Alok Kumar vs The State
2009 Latest Caselaw 4170 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL.M.C. 2817/2009

                                   Reserved on: October 12, 2009

                               Pronounced on: October 15, 2009

#      ALOK KUMAR                              ..... Appellant

!                              Through: Mr. Ajay Burman, Mr.
                               Rajesh Samanotra and Mr. Anwesh
                               Madhukar, Advocates

                          Versus

$      THE STATE                                   .....Respondent

^                              Through: Mr. Amit Sharma, Ld.
                               Additional PP for the State with SI
                               Ghanshyam
CORAM:

    HON'BLE MR. JUSTICE V.K. JAIN

       1. Whether Reporters of Local newspapers may be
          allowed to see the Judgment? Yes

       2. To be referred to the Reporter or not? Yes

       3. Whether the Judgment should be reported in the
          Digest? Yes


V.K.Jain, J.

This is a petition under Section 482 of the Code of

Criminal Procedure seeking permission to the petitioner to

go to England and for release of his Passport.

2. FIR No. 426/2007 under Section 354/506 of IPC

was registered against the petitioner at I.G.I. Airport, on the

complaint of the prosecutrix. On filing of charge-sshet, a

petition under Section 482 of Cr. P.C., being C.M. No.

299/2009, was filed by the petitioner and the proceedings

before the Trial Court were stayed by this court vide order

dated February 03, 2009. FIR No. 63/2008, under Section

376/420 of IPC was got registered by the prosecutrix at

Police Station Connaught Place on the allegation that the

petitioner had physical relations with her by mis-

representing that he was a bachelor and would marry her.

Later, when she came to know that the petitioner was

already married, he told her that his previous marriage

lasted only for two months and a divorce case was pending.

However, instead of marrying her, the petitioner married

another women on 25.11.2007.

3. The petitioner was admitted to regular bail in the case

registered vide FIR No. 63/2008 of P.S. Connaught Place,

vide order of the learned Addl. Sessions Judge dated

08.06.09 and one of the conditions for grant of bail was that

before leaving India, he would seek permission of the court.

The Passport of the petitioner was also seized by the

Investigating Officer. The petitioner filed an application

before the learned Addl. Sessions Judge, seeking release of

passport and permission to go abroad, on the ground that he

was a Solicitor in London and having been held up in India on

account of the cases registered against him, he could not get

his Solicitor's Registration renewed. For the purpose of

renewal of registration, he was required to complete 15

hours of Continuous Professional Development (CPD) course

and was required to be in London to complete that course

and other formalities. He also expressed desire to meet his

son who is studying in England. The application having been

rejected vide order dated 06.08.2009, the petitioner has

come to this Court by way of this petition under Section 482

of the Code of Criminal Procedure.

4. It is an admitted case that the name of the petitioner

has already been removed from the Roll of Solicitors under

Regulation 11 of Solicitors (Keeping of Roll) Regulations,

1999. The documents filed by the petitioner during the

course of arguments did not show whether his name was

struck off the Roll of Solicitors Regulation Authority or was

removed from the Roll. In his written submissions filed on

13.10.09, the petitioner has stated that in fact his name was

removed on account of his failure to respond to an enquiry

made by Solicitors Regulation Authority and was not struck

off. I am, therefore, proceeding on the assumption that the

name of the petitioner was not struck off but was only

removed from the Roll. The case of the petitioner is that

since he could not complete his CPD course, he having been

compelled to stay in India on account of the cases registered

against him, his name was removed from the Roll of

Solicitors and he has already submitted form KR4 to

Solicitors Regulation Authority (SRA) for restoration to the

Roll. A copy of form KR4 has been annexed to the affidavit of

the petitioner dated 12th October, 2009.

It is not in dispute that the petitioner cannot obtain

renewal of his Practising Certificate unless his name is

restored to the Roll of Solicitors. The petitioner himself has

filed an e-mail dated October 5, 2009 received by him from

Solicitors Regulation Authority, informing him that in order

to apply for a 2009-10 Practising Certificate, he needs to

restore himself to the Roll. It is not known whether the

Solicitors Regulation Authority will restore the petitioner to

the Roll of Solicitors or not. Taking into consideration the

strained relations between the petitioner and the

complainant, his application for restoration to the Roll is

likely to be opposed by the complainant on various grounds,

including his involvement in 3 criminal cases in India and the

disciplinary proceedings initiated against him by the Bar

Council in India. This is bound to delay the decision on the

request of the petitioner, for restoration of his name to the

Roll. In case the Solicitors Regulation Authority declines to

do so, it will not be possible for the petitioner to obtain

renewal of his registration as a Solicitor. In the event of

name of the petitioner being restored to the Roll; he will have

to complete his CPD programme, by 31.10.2009, if he wants

renewal of his Regulation Certificate for the year 2009-10.

Since only 2 weeks are now left in the month of October,

2009, it is highly unlikely that the decision on the application

of the petitioner for restoration to the Roll can be taken so

soon as to allow him to complete his CPD programme within

next about 2 weeks. If he cannot complete the CPD

programme by 31.10.2009, he cannot obtain renewal of his

Registration for the year 2009-10 and will have to seek

renewal only for the year 2010-11. If that be the case, the

petitioner does not need to be in England right now, as CPD

programme for the year 2010-11 can be completed by him up

to 31.10.2010.

The petitioner does not need to be physically present in

England for seeking restoration to the Roll of Solicitors

Regulation Authority. He needed to file filled up form KR4

and deposit requisite fee, which he has already done.

Therefore, at this stage, when the application of the

petitioner, to Solicitors Regulation Authority, for restoring

his name to the Roll, is still pending, there is no urgent need

for the petitioner to go to England.

5. A perusal of form KR-4, submitted by the petitioner to

Solicitors Regulation Authority shows that in reply to Clause

5 of the Form, he was required to inform whether he has

been under investigation for any matter or subjected to any

other disciplinary activities by a Professional / Regulatory

Body. The petitioner replied to this question in negative.

Admittedly, the petitioner is facing disciplinary proceedings

before the Bar Council in India and a notice has already been

issued to him. Therefore, instead of replying in negative, he

was required to disclose the proceedings initiated against

him by the Bar Council, to the Solicitors Regulation

Authority. It was contended by learned counsel for the

petitioner that the information under Clause 5 of the form

was required only in respect of disciplinary action by a

Professional / Regulatory body in England and not by a

Professional / Regulatory body in India. I am unable to agree

with learned counsel for the petitioner in this regard. Clause

5 of the application from does not restrict the information to

investigation or disciplinary activity by a Professional /

Regulatory body in England. It relates to such an action by

any Professional / Regulatory body, irrespective of the

location of that body / authority. Thus, prima facie, it

appears to me that the petitioner has not disclosed true state

of affairs to Solicitors Regulation Authority. It appears that

the petitioner had apprehension that if he disclosed the

action initiated against him by Bar Council in India, the

Solicitors Regulation Authority may not restore his name to

the Roll and that is why he chose to conceal this fact, while

filling up the form.

6. The grant of relief under Section 482 of Cr. P.C. is a

discretionary relief and no person can claim grant of such a

relief as a matter of right, even if he is able to make out a

case on merits in his favour. The court is not obliged to

grant a discretionary relief to a person who tries to conceal a

material fact from a Regulatory Authority, even if that

authority is based in England and not in India. The court,

may not render a helping hand to a person who is guilty of

misconduct even if that misconduct is not in connection with

a matter subject matter of adjudication before the court.

7. A perusal of the order dated 6th August, 2009 passed by

the learned Addl. Sessions Judge, shows that during the

arguments before her, it was submitted on behalf of the

petitioner that on the earlier occasion as well he had been

granted permission to travel and he had returned back to

India. Admittedly, this statement is factually incorrect as the

petitioner could not utilize the permission granted to him to

go abroad and did not leave India at any point of time after

registration of criminal cases against him. During the course

of arguments before this court, the learned counsel for the

petitioner denied having made such a statement before the

learned Addl. Sessions Judge. The law in this regard is, by

now, well settled. The record of proceedings of a court has to

be taken as correct and if a party is aggrieved on account of

recording of an erroneous statement, in the record the

appropriate remedy for such a party is to approach the

concerned Court at the earliest opportunity and seek suitable

correction of the record of the Court.

8. In State of Maharashtra v. Ramdas Shrinivas Nayak

and Another; (1982) 2 SCC 463, a concession made on behalf

of the State of Maharashtra was recorded in the proceedings

of the High Court. When the matter came up before the

Supreme Court, it was contended by learned Attorney

General that no such concession was ever made by the State.

He requested (for this purpose) the Hon'ble Supreme Court

to peruse the written submissions made in the High Court.

The Hon'ble Supreme Court rejected the contention holding

as under:

"We are afraid that we cannot launch into an

inquiry as to what transpired in the High Court. It

is simply not done. Public policy bars us. Judicial

decorum restrains us. Matters of judicial record

are unquestionable. They are not open to doubt.

Judges cannot be dragged into the arena.

"Judgments cannot be treated as mere counters in

the game of litigation." We are bound to accept

the statement of the judges recorded in their

judgment, as to what transpired in court. We

cannot allow the statement of the judges to be

contradicted by statements at the Bar or by

affidavit and other evidence. If the judges say in

their judgment that something was done, said or

admitted before them, that has to be the last word

on the subject. The principle is well settled that

statements of fact as to what transpired at the

hearing, recorded in the judgment of the court,

are conclusive of the facts so stated and no one

can contradict such statements by affidavit or

other evidence. If a party thinks that the

happenings in court have been wrongly recorded

in a judgment, it is incumbent upon the party,

while the matter is still fresh in the minds of the

judges, to call the attention of the very judges who

have made the record to the fact that the

statement made with regard to his conduct was a

statement that had been made in error. That is

the only way to have the record corrected. If no

such step is taken, the matter must necessarily

end there."

9. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd

and Others; (2003)2 SCC 111, it was contended before the

Hon'ble Supreme Court that various other contentions had

also been raised before the High Court, which had not been

dealt with. The Hon'ble Supreme Court declined to go into

the said contention holding that the remedy of the appellant

was to file appropriate application for review before the High

Court. In Jagbir Singh and Ors v. State (Delhi

Administration); 2007 (5) SCC 359, a similar contention was

again rejected by the Hon'ble Supreme Court holding that if

really there was no concession, the only course open to the

appellants was to more the High Court. Therefore, in this

case also, if the petitioner had not submitted before the Addl.

Sessions Judge that pursuant to the permission given by the

court he had travelled abroad and had returned back to

India, he should have filed appropriate application seeking

necessary correction in the order. The petitioner having not

adopted that course of action, the record of proceedings

dated 6th August, 2009 must be taken as correct. This would

show that the petitioner tried to obtain permission to go

abroad by misrepresentation of fact. A person approaching a

court of law has to come with clean hands and disclose all

relevant facts. Misrepresentation, as regards a material fact

being fatal to the person approaching the court, he would not

be entitled to grant of a discretionary relief even if he is able

to make out a good case on merits in his favour. In my view,

misrepresentation made by the petitioner before the learned

ASJ alone is sufficient to deny the relief sought by the

petitioner.

10. During the course of arguments it was also submitted

on behalf of the prosecution that in fact the petitioner is also

involved in a case registered against him at Police Station

Sector 39 of Gautam Budh Nagar under Sections

406/409/506 of IPC and this information has been withheld

by him from this Court. The petitioner did not deny that a

petition filed by him under Section 482 of Cr. P.C. for

quashing the criminal proceedings arising out of case no.

5239/08 of P.S. Sector 39, Gautam Budh Nagar has been

dismissed by Allahabad High Court vide order dated 7th

October, 2009. It would be pertinent to note here that in this

court also, initially the petitioner did not disclose that his

name had been removed from the Roll, though this was very

much in his knowledge, as is evident from the e-mail dated

24.09.2009 received by him from Solicitors Regulation

Authority. When it was informed during arguments on behalf

of the complainant that a search on the website of SRA, by

the name of the petitioner had yielded zero result, meaning

thereby that he was no more a registered Solicitor and

therefore was not entitled to pursue CDP, that the petitioner

filed an affidavit disclosing this information.

11. Even on merits, I am of the considered view that there

a reasonable apprehension of the petitioner not coming back

to India to face the trial, if he is permitted to go to England.

This is petitioner's own case that he wants restoration of his

name on the Roll of Solicitors Regulation Authority and

renewal of his registration as a Solicitor. Once it is done, the

petitioner may choose to practise in England, instead of

coming to India to attend the trial. This is more so, when his

son is also studying in U.K. The offence under Section 376 of

Indian Penal Code being a serious charge entailing

punishment which shall not be less than seven years but

which may be for life or for a term which may extend up to

10 years and the charge against the petitioner have already

been framed, the apprehension of the prosecution that he is

not likely to attend the trial, if permitted to go abroad,

cannot be said to be unfounded.

12. For the reasons given above, I do not deem it

appropriate to grant permission to the petitioner to go

abroad. The petition is, hereby, dismissed. Vide an interim

order dated September 22, 2009, the Passport of the

petitioner was temporarily released to him in order to enable

him to complete necessary formalities with regard to his

travel. While temporarily releasing the Passport, it was

directed by this court that in case it comes to the conclusion

that the petitioner is not entitled to the relief sought by him,

then necessary order in that regard would be passed on next

date of hearing. The petitioner, therefore, is directed to

deposit back his passport forthwith. The petition stands

disposed of.

(V.K. JAIN) JUDGE October 15, 2009/acm