Sayeed Ahmad vs State Of U.P. And Another
2023 Latest Caselaw 4798 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Judgment reserved : 23.11.2022
 
                   Judgment delivered : 14.02.2023
 
Court No. - 69
 

 
Case :- APPLICATION U/S 482 No. - 23735 of 2022
 

 
Applicant :- Sayeed Ahmad
 
Opposite Party :- State of U.P. and another
 
Counsel for Applicant :- Atul Sharma, Ajay Kumar Sharma, Kartikeya Saran
 
Counsel for Opposite Party :- G.A., Shamsuddin Ahmad
 

 
Connected with
 

 
Case :- APPLICATION U/S 482 No. - 13494 of 2021
 

 
Applicant :- Shyeed Ahmad
 
Opposite Party :- State of U.P. and another
 
Counsel for Applicant :- Syed Imran Ibrahim, Ajay Kumar Sharma, Atul Sharma, Manish Tiwary (Senior Adv.), Manu Srivastava
 
Counsel for Opposite Party :- G.A., Shamsuddin Ahmad
 

 

 
Hon'ble Samit Gopal, J.

1. The present two applications under Section 482 Cr.P.C. are connected together as they are of the same accused in the same case and as such are being decided together by a common judgement.

2. The applicant Sayeed Ahmad initially filed a Criminal Misc. Application U/S 482 Cr.P.C. No. 13494 of 2021 (Sayeed Ahmad Vs. State of U.P. and another) with the following prayers :-

"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application under Section 482 of Cr.P.C. and quash the charge-sheet dated 23.06.2019 as well as summoning order dated 27.11.2020 arising out of Case Crime No. 0734 of 2017, under Sections 406, 420 IPC, P.S. Civil Lines, District Allahabad pending in the court of CJM, Allahabad.

It is further prayed that this Hon'ble Court may be pleased to stay the entire proceedings of Case Crime No. 0734 of 2017, under Sections 406, 420 IPC, P.S. Civil Lines, District Allahabad, during the pendency of the present application u/s 482 Cr.P.C."

3. The applicant Sayeed Ahmad also filed another Criminal Misc. Application U/S 482 Cr.P.C. No. 23735 of 2022 (Sayeed Ahmad Vs. State of U.P. and another) with the following prayers :-

"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the application and pleased to quash the impugned order dated 15.04.2022 passed by Sessions Judge, Allahabad as well as entire proceeding arising out of Case Crime No. 0734 of 2017, under Sections 406, 420 IPC, P.S. Civil Lines, District Allahabad pending in the court of CJM, Allahabad.

It is further prayed that further proceedings in Case No. 05 of 2020 (State Vs. Sayeed Ahmad) arising out of Case Crime No. 0734 of 2017, under Sections 406, 420 IPC, P.S. Civil Lines, District Allahabad pending in the court of CJM, Allahabad be stayed during the pendency of this application before this Hon'ble Court."

4. The facts arising in the present case in brief are that a FIR was lodged on 25.11.2017 by Nabi Bakhsh as Case Crime No. 734 of 2017 under Sections 406, 420 IPC against Sayeed Ahmad (the present applicant), Kavi Ahmad S/o Sayeed Ahmad and Shameem Ahmad. The allegation in the same was that from 15.05.2008 to 08.06.2008, the first informant purchased the property from Sayeed Ahmad for which he gave several cheques from different bank accounts of different accounts totalling Rs. 80 lakhs. When the first informant requested the applicant to execute a sale-deed for the same, he continued delaying it on one or the other pretext. Subsequently when he demanded back his money, he was threatened. After fixing the deal with the applicant, the said land was decided to be sold to one Sardar Jogendar Singh of Hotel Milan and advance money was taken by the accused and with an intention to cheat, he is trying to get a map sanctioned for getting a building constructed. He has also got an agreement to sale executed and registered with other persons. The matter was investigated and a charge sheet dated 23.06.2019 was submitted under Section 406 IPC against the applicant Sayeed Ahmad. In so far as Kavi Ahmad and Shameem Ahmad are concerned, they were the accused persons not charge sheeted and their names were in column 12 of the charge sheet. The trial court subsequently on 27.11.2020 took cognizance upon the charge sheet and summoned the accused applicant under Section 406 IPC. Subsequently a supplementary charge sheet dated 07.03.2021 was submitted against the applicant adding Section 420 IPC also. The applicant moved an application being paper no. 16-Kha before the concerned court challenging the validity of the second charge sheet. The present petitions have thus been filed with the prayers as stated above. The applicant is shown to be involved in 11 other criminal cases which have been disclosed and explained in para 37 of the affidavit filed in support of the connected Criminal Misc. Application U/S 482 Cr.P.C. No. 13494 of 2021, the same is quoted here-in-below :-

"37. That the criminal history against the applicant is being narrated here in below along with the status :-

I. Case Crime No. 363 of 2014, under Sections 406, 420, 467, 468, 471 IPC, P.S. Civil Lines, District Allahabad in which the applicant has been granted bail.

II. Case Crime No. 412 of 1993, under Sections 365, 347, 386, 506 IPC, P.S. Civil Lines, District Allahabad in which the applicant has been granted bail.

III. Case Crime No. 707 of 2008, under Sections 120-B, 420, 467, 468 IPC, P.S. Colonelganj, District Allahabad in which on 16.03.2009, the final report was filed.

IV. Case Crime No. 706 of 2008, under Sections 120-B, 420, 467, 468 IPC, P.S. Colonelganj, District Allahabad in which on 19.04.2009, the final report was filed.

V. Case Crime No. 706 of 2008, under Sections 120-B, 420, 467, 468 IPC, P.S. Colonelganj, District Allahabad in which on 26.03.2009, the final report was filed.

VI. Case Crime No. 697 of 2008, under Sections 120-B, 420, 467, 468 IPC, P.S. Colonelganj, District Allahabad in which on 26.03.2009, the final report was filed.

VII. Case Crime No. 696 of 2008, under Sections 120-B, 420, 467, 468 IPC, P.S. Colonelganj, District Allahabad in which on 19.04.2009, the final report was filed.

VIII. Case Crime No. 80 of 2008, under Section 420 IPC, P.S. Jhunsi (Civil Lines), District Allahabad in which on 19.04.2009, the final report was filed.

IX. Case Crime No. 80 of 2008, under Sections 384, 420, 467, 468, 471, 504, 506, 120-B IPC, P.S. Civil Lines, District Allahabad in which on 02.05.2008, the final report was filed.

X. Case Crime No. 75 of 2001, under Sections 64, 302, 201 IPC, P.S. Karchana, District Allahabad in which on 30.10.2012, the final report was filed.

XI. Case Crime No. 1038 of 1992, under Sections 147, 148, 149, 307, 506 IPC, P.S. unknown, District Allahabad in which the final report was filed.

5. In para 36 of the affidavit it is stated that the applicant is an Ex-MLA and a reputed person in society. He is said an old and sick person suffering from various diseases and has been hospitalized for number of times.

6. Subsequently a Criminal Misc. Application U/S 482 Cr.P.C. No. 23735 of 2022 was filed challenging the order dated 15.04.2022 passed by the Sessions Judge, Allahabad and also the entire proceedings of the case as pending before the trial court.

7. A Criminal Revision was filed by the applicant before the Sessions Judge, Allahabad against the order dated 27.11.2020 by which the CJM Allahabad took cognizance of the offence under Section 406 IPC. The said Criminal Revision was numbered as Criminal Revision No. 71 of 2022. The said revision as was filed before the Sessions Judge, Allahabad, the memo of which has been annexed as Annexure No. 1 to the Supplementary Affidavit dated 19.09.2022 is dated 27.01.2022 with the following prayer:-

"It is therefore most respectfully prayed that Hon'ble Court kindly be pleased to summon the record from the Court below and set-aside order dated 27.11.2020 passed by A.C.J.M. Court No. 4, Allahabad in Criminal Case No. 05 of 2020, U/s 406 IPC, P.S. Civil Lines, Crime No. 0734 of 2017, District Prayagraj/Allahabad."

8. In Criminal Misc. Application U/S 482 Cr.P.C. No. 13494 of 2021, an application for withdrawal dated 18.01.2022 was filed with the following prayer:-

"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the application and be please to dismiss the Criminal Misc. Application (Under Section 482 of Cr.P.C.) as withdrawn with liberty to file a fresh so that justice be done."

9. Para 4 of the said affidavit in support of the withdrawal application states the reason for getting the same withdrawn which reads that there are some typing errors as well as clerical errors which cannot be corrected by supplementary affidavit and as such the applicant does not press the said criminal misc. application which is liable to be dismissed as withdrawn with liberty to file a fresh. Para 4 of the said affidavit reads as follows:-

"4. That during the pendency of the aforementioned Criminal Misc. Application before this Hon'ble Court, it is pointed out that there are some typing as well as clerical errors in the affidavit, the same cannot be corrected by supplementary affidavit. Therefore the applicant does not want to press the present Criminal Misc. Application and same is liable to be dismissed as withdrawn with liberty to file a fresh."

10. The said application was ordered to be listed with previous papers at an early date vide order dated 20.01.2022 and was also pending for disposal.

11. In the meantime the said Criminal Revision was filed before the Sessions Judge in which the disclosure of the said application u/s 482 Cr.P.C. has been done. In para 6 under the heading of "Fact in brief" which consist of six paragraph before the "Grounds" as taken in the revision a disclosure has been done regarding the pendency of a petition under section 482 Cr.P.C. before this Court. Para 6 of the same reads as follows:-

"6. That the Revisionist has filed a petition U/S 482 Cr.P.C. before the Hon'ble High Court to quash the charge sheet of the case the same has been pending."

12. Heard Sri Kartikeya Saran and Sri Atul Sharma, learned counsel for the applicant in Criminal Misc. Application U/S 482 Cr.P.C. No. 23735 of 2022 and Sri Atul Sharma, learned counsel for the applicant in Criminal Misc. Application U/S 482 Cr.P.C. No. 13494 of 2021, Sri Shamsuddin Ahmad, learned counsel for the first informant and Sri J.B. Singh, learned counsel for the State in both the Applications U/S 482 Cr.P.C.

13. This Court has perused the entire records of both the petitions.

14. Learned counsel for the applicant in Criminal Misc. Application U/S 482 Cr.P.C. No. 13494 of 2021 (Sayeed Ahmad Vs. State of U.P. and another) presses his application for withdrawal dated 18.01.2022.

15. Learned counsels for the applicant in Application U/S 482 No. 23735 of 2022 (Sayeed Ahmad Vs. State of U.P. and another) argued that the proceedings as initiated against the applicant are totally an abuse of process of Court. It is argued that the revisional court has illegally dismissed the revision vide impugned order dated 15.04.2022 without going into the merits of the matter and in an illegal and arbitrary manner. It is argued that the Investigating Officer found no evidence against the co-accused Kavi Ahmad and Shameem Ahmad and as such exonerated them. The same goes to show that the prosecution evidence is false and concocted as they were also named in the FIR and there were allegations against them. It is argued that the trial court in a mechanical manner without applying judicial mind, took cognizance upon the charge sheet and summoned the applicant vide order dated 27.11.2020. It is argued that the 2nd charge sheet as submitted by the Investigating Officer is totally illegal and the same cannot be permitted to be considered by the trial court. It is argued that even the trial court which took cognizance on the supplementary charge sheet u/s 420 IPC vide order dated 15.09.2021 has stated in the same that the same is illegal and irregular. It is argued that in the entire case, no original document, receipt or bank statement have been filed and there is no report of any forensic expert to prove the authenticity of the documents and as such the said case cannot proceed. It is argued while placing para 29, 30, 31, 33 of the affidavit filed in support of application U/S 482 Cr.P.C. that the applicant aggrieved by the summoning order dated 27.11.2020 as well as charge-sheet dated 23.06.2019 and had filed a Criminal Misc. Application U/S 482 Cr.P.C. No. 13494 of 2021 before this Court on 03.07.2021, however, due to Covid-19, the said application could not be taken up on several dates and on 17.01.2022, an application for withdrawal with an affidavit was filed which is dated 17.01.2022. The said application for withdrawal supported by an affidavit is pending for final disposal. The applicant had no option except to challenge the summoning order as well as charge sheet before the revisional court. The revisional court vide order dated 15.04.2022 has dismissed the revision without going into the facts that the summoning order is bad. It is argued that the court below vide order dated 19.05.2022 has issued NBW against the applicant. Para 34 of the affidavit has been placed before the Court for the same. It is argued that the applicant was in the process of selling his land to one Sardar Jogendar Singh, a close associate of the first informant/opposite party no. 2 and Sardar Jogendar Singh has paid some part of money to him but due to delay of approval of map by the Development Authority, the money was refunded to Sardar Jogendar Singh. Thereafter Sardar Jogendar Singh with bad intention tried to take possession on some land and submitted forged papers in the Development Authority. The applicant on coming to know of it moved an application under Section 156(3) Cr.P.C. in which he was summoned under Section 420 IPC but in the meantime in May, 2021, Jogendar Singh died. When Joginder Singh came to know about financial transaction between the applicant and the first informant, he immediately approached the first informant and persuaded him not to accept money upon re-payment. It is argued that the first informant and the applicant are known to each other and have cordial relationship and owing to the same, the applicant had sought a loan from the first informant. The present case is a false case. It is further argued that the applicant had moved an application under the Right to Information Act, 2005 before the S.S.P. Prayagraj to provide the details of the criminal cases pending against him on which a reply was received stating therein that there are seven cases pending against the applicant. The same have been mentioned in para 44 of the affidavit which are as follows :-

(I) Case Crime No. 80 of 2008 under Sections 323, 406, 420, 504, 506 IPC, Police Station Jhunsi, District Prayagraj.

(II) Case Crime No. 568 of 2019, under Section 3/5 Damages of Public Property Act, Police Station Kareli, District Prayagraj.

(III) Case Crime No. 734 of 2017, under Section 406, 420 IPC, Police Station Civil Lines, District Prayagraj.

(IV) Case Crime No. 363 of 2014, under Section 419, 420, 406 IPC, Police Station Civil Lines, District Prayagraj.

(V) Case Crime No. 1038 of 1992, under Section 147, 148, 149, 307, 506 IPC, Police Station Civil Lines, District Prayagraj.

(VI) Case Crime No. 412 of 1993, under Sections 363, 368, 384, 468, 506 IPC, Police Station Civil Lines, District Prayagraj.

(VII) Case Crime No. 80 of 2008, under Section 384, 420, 467, 468, 471, 504, 506, 120-B IPC, Police Station Civil Lines, District Prayagraj.

16. As such the present petition deserves to be allowed and the proceedings deserves to be quashed.

17. Per contra learned counsel for the first informant and learned A.G.A. opposed the prayer for quashing and vehemently argued that the applicant is involved in the present case. He is named in the FIR and there are allegations against him. It is argued that inasmuch as the transaction between the applicant and opposite party no. 2 are concerned, the fact of the same are admitted by the accused applicant in both the applications under Section 482 Cr.P.C. It is argued that the applicant had been resorting to filing petitions in courts for the same relief without even waiting patiently for decision of a petition. It is argued that the first petition under Section 482 Cr.P.C. was filed for quashing of the Charge Sheet dated 23.06.2019, summoning order dated 27.11.2020 and the entire proceedings of the trial court which remained pending in which even the applicant approached the Apex Court in Writ Petition (s) (Criminal) No. 483 of 2021 with the grievance that his petition is pending before the High Court and has not been heard since long and as such the matter was directed to be expedited vide order dated 26.11.2021. Learned counsel for the first informant/opposite party no. 2 has placed before the Court the order dated 26.11.2021 of the Apex Court which has been filed as annexure no. 1 to his objection affidavit dated 08.02.2022. The said order reads as follows:-

"The grievance of the petitioner is that his petition under Section 482 Cr.P.C. is pending before the High Court and has not been heard since long.

Considering the facts and circumstances of this case, we find it appropriate that the petitioner may approach the High Court for expeditious disposal of his petition In case such application is filed, the High Court may consider expediting the matter and decide in accordance with law.

With the aforesaid observation the writ petition stands dismissed."

18. It is argued that then the applicant moved an application for withdrawal of the application under Section 482 Cr.P.C. on the ground that it contains typographical and clerical errors which were not possible to be corrected by means of an affidavit and then filed Criminal Revision before the Sessions Judge concerned against the summoning order dated 27.11.2022 and then on dismissal of the same, again approached this Court in Criminal Misc. Application U/S 482 Cr.P.C. No. 23735 of 2022, Sayeed Ahmad Vs. State of U.P. and another. It is argued that the applicant had been filing multiple petitions for the same reliefs and had been hunting different forums. It is argued that the conduct of the applicant was totally irrational and the present application deserves to be dismissed.

19. After having heard learned counsel for the parties and perusing the records, it is evident that the applicant initially filed Criminal Misc. Application U/S 482 Cr.P.C. No. 13494 of 2021 on 13.07.2021 for quashing of the charge sheet dated 23.06.2019, summoning order dated 27.11.2020 and the entire proceeding as pending before the trial court. The said petition remained pending before this Court and aggrieved by the pendency, the applicant approached the Apex Court for expediting its hearing which was expedited vide order dated 26.11.2021. Subsequently an application for withdrawal dated 17.01.2022 was filed by the applicant stating therein in para 4 that the application u/s 482 Cr.P.C. suffers from typographical and clerical errors which cannot be corrected through an affidavit and as such the said application be dismissed as withdrawn with liberty to file a better fresh petition. On the said application, an objection was moved by the first informant/opposite party no. 2. The said application remained pending for disposal. In the meantime a Criminal Revision No. 71 of 2022 was filed before the Sessions Judge, Allahabad on 27.01.2022 with the prayer to set-aside the order dated 27.11.2020 passed by the trial court. In para 6 of the same, there is a passing reference of an application under Section 482 Cr.P.C. being filed before the High Court to quash the charge sheet of the case which is pending. The said revision stood dismissed vide judgment and order dated 15.04.2022 passed by the concerned revisional court. Subsequently a Criminal Misc. Application U/S 482 Cr.P.C. No. 23735 of 2022, Sayeed Ahmad Vs. State of U.P. and another was filed on 03.08.2022 before this Court with the prayer to quash the order dated 15.04.2022 passed by the Sessions Judge, Allahabad and to quash the entire proceedings of the trial court. The same has been addressed before the Court. The applicant with the above discussions was approaching this Court twice and the Sessions Judge concerned in its revisional jurisdiction in substance for the termination of the court proceedings which in either manner may be with the prayers of quashing the charge sheet, summoning order, entire proceedings of the trial court. The grounds as taken for getting Criminal Misc. Application U/S 482 Cr.P.C. No. 13494 of 2021 withdrawn despite the applicant approaching the Apex Court for his grievance of the matter not being decided expeditiously is that the same suffers from serious typographical and clerical errors which cannot be corrected by an affidavit. Before the revisional court, the only disclosure of filing the said application U/S 482 Cr.P.C. is by reading para 6 of the memo of revision which is only a passing reference of the said fact. After dismissal of the revision against it the Criminal Misc. Application U/S 482 Cr.P.C. No. 23735 of 2022 has been for termination of the proceedings of the trial court.

20. In the case of Bhaskar Laxman Jadhav Vs. Karamveer Kakasaheb Wagh Education Society : (2013) 11 SCC 531 the Apex Court while dealing with a situation of suppression of fact held as follows:

"42. While dealing with the conduct of the parties, we may also notice the submission of learned counsel for Respondent 1 to the effect that the petitioners are guilty of suppression of a material fact from this Court, namely, the rejection on 2-5-2003 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.

43. The learned counsel for the petitioners submitted that no material facts have been withheld from this Court. It was submitted that while the order dated 2-5-2003 was undoubtedly not filed, its existence was not material in view of subsequent developments that had taken place. We cannot agree.

44. It is not for a litigant to decide what fact is material for adjudicating a case and what is not material. It is the obligation of a litigant to disclose all the facts of a case and leave the decision making to the Court. True, there is a mention of the order dated 2-5-2003 in the order dated 24-7-2006 passed by the JCC, but that is not enough disclosure. The petitioners have not clearly disclosed the facts and circumstances in which the order dated 2-5-2003 was passed or that it has attained finality.

45. We may only refer to two cases on this subject. In Hari Narain v. Badri Das, AIR 1963 SC 1558 stress was laid on litigants eschewing inaccurate, untrue or misleading statements, otherwise leave granted to an appellant may be revoked. It was observed as follows: (AIR p. 1560, para 9)

".........It is of utmost importance that in making material statements and setting forth grounds in applications for special leave care must be taken not to make any statements which are inaccurate, untrue or 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. That is why we have come to the conclusion that in the present case, special leave granted to the appellant ought to be revoked. Accordingly, special leave is revoked and the appeal is dismissed. The appellant will pay the costs of the respondent."

46. More recently, in Ramjas Foundation v. Union of India, (2010) 14 SCC 38 the case law on the subject was discussed. It was held that if a litigant does not come to the Court with clean hands, he is not entitled to be heard and indeed, such a person is not entitled to any relief from any judicial forum. It was said: (SCC p. 51, para 21)

"21. 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."

47. A mere reference to the order dated 2-5-2003, en passant, in the order dated 24-7-2006 does not serve the requirement of disclosure. It is not for the Court to look into every word of the pleadings, documents and annexures to fish out a fact. It is for the litigant to come upfront and clean with all material facts and then, on the basis of the submissions made by learned counsel, leave it to the Court to determine whether or not a particular fact is relevant for arriving at a decision. Unfortunately, the petitioners have not done this and must suffer the consequence thereof."

(emphasis supplied)

21. Further in the case of Moti Lal Songara Vs. Prem Prakash @ Pappu : (2013) 9 SCC 199 the Apex Court again while dealing with a situation of suppression of a fact has held as follows:

"19. The second limb of the submission is whether in the obtaining factual matrix, the order passed by the High Court discharging the accused-respondent is justified in law. We have clearly stated that though the respondent was fully aware about the fact that charges had been framed against him by the learned trial Judge, yet he did not bring the same to the notice of the revisional court hearing the revision against the order taking cognizance. It is a clear case of suppression. It was within the special knowledge of the accused. Anyone who takes recourse to method of suppression in a court of law, is, in actuality, playing fraud with the court, and the maxim supressio veri, expressio falsi, i.e., suppression of the truth is equivalent to the expression of falsehood, gets attracted. We are compelled to say so as there has been a calculated concealment of the fact before the revisional court. It can be stated with certitude that the accused-respondent tried to gain advantage by such factual suppression. The fraudulent intention is writ large. In fact, he has shown his courage of ignorance and tried to play possum.

20. The High Court, as we have seen, applied the principle "when infrastructure collapses, the superstructure is bound to collapse". However, as the order has been obtained by practicing fraud and suppressing material fact before a court of law to gain advantage, the said order cannot be allowed to stand. That apart, we have dealt with regard to the legal sustainability of the order in detail. Under these circumstances, we are disposed to think that the power under Article 142 of the Constitution is required to be invoked to do complete justice between the parties. Cognizance of the offences had been rightly taken by the learned Magistrate and charges, as we find, have been correctly framed by the learned trial Judge. A victim of a crime has as much right to get justice from the court as an accused who enjoys the benefit of innocence till the allegations are proven against him. In the case at hand, when an order of quashment of summons has been obtained by suppression, this Court has an obligation to set aside the said order and restore the order framing charges and direct the trial to go on. And we so direct."

(emphasis supplied)

22. The Apex Court in the case of Vijay Kumar Ghai v. State of W.B. : (2022) 7 SCC 124 has in paragraphs 11, 12, 13, 14 and 17 while dealing with the issue of forum shopping and deprecating it has stated as follows:

"11. Predominantly, the Indian Judiciary has time and again reiterated that forum shopping takes several hues and shades but the concept of "forum shopping" has not been rendered an exclusive definition in any Indian statute. Forum shopping as per Merriam-Webster Dictionary is:

"The practice of choosing the court in which to bring an action from among those courts that could properly exercise jurisdiction based on determination of which court is likely to provide the most favourable outcome."

12. The Indian Judiciary's observation and obiter dicta has aided in streamlining the concept of forum shopping in the Indian legal system. This Court has condemned the practice of forum shopping by litigants and termed it as an abuse of law and also deciphered different categories of forum shopping.

13. A two-Judge Bench of this Court in Union of India v. Cipla Ltd. [Union of India v. Cipla Ltd., (2017) 5 SCC 262] has laid down factors which lead to the practice of forum shopping or choice of forum by the litigants which are as follows : (SCC pp. 318-20, paras 148-51 & 155)

"148. A classic example of forum shopping is when litigant approaches one court for relief but does not get the desired relief and then approaches another court for the same relief. This occurred in Rajiv Bhatia v. State (NCT of Delhi) [Rajiv Bhatia v. State (NCT of Delhi), (1999) 8 SCC 525] . The respondent mother of a young child had filed a petition for a writ of habeas corpus in the Rajasthan High Court and apparently did not get the required relief from that Court. She then filed a petition in the Delhi High Court also for a writ of habeas corpus and obtained the necessary relief. Notwithstanding this, this Court did not interfere with the order [Priyanka Bhatia v. State (NCT of Delhi), 1999 SCC OnLine Del 192] passed by the Delhi High Court for the reason that this Court ascertained the views of the child and found that she did not want to even talk to her adoptive parents and therefore the custody of 12 the child granted by the Delhi High Court to the respondent mother was not interfered with. The decision of this Court is on its own facts, even though it is a classic case of forum shopping.

149. In Arathi Bandi v. Bandi Jagadrakshaka Rao [Arathi Bandi v. Bandi Jagadraksha"148. A classic example of forum shopping is when litigant approaches one court for relief but does not get the desired relief and then approaches another court for the same relief. This occurred in Rajiv Bhatia v. State (NCT of Delhi) [Rajiv Bhatia v. State (NCT of Delhi), (1999) 8 SCC 525] . The respondent mother of a young child had filed a petition for a writ of habeas corpus in the Rajasthan High Court and apparently did not get the required relief from that Court. She then filed a petition in the Delhi High Court also for a writ of habeas corpus and obtained the necessary relief. Notwithstanding this, this Court did not interfere with the order [Priyanka Bhatia v. State (NCT of Delhi), 1999 SCC OnLine Del 192] passed by the Delhi High Court for the reason that this Court ascertained the views of the child anka Rao, (2013) 15 SCC 790 : (2014) 5 SCC (Civ) 475] this Court noted that jurisdiction in a court is not attracted by the operation or creation of fortuitous circumstances. In that case, circumstances were created by one of the parties to the dispute to confer jurisdiction on a particular High Court. This was frowned upon by this Court by observing that to allow the assumption of jurisdiction in created circumstances would only result in encouraging forum shopping.

150. Another case of creating circumstances for the purposes of forum shopping was World Tanker Carrier Corpn. v. SNP Shipping Services (P) Ltd. [World Tanker Carrier Corpn. v. SNP Shipping Services (P) Ltd., (1998) 5 SCC 310] wherein it was observed that the respondent/plaintiff had made a deliberate attempt to bring the cause of action, namely, a collision between two vessels on the high seas within the jurisdiction of the Bombay High Court. Bringing one of the vessels to Bombay in order to confer jurisdiction on the Bombay High Court had the character of forum shopping rather than anything else.

151. Another form of forum shopping is taking advantage of a view held by a particular High Court in contrast to a different view held by another High Court. In Ambica Industries v. CCE [Ambica Industries v. CCE, (2007) 6 SCC 769] the assessee was from Lucknow. It challenged an 13 order [Ambica Industries v. CCE, 2003 SCC OnLine CESTAT 1365] passed by the Customs, Excise and Service Tax Appellate Tribunal ("CESTAT") located in Delhi before the Delhi High Court. CESTAT had jurisdiction over the State of Uttar Pradesh, NCT of Delhi and Maharashtra. The Delhi High Court did not entertain the proceedings initiated by the assessee for want of territorial jurisdiction. Dismissing the assessee's appeal this Court gave the example of an assessee affected by an assessment order in Bombay invoking the jurisdiction of the Delhi High Court to take advantage of the law laid down by the Delhi High Court or an assessee affected by an order of assessment made at Bombay invoking the jurisdiction of the Allahabad High Court to take advantage of the law laid down by it and consequently evade the law laid down by the Bombay High Court. It was said that this could not be allowed and circumstances such as this would lead to some sort of judicial anarchy.

***

155. The decisions referred to clearly lay down the principle that the court is required to adopt a functional test vis-à-vis the litigation and the litigant. What has to be seen is whether there is any functional similarity in the proceedings between one court and another or whether there is some sort of subterfuge on the part of a litigant. It is this functional test that will determine whether a litigant is indulging in forum shopping or not."

14. Forum shopping has been termed as disreputable practice by the courts and has no sanction and paramountcy in law. In spite of this Court condemning the practice of forum shopping, Respondent 2 filed two complaints i.e. a complaint under Section 156(3) CrPC before the Tis Hazari Court, New Delhi on 6-6-2012 and a complaint which was eventually registered as FIR No. 168 under Sections 406, 420, 120-B I.P.C. before P.S. Bowbazar, Calcutta on 28-3-2013 i.e. one in Delhi and one complaint in Kolkata. The complaint filed in Kolkata was a reproduction of the complaint filed in Delhi except with the change of place of occurrence in order to create a jurisdiction.

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17. A two-Judge Bench of this Court in K. Jayaram v. BDA [K. Jayaram v. BDA, (2022) 12 SCC 815 : 2021 SCC OnLine SC 1194] observed : (SCC para 14)

"14. 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 14 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 legal proceedings or court litigations were or are pending, they have to mandatorily state so in their pleadings in order to resolve the dispute between the parties in accordance with law."

23. In the present case also, the fact that the applicant has approached this Court earlier in its jurisdiction under section 482 Cr.P.C. for quashing of the charge-sheet dated 23.06.2019, quashing of the summoning order dated 27.11.2020 and then filed another application under section 482 Cr.P.C. for quashing the order dated 15.04.2022 passed by the Sessions Judge concerned in a Criminal Revision challenging the order dated 27.11.2020 and in the meantime he had filed an application in the second 482 Cr.P.C. petition with the prayer to dismiss it as withdrawn with a liberty to file a fresh petition by stating in para 4 of the affidavit of it that it has typographical and clerical errors for which correction is not possible and even before it had approached the Apex Court for expediting the hearing of the first 482 Cr.P.C. petition which was allowed and directions were issued for it. The applicant impatently did not wait for the logical conclusion of one petition filed by him despite an order of the Apex Court in a petition filed by the applicant himself but filed an application for withdrawing it with liberty to file a better petition and without even awaiting for the disposal of the said withdrawl application preferred a Criminal Revision before the Sessions Judge stating in para 6 of a passing reference of the pendency of a 482 Cr.P.C. petition before this Court and then after dismissal of his revision filed another 482 Cr.P.C. petition although challenging the order of the Sessions Judge but with a further prayer to quash the proceeding of the trial court.

24. In substance the prayers made in the two 482 Cr.P.C. petitions and the Criminal Revision before the Sessions Judge were for termination of the trial court proceedings against him with whatsoever prayer it may have been filed (i.e. quashing the charge-sheet dated 23.06.2019, quashing of summoning order dated 27.11.2020, setting aside the order dated 27.11.2020, quashing of the order dated 15.04.2022 and quashing of the entire proceedings). The filing of the Criminal Revision before the Sessions Judge was not with full and complete disclosure of relevant and material facts of the matter. The details of the 482 Cr.P.C., the order of the Apex Court, the filing of application for withdrawl with a prayer to grant liberty for filing a better petition and its pendency before this Court were not at all disclosed in the Revision and has been supressed. It was an act of concealment as held by the Apex Court in the case of Bhaskar Laxman Jadhav (supra). The conduct of the applicant in not fair in pursuing his matters in Courts.

25. This Court thus comes to the conclusion that the applicant had not been fair in approaching courts and has not approached the Courts with clean hands.

26. The present applications u/s 482 Cr.P.C. stands rejected.

(Samit Gopal, J.)

Order Date :- 14.02.2023

Gaurav