Subhan vs State Of U.P. Thru Addl Chief Secy ...
2022 Latest Caselaw 2698 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 25.3.2022
 
Delivered on 13.5.2022
 
Court No. -17
 

 
Case :- APPLICATION U/S 482 No. - 1024 of 2022
 
Applicant :- Subhan
 
Opposite Party :- State Of U.P. Thru Addl Chief Secy Deptt Of Home Civil Sectt And Another
 
Counsel for Applicant :- Anurag Shukla,Abhishek Mishra,Preeti Shukla (Tiwari)
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shree Prakash Singh,J.

1. Heard Sri Anurag Shukla, learned counsel for the applicant and Sri Ran Vijay Singh, learned A.G.A. for the State and perused the record.

2. Notice to respondent no.1 is hereby dispensed with.

3. By means of the instant application, the applicant has challenged the summoning order dated 23.11.2021 passed in Complaint Case No. 265 of 2019 (Khem Chandra Srivastava Vs. Sanjay Kumar Srivastava and others) under Sections 323, 504, 506 of I.P.C. PS Gudamba, District Lucknow.

4. Learned counsel for the applicant submits that factual matrix of the case is that land of Khata No. 168 (Gata No.1298/1456) being ancestral land of Sanjay Kumar Srivastava was got recorded fraudulently in the name of opposite party no. 2 and his brother. Thereafter, during consolidation proceedings, objection under Section 9 a (2) of the U.P. Consolidation of Holdings Act, 1953 was submitted. Later on, several civil proceedings had taken place before the Consolidation Officer/Revenue Authorities. The orders passed by the Consolidation Officer and Deputy Director of Consolidation were assailed before this Court in Writ Petition No. 5983 (Cons) of 2018, which was dismissed on 9.5.2018.

5. Learned counsel for the applicant further submitted that on 12.10.2017, a case was registered on application under Section 156 (3) Cr.P.C. against Devendra Narayan, Nirankar, Khem Chandra and Jabbar under Section 395 of the I.P.C. and police submitted final report on 13.12.2017. Further another case was also registered on 13.5.2019 against Nirankar, Khem Chandra and Attaullah under Section 323 and 506 IPC wherein the charge sheet was filed. On 25.2.2019 a false complaint was instituted by Attaullah against Manoj Kumar Srivastava, who is brother of Sanjay Kumar Srivastava. Against the aforesaid, Manoj Kumar Srivastava preferred a Criminal Misc. Case No. 4391 (A- 482) of 2019 before this Court and an interim order was passed in favour of Manoj Kumar Srivastava, not taking any coercive measure against him. On 24.2.2019, a complaint was filed stating therein that Mar Peet was done by four car borne persons, i.e., applicant and three others. On 24.2.2019, a complaint of said mar peet has been lodged by Khem Chand but on the very next day i.e., on 25.2.2019, Khem Chand and Attaullah were present in Balrampur. After recording of statements under Section 200 and 202 Cr.P.C, the applicant was summoned, vide order dated 23.11.2021, which is under challenge in the instant writ petition.

6. Learned counsel for the applicant submitted that statements of two witnesses, namely, Rohit Krishna and Navjot Singh were recorded. The statement under Sections 200 and 202, clearly reveals that the complainant Khem Chand and chance witnesses, namely, Rohit Krishna and Navjot have been shown to be unfamiliar with each other whereas Rohit Krishna P.W.1 named the applicant but Navjot Singh did not name anyone. He further submitted that though there was allegation that Khem Chand was beaten by the applicant giving blows with kicks and fists but no injury was received even of swelling, contusion or abrasion. In fact the present applicant has been made scapegoat as he is very small labour working on meagre wages and is single bread earner having the sole responsibility of his family. He submits that the applicant has no any previous criminal antecedents and he was not involved in committing any offence. He also added that in fact there was enmity with Sanjay Kumar Srivastava and Manoj Kumar Srivastava to Khem Chand and the applicant has been scapegoat as he is servant of Sanjay Kumar Srivastava and with a view to mount pressure, he has been named in the complaint.

7. Learned counsel for the applicant further added that since there was a dispute with regard to some property between Sanjay Kumar Srivastava, Manoj Kumar Srivastava and Khem Chand and, as such, the respondent no. 2 has taken shelter to falsely implicate the present applicant as well as Sanjay Kumar Srivastava and Manoj Kumar Srivastava in order to mount pressure upon them. He submits that in fact, it is abundantly clear that complaint has been lodged in absurd and improbable manner and concealing material facts with mala fide and ulterior motive. The complaint has been filed with a view to settle the civil dispute. He further contended that the court below has passed an order in an illegal, unlawful and arbitrary manner which is not permissible under law. In support of the contention aforesaid, learned counsel appearing for the petitioner has placed reliance upon the following Judgments:-

8. Learned counsel appearing for the applicant has corroborated his contention by referring the following authorities:-

(i) Relying on the Judgment rendered in the case of A.V. Papayya Sastry and others Vs. Government of A.P. & others, 2007, he has referred paras 21, 22 and 26 which run as follows:-

"21. Now, it is well settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed; " Fraud avoids all judicial acts, ecclesiastical or temporal".

22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgement, decree or order by the first Court or by the final Court has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings.

26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of ''finality of litigation' cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants."

(ii) He further placed reliance on Judgment rendered in the case of Bhaskar Laxman Jadhav and others Vs. Karamveer Kakasaheb Wagh Education Society & others, 2013 (11) SCC 531 and has also referred para 42, which is as follows:-

"42. While dealing with the conduct of the parties, we may also notice the submission of learned counsel for respondent No.1 to the effect that the petitioners are guilty of suppression of a material fact from this Court, namely, the rejection on 2nd May 2003 of the first application for extension of time filed by the trustees and the finality attached to it. These facts have not been clearly disclosed to this Court by the petitioners. It was submitted that in view of the suppression, special leave to appeal should not be granted to the petitioners.

(iii) He also referred the Judgment rendered in the case of Rajiv Thapar & others Vs. Madan Lal Kapoor, 2013 (3) SCC 330 and indicated para 14 which runs as under:-

"14. The appellants assailed the aforesaid summoning order dated 24.8.1995, by filing a petition under Section 482 of the Cr.P.C. before the High Court of Delhi (hereinafter referred to as, the High Court). The challenge raised was primarily on the ground, that Madan Lal Kapoor (the respondent-complainant) had suppressed vital material, in his complaint. It was alleged, that the complainant did not disclose the particulars of the post mortem examination, the report of the Central Forensic Science Laboratory, as also, the inquest report. The High Court dismissed the aforesaid petition summarily on the premise, that the same had been prematurely filed. Accordingly, liberty was granted to the appellants to move the trial Court, if they were so advised, for seeking a recall of the summoning order (dated 24.8.1995)."

(iv) Learned counsel for the applicant has also placed reliance on the Judgement rendered in the case of Abhijit Pawar Vs. Hemant Madhukar Nimbalkar & another, 2017 (3) SCC 528, and referred para 25, which mentions as follows:-

"25. For this reason, the amended provision casts an obligation on the Magistrate to apply his mind carefully and satisfy himself that the allegations in the complaint, when considered along with the statements recorded or the enquiry conducted thereon, would prima facie constitute the offence for which the complaint is filed."

9. Countering the aforesaid, learned counsel for the State vehemently opposed the contention advanced by the learned counsel for the applicant and submitted that the statement recorded under Sections 200 and 202 Cr.P.C. clearly reveals that incident took place on 24.2.2019 at about 4 pm and the complainant was beaten/assaulted. Learned counsel appearing for the State has drawn attention towards the statement of the witnesses. The extract of the statements of the witnesses, namely, Khem Chandra Srivastava, Rohit Krishna and Navjot Singh recorded under Section 202 Cr.P.C. are as follows:-

(i) Statement of witness Khem Chandra Srivastava recorded under Section 202 Cr.P.C.:-

**eSa [ksepUnz JhokLro vk;q djhc 42 o"kZ iq= nsosUnz ukjk;.k JhokLro fuoklh&flfoy ykbUl cyjkeiqj Fkkuk dks0 uxj ftyk cyjkeiqj us l'kiFk c;ku fd;k fd&

**eSa fnukad 25-02-19 dks cyjkeiqj dpgjh ls djhc rhu cts Hkxorh ----- vrhmYyk ds lkFk tk jgk A jkLrs esa cM+k ijsM eSnku ds ikl esa :d x;k vkSj vrhmYYkk vkxs tk jgs FksA rHkh eSaus ns[kk fd dSejs iq= tkfdj lqHkku] xqytkj] xqylkn iq=x.k dSejs fuoklhx.k xzke dq.Mhyh Fkkuk yfy;k ftyk cyjkeiqj o eukst dqekj JhokLro iq= xkserh izlkn JhokLro Fkkuk yfy;k ftyk cyjkeiqj vrhmYYkk dks ykr eqDdk FkIiM+ ls ekj jgs FksA tc rd eSa ogka igqaprk rc rd mijksDr foi{khx.k vrhmYYkk lss tcju nl gtkj :i;k Nhudj tku ls ekjus dh /kedh nsrs gq, Hkkx jgs FksA ekSds ij vU; dbZ yksx Hkh vk x, FksA eSa tks ns[kk crk jgk gwaA mijksDr foi{khx.k esjs iq'rSuh xkao ds gSa blfy, eSa lHkh dks tkurk igpkurk gwaA**

(ii) Statement of witness Rohit Krishna recorded under Section 202 Cr.P.C.:-

**eSa jksfgr d`".kk firk Jh d`".kk fuoklh bUnzk uxj lsDVj [email protected] l'kiFk c;ku fd;k fd ?kVuk fn0 [email protected]@2019 lke 4-00 cts dh ckr gSA fe= [ksepUnz JhokLro vius vkokl Jhjke /keZdkVk ls vkfny uxj dh vksj iSny tk jgs FksA vpkud lat; dqekj JhokLro o ljn dqekj JhokLro o lqHkku ek:rh vkYVksdkj ftldk ua0 UP80AP-0440 [kse pUnz ds lkeus yxk nh vkSj dkj ls mrj dj ekjus yxsA vkSj lHkh yksx ekjus yxsA jkgxhjksa }kjk yydkjus ij [kse pUnz dh tsc esa j[ks [email protected] o vk/kkj dkMZ Nhu dj ysdj pys x,A [ksepUnz viuk esfMdy ugha djk ik,A eSa [ksepUnz ls feyus x;k FkkA**

(iii) Statement of witness Navjot Singh recorded under Section 202 Cr.P.C.

**uotksr flag mez 39 o"kZ iq= ijethr flag fuoklh 44 j?kqukFk uxj] iVsy uxj] bfUnjk uxj y[kuÅ 'kiFkiwoZd c;ku djrk gw¡¡ dh [ksepUnz esjk nksLr gSA vkfny uxj esa jgrk gSA 24-02-2019 dh ckr gS dh [ksepUnz Jhjke /keZdkVk ds ikl ls iSny tk jgk Fkk dh vpkud jkLrs esa vkYVks Car esa ls dqN yksx fudy dj vk, vkSj mlls gkFkkikbZ djus yxsA cpko esa bUgksaus fpYyk;k rks yksx bdV~Bs gks x,A eSa Hkh muls feyus tk jgk Fkk rks eSa Hkh vk x;kA tc rd ge yksx igq¡ps rc rd oks yksx tsc ls [email protected]&:i;s rFkk

vk/kkj dkMZ ysdj Qjkj gks x;sA vkYVks ls tks yksx vk, Fks uke ugha irkA**

10. Learned counsel for the State further submitted that in fact the aforesaid witnesses in their statements have fortified the complainant made by the complaint and there is no any deviation in their statements under Section 202 Cr.P.C. He added that there is no any material in the statements of the witnesses, which could show that there is any contradiction or concealment of fact over there. There is no iota of indication with regard to any fraudulent act or omission while getting recorded the statement of the complainant or the witnesses. He further added that so far as the proceedings regarding civil dispute is concerned, the same is having its different consequence and this is a criminal act and for this, an offence is being, prima facie, made out from the statement of the witnesses as well as the complainant and, as such, the contention with regard to the fact that since the civil proceeding was going on and, therefore, in retaliation thereof, criminal complaint was submitted, is having no force. He also added that the witnesses are the strangers and had come suddenly on the spot and, as such, there statements cannot be belied. From bare perusal of the statements there seems to be no contradiction as all the witnesses have narrated similar incident as they were the eye witnesses at the spot.

11. Having heard learned counsel for the parties and after going through the contents of the impugned order and the relevant record, it emerges that the complaint was lodged in respect of physical assault and mar-peet. The statements of the eye witnesses were also recorded where there is no any deviation or concealment of fact. The Magistrate, while passing the summoning order has very well appreciated the statements of the witnesses and, thereafter, passed the summoning order. Therefore, in view of the aforesaid facts and circumstances, there seems to be no illegality or infirmity in the order impugned passed by the learned court below.

12. Further so far as the reliance has been placed by the learned counsel for the applicant on the aforementioned Judgments of the Apex Court is concerned, those are with respect to be done by playing of fraud, concealment and suppression of facts. In the instant case, there is no such situation borne out that any material fact was suppressed by the witnesses or the complainant. In such view of the4r matter, ratio of the aforesaid Judgments are not applicable in the instant matter.

13. Accordingly, the present application is devoid of merit and is hereby dismissed.

14. However, it is made clear that in case the applicant moves bail application before the court below, the same shall be considered and decided expeditiously strictly in accordance with law.

Order Date :- 13.5.2022

Ram Murti