case of suppression of fact, the petition should not be dismissed. Learned Advocate Mr. Parikh has also relied upon the decision of the Hon'ble Apex Court in case of Vinod Kumar, I.A.S Versus Union of India & others, in Writ Petition (Criminal No. 255/2021) dated 29.06.2021 and would submit that the Hon'ble Apex Court has in this decision laid down the law that dismissal of an earlier petition does not bar filing of subsequent petition under Section-482.
4.2. Learned Advocate Mr. Parikh would further submit that the reasons for filing of the second quashing petition, has been mentioned in the affidavit in rejoinder preferred by the present petitioner and according to the learned Advocate Mr. Parikh, having regard to the same, this Court may entertain this petition and grant the reliefs as sought for.
5. Learned APP Ms. Mehta would submit that there is a clear and Page 4 of 22 Downloaded on : Sun Apr 24 08:47:46 IST 2022 R/CR.MA/11812/2018 JUDGMENT DATED: 07/01/2022 palpable suppression of material fact, which ought to have been brought to the notice of this Court at the very first instance and having not done so, according to learned APP Ms. Mehta, the present petition does not deserve to be entertained.
6. Learned Advocates for the parties, have not submitted anything further.
7. Having heard the learned Advocates and having perused the record, the following two issues arise for consideration of this Court:
(1) Whether a second quashing petition under Section - 482 of the Code of Criminal procedure for praying for the very self-same relief would be maintainable and, (2) Whether the present petition, should be dismissed on the ground of suppression of material fact.
8. In so far as the first issue with regard to maintainability of a second quashing petition, in the considered opinion of this Court, the said issue is no more res integra. The Hon'ble Apex Court in case of Vinod Kumar(Supra) referred by the learned Advocate for the petitioner dated 29.06.2021 observes as under:
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R/CR.MA/11812/2018 JUDGMENT DATED: 07/01/2022 "The law on point as held by this Court in "Superintendent and Remembrancer of Legal Affairs, West Bengal Bs. Mohan Singh & Ors." reported in SCC (1975) 3 706 is clear that dismissal of an earlier 482 petition does not bar filing of subsequent petition under Section 482, in case the facts so justify."
9. The Hon'ble Apex Court referring to an earlier decision of the Hon'ble Apex Court and has clarified that the dismissal of an earlier petition does not bar filing of a subsequent petition under Section-482. The issue if it had rested there, might not have required much deliberation but in the considered opinion of this Court issue does not rest there.
10. The Hon'ble Supreme Court even in the paragraph quoted herein above qualifies the proposition by holding that a second petition for quashing under Section-482 of the Code of Criminal Procedure, would be maintainable " in case the facts so justify". The ratio laid down by the Hon'ble Supreme Court, is very clear, i.e. the petitioner when he prefers a second quashing petition invoking jurisdiction of this Court under Section-482 of the Code of Criminal Procedure, would be first required to be make out of case as to why the facts would justify entertaining of the second quashing petition.
10.1. It appears that it is to avoid this justification that the Page 6 of 22 Downloaded on : Sun Apr 24 08:47:46 IST 2022 R/CR.MA/11812/2018 JUDGMENT DATED: 07/01/2022 petitioner in the memo of the petition had suppressed the fact of the earlier petition being preferred and withdrawn. Perusal of the memo of the petition reveals that the petitioner, has challenged the Criminal complaint as it is, as if it were being challenged by the very first time, without any reference to why the second petition should be entertained and without justifying as to what were the facts which would lead to the Court being convinced even at prima facie stage to entertain the second petition.
11. Learned Advocate Mr. Parikh has sought to submit that the petitioner has very 'candidly' mentioned the facts which would justify maintainability of the second quashing petition in his rejoinder. This Court has gone through the affidavit in rejoinder which had been preceded by a written submission by the learned Advocate. This Court does not find that even in the affidavit in rejoinder there is any justification as to why the second quashing petition should be entertained by this Court more particularly when the first petition under Section-482 had been withdrawn. Rather a perfunctory apology has been made in the last paragraph of the affidavit in rejoinder that the petitioner had not brought to the notice of his learned Advocate about the fact of the petition for quashing having been withdrawn earlier.
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12. Under such circumstances, this Court finds that while there is not bar for preferring of a second quashing application as laid down by the Hon'ble Apex Court but at the same time the party filing the second application has to justify why the second petition is required to be entertained. In the instant case, the petitioner has not made out any justification whatsoever for entertaining this petition even after the petition had been withdrawn earlier.
13. This Court also finds that the suppression, has to be read along with this requirement in as much as the petitioner since he might not have had any reasons to justify filing of second quashing petition had suppressed the material aspect of the first petition having been preferred and having been withdrawn before this Court.
14. As regards the second question, this Court finds that in the memo of the petition, the present petitioner has not mentioned at any place as to the petitioner having preferred a quashing petition here in before. As a matter of fact at paragraph-5 of the petition, the petitioner has mentioned as here in below:
"The applicant has not filed any other application except this before any Court of law or before the Hon'ble Supreme Court of India." Page 8 of 22 Downloaded on : Sun Apr 24 08:47:46 IST 2022
R/CR.MA/11812/2018 JUDGMENT DATED: 07/01/2022 14.1. The fact of the petitioner having preferred Criminal Miscellaneous Application No. 28713 of 2017, is undisputed. It is also undisputed that in the memo of the petition at the stage when this Court was considering the petition for issuance of notice etc., this very crucial fact had not been placed before this Court.
15. The fact of the petitioner having preferred a petition earlier praying for the very self-same relief, was not something so distant that the petitioner could be given a benefit of doubt that the petitioner would have missed out the same. That having preferred a petition praying for quashing of the FIR impugned in this petition, and having withdrawn the said petition, when the petitioner had approached this Court praying for discretionary relief, that was one of the most crucial aspect which ought to have been stated in the memo of the petition and having not done so, in the considered opinion of this Court, the petitioner loses his right to seek for any indulgence from this Court.
16. At this stage, this Court feels it appropriate to consider whether the suppression by the petitioner was a mere suppression or a suppression of a material fact. The petitioner has not stated in the memo of the petition that he had preferred a petition for quashing under Section- 482 of the Code of Criminal Procedure herein before and the petition was Page 9 of 22 Downloaded on : Sun Apr 24 08:47:46 IST 2022 R/CR.MA/11812/2018 JUDGMENT DATED: 07/01/2022 withdrawn. If the said fact had been brought to the notice of this Court at the first instance that the same might have entailed the petitioner requiring to make out a case for entertaining the second petition. The petitioner not having mentioned this crucial fact, and the entire petition having been preferred as if it had been preferred for the first time, may have led the Court to entertain the petition by issuing notice, without any reference to the fact that this Court had refused to entertain a petition whereas similar impugned FIR shall question. Thus, in the considered opinion of this Court, the suppression was indeed material, stating of which would have led the petition being examined on the question of maintainability at the very first instance. Thus, the suppression being relatable to the question of maintainability was a material suppression.
17. In so far as the decision of the Hon'ble Apex Court relied upon by the present petitioner, this Court finds that the facts of the said petition and facts in the present petition are completely different. This Court finds that before the Hon'ble Apex Court, the petition had been preferred by a Federation and whereas the ground of suppression had been raised against the Federation by submitting that though before the Hon'ble Apex Court, the Federation had stated that they did not move any petition, before any other Court for the same relief, it clearly appears that the Federation had preferred petitions before various other High Courts praying for the very Page 10 of 22 Downloaded on : Sun Apr 24 08:47:46 IST 2022 R/CR.MA/11812/2018 JUDGMENT DATED: 07/01/2022 self-same relief. The Hon'ble Apex Court, while noting that there was a clear attempt on part of the petitioners before the Hon'ble Apex Court to suppress material fact but at the same time, the mitigating circumstance for not rejecting the petition as can be discernible from the decision is the fact that the Hon'ble Apex Court did not wish to penalize various officers who may suffer as a consequence of the new policy, which they had challenged, for the misstatements or wrong steps taken by the officers of the Federation perhaps according to the Hon'ble Apex Court, in their over anxiety to get quick Interim Relief.
18. The Hon'ble Apex Court had also noted that the respondent before the Hon'ble Apex Court had very fairly stated that since it was an issue with regard to a Public Sector Undertaking therefore, they were prepared to contest the petition. The Hon'ble Supreme Court had clearly recorded its dis-approval in the order in question in the manner and the method in which the proceedings had been conducted.
19. In the considered opinion of this Court, the Hon'ble Supreme Court, by way of the said order, did not lay down any ratio as to in case of a suppression of the fact than also, the petitioner would be entitled to be granted indulgence rather what the Court finds is that on the facts of the case more particularly, since the suppression, appeared to be done by Page 11 of 22 Downloaded on : Sun Apr 24 08:47:46 IST 2022 R/CR.MA/11812/2018 JUDGMENT DATED: 07/01/2022 office bearers of the Federation, the Hon'ble Supreme Court in that context did not want to penalize the members of the Federation who had come before the Hon'ble Apex Court praying for some relief more particularly since the suppression was not by the members but by the office bearers concerned.
20. In the instant case, it is undisputable that the first petition was filed by the petitioner himself as is the second petition. This Court feels that the present petitioner would not be entitled for any benefit from the decision of the Hon'ble Apex Court more particularly since it was the present petitioner who had preferred the first petition and it was the very self-same petitioner who has preferred the present petition. The petitioner knowing very well that he had preferred a petition here in before praying for quashing, had suppressed that very material fact, which in the considered opinion of this Court, if it had been placed in the memo of this petition, might have resulted in the petition not being entertained at all at the first stage itself.
21. This Court feels that by suppressing the very crucial aspect of not mentioning an earlier petition being filed and withdrawn which had been preferred for quashing for the very self-same complaint, the petitioner had suppressed a material fact which if had been mentioned Page 12 of 22 Downloaded on : Sun Apr 24 08:47:46 IST 2022 R/CR.MA/11812/2018 JUDGMENT DATED: 07/01/2022 would have led to an examination with regard to maintainability of the petition itself and hence in the considered opinion of this Court, the petitioner would not be entitled to any discretionary relief.
22. At this stage, this Court feels it appropriate to refer to certain observations of the Hon'ble Apex Court on the question of suppression, litigants not coming to the Court with clean hands etc. which would have direct bearing on the issue on hand and therefore, the same are quoted herein below for the better appreciation.
22.1. In case of Hari Narain v. Badri Das reported at 1964 (2) SCR Pg. 203, the Hon'ble Apex Court had observed at paragraph no.
9 as under:
(9) "It is of utmost importance that in making material statements and setting forth grounds in applications for special leave made under Article 136 of the Constitution, care must be taken not to make any statements which are inaccurate, untrue and misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. Thus, if at the hearing of the appeal the Supreme Court is satisfied that the material statements made by the appellant in his application for special leave are inaccurate and misleading, and the Page 13 of 22 Downloaded on : Sun Apr 24 08:47:46 IST 2022 R/CR.MA/11812/2018 JUDGMENT DATED: 07/01/2022 respondent is entitled to contend that the appellant may have obtained special leave from the Supreme Court on the strength of what he characterizes as misrepresentations of facts contained in the petition for special leave, the Supreme Court may come to the conclusion that in such a case special leave granted to the appellant ought to be revoked."
22.2. In case of Ramjas Foundation Vs. Union of India reported in 2010 (14 SCC) Pg. no. 38 paragraph-21. Hon'ble Apex Court has observed as under:
"The principle that a person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have a bearing on adjudication of the issue(s) arising in the case."
22.3. The Hon'ble Supreme Court in a later decision in case of Dalip Singh Versus State of Uttar Pradesh and Others, reported in 2020 (2 SCC) Pg No. 114 of paragraph no. 2 has observed as under:
"In last 40 years, a new creed of litigants has cropped up. Those Page 14 of 22 Downloaded on : Sun Apr 24 08:47:46 IST 2022 R/CR.MA/11812/2018 JUDGMENT DATED: 07/01/2022 who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
22.4. In a recent decision in case of K. Jayaram and others Versus Bangalore Development Authority and Others, reported in 2021 (SCC) Online 1194. The Supreme Court has observed as here under:
"13. This Court in Prestige Lights Ltd. V. State Bank of India has held that a prerogative remedy is not available as a matter of course. In exercising extraordinary power, a writ court would indeed bear in mind the conduct of the party which is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. It was held thus:
"33. It is thus clear that though the appellant Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a court of law is also a court of equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is Page 15 of 22 Downloaded on : Sun Apr 24 08:47:46 IST 2022 R/CR.MA/11812/2018 JUDGMENT DATED: 07/01/2022 suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter."
14. In Udyami Evam Khadi Gramodyog Welfare Sanstha and Another v. State of Uttar Pradesh and Others , this Court has reiterated that the writ remedy is an equitable one and a person approaching a superior court must come with a pair of clean hands. Such person should not suppress any material fact but also should not take recourse to legal proceedings over and over again which amounts to abuse of the process of law.
15. In K.D. Sharma v. Steel Authority of India Limited and Others , it was held thus:
"34. The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the writ court must come with clean hands, put forward all the facts before the court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the court, his petition may be dismissed at the threshold without considering the merits of the claim.
35. The underlying object has been succinctly stated by Scrutton, L.J., in the leading case of R. v. Kensington Income Tax Page 16 of 22 Downloaded on : Sun Apr 24 08:47:46 IST 2022 R/CR.MA/11812/2018 JUDGMENT DATED: 07/01/2022 Commrs.- (1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA) in the following words: (KB p. 514) "... it has been for many years the rule of the court, and one which it is of the greatest importance to maintain, that when an applicant comes to the court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts--it says facts, not law. He must not misstate the law if he can help it--the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside any action which it has taken on the faith of the imperfect statement." (emphasis supplied)
36. A prerogative remedy is not a matter of course. While exercising extraordinary power a writ court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating, "We will not listen to your application because of what you have done." The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it.
37. In Kensington Income Tax Commrs.(supra), Viscount Reading, C.J. observed: (KB pp. 495-96) "... Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit Page 17 of 22 Downloaded on : Sun Apr 24 08:47:46 IST 2022 R/CR.MA/11812/2018 JUDGMENT DATED: 07/01/2022 in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant's affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit." (emphasis supplied)
38. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play "hide and seek" or to "pick and choose"
the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of writ courts and exercise would become impossible. The petitioner must disclose all the facts having a Page 18 of 22 Downloaded on : Sun Apr 24 08:47:46 IST 2022 R/CR.MA/11812/2018 JUDGMENT DATED: 07/01/2022 bearing on the relief sought without any qualification. This is because "the court knows law but not facts".
39. If the primary object as highlighted in Kensington Income Tax Commrs.(supra) is kept in mind, an applicant who does not come with candid facts and "clean breast" cannot hold a writ of the court with "soiled hands". Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court."
16. It is necessary for us to state here that in order to check multiplicity of proceedings pertaining to the same subject-matter and more importantly to stop the menace of soliciting inconsistent orders through different judicial forums by suppressing material facts either by remaining silent or by making misleading statements in the pleadings in order to escape the liability of making a false statement, we are of the view that the parties have to disclose the details of all legal proceedings and litigations either past or present concerning any part of the subject-matter of dispute which is within their knowledge. In case, according to the parties to the dispute, no Page 19 of 22 Downloaded on : Sun Apr 24 08:47:46 IST 2022 R/CR.MA/11812/2018 JUDGMENT DATED: 07/01/2022 legal proceedings or court litigations was or is pending, they have to mandatorily state so in their pleadings in order to resolve the dispute between the parties in accordance with law.
17. In the instant case, since the appellants have not disclosed the filing of the suit and its dismissal and also the dismissal of the appeal against the judgment of the civil court, the appellants have to be non-suited on the ground of suppression of material facts. They have not come to the court with clean hands and they have also abused the process of law. Therefore, they are not entitled for the extraordinary, equitable and discretionary relief."
23. The Hon'ble Supreme Court has laid down the proportion in the above quoted judgments that a litigant who has approached a Court by suppressing facts, loses his right to be heard on merits and whereas the petition would be rejected only on the ground of suppression. It would be further pertinent to mention that in case of K. D. Sharma (Supra), the Hon'ble Supreme Court has further laid down that if the petition preferred by suppressing material facts is not dismissed than the Court would be failing in its duty.
23.1. Thus examined, once the Court has come to a conclusion that material facts have been suppressed then the Court is duty Page 20 of 22 Downloaded on : Sun Apr 24 08:47:46 IST 2022 R/CR.MA/11812/2018 JUDGMENT DATED: 07/01/2022 bound as per the dictum of the Hon'ble Apex Court to dismiss the petition on that count.
24. Having regard to the discussion here in above, this Court has no hesitation to come to a conclusion that the petitioner, having preferred the petition by suppressing one of the most material aspects which were required to be mentioned in the memo of the petition, has lost his right to be heard in this Court on the merits of the case.
24.1 This Court notes that only after the respondent no.2- original complainant had objected to maintainability of the petition more particularly on the ground of suppression, that the petitioner has filed an affidavit in rejoinder trying to justify that there was no suppression. Again even on a plain reading of the affidavit in reply, this Court does not find that there is any justification given for suppression rather the petitioner very merely states that he did not inform his learned Advocate about the fact of the earlier petition being filed.
25. Under such circumstances, since the Court having come to a conclusion that the petition does not deserve to be entertained on the ground of material suppression of the fact and more particularly since it appears that this petition has been pending since 2018 and has received Page 21 of 22 Downloaded on : Sun Apr 24 08:47:46 IST 2022 R/CR.MA/11812/2018 JUDGMENT DATED: 07/01/2022 consideration from various learned Co-ordinate Benches at various stages which has resulted in immense wastage of precious Judicial time, therefore, this Court is of the considered opinion that costs, in the nature of exemplary cost, deserve to be imposed upon the present petitioner. This Court notes that such exemplary cost would be required so as to ensure that any other future litigant, who decides to undertake such a mis- adventure of coming before this Court by suppressing material fact would be dissuaded from doing so looking at the fate the present petition has received at the hands of this Court.
25.1. Under such Circumstances, costs quantified at Rs. 1,00,000/- (1 Lakh) are imposed upon the petitioner. The same shall be deposited by the petitioner before Gujarat High Court Legal Services Authority within a period of one month from the date of receipt of this order. Registry to report compliance/ non-compliance after the said period to this Court.
26. With these observations and directions, the present petition i.e. Criminal Miscellaneous Application No. 11812 of 2018 is disposed of as rejected.
(NIKHIL S. KARIEL,J) Mrs. J. J. Kedia Page 22 of 22 Downloaded on : Sun Apr 24 08:47:46 IST 2022