Karnataka High Court
Shabana Taj vs State Of Karnataka on 7 March, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
R
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.151/2024
BETWEEN:
SHABANA TAJ
D/O PYARE JAN
AGED ABOUT 27 YEARS
R/AT NO.19, 2ND CROSS
SRINIVAS NAIDU HOUSE
LAKLSHMI SAGAR LAYOUT
BEHIND BBMP OFFICE
MAHADEVAPURA
BANGALORE - 48.
... PETITIONER
(BY SRI RAGHAVENDRA GOWDA K., ADVOCATE FOR
SRI MOHANKUMARA D., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY MAHADEVAPURA POLICE STATION
REP. BY ITS STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX
BENGALURU - 560001
2. FAKIRAPPA HATTI
S/O MAHADEVAPPA HATTI
AGED ABOUT 27 YEARS
R/AT C/O MAHESHWARA'S HOUSE
3RD CROSS, MAHESHWARI NAGAR
MAHADEVAPURA, BANGALORE
2
NATIVE OF NEGINHAL
VILLAGE AND POST
BAILAHONGALA TALUK
BELAGAVI DISTRICT - 591102.
... RESPONDENTS
(BY SRI K.NAGESHWARAPPA, HCGP FOR R1;
SRI M.R.NANJUNDA GOWDA, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF CR.PC PRAYING TO CANCEL THE BAIL ORDER DATED
30.06.2023 PASSED IN FAVOUR OF RESPONDENT NO.2 IN
CRL.MISC.NO.5631/2023 BY THE LEARNED LIII ADDITIONAL
CITY CIVIL AND SESSIONS SPECIAL JUDGE, BENGALURU, FOR
THE OFFENCES P/U/S.376, 417, 323 AND 506 OF IPC,
REGISTERED BY THE RESPONDENT MAHADEVAPURA POLICE
STATION IN CR.NO.80/2022.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 16.02.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
This petition is filed under Section 439(2) of Cr.P.C
praying this Court to cancel the bail order dated 30.06.2023
passed in favour of respondent No.2 in
Crl.Misc.No.5631/2023 by the LIII Additional City Civil and
Session Special Judge, Bengaluru for the offences
punishable under Section 376, 417, 323 and 506 of IPC
registered by the Mahadevapura Police Station in
Cr.No.80/2022.
2. The factual matrix of the case of the petitioner
before the Trial Court that she has filed a private complaint
against respondent No.2 stating that respondent No.2 is
working as a police constable in the very same police
station i.e., Mahadevapura Police Station. He came in
contact with the complainant in connection with the issue of
vacating the premises and he has promised the victim that
he would marry her and on that guise, respondent No.2
subjected the complainant for sexual act continuously from
2019 till February 2022. When respondent No.2 has not
married the complainant, on 14.02.2022, she gave the
complaint before respondent No.1-police station. It the
case of the complainant that firstly, on 14.02.2022, she had
approached the Police Inspector at Mahadevapura Police
Station alleging cheating and subjecting her for sexual act
by respondent No.2 from 2019 to 2022 and when the action
was not taken, the complainant had approached the Police
Commissioner and when the Police Commissioner also failed
to take any action against respondent No.2, once again she
gave another complaint on 24.02.2022 before the Deputy
Commissioner of Police, Bengaluru and on the said
complaint also, action was not taken. Hence, without any
other alternative, the complainant had approached the
jurisdictional Court by filing a private complaint and the
learned Magistrate referred the matter for investigation
under Section 156(3) of Cr.P.C. Thereafter, respondent
No.2 had approached the Sessions Court by filing a petition
in Crl.Misc.No.3084/2022 under Section 438 of Cr.P.C and
the Sessions Judge granted the anticipatory bail on
04.04.2022. The said order was challenged before this
Court by the petitioner in Crl.P.No.4320/2022 and this
Court in elaborate discussion, taking into note of the
material available on record, cancelled the bail granted by
the Trial Court vide order dated 01.07.2022.
3. It is also contended in the present petition that
when this Court has cancelled the bail, respondent No.2 by
suppressing the said fact, had filed the writ petition in
W.P.No.13787/2022 before this Court under Section 482 of
Cr.P.C seeking for quashing of FIR filed in Cr.No.80/2022
wherein he had obtained an order of stay on 25.07.2022.
Thereafter, the complainant came on record and narrated
all the material facts before this Court and accordingly, this
Court vacated the stay order granted on 25.07.2022 vide
order dated 15.03.2023 wherein an observation is made
that by suppressing the order passed by this Court in
Crl.P.No.4320/2022, he had obtained an order of stay of
the investigation. The counsel also would vehemently
contend that respondent No.2 had played fraud upon this
Court by suppressing the material facts.
4. The counsel brought to notice of this Court that
this Court vide order dated 15.03.2023 having noticed the
suppression of facts and playing fraud on the Court,
vacated the interim order when the submission was made
by the counsel for petitioner that respondent No.2 is
absconding and also complainant counsel brought to notice
of this Court that he has managed to evade arrest despite
passage of four months. This Court held that it prima facie
appears that the concerned have laid a protective umbrella
to the petitioner, to evade such arrest, only because
respondent No.2 belonged to the police department.
Hence, directed to the Deputy Commissioner of Police of the
jurisdiction to submit an explanation before this Court as to
why respondent No.2 is not taken into custody despite the
clear order of this Court that it should be implemented
forthwith and the explanation shall be filed by the next date
of hearing failing which, the Deputy Commissioner of Police
of the jurisdiction shall be present before the Court. Thus,
respondent No.2, immediately without any other
alternative, surrendered before the Trial Court and filed
Crl.P.No.5631/2023 wherein, he obtained the bail order on
30.06.2023 again suppressing all these orders.
5. The counsel for the petitioner further submits
that respondent No.2 had misled both the Trial Court as
well as this Court by suppressing all the material facts
thereby, respondent No.2 had not approached the Court
with a clean hands. Respondent No.2 had played a fraud
on the Trial Court as well as this Court and he has
committed an offence of fraud and he had obtained the
various orders only by narrating the limited and favourable
points to him. It is also contended that respondent No.2
was using the petitioner like a slave and sex machine to
satisfy his sexual desire and also he was harassing the
petitioner both mentally and physically since he is a police
constable by misusing his powers. The petitioner is a poor
lady and by taking advantage of the same, respondent No.2
forced her to consume the abortion tablets by tying her
with ropes and the petitioner is in fear of death as
respondent No.2 has been enlarged on bail and the said
order also obtained by suppressing the facts which have
been taken place before this High Court. There are many
chances that respondent No.2 might threaten the petitioner
to withdraw the case as the similar circumstances had
taken place earlier. The Court has to take note of the
conduct of respondent No.2 and hence, it requires
interference of this Court invoking Section 439(2) of Cr.P.C.
6. The counsel in support of his arguments relied
upon the additional documents i.e., the orders passed by
this Court on 25.07.2022, 15.03.2023 and also on
16.06.2023. The counsel also relied upon the judgment of
the Apex Court passed in CRIMINAL APPEAL
NOL.303/2024 DATED 19.01.2024 in the case of
KUSHA DURUKA vs THE STATE OF ODISHA wherein the
Apex Court held that similar circumstances of fraud played
on the Court in obtaining an order before the High Court
inspite of the bail application was pending before the Apex
Court. The counsel referring this judgment would
vehemently contend that in this judgment, the Apex Court
discussed several judgments reported in (2008) 12 SCC
481 in the case of K.D.SHARMA vs STEEL AUTHORITY
OF INDIA LIMITED AND OTHERS; (2010)2 SCC 114 in
the case of DALIP SINGH vs STATE OF UTTAR
PRADESH AND OTHERS; (2013) 9 SCC 199 in the case
of MOTI LAL SONGARA vs PREM PRAKASH @ PAPPU
AND ANOTHER and SPECIAL LEAVE PETITION
(CRIMINAL) No.4876/2022 DT.24.08.2023 in the case
of PRADIP SAHU vs THE STATE OF ASSAM and brought
to notice of this Court to the discussions made in the
aforesaid judgments.
7. Per contra, the learned counsel appearing for
respondent No.2 has filed statement of objections before
this Court contending that the police have investigated the
matter and filed the charge sheet and during the
investigation, the petitioner has approached the Court
invoking Section 438 of Cr.P.C and the complainant being
aggrieved by the order of granting anticipatory bail, filed
petition in Crl.P.No.4320/2022 before this Court and
obtained the order of cancellation of bail. It is also
contended that respondent No.2 surrendered before the
Mahadevapura police and he was remanded to judicial
custody and thereafter he had filed Crl.Misc.P.5631/2023
and the same was allowed and well reasoned order has
been passed. He has not terrorized or threatened any of
the prosecution witnesses in any manner and he is regularly
appearing before the Court. However, he admits that he
had filed W.P.No.13787/2022 for quashing of the
proceedings and stay was granted but not extended the
interim order, hence, he withdrawn the writ petition on
26.09.2023. It is also contended that present petition is
filed with a malafide intention and unless any witnesses are
threatened, there cannot be any cancellation of bail and it
does not requires any interference and he undertakes to
appear before the Trial Court and if any other conditions
that this Court imposes, he is ready to abide by the said
conditions. It is also his case that he has already filed an
application for discharge under Section 227 of Cr.P.C and
after filing of the said application only she has chosen to file
the present petition and hence, it does not requires any
interference by exercising the powers under Section 439(2)
of Cr.P.C.
8. The counsel for respondent No.2 in support of
his arguments, relied upon the judgment of the Apex Court
reported in 2023 LIVELAW (SC) 587 in the case of
ASHOK KUMAR vs NEW INDIA ASSURANCE CO. LTD.,
wherein it is held that only on the fault of advocate, the
complainant cannot be made to suffer. Finally, the
dismissal of the complaint was made by the National
Commission under the wrong pretext that the earlier
complaint had challenged the order of repudiation. Thus,
the complaint cannot be thrown out on the threshold of
Order XXII Rule (1)(4) of CPC and in the peculiar facts, it
requires consideration on merits.
9. The counsel also relied upon the judgment of
reported in AIR ONLINE 2022 KAR 205 in the case of
RAVI KUMAR vs STATE wherein this Court held that
subsequent to passing of order granting anticipatory bail,
no complaint is filed by complainant alleging violation of bail
conditions by accused persons either for tampering
prosecution witnesses or for any similar offences. No
material placed to invoke Section 439(2) of Cr.P.C. In the
absence of any violation of bail conditions, anticipatory bail
is not liable to be cancelled.
10. The counsel also relied upon the judgment
reported in 2020 CRL.L.J 1457 in the case of MYAKALA
DHARMARAJAM AND OTHERS vs STATE OF
TELANGANA AND ANOTHER wherein it is held that no
mention about which accused out of 15 indulged in acts of
holding out threats to witnesses or made attempt to tamper
with evidence, order canceling bail, unjustified.
11. The counsel also relied upon the judgment
reported in AIR 2018 SC 2466 in the case of MS. X vs
STATE OF TELANGANA wherein the Apex Court held that
bail once granted cannot be cancelled unless cogent case,
based on supervening event made out of such nature as
would warrant cancellation of bail which was granted by the
High Court. Moreover, no supervening circumstances have
been made out to warrant cancellation of bail.
12. The counsel for respondent No.2 referring
aforesaid judgments would vehemently contend that in the
case on hand, the petitioner has not made out the case to
invoke Section 439(2) of Cr.P.C. However, he did not
dispute the fact of suppression made before this Court in
Crl.P.No.4320/2022 and also the subsequent orders passed
in W.P.No.13787/2022 with regard to the orders passed by
this Court as well as before the Trial Court in
Crl.Misc.Nos.3084/2022 and 5631/2023 which respondent
No.2 had filed.
13. Having heard the learned counsel appearing for
the respective parties and in keeping the principles laid
down in the judgments referred supra, the points that
would arise for the consideration of this Court are:
1. Whether the Trial Court committed an error
in granting the bail in
Crl.Misc.No.5631/2023 and it requires
cancellation of bail invoking Section 439(2)
of Cr.P.C?
2. What order?
Point No.1:
14. Having heard the learned counsel appearing for
the respective parties, this Court would like to refer some of
the facts which are not in dispute. It is not disputed that a
complaint was filed by the petitioner before the Magistrate
Court and also the matter was referred for investigation
under Section 156(3) of Cr.P.C and FIR is also registered
and immediately after registration of FIR, respondent No.2
had approached the City Civil and Sessions Special Judge
by filing Crl.Misc.No.3084/2022. It is important to note
that in the private complaint, the specific allegation made
that respondent No.2 is working in the very same police
station as constable where complaint was lodged and when
the complaint was given making allegation against
respondent No.2 that he had subjected her for sexual act
forcibly and thereafter continued to have the sexual
intercourse from 2019 to 2022 under the guise of marriage
but he did not marry her, thus, a complaint was given to
the concerned police on 14.02.2022. Thereafter, the
complainant approached the Commissioner of Police, but no
action was taken by them and once again one more
complaint was given to the Deputy Commissioner of Police
on 24.02.2022, on that complaint also, no action was
taken. Thereafter, the petitioner filed a private complaint
before the Trial Court and the Trial Court taking into note of
the offences alleged against respondent No.2, case was
referred for investigation.
15. It is also not in dispute that an anticipatory bail
was granted in favour of respondent No.2 by the Trial Court
in Crl.Misc.No.3084/2022 and the same was challenged
before this Court in Crl.P.No.4320/2022 by the petitioner
and this Court vide order dated 01.07.2022, cancelled the
anticipatory bail observing that the Trial Court has not
discussed anything about the accusation made against
respondent No.2. This Court has directed the concerned to
take respondent No.2 to the custody forthwith. Respondent
No.2 suppressing the order of cancellation of bail, had
approached this Court by filing a writ petition in
W.P.No.13787/2022. The cancellation of bail order was
passed on 01.07.2022 and immediately within a span of 7
days, he had filed a writ petition and by suppressing the
fact of cancellation of bail, he had obtained an order of stay
on 25.07.2022. It is not in dispute that in the said writ
petition also not stated anything about the order passed by
this Court in Crl.P.No.4320/2022. The counsel for
respondent No.2 also not disputes the said fact.
16. It is also important to note that the counsel for
the petitioner has produced the copy of the order passed by
this Court in the writ petition. When this Court noticed that
said order is obtained by suppressing the order passed by
the co-ordinate Bench in Crl.P.No.4320/2022 on
01.07.2022, declined to extent the interim order and the
same was vacated vide order dated 15.03.2023 and the
case was posted for final arguments on 05.04.2023. When
the case come up before this Court, this Court also noted
that on 15.03.2023 when the co-ordinate Bench noticed
that respondent No.2 had misled the Court by suppressing
the fact that he has suffered an order in
Crl.P.No.4320/2022 wherein bail was cancelled, vacated an
interim order granted on 25.07.2022. This Court also
observed that in view of vacating of interim order, the order
passed by this Court to take respondent nfo.2 into custody
would get revived and respondent No.2 has to be taken into
custody forthwith. The counsel for the complainant also
made the submission that respondent No.2 is absconded
and managed to evade arrest despite passage of four
months. This Court formed an opinion that prima facie it
appears that the concerned have laid a protective umbrella
to the petitioner to evade such arrest, only because
respondent No.2 belongs to the police department. Hence,
this Court directed the Deputy Commissioner of Police of
the concerned jurisdiction to submit an explanation before
this Court as to why respondent No.2 is not taken into
custody despite the clear order of this Court and that it
should be implemented forthwith. The explanation is also
sought and made it clear that if explanation is not filed the
Deputy Commissioner of Police of the jurisdiction shall be
present before the Court.
17. When this Court ordered to list the matter on
05.07.2023, immediately, the petitioner even suppressing
the order passed by this Court on 15.03.2023 and also the
order dated 16.06.2023, surrendered before the Trial Court
and filed the Crl.Misc.No.5631/2023 and obtained the bail
order without disclosing the said fact. When the same was
addressed to this Court, this Court had summoned the
records of the Trial Court in Crl.Misc.No.5631/2023. Having
perused the bail petition it discloses that nowhere the
petitioner has given any details of the order passed by this
Court in Crl.P.No.4320/2022 and with an ingenious method,
a mention is made in paragraph 6 that earlier anticipatory
bail was granted in Crl.Misc.No.3084/2022 and thereafter,
the same is set aside by the High Court and not mentioned
the details of order passed by this Court in
Crl.P.No.4320/2022 except mentioning the same that
anticipatory bail was cancelled and not stated anything
about filing of writ petition before the High Court and
obtaining of stay order in the said writ petition. Even not
produced any documents of cancellation of order passed by
this Court in Crl.P.No.4320/2022 and also the order passed
by this Court in W.P.No.13787/2022 vacating of stay order
on 15.03.2023 and also the order passed by this Court on
16.06.2023 wherein direction given to the Deputy
Commissioner of Police to take respondent No.2 to the
custody forthwith and held that, it prima facie appears that
concerned have laid a protective umbrella to the petitioner,
to evade such arrest only because respondent No.2 belongs
to police department and also explanation is also called for
and also directed to take him to the custody failing which,
Deputy Commissioner of Police shall be present before the
Court. In order to avoid explanation called against the
Deputy Commissioner, respondent No.2 surrendered and
also suppressed all these orders before the Trial Court and
once again obtained bail order by suppressing the same
repeatedly.
18. It is also important to note that when this Court
had summoned the records from the Trial Court it discloses
that Public Prosecutor has filed statement of objections in
Crl.Misc.No.5631/2023 except stating the factual aspects of
the case. Even Public Prosecutor did not bring it to the
notice of the Trial Court with regard to cancellation of
earlier anticipatory bail by this Court and also filing of writ
petition and obtaining an order suppressing the material
facts before this Court and hence, the Trial Court proceeded
to pass an order of granting bail and suppression was made
by both the end i.e., respondent No.2 herein and also by
the prosecution.
19. Having taken note of all these aspects into
consideration, it is very clear that respondent No.2 had
suppressed the order passed by this Court in
Crl.P.No.4320/2022 canceling of anticipatory bail and
except mentioning the same in an ingenious method that
the same was cancelled and no details are given in
Crl.Misc.No.5631/2023 of order passed in
Crl.P.No.4320/2022. Apart from that when this Court
cancelled the bail on 01.07.2022, immediately on
07.07.2022, approached the High Court by filing the writ
petition invoking Section 482 of Cr.P.C. It has to be noted
that while seeking the relief of quashing of proceedings,
respondent No.2 has to disclose all the aspects but
suppressed. Hence, respondent No.2 has abused the
process while invoking of Section 482 of Cr.P.C by
suppressing the order passed by this Court in
Crl.P.No.4320/2022 that is cancellation of bail passed
against him and obtained the stay order in the said writ
petition filed under Section 482 of Cr.P.C.
20. The Court has to take note of the very conduct
of respondent No.2. When this Court had noticed the same
in the writ petition, the interim order granted was vacated
on 15.03.2023 and also this Court in the further order on
16.06.2023 directed the Deputy Commissioner to take him
to the custody and also taken note of the protection given
to respondent No.2 since he belongs to the police
department who is working as a constable in the very same
police station in which the complaint was lodged by the
complainant and same was not entertained. Thereafter,
without any other alternative, the complainant approached
the Trial Court by filing a private complaint. These are the
facts which have been suppressed by respondent No.2. Not
only he had suppressed the order of cancellation of bail
before this Court while filing the writ petition and even
while filing of regular bail before the Trial Court also, the
order passed by this Court in W.P.No.13787/2022 on two
different dates i.e., 15.03.2023 and 16.06.2023 also
suppressed and nothing is averred in the bail petition with
regard to having approached this Court by filing writ
petition invoking Section 482 of Cr.P.C., and also vacating
of stay order.
21. No doubt, the Trial Court has granted the bail
having considered the pleadings of the bail petition of
respondent No.2 since both the learned Public Prosecutor
and also the Trial Court has not noticed anything since
there was no any pleading about the aforesaid facts.
Though in the petition, it is mentioned in an ingenious
method that bail was cancelled, Trial Court has not
ventured to verify the same but proceeded to grant the bail
in favour of respondent No.2. The Trial Court also even did
not see anything about the order passed by this Court even
though in an ingenious method, a reference was made with
regard to cancellation of bail and not insisted respondent
No.2 to place the said order before the Court and without
looking into the order passed by this Court, the Trial Court
granted bail in favour of respondent No.2 who suppressed
all these material facts.
22. The learned counsel appearing for respondent
No.2 also relies upon the judgments in support of his case
wherein in the case of Ms.X referred supra, the Apex Court
held that once bail granted, cannot be cancelled unless
cogent case, based on supervening event made out and no
dispute with regard to the principles laid down in the said
judgment and so also in the case of Myakala
Dharmarajam's case referred supra, the Apex Court held
that when there is no material about the threats to
witnesses or made attempt to tamper with evidence,
question of invoking Section 439(2) of Cr.P.C does not
arise. No doubt, this Court also when the anticipatory bail
was sought to be cancelled, made an observation that in
the absence of any violation of bail conditions, the same
can be cancelled. However, this Court has to take note of
the material available on record. But in the present case, I
have already pointed out that there was suppression of
facts by respondent No.2 in getting the bail order and not
the case of threat to witnesses and it is a case of fraud on
the Court.
23. The counsel for the petitioner also relied upon
the judgment of the Apex Court in the case of Kushal
Duruka (referred supra) wherein it is held that it has to be
noted that each case has to be considered depending on the
facts and circumstances of the case. The Apex Court in the
said judgment, also referred the judgment reported in
(1995) 1 SCC 421 in the case of CHANDRA SHASHI vs
ANIL KUMAR VERMA wherein in paragraph 1 it is held
that the stream of administration of justice has to remain
unpolluted so that purity of Court's atmosphere may give
vitality to all the organs of the State. Polluters of judicial
firmament are, therefore, required to be well taken care of
to maintain the sublimity of Court's environment; so also to
enable it to administer justice fairly and to the satisfaction
of all concerned. This Court also would like to refer
paragraph 2 of the said judgment wherein it is observed
that anyone who takes recourse to fraud, deflects the
course of judicial proceedings; or if anything is done with
oblique motive, the same interferes with the administration
of justice. Such persons are required to be properly dealt
with, not only to punish them for the wrong done, but also
to deter others from indulging in similar acts which shake
the faith of people in the system of administration of
justice. In paragraph 14 also it is observed by the Apex
Court that the legal position thus is that if the publication
be with intent to deceive the Court or one made with an
intention to defraud, the same would be contempt, as it
would interfere with administration of justice.
24. This Court also would like to rely on the decision
of the Apex Court in the case of K.D.Sharma referred
supra wherein the Apex Court in paragraph 39 of the said
judgment held that:
39. If the primary object as highlighted in
Kensington Income Tax Commrs., [(1917) 1
KB 486 : 86 LJKB 257 : 116 LT 136 (CA)] is
kept in mind, an applicant who does not come
with candid facts and "clean breast" cannot hold
a writ of the court with "soiled hands".
Suppression or concealment of material facts is
not an advocacy. It is a jugglery, manipulation,
manoeuvring or misrepresentation, which has no
place in equitable and prerogative jurisdiction. If
the applicant does not disclose all the material
facts fairly and truly but states them in a
distorted manner and misleads the court, the
court has inherent power in order to protect
itself and to prevent an abuse of its process to
discharge the rule nisi and refuse to proceed
further with the examination of the case on
merits. If the court does not reject the petition
on that ground, the court would be failing in its
duty. In fact, such an applicant requires to be
dealt with for contempt of court for abusing the
process of the court.
25. This Court also would like to rely on the decision
of the Apex Court in the case of Dalip Singh referred supra
wherein the Apex Court in paragraph 2 of the said
judgment held that:
2. In the last 40 years, a new creed of litigants
has cropped up. Those who belong to this creed
do not have any respect for truth. They
shamelessly resort to falsehood and unethical
means for achieving their goals. In order to meet
the challenge posed by this new creed of
litigants, the courts have, from time to time,
evolved new rules and it is now well established
that a litigant, who attempts to pollute the
stream of justice or who touches the pure
fountain of justice with tainted hands, is not
entitled to any relief, interim or final.
26. This Court also would like to rely on the decision
of the Apex Court in the case of Moti Lal Songara referred
supra wherein the Apex Court in paragraphs 19 and 20 of
the said judgment held that:
19. The second limb of the submission is
whether in the obtaining factual matrix, the
order passed by the High Court discharging
the respondent-accused 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 upon the court, and
the maxim suppressio 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 respondent-accused
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
practising fraud and suppressing material
fact before a court of law to gain advantage,
the said order cannot be allowed to stand."
27. This Court also in ILR 2022 KAR 3625 in the
case of SRI NANJAPPA vs STATE BY CHIKKAJALA
POLICE STATION dealt with the similar circumstances
when the fraud was played on the Court. In the said
judgment, this Court referred the judgment of the Apex
Court in the case of KISHORE SAMRITE vs STATE OF
UTTAR PRADESH AND OTHERS reported in (2013) 2
SCC 398 wherein the Apex Court in paragraph 32 held with
regard to practice and procedure, abuse of process of
Court/law/fraud on the Court. The principles governing the
obligations of a litigant while approaching the Court and the
consequences of abuse of process enumerated in this
judgment. This Court would like to refer paragraph 8 of the
said judgment which reads as follows:
8. The Apex Court in the case of Kishore Samrite v.
State of Uttar Pradesh [(2013) 2 SCC 398] held
in paragraph 32 with regard to practice and
procedure, abuse of process of Court/law/fraud
on the Court. The principles governing the
obligations of a litigant while approaching the
Court and the consequences of abuse of process
enumerated in this judgment. The Apex Court
held that the cases of abuse of process of Court
and such allied matters have been arising
before the Courts consistently. It is observed
that this Court has had many occasions where it
dealt with the cases of this kind and it has
clearly stated the principles that would govern
the obligations of a litigant while approaching
the Court for redressal of any grievance and the
consequences of abuse of process of Court. We
may recapitulate and state some of the
principles. It is difficult to state such principles
exhaustively and with such accuracy that would
uniformly apply to a variety of case. These are:
32.1 Courts have, over the centuries,
frowned upon litigants who, with intent to
deceive and mislead the courts, initiated
proceedings without full disclosure of facts
and came to the courts with "unclean
hands". Courts have held that such litigants
are neither entitled to be heard on the
merits of the case nor are entitled to any
relief.
32.2. The people, who approach the
court for relief on an ex parte statement,
are under a contract with the court that
they would state the whole case fully and
fairly to the court and where the litigant has
broken such faith, the discretion of the
court cannot be exercised in favour of such
a litigant.
32.3. The obligation to approach the
court with clean hands is an absolute
obligation and has repeatedly been
reiterated by this Court.
32.4. Quests for personal gains have
become so intense that those involved in
litigation do not hesitate to take shelter of
falsehood and misrepresent and suppress
facts in the court proceedings. Materialism,
opportunism and malicious intent have
overshadowed the old ethos of litigative
values for small gains.
32.5. A litigant who attempts to pollute
the stream of justice or who touches the
purefountain of justice with tainted hands is
not entitled to any relief, interim or final.
32.6. The court must ensure that its
process is not abused and in order to
prevent abuse of process of court, it would
be justified even in insisting on furnishing of
security and in cases of serious abuse, the
court would be duty-bound to impose heavy
costs.
32.7. Wherever a public interest is
invoked, the court must examine the
petition carefully to ensure that there is
genuine public interest involved. The stream
of justice should not be allowed to be
polluted by unscrupulous litigants.
32.8. The court, especially the Supreme
Court, has to maintain the strictest vigilance
over the abuse of process of court and
ordinarily meddlesome bystanders should
not be granted "visa". Many societal
pollutants create new problems of
unredressed grievances and the court
should endure to take cases where the
justice of the lis well justifies it.
28. This Court also taken note of the judgment of
the Apex Court reported in (2014) 8 SCC 470 in the case
of SUBRATA ROY SAHARA vs UNION OF INDIA AND
OTHERS wherein the Apex Court held that calculated
psychological offensives and mind games adopted by
Counsel to seeks recusal of Judges, held, need to be
strongly repulsed (as done herein) such tactics deprecated
and similar approach commended to other Courts when
they experience such behaviour, held, any act of bench-
hunting or bench-hopping or bench-avoiding cannot be
allowed, Judge not to rescue himself from the matter unless
he/she should not be hearing it for reasons of direct of
indirect involvement. Further held, benchmark that justice
must not only be done but should also appear to be done,
has to be preserved at all costs. Hence, even in the face of
calculated psychological offensives and mind games as
adopted by Counsel in the present case, oath of office of
Judge, to decide every case without fear or favour, requires
the Judge concerned to press on with the hearing of the
matter and bear the burnt of rhetoric of the Counsel or
party seeking to dissuade him/her from hearing the matter.
29. This Court also taken note of the judgment of
the Apex Court reported in (2016) 3 SCC 70 in the case of
SCIEMED OVERSEAS INC. vs BOC INDIAN LIMITED
AND OTHERS wherein the Apex Court observed with
regard to imposition of exemplary costs filing of false or
misleading affidavit, imposition of cost fully justified of
Rs.10 lakh on petitioner for filing a false or misleading
affidavit in Court and also observed that there is no reason
to interfere with the impugned judgment and time granted
to the petitioner to make deposit of costs.
30. While disposing of the said petition, this Court
even given direction to the concerned Director of
Prosecution of the State to instruct the Public Prosecutor of
the State that they are duty bound to supply necessary
information to the concerned Court regarding pendency or
decision of an earlier bail application of the accused in the
same offence after taking information from the concerned
IO/Police official. Inspite of the said direction, in the case
on hand also, prosecution department fails to provide
necessary information to the concerned Court with regard
to the suppression of material facts i.e., the order passed
by this Court in Crl.P.No.4320/2022 so also in
W.P.No.13787/2022 and the same has resulted in obtaining
the bail order by respondent No.2. The prosecution
department also not properly bring it to the Trial Court
notice of earlier proceedings except filing a formal
statement of objections which leads exercising of the
discretion in favour of respondent No.2.
31. This Court taken note of the judgment of the
Apex Court in the case of Kishore Samrite referred supra
wherein the Apex Court held with regard to the practice and
procedure, abuse of process of Court/law/fraud on the
Court. The principles governing the obligations of a litigant
while approaching the Court and the consequences of abuse
of process enumerated in this judgment and also the Court
has to take note of the fact that the cases of abuse of
process of Court and such allied matters have been arising
before the Courts consistently and also an observation is
made that this Court has many occasions where it dealt
with the cases of this kind and it has clearly stated the
principles that would govern the obligations of a litigant
while approaching the Court for redrerssal of any grievance
and the consequences of abuse of process of Court. This
Court also would like to extract the observations made by
the Apex Court in the said judgment in paragraphs 32.4,
32.5 and 32.6 which reads as follows:
32.4. Quests for personal gains have
become so intense that those involved in
litigation do not hesitate to take shelter of
falsehood and misrepresent and suppress
facts in the court proceedings. Materialism,
opportunism and malicious intent have
overshadowed the old ethos of litigative
values for small gains.
32.5. A litigant who attempts to pollute
the stream of justice or who touches the
purefountain of justice with tainted hands is
not entitled to any relief, interim or final.
32.6. The court must ensure that its
process is not abused and in order to
prevent abuse of process of court, it would
be justified even in insisting on furnishing of
security and in cases of serious abuse, the
court would be duty-bound to impose heavy
costs.
32. This Court also would like to rely on the decision
of the Apex Court in the case of Sciemed Overseas Inc.,
referred supra wherein the Apex Court observed with
regard to imposition of exemplary costs filing of false or
misleading affidavit, imposition of cost fully justified of
Rs.10 lakh on petitioner for filing a false or misleading
affidavit in Court and also observed that there is no reason
to interfere with the impugned judgment and time granted
to the petitioner to make deposit of costs.
33. Having taken note of all these materials available
on record and also the principles laid down in the
judgments referred supra, it discloses that respondent No.2
had obtained the bail order by suppressing the material
facts before the Trial Court. If the said material facts
brought to notice of the Trial Court while exercising the
discretion, then the result would be otherwise. In MOTI
LAL SONGARA's case referred supra, the Apex Court
clearly made that order obtained by suppression of facts
and it is an obligation of the Court to set aside the order. If
any order is obtained by suppressing the fact, respondent
cannot be allowed to take advantage of the order setting
aside cognizance and get order framing charge quashed. It
is also held that victim of offence has as much right to get
justice as accused, Court to do complete justice restored
order framing charges and directed trial to go on. In the
aforesaid case, by suppressing material facts, order was
obtained and in the case on hand also material aspects
have been suppressed by respondent No.2. Hence, the
conduct of respondent No.2 has to be taken note of by this
Court. Having considered the principles laid down in the
judgments referred supra, this Court has to take note of the
events which are relevant to make mention herein. The
relevant dates and events are mentioned in a tabular
column as follows:
Date Particulars of events
01.07.2022 This Court in Crl.P.No.4320/2022, set aside
the order dated 04.04.2022 passed in
Crl.Misc.No.3084/2022 and cancelled the
anticipatory bail.
07.07.2022 Respondent No.2 has filed
W.P.No.13787/2022 i.e., within a span of 7
days invoking Section 482 of Cr.P.C by
suppressing the order passed by this Court in
Crl.P.No.4320/2022.
25.07.2022 Respondent No.2 obtained an order of stay in
respect of the investigation under
Cr.No.80/2022 in W.P.No.13787/2022 by
suppressing the order passed by this Court in
Crl.P.No.4320/2022.
15.03.2022 This Court having noticed the suppression of
material facts i.e., the order passed by this
Court in Crl.P.No.4320/2022, vacated the stay
granted observing that the said order of stay
was obtained by misrepresentation of facts.
16.06.2023 This Court in the W.P.No.13787/2022 taking
note of revival of the earlier order of
cancellation of bail and non-implementation of
direction given by this Court to take
respondent No.2 into custody, an explanation
is sought from the Deputy Commissioner of
Police within one week since they have
provided a protection to respondent No.2 as
he belongs to the police department and also
directed the Deputy commissioner of Police to
present before the Court if he fails to give
explanation as sought by this Court.
17.06.2023 Respondent No.2 clandestinely surrendered
before the Trial Court in order to prevent the
implementation of direction given by this
Court in W.P.No.13787/2022 on the part of
the Deputy Commissioner of Police where
there was a clear direction to the Deputy
Commissioner of Police to present before the
Court if he fails to take into custody of
respondent No.2
30.06.2023 Respondent No.2 obtained regular bail by the
Trial Court in Crl.Misc.No.5631/2023 by
playing fraud and suppressing the orders
passed by this Court on 15.03.2022 and
16.06.2023.
34. Having considered these events it is clear that it
is nothing but fraud on the Court and respondent No.2 also
gone to the extent of by hook or crook, he has to get a
relief to avoid the order passed by this Court in
Crl.P.No.4320/2022 and order passed in
W.P.No.13787/2022 dated 16.06.2023, he had indulged in
committing fraud on the Court suppressing the order
passed by this Court in Crl.P.No.4320/2022, again
approached this Court by filing writ petition under Section
482 of Cr.P.C in W.P.No.13787/2022 wherein also at the
first instance he had obtained an order of stay suppressing
the truth and after noticing the same, this Court in writ
petition vacated the stay order and directed the Deputy
Commissioner of Police to take respondent No.2 to custody
and thereafter, respondent No.2 clandestinely surrendered
before the Trial Court and obtained an order of regular bail
by once again suppressing the orders of this Court passed
on 15.03.2023 as well as on 16.06.2023. Hence, it is clear
that it is nothing but a fraud on the Court and he had gone
to the extent of indulging in these acts that too being a
police constable which is the department of maintaining of
law and order. When this Court comes to the conclusion
that respondent No.2 obtained the orders by playing fraud
and he had indulged in such acts, it is necessary to curb the
conduct of this type of litigant committing fraud on the
Court and interfering with the administration of justice and
the same has to be curbed with iron hand and also to be
dealt with by imposing heavy cost when respondent No.2
gone to the extent of polluting the stream of justice which
come in the way of administration of justice. It is also
appropriate to direct the Registrar General to file a
complaint before the jurisdictional police narrating all these
facts by himself or authorizing a person to file a complaint
before the Vidhana Soudha police and the matter has to be
probed since on this Court as well as on the Trial Court,
respondent No.2 has committed fraud which comes within
the limits of Vidhana Soudha police station.
35. Now, coming to the merits of the case wherein it
is alleged that respondent No.2 has committed the offences
punishable under Sections 376, 417, 323 and 506 of IPC
and also had sexual intercourse continuously with the
petitioner on the promise of marriage but he failed to marry
the petitioner and threatened her under the roof of police
powers and police department also protected him without
complying with the directions given by this Court in
Crl.P.No.4320/2022 and the Deputy Commissioner of Police
also did not comply with the order passed by this Court in
W.P.No.13787/2022 which clearly shows an abuse of
process and playing of fraud on the Court in obtaining
favourable order in his favour and getting an order by
different forums by suppressing the material facts which
leads to the extent of polluting the stream of justice which
came in the way of administration of justice as held in the
judgment referred supra. The conduct of respondent No.2
also not brought to notice of the Trial Court even by the
department of Prosecution though this Court in Nanjappa's
case referred supra has given direction to the concerned
Director of Prosecution of the State to instruct the Public
Prosecutor of the State that they are duty bound to supply
necessary information to the concerned Court regarding
pendency or decision of an earlier bail application of the
accused in the same offence after taking information from
the concerned IO/Police official. In the case on hand, the IO
also suppressed the same before the Trial Court and
indirectly helped respondent No.2 in getting the impugned
order only for the reason that respondent No.2 belongs to
the police department. Thus, the impugned order dated
30.06.2023 passed in Crl.Misc.No.5631/2023 is liable to be
set aside. Hence, it is a fit case to exercise the powers
under Section 439(2) of Cr.P.C to cancel the bail. Thus,
point No.1 is answered accordingly.
Point No.2:
36. In view of the discussions made above, I pass
the following:
ORDER
i. The petition filed under Section 439(2) of
Cr.P.C. is allowed.
ii. The impugned order dated 30.06.2023
passed in Crl.Mis.No.5631/2023 is set aside
and the Deputy Commissioner of Police of
the concerned jurisdiction is directed to
take respondent No.2 to custody and
subject him for trial.
iii. Respondent No.2 is directed to pay cost of
Rs.1,00,000/- to the Karnataka State Legal
Services Authority within a period of two
weeks. If the cost is not paid within a
period of two weeks, registry is directed to
recover the same in accordance with law.
iv. The Director of Prosecution of the State
shall instruct the Public Prosecutor of the
State that they are duty bound to supply
necessary information to the concerned
Court regarding pendency or decision of an
earlier bail application as well as the order
passed under Section 482 of Cr.P.C to the
concerned Court before exercising the
discretion to avoid polluting the stream of
justice by unscrupulous litigants in view of
the direction given by this Court in the
judgment reported in ILR 2022 KAR 3625
by issuing circular/memo.
v. The Registrar General is directed to file a
complaint by himself or authorizing a
person to file complaint with the Vidhana
Soudha police station against respondent
No.2 to investigate the matter with regard
to the fraud played by respondent No.2 on
this Court as well as on the Trial Court in
getting the bail order as well as order in
W.P.No.13787/2022 as observed in the
order.
vi. The Registrar General is directed to send a
copy of this order to the concerned
Presiding Officer and keep the order in his
service record since inspite of a reference
was made in the bail application about
cancellation of bail order, he did not look
into the order passed by this Court with
regard to cancellation of bail of respondent
No.2 and proceeded to grant the bail
without referring the same.
Sd/-
JUDGE
SN
