Rajeev Kumar Yadav vs State Of U.P. . And Another
2023 Latest Caselaw 7422 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 71
 
Case :- APPLICATION U/S 482 No. - 8435 of 2023
 
Applicant :- Rajeev Kumar Yadav
 
Opposite Party :- State Of U.P. . And Another
 
Counsel for Applicant :- Akshat Sinha,Sanyukta Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Samit Gopal,J.

List revised.

Heard Sri Akshat Sinha, learned counsel for the applicants and Sri Ankit Srivastava, learned brief holder for the State and perused the record.

The present application under Section 482 Cr.P.C. has been filed by the applicants- Rajeev Kumar Yadav and Pankaj Kumar with the prayer to allow this application quash the entire proceedings of Misc. Case No. 182 of 2022 (Prashant Sharma Vs. Abhishek Sharma & another) under Sections 420, 467, 468, 471, 120-B IPC, pending before the Chief Judicial Magistrate, Agra arising out of Case Crime No. 55 of 2021 as well as summoning order dated 02.09.2022 and with a further prayer to stay the further proceedings of the said case, during the pendency of the present application.

At the very outset, a preliminary objection has been raised by learned counsel for the State that the present 482 petition is not maintainable inasmuch as the prayer in the same is for quashing of the entire proceedings as well as the summoning order dated 02.09.2022 and the applicants have filed a criminal revision against the said order dated 02.09.2022 before the District and Sessions Judge, Agra being Criminal Revision No. 812 of 2022 (Rajeev Kumar Yadav and another Vs. State of U.P. and another) which is pending disposal therein and as such simultaneously filing the present 482 petition would not be maintainable and would clearly come in the purview of forum hunting and abuse of process of Court.

On being countered learned counsel for the applicants states that there is a disclosure of the filing of the revision in para 12 of the affidavit in support of application under 482 Cr.P.C. and also regarding the orders passed therein in para 13 the same but the present 482 petition has been filed for quashing of the proceedings and as such the same is maintainable for which even para 32 of the affidavit has been mentioned. Para 12, 13 and 32 of the affidavit read as follows:-

"12. That the Applicants preferred a Criminal Revision against the order & judgment dated 02.09.2022 before the Court of District and Session Judge, Agra which has been registered as Criminal Revision No. 812/2022. A true and photocopy of Memo of Revision is being filed herein as Annnexure No. 5 to this Affidavit.

13. That the said revision was admitted and notices were issued to the opposite parties vide order dated 17.12.2022 fixing 16.01.2023, but no interim order was passed protecting the interest of the applicants. Further on 16.01.2023 the opposite party appeared and obtained copies of documents and the next date was fixed as 27.02.2023 but again no interim protection was passed. A true copy of the order sheet of the criminal revision is being filed herein as Annexure No.6 to this Affidavit.

32. That the remedy of Revision has become non-efficacious because the Learned Court below is hereby proceeding with the complaint case."

After having heard learned counsel for the parties and perusing the records, it is evident that challenge in the present 482 petition is of the entire proceedings pending before the trial court and order summoning the applicants dated 02.09.2022 passed by the Chief Judicial Magistrate, Agra. The said order dated 02.09.2022 is also under challenge before the District and Sessions Judge, Agra in Criminal Revision No. 812 of 2022. The prayer to quash the entire proceedings is an effort is of setting the entire proceedings as pending before the trial court of the said case at knot and now an effort has been made to challenge the summoning order also which is already under challenge in a revision before the Sessions Judge concerned.

This Court countered an identical situation in a case being Criminal Misc. Application 482 No. 23735 of 2022 (Sayeed Ahmad Vs. State of U.P.). The Court in the paragraphs 22, 23 and 24 held as follows:-

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.

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155. The decisions referred to clearly lay down the principle that the court is required to adopt a functional test vis--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.

In view of the same, the present application is rejected.

Order Date :- 15.3.2023/ M. ARIF

(Samit Gopal, J.)