Anuj Kumar Biswas v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and 2 Others

Court No. - 13 Case :- APPLICATION U/S 482 No. - 8115 of 2024 Applicant :- Anuj Kumar Biswas Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And 2 Others Counsel for Applicant :- Ram Prasad Dwivedi Counsel for Opposite Party :- G.A. Hon'ble Saurabh Lavania,J.

¶1Sri Ajey Singh, learned Advocate has filed Vakalatnama on behalf of the opposite party no.3, which is taken on record.

¶2Heard learned Counsel for the applicant, Sri Ajey Singh, learned Counsel for the opposite party no.3 and learned A.G.A. for the State and perused the record.

¶3The present application has been filed seeking following main reliefs:- "Wherefore it is most humbly and respectfully prayed that this Hon'ble court may kindly be pleased to set-aside the impugned order dated 02.08.2024 passed by the court of learned Chief Judicial Magistrate, Bahraich in case no. 8282 of 2024 (State Versus Anuj Kumar Bishwas), under section 207 of Motor Vehicle Act pertaining to Police Station Dargah Sharif, District Bahraich, by which the learned magistrate has illegally passed the order for release of the vehicle UP46T2425 in favour of opposite party no. 3 as contained as Annexure No. 1 to this petition."

¶4By means of the present application the applicant has assailed the order dated 02.08.2024 passed by Chief Judicial Magistrate, Bahraich (in short 'Magistrate'), in Case No. 8282 of 2024 (State Versus Anuj Kumar Bishwas), under Sections 207 of Motor Vehicle Act. The order under challenge reads as under:- "02-08-2024 izkFkhZ vuqt dqekj fo'okl iq= 'ks[kjpUnz dh vksj ls okgu iath;u la[;k ;wtiihti 46 Vh@2425 dks vius i{k esa voeqDr fd;s tkus gsrq bl vk/kkj ij izkFkZuki= izLrqr fd;k x;k gS fd iz'uxr okgu iqfyl vfHkj{kk esa [kM+k gS og okgu dk iathd`r Lokeh gSA Fkkuk ifjlj esa [kM+k jgus ls okgu [kjkc gks jgk gSA vr% okgu dks vkosnd ds i{k esa voeqDr fd;k tk;sA leFkZu esa iath;u izek.k i=] dh LdSu dkih lafLFkr dh x;h gSA ,d vU; izkFkZuki= vkosnd lnnke iq= Qrsg eksgEen dh vksj ls okLrs fjyht fd;s tkus iz'uxr okgu bl vk/kkj ij izLrqr fd;k x;k gS fd mlds }kjk iz'uxr okgu tfj, uhykeh VkVk eksVlZ QkbusUl dEiuh ls eqti chl yk[k ipkl gtkj :i;s esa dz; dj tfj, vkWu ykbu VªkatsD'ku :i;s dh vnk,xh fd;kA uhykeh ls iwoZ iathd`r Lokeh vuqt dqekj dks QkbusUl dEiuh }kjk uksfVl fuxZr dh x;h fdUrq buds }kjk cdk;k /kujkf'k dh vnk,xh ugh dh x;hA rRi'pkr~ vuqt dqekj }kjk ekuuh; mPp U;k;ky;] csap y[kuÅ esa ;kfpdk la[;k 3989@2023 ;ksftr dh x;h ftldk fuLrkj.k ekuuh; mPp U;k;ky; }kjk fnukad 19-05-2023 dks djrs gq, bl funsZ'k ds lkFk fuLrkfjr dh x;h fd lacaf/kr izkf/kdkjh ds le{k mifLFkr gksaA rnqijkUr iz'uxr okgu dh uhykeh mijksDr QkbusUl dEiuh }kjk tfj, chMj lkSjHk ds }kjk izkFkhZ ds i{k esa okgu dks lqiqnZ fd;k x;kA iathd`r Lokeh okgu dks vUrfjr djus ls ghyk gokyh dj jgk gSA iqfyl us izkFkhZ o U;k;ky; dks /kks[kk nsdj okgu dks /kkjk 207 ,eti ohti ,DV esa pkyku dj fn;k ftlesa vuqt dqekj us tqeZ bdcky djds okgu dks vius esa fjyht dk vkns'k izkIr dj fy;kA tcfd vuqt dqekj izFke Lokeh ugh gS] izkFkhZ us iz'uxr okgu lacaf/kr QkbusUl dEiuh ls tfj, uhykeh /kujkf'k dk Hkqxrku djds [kjhnk gS okgu Fkkus esa [kM+s jgus ls [kjkc gks jgk gS vr% iz'uxr okgu vkosnd ds i{k esa fjyht djus dh d`ik djsaA vkosnd lnnke us leFkZu esa izkFkhZ vuqt dqekj }kjk cdk;s laca/kh LVsVesUV dh izfr] iath;u izek.k i=] uksfVl dh izfr] vkjchVªs'ku ds vkns'k dh izfr] ifjogu foHkkx dks Hksts x;s QkeZ izk:i dh izfr] QkbusUl dEiuh }kjk ,0vkj0Vhti JkoLrh dks izsf"kr i= dh izfr] QkeZ 36 dh izfr o QksVksxzkQ okgu rFkk vkosnd lnnke }kjk ekuuh; mPp U;k;ky;] csap y[kuÅ esa ;kfpdk la[;k 5472@2024 esa ikfjr vkns'k fnukad 20-06-2024 dh izfr ,oa vuqt dqekj dh vksj lafLFkr ;kfpdk la[;k 5350@2024 esa ekuuh; mPp U;k;ky;] csap y[kuÅ esa ikfjr vkns'k fnukad 13-06-2024 dh izfr lafLFkr fd;k gSA fo}ku vfHk;kstu vf/kdkjh dh vk[;k ds vuqlkj iz'uxr okgu pkykuh fjiksVZ ds vk/kkj ij /kkjk 207 ,etiohti,DV esa lht gqvk gS fjyht dk fojks/k gSA lquk x;k rFkk izi=ksa dk ifj'khyu fd;kA iath;u izek.k i= ds vuqlkj vkosnd vuqt dqekj iz'uxr okgu dk iathd`r Lokeh Fkk] ijUrq vkosnd lnnke dh vksj ls miyC/k djk;s x;s izi=ksa ds vuqlkj iz'uxr okgu mlds }kjk tfj, uhykeh VkVk eksVlZ QkbusUl dEiuh ls okgu dz; dh /kujkf'k eqti chl yk[k ipkl gtkj :i;s dk vkWu ykbu Hkqxrku dj izkIr dh x;h ;g Hkh Li"V gS fd dfFkr uhykeh ds iwoZ lacaf/kr QkbusUl dEiuh }kjk iathd`r Lokeh vuqt dqekj dks cdk;k /kujkf'k dh olwyh gsrq uksfVl tkjh dh x;h ijUrq mlds }kjk Hkqxrku u dj lh/ks ekuuh; mPp U;k;ky; esa ;kfpdk yxk;h x;h ftldk fuLrkj.k ekuuh; mPp U;k;ky; }kjk djrs gq, mls vkjchVªs'ku ds le{k mifLFkr gksdj dk;Zokgh gsrq funsZf'kr fd;k x;kA bl vkns'k ds vuqikyu esa vuqt dqekj vkjchVªs'ku ds le{k ;kpuk i= izLrqr fd;k tks fujLr fd;k tk pqdk gSA mYys[kuh; gS fd vuqt dqekj }kjk izLrqr ekeys esa iwoZ iath;u izek.k i= ds vk/kkj ij tqeZ bdcky izkFkZuki= izLrqr dj viuk dsl lekIr djkus ds mijkUr U;k;ky; esa xyr rF;ksa dks is'k dj okgu dks vius i{k esa fjyht djk fy;kA rnqijkUr vkosnd lnnke dh vksj ls okgu jksdus gsrq ;kpuk i= izLrqr fd;k ftl ij vk[;k ekaxh x;hA blh chp vuqt dqekj us ekuuh; mPPk U;k;ky; esa fjyht vkns'k fnukad 22-04-2024 dk vuqikyu djk;s tkus gsrq ;kfpdk lafLFkr dh x;h ftls fnukad 13-06-2024 dks fujLr dh x;hA rFkk vkosnd lnnke }kjk ;kfpdk la[;k 5472@2024 lnnke izfr ,0vk0Vhtivksti vkfn lafLFkr dh x;h ftldk fuLrkj.k fnukad 20-06-2024 dks ekuuh; mPp U;k;ky; }kjk djrs gq, miyC/k izi=ksa ds vk/kkj ij okgu dk vUrj.k vkosnd ds i{k esa djus gsrq funsZf'kr fd;k x;k ftl gsrq fu/kkZfjr izk:i dk fu"iknu djk;k x;kA pwafd izFke iathd`r Lokeh QkbusUl dEiuh] f}rh; vuqt dqekj fo'okl Fks] fdUrq vuqt dqekj }kjk cdk;k /kujkf'k dk Hkqxrku u djus ij izFke Lokeh@QkbusUl dEiuh }kjk iz'uxr okgu dks vkosnd lnnke ds i{k esa uhyke dj mlds lqiqnZ fd;k x;k gSA ,slh ifjfLFkfr esa iwoZ ikfjr fjyht vkns'k fnukafdr 22-04-2024 ,oa vkosnd vuqt dqekj fo'okl }kjk izLrqr fjyht izkFkZuki= fujLr fd;s tkus rFkk vkosnd lnnke dh vksj ls izLrqr izkFkZuki= okgu fjyht fuEu 'krksZ ds v/khu Lohdkj fd;s tkus ;ksX; gSA vkns'k izkFkZuki= okgu fjyht vkosnd vuqt dqekj fo'okl fujLr fd;k tkrk gSA lkFk gh okgu fjyht ds laca/k esa U;k;ky; }kjk iwoZ ikfjr vkns'k fnukafdr 22-04-2024 Hkh fujLr fd;k tkrk gSA vkosnd lnnke dk okgu fjyht izkFkZuki= Lohdkj fd;k tkrk gSA mlds }kjk eqti chl yk[k :i;s dk O;fDrxr ca/ki= ,oa leku /kujkf'k dh ,d izfrHkw nkf[ky djus rFkk bl vk'k; dh vUMj Vsfdax nsus ij fd og mDr okgu okn vof/k esa lqjf{kr j[ksxk] U;k;ky; vFkok foospd }kjk vknsf'kr fd;s tkus ij vius O;; ij is'k djsxk] mlds jax :i esa dksbZ ifjorZu ugh djsxk okn vof/k ds fy;s mldh lqiqnZxh esa fn;k tk;sA"

¶5The order has been challenged on various grounds including the ground to the effect that the order dated

02.08.2024, in issue, has been obtained by concealing material facts related to the order dated 25.06.2024 passed by this Court in Application U/s 482 No. 5663 of 2024 (Saddam Versus State of U.P. and Others), filed by opposite party no.2/Saddam. The order dated 25.06.2024 being relevant reads as under:- "Let notice be issued to the opposite party no. 3, returnable at an early date. Steps be taken within a week. In the meantime, the State as well as the opposite party no. 3 may file their objections. List/Put up this matter on 16.07.2024, within top five cases. The AGA shall seek instruction in this regard. Till then, the vehicle in question shall not be released in favour of any of the parties. "

¶6It is stated by learned Counsel for the applicant that the order dated 25.06.2024 passed by this Court was not brought to the notice of the concerned Magistrate as if the same was on record the Magistrate would not have passed the impugned order dated 02.08.2024. The opposite party no.3, concealed the material facts related to order dated

25.06.2024, whereby this Court has directed that till the next date of listing the vehicle in question shall not be released in favour of any of the parties.

¶7It is further stated that after obtaining the order under challenge dated 02.08.2024, the opposite party no.3/(applicant in Application u/s 482 No. 5663 of 2024) withdrew the said application, as is evident from the order dated 06.08.2024 (Annexure No. 14). The order dated

06.08.2024 reads as under:- "At the very outset, learned counsel for the applicant says that he does not want to press this application at this stage and it may accordingly be dismissed as not pressed. The aforesaid has not been opposed. In view of the above, the instant application is dismissed as not pressed. Office is directed to return certified copies of the documents annexed with this application to the learned counsel for the applicant as per relevant Rules in this regard."

¶8It is also stated that non placing the interim order dated 25.06.2024 passed by this Court before the Magistrate by the opposite party no.3 amounts to concealment of material fact from the court concerned.

¶9It is further stated that order dated 02.08.2024, in issue, has been obtained by concealment and fraud on court and as such the same is nullity.

¶10Learned Counsel for the applicant also stated that the order impugned dated 02.08.2024, herein, is liable to be interfered with by this Court, in exercise of jurisdiction under Section 428 B.N.S.S., on the ground that the same has been obtained in violation of interim order dated

25.06.2024 passed by this Court as also by concealment of order dated 25.06.2024 and fraud on court.

¶11In response, learned Counsel for the opposite party no.3 stated that it appears that inadvertently the fact related to order dated 25.06.2024 could not be brought to the notice of the Magistrate and also placed various factual aspect of the case before this Court, which this Court is not inclined to consider. It is for the reason that the impugned order dated 02.08.2024 is in the teeth of the interim order dated 25.06.2024 passed by this Court.

¶12The law on the aforesaid is well settled. Accordingly, to the same any action in contravention of interim order of the Court would be nullity. (Vide: Mulraj Versus Murti Raghunathji, AIR 1967 SC 1386; Surjit Singh v. Harbans Singh (1995) 6 SCC 50, 52; Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P) Ltd., (1997) 3 SCC 443; Jehal Tanti Nageshwar Singh, (2013) 14 SCC 689; Satyabrata Biswas v. Kalyan Kumar Kisku, (1994) 2 SCC 266; Jehal Tanti v. Nageshwar Singh, (2013) 14 SCC 689; DDA v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622; Century Flour Mills Ltd. v. S.  Suppiah, 1975 SCC OnLine Mad 73; Sujit Pal v. Prabir Kumar Sun, 1985 SCC OnLine Cal 146 and Keshrevial Jivji Shah v. Bank of Maharashtra, 2004 SCC OnLine Bom 368).

¶13Undisputedly the order dated 25.06.2024 was not brought to the notice of concerned Magistrate by the opposite party no.3 and being so, this Court is of the view that opposite party no.3 has concealed the material facts of the case for getting the order 02.08.2024 in his favour.

¶14Further, order obtained by concealment of material facts amounts to playing fraud on court and fraud vitiates all solemn acts and a party who obtains an order in its favour is not entitled to be heard on merits of the case. In this regard relevant portion of judgment passed in Writ Petition No. 5874(MB) of 2020 (Manvendra Singh Versus State of U.P. and Others) decided on 06.03.2020, is extracted herein below:- ""Keeping in view the said facts as well as the law laid down by the Hon'ble Apex Court in the case of Prestige Lights Ltd. v. State Bank of India : (2007) 8 SCC 449, wherein ti has been held that in exercising power under Article 226 of the Constitution of India, the High Court is not just a court of law, but is also a court of equity and a person who invokes the High Court's jurisdiction under Article 226 of the Constitution, is duty bound to place all the facts before the court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court then it will be fully justified in refusing to entertain petition filed under Article 226 of the Constitution. The Apex Court Court while referring to the judgment of Scrutton, LJ. in R v. Kensington Income Tax Commissioners, observed as under:- "In exercising jurisdiction under Article 226 of the Constitution, the High Court will always keep in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise-guilty of misleading the Court, then the Court may dismiss the action without adjudicating the matter on merits. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible." In Welcome Hotel and Ors. v. State of Andhra Pradesh and Ors. etc. AIR 1983 SC 1015, the Apex Court has held that a party which has misled the Court in passing an order in its favour is not entitled to be heard on the merits of the case. In K.D. Sharma v. Steel Authority of India Ltd. and Ors., [2008 (12) SCC 481] the Apex Court has held that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the Writ Court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. The same rule was reiterated in G. Jayshree and Ors. v. Bhagwandas S. Patel and Ors.: (2009) 3 SCC 141. In Dalip Singh Versus State of Uttar Pradesh and others [(2010) 2 Supreme Court Cases 114], the Apex Court seriously criticized the making of false statement on oath and the attempt of a litigant in misleading the Court. It is settled law that one should approach the court with clean heart and clean mind to get a relief and one who does not come with clean heart and clean mind, dis-entitles himself from getting any relief from the Court. From what has been mentioned above, it is clear that the petitioner has filed this writ petition with oblique motives and has not presented the correct facts just to gain undue advantage. Such type of practice should always be discouraged and is highly deprecated. They belong to the category of persons who not only attempt, but succeed in polluting the course of justice. In Ram Preeti Yadav Vs. U.P. Board of High School and Intermediate Education and others, 2003 (Suppl.) 3 SCR 352, it was reiterated after referring to various earlier decisions of the Apex Court that fraud, misrepresentation and concealment of material fact vitiates all solemn acts. In State of Andhra Pradesh & another Vs. T. Suryachandra Rao, AIR 2005 SC 3110, the Apex Court after referring to various earlier decisions held that suppression of a material document would also amount to a fraud on the Court. The same view has been reiterated in Bhaurao Dagdu Paralkar Vs. State of Maharashtra & others, AIR 2005 SC 3330. In R. Vishwanatha Pillai Vs. State of Kerala & others, JT 2004(1) SC 88 the Apex Court observed that a person, who seeks equity, must act in a fair and equitable manner. In Rajabhai Abdul Rehman Munshi Vs. Vasudev Dhanjibhai Mody, AIR 1964 SC 345, it was held that "if there appears on the part of a person, who has approached the Court, any attempt to overreach or mislead the Court by false or untrue statements or by withholding true information which would have a bearing on the question of exercise of the discretion, the Court would be justified in refusing to exercise the discretion or if the discretion has been exercised in revoking the leave to appeal granted even at the time of hearing of the appeal". The same view was reiterated and followed in Vijay Syal & another Vs. State of Punjab & others (2003) 9 SCC 401. In addition to abovesaid facts, the aforesaid concealment is also amounts to make fraud on the court, so in view of the above said facts, Hon'ble Apex Court in Andhra Pradesh State Financial Corporation Vs. M/S GAR Re-Rolling Mills & Anr,., AIR 1994 SC 2151; and State of Maharashtra & Ors. Vs. Prabhu, (1994) 2 SCC 481, has observed that a writ court, while exercising its equitable jurisdiction, should not act as to prevent perpetration of a legal fraud as the Courts are obliged to do justice by promotion of good faith. Equity is, also, known to prevent the law from the crafty evasionss and subletties invented to evade law. Hon'ble Apex Court in Smt. Shrisht Dhawan Vs. Shaw Brothers, AIR 1992 SC 1555, has held as under:- "Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct." In United India Insurance Co.Ltd. Vs. Rajendra Singh & Ors., (2000) 3 SCC 581, the Apex Court observed that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries. The ratio laid down by the Supreme Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud by entertaining the petitioners on their behalf. In Union of India & Ors. Vs. M.Bhaskaran, 1995 Suppl. (4) SCC 100, the Apex Court, after placing reliance upon and approving its earlier judgment in District Collector & Chairman, Vizianagaram Social Welfare Residential School Society. Vizianagaram & Anr. Vs. M. Tripura Sundari Devi,

(1990) 3 SCC 655, observed as under:- "If by committing fraud any employment is obtained, the same cannot be permitted to be countenanced by a Court of Law as the employment secured by fraud renders it voidable at the option of the employer." Similar view has been reiterated by the Apex Court in the case of S. Pratap Signh Vs. State of Punjab, AIR 1964 SC 72;. Ram Chandra Singh Vs. Savitri Devi & Ors., (2003) 8 SCC 319; and Vice Chairman, Kendriya Vidyalaya Sangathan & Anr. Vs. Girdharilal Yadav, (2004) 6 SCC 325. Thus "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud."

¶14In view of the aforesaid, the present application is allowed. The order dated 02.08.2024 passed by the concerned Magistrate is hereby set aside. The matter is remanded back to the concerned Magistrate to decide the case a fresh strictly in accordance with law, expeditiously. Order Date :- 12.09.2024 Jyoti/- High Court of Judicature at Allahabad, Lucknow Bench