HIGH COURT OF JUDICATURE AT ALLAHABAD (AFR) Court No. - 34 Case :- CRIMINAL MISC. WRIT PETITION No. - 16677 of 2015 Petitioner :- Sushil Kumar Rastogi @ Sushil Kumar Respondent :- State Of U.P. And 2 Ors Counsel for Petitioner :- Ajai Bhanot, Sr. Advocate, Mohit Singh Counsel for Respondent :- Govt.Advocate Hon'ble Sudhir Agarwal,J.
Hon'ble Brijesh Kumar Srivastava-II,J.
1. This writ petition is an example of gross abuse of process of law not only on the part of the litigant but with due support from learned counsel also.
2. An F.I.R. in case crime no. 127 of 2015 under Sections 420/467/468/471 IPC was lodged at P.S. Sambhal, District Sambhal by one Jagdish s/o Mahaveer Prasad in which petitioner Sushil Kumar Rastogi was named as accused. With a prayer for issuance of writ of certiorari and quashing of the aforesaid FIR, the petitioner came to this Court in Criminal Misc. Writ Petition no. 8252 of 2015, wherein the cause title showing his name was Sushil Kumar Vs. State of U.P. and 2 others. The writ petition was filed through Sri Amit Kumar Verma Advocate.
3. A Division Bench of this Court, consisting of Hon'ble Amreshwar Pratap Sahi, J. and Hon'ble Mrs. Vijay Lakshmi, J. did not find any cause for quashing the FIR, having disclosed a cognizable offence, and declining to interfere, dismissed the writ petition, making some observations, vide judgment dated 9.4.2015, which reads as under:-
"Heard learned counsel for the petitioner and Sri K.D. Tiwari, learned counsel for the respondent no.3.
The petitioner is a tenant and the respondent no.3 is his landlord. The allegation in the F.I.R. is that the petitioner has forged the thumb impressions of the lady landlord, who died about six years hence. The receipts, which were prepared, were allegedly after three years of the death of the landlady which are being utilised by the petitioner to defend himself in a litigation.
Learned counsel for the petitioner contends that this very matter is engaging attention of the court in proceedings under U.P. Act No.13 of 1972, where the respondent no.3 has already filed his objection. He, therefore, contends that if the same thumb impression is to be adjudicated before the Rent Control Officer, the same cannot be made the basis of an F.I.R.
We are unable to agree to this submission inasmuch as the utilisation of a forged document in a proceeding pending under the Rent Control Act and the very preparation of the document itself alleging the commission of an offence of forgery are two different things and can raise different liabilities.
Therefore, it cannot be said that no cognizable offence is made out.
No case for interference or for quashing of the F.I.R.
The writ petition is dismissed with the said observation."
4. Thereafter this writ petition has been filed in which the petitioner has mentioned his name in cause title as "Sushil Kumar Rastogi @ Sushil Kumar", seeking the same prayer of issuance of a writ of certiorari for quashing FIR dated 24.3.2015, registered as Case Crime No. 127 of 2015 under Sections 420/467/468/471 IPC, P.S. Sambhal, District Sambhal. The second prayer is for issuing a mandamus, commanding the respondent not to arrest the petitioners pursuant to the aforesaid FIR. Prayers in both the writ petitions read as under:-
Writ Petition No. 8252 of 2015 Writ Petition No. 16677 of 2015
(i) issue a writ order or direction in the nature of certiorari for quashing the impugned FIR no. 127 of 2015, under sections 420, 467, 468, 471 IPC, P.S. Sambhal, District Sambhal (annexure no. 1) to the writ petition.
(I) to issue a writ, order of direction in the nature of certiorari quashing the first information report dated 24.3.2015 registered as Case Crime No. 127 of 2015, under sections 420, 467, 468, 471 IPC, P.S. Sambhal, District Sambhal, (annexure no. 1 to the writ petition).
(ii) issue a writ, order or direction in the nature of mandamus commanding the respondents to not to arrest the petitioners in Case Crime No. 127 of 2015, under sections 420, 467, 468, 471 IPC, P.S. Sambhal, District Sambhal.
(ii) to issue a writ order or direction in the nature of mandamus commanding the respondents not to arrest the petitioner in Case Crime No. 127 of 2015, under sections 420, 467, 468, 471 IPC, P.S. Sambhal, District Sambhal registered in pursuance of the impugned first information report dated 24.3.2015 (annexure no. 1 to the writ petition).
(iii) issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(iii) to issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(iv) award the cost of the writ petition to the petitioner.
(iv) to award the cost of the writ petition to the petitioner.
5. Writ petition no. 16677 of 2015 has been drafted and prepared by Sri Mohit Singh, Advocate, (Advocates Roll No. A/M0584) and Sri Ajai Bhanot, Senior Advocate has appeared to argue. In the entire writ petition, there was no mention of earlier writ petition and dismissal thereof against this very FIR. On the contrary, in para-1 of writ petition, a declaration has been made that no criminal writ petition has been filed by petitioner, in respect of reliefs claimed in this writ petition, and no matter is pending. Para 1 of the present writ petition reads as under:
" This is the first writ petition filed on behalf of the petitioner before this Hon'ble Court for the reliefs claimed therein and further it is stated that no other criminal revision/criminal writ/criminal misc. application/criminal appeal has been filed before this Hon'ble High Court or its Lucknow Bench against the impugned order on the same cause or related cause of action or seeking the same or related reliefs, and no such criminal revision or transfer application for the same relief was pending in the lower court."
6. When computer list was prepared for placing this writ petition as fresh before the appropriate Court, computer detected the earlier writ petition filed by petitioner and, mentioned this fact in Computer List. The writ petition was initially filed before the Bench presided over by Hon'ble Mr. Justice V. K. Shukla but under the orders of Hon'ble Chief Justice, it was transferred and assigned to this Bench.
7. When this matter was called on, Sri Ajay Bhanot, learned Senior Advocate assisted by Sri Mohit Singh, Advocate appeared. When pointed out that this is a second writ petition and there is no mention of earlier writ petition in para-1 of the writ petition and a material fact has been concealed, he (Sri Bhanot) immediately said that he is moving an application praying for dismissal of writ petition as withdrawn. A withdrawal application accompanied by an affidavit sworn by petitioner at 9.30 AM on 14.07.2015 was then filed. The averments in application, justify second writ petition. In paras 3 and 4 it is said that there was a compromise between parties and various developments took place, hence in changed circumstances, this petition with fresh cause of action has been filed. Paragraphs no. 2, 3 and 4 of affidavit accompanying withdrawal application are reproduced as under:
"2. That the deponent earlier approached this Hon'ble Court by way of criminal misc. writ petition no. 8252 of 2015 and this Hon'ble Court vide order dated 09.04.2015 had dismissed the aforesaid writ petition.
A true copy of the order dated 09.04.2015 passed by this Hon'ble Court is being filed herewith and marked as ANNEXURE.SA.1 to this supplementary affidavit.
3.That thereafter, a compromise was arrived at between the parties and various developments took place which have been referred to in the instant writ petition.
4.That under the changed circumstances, the deponent again approached this Hon'ble Court with fresh cause of action."
8. In para 5 it is said that due to an inadvertence, reference of earlier writ petition could not be made in the present writ petition and it is a mistake. In para 6 it is also said that the deponent namely petitioner did not tell the factum of dismissal of earlier writ petition to his counsel, due to his ignorance about procedural aspect. In para 9 it is stated that second writ petition is maintainable in view of fresh cause of action. Paras 6 and 9 of withdrawal application (affidavit) are read as under:
"6. That the deponent also did not tell his counsel about the dismissal of the aforesaid writ petition. The deponent due to his ignorance about the procedural aspect did not consider the aforesaid dismissal of having any bearing on the instant writ petition.
9.That though the present writ petition has been filed after fresh cause of action has arisen and as such, the second writ petition is maintainable. However, since the fact of dismissal of the earlier writ petition could not be disclosed in the instant writ petition due to negligence and inadvertence on the part of the deponent, as such, he does not want to press the instant writ petition. Hence, the present writ petition may be dismissed as withdrawn."
9. When inquired as to what is that fresh cause of action which permits maintainability of second writ petition for the same relief(s), learned counsel could not give any reply. He simply said that since client did not inform, filing of earlier writ petition could not be mentioned in the present one. He also stated that the client is present and the Court may inquire from him. When inquired from the petitioner, who was produced before us and identified by two advocates named above, appearing for the petitioner, he straightaway said, when he handed over papers to the person/local counsel for filing writ petition, he told all the facts about filing of first writ petition to him. On hearing this, both learned counsel in open court immediately tried to scold the petitioner as to how he is making this statement, but then he (petitioner) said that he had made disclosure of dismissal of earlier writ petition to the local counsel whom he handed over papers, authorizing to file second writ petition. In the circumstances, we proposed to take strict action in the matter, since here was a case where petitioner took the stand of disclosure of dismissal of earlier writ petition to the person to whom he handed over papers and petitioner's counsel without directly interacting with litigant, prepared writ petition without making disclosure of the factum of filing of earlier writ petition and its dismissal. Moreover affidavit of writ petition has been sworn by litigant himself and para 1 thereof has been sworn by him on personal knowledge, meaning thereby, that it is a false affidavit apparently. At this stage, Sri Ajay Bhanot, learned Senior counsel, tendered apology and requested that the petition may be dismissed as withdrawn. We directed to take up the matter after recess.
10. After lunch when the Court reassembled, hundreds of counsel/members of Bar gathered in Courtroom as well as outside in Corridor and Sri R.K. Ojha, Senior Advocate (recently elected President of High Court Bar Association), and Sri V. P. Srivastava, Senior Advocate appeared and requested the Court not to take any action against the two Advocates and litigant and drop the matter by dismissing it simply. On intervention of Senior Counsels, we required learned counsel appearing for petitioner first to state correct facts before Court on affidavit and on their request, matter was postponed for today (15.7.2015).
11. When today, the matter was taken up after lunch, the Courtroom as well as the outside corridor was jam-packed with hundreds of Advocates. The two senior Advocates, namely, Sri Radha Kant Ojha and Sri V. P. Srivastava were present in Court along with Sri Daya Shankar Misra. Initially, the Advocates in the gallery were shouting and creating disturbance whereupon learned Senior Advocates requested them to observe silence and succeeded only partly. Thereafter, they requested the Court to take a lenient view in the matter by not proceeding against the two Advocates. Sri Bhanot filed affidavit sworn by Sri Mohit Singh Advocate, containing 11 paragraphs which reads as under:
"1. That the deponent is counsel for the petitioner in the instant case and as such the deponent is fully conversant with the facts of the case deposed herein below.
2. That the aforesaid writ petition was taken up as a fresh before this Hon'ble Court on 14.07.2015 and a withdrawal application was immediately filed to withdraw the writ petition, when the matter was taken up for hearing.
3. That the aforesaid writ petition was filed in Registry on 10.07.2015.
4. That after filing aforesaid writ petition, counsel for the petitioner got information that this is the second writ petition, consequently, counsel has summoned the Client in chamber.
5. That questions were put up to the Client with respect to the filing of the second writ petition on the same issue then an Affidavit was filed that it was second writ petition for which the Petitioner put his unconditional apology before the Hon'ble Court.
6. That the Petitioner who is client of the deponent came into contact with some other person who is Counsel in lower Court and after conversation with petition was prepared.
7. That as stated above after filing writ petition when the deponent got information that it was second writ petition, about which counsel in the Court below has not informed nor any such information was given by the Client, therefore, said writ petition was filed by making averment that this is the first writ petition.
8. That the deponent further submits with due respect before this Hon'ble Court that deponent has not made proper query with respect to the first writ petition from the Client but as Client and Counsel of the Court below did not inform the deponent about the first writ petition, therefore, deponent presumed that it is the first writ petition.
9. That the deponent submits aforesaid explanation only in order to satisfy the Hon'ble Court that mistake if any committed is bona-fied mistake on the part of the deponent.
10. That deponent further submits with due respect before this Hon'ble Court that he has no intention to commit any fraud or misrepresentation before this Hon'ble Court nor he has ever been committed any fraud or misrepresentation before this Hon'ble Court at earlier occasions.
11. That in view of the facts and circumstances, stated above, it is expedient in the interest of justice that this Hon'ble Court may very graciously be pleased to pass a suitable order seeing future career and interest of the deponent, so that justice may be done, otherwise the deponent shall suffer irreparable loss and injury."
12. It is really surprising that in paras 6 and 7 of the affidavit, the deponent has referred to a third person to whom the petitioner had handed over papers and instructed for filing the writ petition, but name and other details of the so called third person have not been disclosed. Obviously, instructions to file writ petition by litigant could not have been given to some stranger, but it must be some responsible person, but still his whereabouts are not disclosed. It is also surprising that on his instructions, writ petition was prepared by Shri Mohit Singh, Advocate, without verifying the facts directly from petitioner (litigant). Though subsequently petitioner was also available for swearing the affidavit, wherein, besides others, he has also sworn para 1 of writ petition on personal knowledge and yet the correct fact was not disclosed. This shows that Mr. Mohit Singh, learned Counsel who has drafted the writ petition and filed his personal affidavit today, has not acted in a responsible and prudent manner, expected of an advocate, who is also an officer of the Court. Even learned Senior Counsel who has appeared on behalf of petitioner, has failed. The manner in which he has conducted the case, can not be appreciated.
13. A false affidavit is filed in Court with impunity, may be with confidence that nothing serious will happen and if Court takes a tough stand, it can be got mitigated by tendering unconditional apology. In a creative tense and charged atmosphere, collecting a large number of members of Bar, without understanding the things, and attempt has been made to undermine just a patent, illegal act and that too to show so called solidarity with legal fraternity, which, in fact, is encouraging something, which is nothing but a sheer abuse of process of law. If this is not a mockery and attempt to lower down majesty of justice, then what else can be. We also find it very unfortunate to see that in the name of solidarity for legal fraternity, even some thorough gentlemen learned Senior Counsels have to come up to Court with request to show some benevolence though on the act of erring persons/Advocates/Senior Advocates they have no control otherwise.
14. We would have proceeded without being influenced by anything to take appropriate action in the matter, but since newly elected President and the another learned Senior Advocate echoed sentiments of a large number of members of Bar stating that they are seriously and honestly deliberating for developing a system in which such kind of misstatements may not creep in, and petitions are drafted only after receiving instructions directly from litigants or from responsible person(s) whose details and whereabouts shall also invariably be disclosed in writ petition, we have given some different thought to this issue.
15. Shri Ojha and Shri V. P. Srivastava learned Senior Advocates stated that though Shri Mohit Singh, learned Advocate, committed mistake in drafting writ petition, after receiving instruction from a third person, without having a proper verification of facts, but simultaneously submitted that this is an unintentional and unconscious mistake. They assure that it would not recur in future. It occurred due to non communication of true facts by local Counsel of petitioner to whom papers were handed over by him. Therefore, the Court may take lenient view of the matter with regard to filing of false affidavit concealing material facts by petitioner and accept apology tendered by learned Counsels as also by litigant and drop the proceedings against all.
16. We are really shocked to see that counsel, whether in subordinate Courts or in this Court, are frequently now taking opportunity of misusing Court's process, going even to the extent of filing frequent frivolous petitions or by suppressing or concealing material facts. When such lapses/errors are detected by Court, and counsel appearing for the party find it difficult to justify their conduct, for their rescue, even some Senior Advocates used to appear for patch up, though in fact, they have nothing to do with the matter otherwise. They simply seek mercy of the Court.
17. Today, it is no more res integra, that concealment/omission or mis-statement of facts by petitioners is amounts to criminal contempt. The law is crystal clear on this point as held in Shri Shankatha Prasad Mishra Vs. Authorised Controller Sri Moti Lal Nehru Inter College, Basupur, District Ghazipur & Ors., 1996 All.L.J. 119; Dhananjay Sharma Vs. State of Haryana, 1995 (3) SCC 757; Gulshan Kumar Vs. The Collector, Ghaziabad & Ors., AIR 1994 All. 243; and Dr. Khetpal Singh Vs. State of U.P. & Ors., 2009 (76) ALR 320
18. Further on the point that no second or successive writ petition is maintainable, there is a catena of decisions (See Narbada Prasad Mishra Vs. State of U.P. & Ors., 1999 (36) ALR 24; Surya Deo Mishra Vs. State of U.P. through Chief Secretary, U.P. at Lucknow & Ors., 2006 (62) ALR 769(FB); Dr. Khetpal Singh Vs. State of U.P. & Ors., (supra); Agricultural and Processed Food Products Vs. Oswal Agro Furane & Ors., 1996 (4) SCC 297; and, Hari Nandan Singh etc. Vs. U.P. Higher Education Services Commission & Anr., 1995 (3) UPLBEC 1613).
19. It is the foremost duty of the counsel to ensure before filing a writ petition that a petitioner has come with clean hands before this Court else only on this count, a writ petition is liable to be dismissed ( See Raj Kumar Soni & Anr. Vs. State of U.P. & Anr., 2007 (4) ADJ 539 (SC); Ragho Prasad Vs. Special Judge/Additional District Judge, Gorakhpur & Ors., 2000 (18) LCD 201; and Naveen Chandra Seth & Ors. Vs. Commissioner, Allahabad Division, Allahabad & ors., 2000 (18) LCD 97).
20. An Advocate's duty is as important as that of a Judge. He has a large responsibility towards society. He is expected to act with utmost sincerity and respect. In all professional functions, an Advocate should be diligent and his conduct should also reflect the same. He should conform to the requirements of law. He plays a vital role in preservation of society and justice delivery system. He is under an obligation to uphold the rule of law. He must ensure that the public justice system is enabled to function at its full potential. He, who practices law, is not merely a lawyer, but acts as moral agent. This character, he cannot shake off, by any other character on any professional character. He derives from the belief that he shares sentiment of all mankind. This influence of his morality is one of his possession, which, like all his possession, he is bound to use for moral ends. Members of the Bar, like Judges, are the officers of the Court. Advocacy is a respectable noble profession on the principles. An Advocate owes duty not only to his client, but to the Court, to the society and, not the least, to his profession. Therefore, he is expected to act in such a way to raise the glory of his profession and establishing an ideal by his behaviour, conduct or any otherwise act. He must refrain from acting in such a way which maligns or lowers down his image or creates an embarrassing situation before Court.
21. In the present case, we find that since responsibility of concealment of material facts and swearing of false affidavit has been shifted on local counsel, a third person, who is neither a party to the writ petition nor deponent of the affidavit, filed in support of petition, technically it would not be appropriate to take action against such third person. However, looking to the request of learned Senior Advocates and facts discussed above, we drop the idea of taking action against the two learned Counsels appearing for the petitioner. However, since drafting is responsibility of Counsel and normally litigants do not have the courage to control drafting, if anything has been wrongly said in the affidavit and if Counsel is not held responsible, it would be doubtful whether a litigant should be taken to task straightaway. Though technically there is no obstruction, but in our view, it would not be reasonable and justified. It is for this reason that since we are dropping proceedings against the two Counsels appearing for petitioner, we follow the same course in respect of litigant also, particularly considering the statement that he disclosed entire facts to the persons to whom he handed over papers who was instrumental in getting drafting of petition by giving instructions to the Counsel who has prepared this writ petition at Allahabad.
22. In view of the above, further proceedings in the matter are dropped subject to a warning to learned counsels appearing for the petitioner in the present criminal writ petition no. 16677 of 2015 that in future, no such conduct shall be tolerated and condoned. Further, before filing any petition or affidavit, he must confront and verify all the facts from the litigant himself instead of believing on any third party or lower Court's counsel. This practice should invariably be followed by all other learned members of the Bar so as to avoid such lapses.
23. We also direct hereat that henceforth, when a writ petition under Article 226/227 is filed, after or in paragraph no.1 where information about the petition being first one is given, it shall also be averred that all the facts stated in the writ petition are on the basis of instructions received from petitioner himself/herself and in case pleadings or facts stated in the writ petition are based on instructions received from local counsel or any other person, his name and other details shall also be mentioned. Stamp Reporter shall ensure compliance of this part of the order in all writ petitions which are filed under Article 226 of Constitution of India.
24. Subject to above directions/observations, this writ petition is dismissed.
Order Date :- 15.7.2015 Akn