Jharkhand High Court
Allisha Kashyap vs The State Of Jharkhand on 26 February, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2640 of 2020
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1. Allisha Kashyap
2. Aniket Sood ... Petitioners
Versus
The State of Jharkhand ... Opposite Party
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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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For the Petitioners : Mr. Arjun N. Deo, Advocate
For the State : Mr. A.K. Tiwari, Addl. P.P.
For the Informant : Mr. Arpan Mishra, Advocate
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Order No.03 Dated- 26.02.2021
Heard the parties through video conferencing.
This criminal miscellaneous petition has been filed under section 482
Cr.P.C by the petitioners with a prayer for modification of the order dated
01.12.2020, passed in B.A. No. 7510 of 2020.
Perusal of the record reveals that the petitioners have allegedly
committed offences punishable under Sections 406/420/506/34 of the Indian
Penal Code and the allegation against them is that the informant came in
contact with the petitioner no.1 in March 2018 through a social media and
developed good relationship. It is next alleged that the petitioner no.1
introduced the informant to her other family members including the
petitioner no.2 who is her brother. It is further alleged that between April
2018 to November, 2019, the informant transferred an amount of
Rs.1,43,60,000/- in different bank accounts of the petitioners and their family
members but the petitioners have cheated the informant and have committed
criminal breach of trust and are not retuning the said amount.
It is submitted by the learned counsel for the petitioners that
consequent upon the learned counsel for the petitioners namely Mr. Suraj
Singh on instruction from the petitioners expressing readiness and
willingness of the petitioners in the said bail application no.7510 of 2020, that
these two petitioners of the said bail application are ready and willing to
jointly pay Rs.20,00,000/- to the informant without prejudice to their defence
in this case over and above the amount of Rs.53,60,000/- to be paid by their
parents in terms of the order passed by a coordinate Bench of this Court in
B.A. No.4646 of 2020, the petitioners were directed to be released on bail on
jointly depositing a demand draft of Rs.20,00,000/- drawn in favour of the
informant and furnishing bail bond of Rs.25,000/- with two sureties to the
satisfaction of the court concerned. It is next submitted that in this case also
the petitioners have averred in the main petition that they are ready to make
payment of Rs.20,00,000/- out of 53,60,000/- and not over and above
Rs.53,60,000/- and the co-accused persons namely Manoj Kumar Sood and
Aarti Sood have not deposited the said amount and have prayed Special
Leave to Appeal (Crl.) No(s).1274 of 2021 before the Hon'ble Supreme Court
of India. It is further submitted that the petition of this criminal miscellaneous
petition was filed through Mr. Suraj Singh, Advocate and the petition was
verified on affidavit by Vijay Kumar, son of Rajendra Lal.
Mr. Arjun Narayan Deo, learned counsel for the petitioners submits
that the petitioners have obtained no objection from Mr. Suraj Singh,
Advocate and engaged him as their Advocate in this case. It is next submitted
that after engaging Mr. Arjun Narayan Deo, through him a supplementary
affidavit has been filed by the petitioners sworn by one Dr. Ravi Ranjan
Kumar, son of Late Narendra Kumar Sharma in this case and in that
supplementary affidavit, it has been averred in paragraph no.17 that the
petitioners and their parents are always ready and willing to return the said
amount by selling the property situated in Shimla and not a farthing of the
informant will be kept by the petitioners or their parents but they cannot sell
their landed property at Shimla because of an interim injunction order passed
by the High Court of Himachal Pradesh at Shimla. It is next submitted that
the condition of deposit of Rs.20,00,000/- as imposed by the order dated
01.12.2020, passed in B.A. No. 7510 of 2020 is based upon readiness and
willingness of the petitioners to pay the sum of Rs.20,00,000/- over and above
Rs.53,60,000/- which is to be paid by the parents of the petitioners in B.A.
No.4646 of 2020. It is averred in paragraph no.25 of the said supplementary
affidavit that neither the petitioners nor their pairvikar had ever given any
such instruction to Mr. Suraj Singh, Advocate, that the petitioners are ready
and willing to pay Rs.20,00,000/- apart from the amount which has been
directed to be paid by the parents of the petitioners hence, there was
absolutely no reason to submit before this Court that the petitioners are
willing to pay Rs.20,00,000/- apart from the amount which has been directed
to be paid by the parents of the petitioners and in view of wrong submissions
made by the learned counsel for the petitioners, the condition of payment of
Rs.20,00,000/- has been imposed by this Court which has greatly prejudiced
the petitioners from coming out from custody.
Mr. Arjun N. Deo, learned counsel for the petitioners draws attention
of this Court to the order of the Hon'ble Supreme Court of India in the case of
Dilip Singh vs. State of Madhya Pradesh and Another in Criminal Appeal
No.53 of 2021 arising out of SLP (Crl) No. 10484 of 2019 wherein in the facts
of that case is where ex facie, the disputes was a civil dispute and where the
complainant despite having paid Rs.41 lakhs to the appellant pursuant to an
agreement for purchase of agricultural land, the appellant has not executed
the deed of sale in respect of the same and where High Court granted
anticipatory bail to the appellant subject to deposit of Rs.41,00,000/- in Court
and Hon'ble Supreme Court of India reiterated the settled principle of law
that criminal proceedings are not for realization of disputed dues and it is
open to a Court to grant or refuse the prayer for anticipatory bail, depending
on the facts and circumstances of the particular case and modified the order
impugned before by deleting the direction to deposit Rs.41 lakhs as directed
by the High Court and submits that in view of the said order passed by
Hon'ble Supreme Court of India the order dated 01.12.2020, passed in B.A.
No. 7510 of 2020 also needs to be modified.
The learned Additional Public Prosecutor on the other hand submitted
that the petitioners prayed on the principle of parity with their parents who
were granted bail by a coordinate bench of this court in B.A. No.4646 of 2020
and their prayer for bail was allowed by this court hence it is not open for
them by changing a Pairvikar and a lawyer to take a diametrically opposite
stand and the prayer of the petitioners through the new lawyer is against the
principle of judicial comity. It is then submitted that it is not desirable that the
party to a lis is permitted to take a diametrically opposite stand from his or
her earlier stand in the same proceeding by changing the lawyer and
Pairvikar. It is therefore submitted that this petition being without any merit
be dismissed.
Having heard the submissions made at the bar and going through the
record minutely it is found that Vijay Kumar, son of Rajendra Lal was the
Pairvikar of the petitioners in bail application no.7510 of 2020 and the same
Vijay Kumar, son of Rajendra Lal is also the Pairvikar of the petitioners at the
time of filing of this criminal miscellaneous petition. Nowhere it has been
disputed in the affidavit filed through Arjun N. Deo, Advocate that Vijay
Kumar, son of Rajendra Lal was not the Pairvikar of the petitioners either in
the bail application or at the time of filing of this criminal miscellaneous
petition wherein in paragraph no.6, it is averred that the petitioners are ready
and willing to make payment of Rs.20,00,000/-for being released on bail but
the only contention of their made in this petition is that the said amount of ₹
20 lakhs should not be over and above the amount to be paid by their parents.
It is not forthcoming as to in what way Dr. Ravi Ranjan Kumar who
has sworn the affidavit is related to the petitioners. It has just been mentioned
that he is the Pairvikar and there is no affidavit sworn by Vijay Kumar, son of
Rajendra Lal that he has not instructed Mr. Suraj Singh, learned counsel for
the petitioners, in the bail application and who was also the counsel for the
petitioners in this criminal miscellaneous petition at the time of filing of this
petition until before the appearance of the new lawyer.
It is pertinent to mention that since Vijay Kumar, son of Rajendra Lal
was the Pairvikar of the petitioners in the bail application as well as at the time
of filing of this criminal miscellaneous petition which was filed on 07.12.2020
and he continued to be the Pairvikar till appearance of Mr. Arjun N. Deo,
Advocate through a Vakalatnama wherein he has put the date to be
15.01.2021 after overwriting it which initially appears to be written as
16.01.2021 and which was filed in Court on 23.01.2021. So this Court is of the
considered view that Dr. Ravi Ranjan Kumar has no locus standi to contend as
to what instruction Vijay Kumar, son of Rajendra Lal, who was undisputedly
the Pairvikar of the petitioners throughout the proceedings of the bail
application no.7510 of 2020 and also till 15.01.2021 in this criminal
miscellaneous petition also; gave the counsel Mr. Suraj Singh. More so
because a Vakalatnama being basically a power of attorney executed by the
client in favour of the advocate engaged by him or them the client is liable for
the acts or obligations done by the advocate in exercise of the power vested
upon him by such Vakalatnama, subject of course to the remedy, if any, for
the client to proceed against the advocate for professional misconduct.
Further as the communication between the client and an advocate is a
privilege communication the same should not be open to be questioned in a
court of law in a proceeding in which the advocate who is alleged to have
acted without instruction is himself not a party and as in this case Mr. Suraj
Singh, Advocate is not a party.
So far as the order of Hon'ble Supreme Court of India in the case of
Dilip Singh vs. State of Madhya Pradesh and Another (supra) is concerned,
the principle of law discussed in that judgment is a settled principle of law
but the facts of that case is different from the facts of this case as herein this
case firstly the petitioners themselves voluntarily sought bail on the principle
of parity with their parents who are the co-accused persons of the same case
and who have been granted bail by a coordinate bench of this court subject to
deposit of money and bail was granted to them by this court on their prayer
on the principle of parity; secondly the petitioners voluntarily made an
undertaking before this Court to deposit the money and such undertaking
was made voluntarily by the petitioners themselves and the Court suo moto
never imposed any condition and thirdly because unlike the case of Dilip
Singh vs. State of Madhya Pradesh and Another (supra) dispute involved in
this case is not ex facie a civil dispute relating to agreement for the sale of
property but a case of cheating and criminal breach of trust hence the
principle of law discussed in Dilip Singh vs. State of Madhya Pradesh and
Another (supra) is not applicable to the facts of this case.
In view of the discussions made above, as Dr. Ravi Ranjan Kumar is
not considered to be the competent person to say what the undisputed
previous pairvikar Mr. Vijay Kumar, son of Rajendra Lal instructed to the
lawyer Mr. Suraj Singh, this Court does not find any merit in the contention
of the petitioners made through Mr. Arjun N. Deo, the subsequent lawyer in
this case that the earlier lawyer made a wrong submission.
So far as the contention of payment of Rs.20,00,000/- is concerned,
upon the voluntarily undertaking by the learned counsel for the petitioners,
the said condition was imposed and nowhere in the operative portion of the
order, it has been mentioned that the deposit of Rs.20,00,000/- will be over
and above Rs.53,60,000/-. In paragraph no.6 of the petition, it has been
mentioned that the petitioners are ready and willing to make payment of
Rs.20,00,000/- and undisputedly, the matter of the co-accused persons
namely Manoj Kumar Sood and Aarti Sood have not paid Rs.53,60,000/-
instead approached the Hon'ble Supreme Court of India and as contended by
the learned counsel for the petitioner their matter is sub- judice before the
Supreme Court of India.
Under such circumstances, this Court does not find any justifiable
reason to interfere with the order dated 01.12.2020, passed in B.A. No. 7510 of
2020.
Accordingly, this criminal miscellaneous petition being without any
merit is dismissed.
(Anil Kumar Choudhary, J.)
A.F.R- Sonu-Gunjan/
