Nizamuddin vs State Of U.P.
2021 Latest Caselaw 3426 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4734 of 2021
 

 
Applicant :- Nizamuddin
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Deepak Rana
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Singh,J.

In Re: Criminal Misc. Correction Application No. 1 of 2021

1- Heard Mr. Deepak Rana, counsel for the applicant, learned Additional Government Advocate representing the State and perused the record of the case.

2- This application dated 18.02.2021 has been filed on behalf of the applicant (Nizamuddin), for correction of the order dated 08.02.2021 passed by this Court in Criminal Misc. Bail Application No. 4734 of 2021, whereby it is prayed that in the fifth line of fourth paragraph of the order dated 08.02.2021, the words "1 Kg beef" and in the tenth line of same paragraph the words "and 1 Kg beef can be easily planted by the police to falsely implicate the applicant" have wrongly been transcribed in place of "1 quintal", the same may be corrected.

3- Before delving into the matter, it would apt to mention brief facts of the case, which are relevant for the purpose of disposal of this application.

3.1- On 08.02.2021 bail application was heard by this Court and it was argued by the counsel for the applicant that in this case, one Kilogram beef is alleged to have been recovered from the possession of the applicant. Relying on the said argument/statement of the counsel for the applicant at the Bar, this Court granted bail to the applicant observing that "from the possession of the applicant (Nizamuddin) only 1 Kg beef has been recovered and the recovery is not supported by any independent public witness, therefore, possibility of false implication of the applicant cannot be ruled out as 1 Kg beef can be easily planted by the police to falsely implicate the applicant."

3.2- On 17.02.2021, same counsel Mr. Deepak Rana, also argued Criminal Misc. Bail application No. 4832 of 2021 of co-accused, namely Gulzar and Salman, seeking parity of aforesaid bail order dated 08.02.2021 by contending that main accused Nizamuddin, (who is applicant in this case) has already been granted bail in Criminal Misc. Bail Application No. 4734 of 2021, therefore other co accused are also entitled to be released on bail.

3.3- At this juncture, it was brought to the notice of the Court by the learned Additional Government Advocate for the State that order dated 08.02.2021 granting bail to applicant Nizamuddin, has obtained by placing wrong facts before this Court. It is pointed out that correct fact is that in this case, one hundred Kilograms beef has been recovered. On putting query to Mr. Ran counsel for the applicant about placing wrong facts before this Court as mentioned above, he replied that he has mentioned in the bail application of the applicant that one hundred Kilogram beef has been recovered from the possession of the applicant. It was also stated by Mr. Rana that he has not read the bail order dated 08.02.2021. In view of above, time was granted to the State of U.P. /Prosecution to file counter affidavit in the aforesaid Criminal Misc. Bail Application No. 4832 of 2021 moved on behalf of co-accused-Gulzar and Salman.

3.4- Here, it is also relevant to note that after releasing the applicant Nizamuddin from jail, this correction application dated 18.02.2021 has been filed before this Court.

4- After having heard the learned counsel for the parties and going through the records, I find that:

4.1- In fact, as per the prosecution case, 100 Kgs (one quintal) beef has been recovered from the possession of the applicant, but there is no avarment in the affidavit filed in support of the bail application regarding actual quantity of recovery of beef from the possession of the applicant. Not only this, but on 08.02.2021, Mr. Deepak Rana, counsel for the applicant argued that only one Kilogram beef has been recovered in this case from the possession of the applicant.

4.2- Considering the very small quantity of the alleged recovery, as argued on behalf of the applicant, this Court granted bail to the applicant Nizamuddin vide order dated 08.02.2021.

4.3- Even after obtaining the copy of bail order dated 08.02.2021 and before releasing the applicant-Nizamuddin from jail, no correction application has been moved.

4.4- On 17.02.2021 during the course of hearing of bail application of co-accused-Gulzar and Salman, it was also not pointed out by the counsel for the applicant himself that quantity of recovered beef has been wrongly mentioned in the order dated 08.02.2021, as 1 Kg in place of 100 Kg and effort was made to obtain bail order to other co-accused seeking parity of bail order dated 08.02.2021.

4.5- The aforesaid error was elicited by the learned Additional Government Advocate, thereafter on the request of learned Additional Government Advocate, time was granted to him to file counter affidavit in bail application of co-accused-Gulzar and Salman.

4.6- In view of above, at this stage after releasing the applicant Nizamuddin from jail, this correction application dated 18.02.2021 has been filed in the bail application.

5- On the aforesaid facts, this Court arrived at the following conclusions that:

5.1- The necessary fact of recovery of actual quantity of beef was deliberately not mentioned in the body of the bail application.

5.2- After releasing the applicant-Nizamuddin from jail and on being exposed about actual quantity of recovery of beef, before this Court during the course of hearing of bail application of other co-accused persons, namely Gulzar and Salman, this correction application dated 18.02.2021 has been filed with a view to cover-up the aforesaid fault.

5.3- It is well settled that fraud is an act of deliberate deception and it can be either by letter or words. Non-disclosure of necessary facts, misrepresentation and suppression of material facts tantamount to a judgment/order obtained by playing fraud on the Court. Fraud, as is well known vitiates every solemn act. Fraud and justice never dwell together. No order or judgment of a Court can be allowed to stand, if it has been obtained by fraud.

5.4- After coming to the knowledge of aforesaid facts, this Court cannot shut its eyes. Under the facts of this case as mentioned above, this Court is of the view that bar under Section 362 Cr.P.C. is not attracted, to such orders, which have been obtained by misrepresentation of facts/fraud. In view of above, bail order dated 08.02.2021 passed in Criminal Misc. Bail Application No. 4734 of 2021 is hereby recalled.

6- The applicant is directed to surrender before the concerned court below within a week from today. On surrendering the applicant, he shall be sent in judicial custody, failing which the court concerned is free to issue coercive process against the applicant in accordance with law.

7- However, after surrender, it is open to the applicant to file second bail application with correct facts before this Court.

8- Accordingly, bail application of the applicant-Nizamuddin, who is involved in Case Crime No. 493 of 2020, under sections 3/5A/8 of U.P. Prevention of Cow Slaughter Act, police station Dhaulana, district Hapur, as well as correction application moved on behalf of the applicant are rejected.

09- Office to ensure communication of this order forthwith through speedier option available to the court concerned i.e. FAX, email apart from normal mode of communication for its compliance.

10- Learned counsel for the applicant is directed to inform about the order passed today to the applicant forthwith for compliance.

11- Learned Additional Government Advocate is also directed to communicate the order passed today to the concerned Investigating Officer of this case.

Order Date :- 15.3.2021

Sazia