Research › Search › Judgment

Allahabad High Court · body

2011 DIGILAW 1051 (ALL)

Makidunnisha and another v. State of U. P. and another

2011-04-22

RAJESH DAYAL KHARE

body2011
Rajesh Dayal Khare, J.;- Heard Sri Alok Kumar Rai, learned counsel for respondent no. 2 and learned Government Advocate for respondent no. 1 on Criminal Misc. Recall Application No. 1034061 of 2011. 2. This application has been filed for recall of the order dated 3.3.2011 passed by this Court in Criminal Misc. 482 Cr.P.C. Application No. 5729 of 2011, Makidunnisha and Sabiya Vs. State of U.P. and another, and further to dismiss the said case with costs. 3. Learned counsel for O.P. No. 2 has stated that the applicants were accused in Case Crime No. 3033 of 2008, u/s 147, 148, 149, 504, 506, 307 I.P.C. and 7 Criminal Law Amendment Act, Police Station Cantt. District Gorakhpur, for an incident, which took place on 4,.12.2008. It is contended by learned counsel for O.P. No. 2 that initially the applicant nos. 1 and 2 alongwith one Azra, wife of Akeel Ahmad, had filed Criminal Misc. Application u/s 482 No. 10817 of 2009, Sabiya and others Vs. State of U.P. and another, for quashing the proceedings of the case arising out of Case Crime No. 3033 of 2008, u/s 147, 148, 149, 504, 506, 307 I.P.C. and 7 Criminal Law Amendment Act, Police Station Cantt. District Gorakhpur, and this Court vide order dated 14.5.2009 disposed of the aforesaid 482 petition with a direction that in case the applicants apply for the grant of bail within 15 days their bail applications shall be heard and disposed of expeditiously, if possible on the same day. The aforesaid order dated 14.5.2009 passed by this Court has been filed as Annexure no. 1 to the affidavit accompanying the recall application (hereinafter referred to as the application). It is noteworthy that the applicant nos. 1 and 2 in the present case were applicant nos. 3 and 1 in the aforesaid 482 petition. 4. Learned counsel for O.P. No. 2 further contended that the applicants did not appear before the court pursuant to the aforesaid order of this court dated 14.5.2009 but filed another Criminal Misc. 482 Application No. 41524 of 2010, Smt. Saoiha Sarfaraz and another Vs. State of U.P. and another, without disclosing the fact that they had earlier filed one 482 petition no. 10817 of 2009. However, the learned counsel for O.P. No. 2 appeared in the aforesaid 482 petition no. 482 Application No. 41524 of 2010, Smt. Saoiha Sarfaraz and another Vs. State of U.P. and another, without disclosing the fact that they had earlier filed one 482 petition no. 10817 of 2009. However, the learned counsel for O.P. No. 2 appeared in the aforesaid 482 petition no. 41524 of 2010 filed by the applicants and informed the Court that the applicants had earlier filed a 482 petition and therefore, the second 482 petition no. 41524 of 2010 was dismissed by this court with costs of Rs. 5000/- vide order dated 11.1.2011, a copy of which has been filed as Annexure no. 2 to the affidavit filed in support of the application. It is contended by learned counsel for O.P. No. 2 that pursuant to the order dated 11.1.2011 the applicants deposited Rs. 5000/- on 10.2.2011 in the office of the Registrar General of this Court. 5. It is further contended on behalf of O.P. No. 2 that the applicants again by concealing the fact that they had filed two 482 petitions, afore detailed earlier filed a third 482 petition being Criminal Misc. Application u/s 482 No. 5729 of 2011, Makidunnisha and another Vs. State of U.P. and another, presently for the same relief, which was claimed in the earlier two 482 petitions and this Court vide order dated 3.3.2011 finally disposed of the third 482 petition with the direction that if the applicants appear and surrender before the Court below within three weeks from today and apply for bail, then their bail application shall be considered and decided in view of the settled law laid down by the Seven Judges' decision of this Court in the Case of Amrawati and another Vs. State of U.P. reported in 2004(57) ALR 290 and in the recent decision of the Supreme Court dated 23.3.2009 in Criminal Appeal No. 538 of 2009, Lal Kamlendra Pratap Singh Vs. State of U.P. 6. It contended by the learned counsel for O.P. No. 2 that pursuant to the aforesaid order dated 3.3.2011 the applicants appeared before the Court and they were granted bail on 17.3.2011 and it was only thereafter the O.P. No. 2 came to know that the applicants had filed a third 482 petition and therefore, the present application has been filed. 7. The applicants undoubtedly concealed the material facts from this Court and have filed repeated 482 petitions. 7. The applicants undoubtedly concealed the material facts from this Court and have filed repeated 482 petitions. When they had filed second 482 petition even costs was imposed upon them, which was deposited by them and inspite of the same the third 482 petition has been filed, which is noting but a gross misuse of the process of the court. 8. Learned counsel for O.P. No. 2 has further brought to the notice of the court that he had gone to serve notice of the present application upon Sri Dinesh Singh, Advocate, learned counsel for applicants, at Seat No. 8, Gown Room Baramda, High Court, Allahabad, i.e. on the address, which was given by the learned counsel for the applicants in the third 482 petition but he was informed that no person by the name of Dinesh Singh sits at the aforesaid place. Learned counsel for O.P. No. 2 further states that he had enquired about Sri Dinesh Singh through his enrolment number and it was informed by the Bar Council that Dinesh Singh was not enrolled on the enrolment number specified by him. 9. In view of the aforesaid facts and circumstances of the case this Court is of the opinion that the order dated 3.3.2011 passed in the present 482 petition deserves to be recalled. 10. Accordingly, the order dated 3.3.2011 passed in the above mentioned 482 petition is recalled. Let the present order alongwith record be placed before the Registrar General for taking appropriate action against the applicants as well as their counsel.