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2012 DIGILAW 293 (CHH)

ISHWARLAL NETAM v. STATE OF C. G.

2012-11-05

PRASHANT KUMAR MISHRA

body2012
ORDER 1. Accused Ishwar Lal Netam was arrested by the concerned police on 3/07/2012 for being allegedly involved in misappropriation of 137 quintals of rice and 78.1 quintals of wheat which was allotted to Maa Annapurna Primary Cooperative Consumer Store, Paras Nagar, Raipur for distribution amongst ration card holders. His bail application under Section 439 Cr.P.C. was dismissed by the First Additional Sessions Judge, Raipur on 17/07/2012. He thereafter moved an application under Section 439 Cr.P.C. before this court on 23/07/2012 bearing M.Cr.C. No. 2860/2012 duly supported by affidavit of his son Bunty Netam aged 27 years. 2. When the said bail application was pending before this court, the applicant preferred another bail application before First A.SJ. on 3/09/2012 which was supported with an affidavit of his another son Narendra Netam. In this application and affidavit it was stated by the said Narendra Netam that no other application of this nature is pending before any sessions court or before High Court of Chattisgarh nor has been decided by this court. 3. Believing the said affidavit the learned First A.S.J. proceeded to take up the application and ordered his release on bail on 3/0912012 itself. When M.Cr.C. No. 2860/2012 came up for hearing on 9/08/2012, State counsel was directed to ascertain from the investigating officer as to whether the sale proceeds of the embezzled rice and wheat has been deposited or not. On 16/08/2012 it was informed by learned State counsel that the present applicant has received 137 quintals of essential commodity for distribution but he has shown only 14 quintals of essential commodity in the stock register. In the distribution register also he has mentioned the said quantity and not the actual quantity which he has received. In view of the said statement, learned counsel for the applicant prayed for time to seek further instruction in the matter. On 23/08/2012, learned counsel for the applicant informed that entire quantity of rice and wheat has been distributed and deposited in the fair price shop and on this submission learned State counsel was directed to file affidavit on 31/08/2012 and on 5/09/2012 State counsel again sought time to file reply. 4. On 14/09/2012 learned counsel for the applicant wanted to withdraw the bail application on the ground that since the applicant has already been released on bail M.Cr.C. No. 2860/2012 has been rendered infructuous. 4. On 14/09/2012 learned counsel for the applicant wanted to withdraw the bail application on the ground that since the applicant has already been released on bail M.Cr.C. No. 2860/2012 has been rendered infructuous. This court summoned a report from the concerned court which is available in the record. 5. On 9/10/2012, this court directed for registration of a case under Section 439 (2) of Cr.P.C and thus present Cr. M.P. No. 797/2012 has been registered in which the accused was granted time to file reply as to why his bail should not be cancelled. 6. According to learned counsel for the accused since he was in jail he was not aware about the pendency of the bail application before this court and further that earlier he had engaged one Mr. Amit Bajpai for filing the bail application and some of his relative/ employer engaged Shri Awadh Tripathi for filing M.Cr.C. No. 2860/2012, however since after filing of the charge sheet his family members taken back the file from Mr. Amit Bajpai and engaged Shri Faisal Rizvi to move the application on his behalf before the First A.S.J. Thus, in substance, the stand taken by the applicant is that on account of change of counsel he was not aware about the pendency of the M.Cr.C. No. 2860/2012 and the mistake is bonafide. 7. This court is not impressed with the reply and argument advanced by learned counsel for the applicant M.Cr.C. No. 2860/2012 was supported with an affidavit of his son whereas the subsequent bail application filed before the First A.S.J., Raipur during pendency of M.Cr.C. No. 2860/2012 was also supported with an affidavit of his son. Though, the applicant has tried to shift the burden as if the mistake is committed by the lawyer, however such is not the case inasmuch as when son of the accused is swearing affidavit to the effect that no other bail application is pending in the High Court, the lawyer had no option but to believe the version of the son of the accused. 8. 8. If the practice is allowed to continue and the accused is allowed to go scot free it will have serious ramification on the entire criminal justice system inasmuch as in a given case an accused who has allegedly committed serious and heinous offence like rape, murder and dacoity may move subsequent bail application before sessions court without disclosing the pendency or dismissal of his bail application by the High Court. Such tendency of committing fraud with the system deserves to be curbed the moment it is brought to the notice of the court, failing which it will pollute the system and serious offenders would misuse the sympathy shown by the court by accepting the reply as bonafide. 9. Anything which is a result of fraud being committed on the court is void ab-initio and any person who obtains benefit of fraud has to surrender the benefit as if courts have not passed any order in his favour. Law in this respect has been settled by the Supreme Court in umpteen number of cases. 10. In the matter of Shrisht Dhawan (Smt) Vs. M/s Shaw Brothers (1992) 1 SCC 534 , following has been held in paragraph 20 :- "20. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, ‘wing me into the easy-hearted man and trap him into snares’. It has been defined as an act of trickery or deceit. In Webster’s Third New International Dictionary fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact Section 17 of the Contract Act defines fraud as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. In a leading English case Derry v. Peek, (1886-90) All ER 1 what constitutes fraud was described thus: (All ER p. 22 B-C). "[F]raud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false." But fraud in public law is not the same as fraud in private law. Nor can the ingredients which establish fraud in commercial transaction be of assistance in determining fraud in Administrative Law. It has been aptly observed by Lord Bridge in Khawaja v. Secretary of State for Home Deptt., (1983) 1 All ER 765 that it is dangerous to introduce maxims of common law as to effect of fraud while determining fraud in relation to statutory law. In Pankaj Bhargava v. Mohinder Nath, (1991) 1 SCC 556 it was observed that fraud in relation to statute must be a colourable transaction to evade the provisions of a statute. "If a statute has been passed for some one particular purpose, a court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope." Craies on Statue Law, 7th edn. p. 79. Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. p. 79. Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administration law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. That is misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which power can be exercised. But nondisclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in commercial transactions non-disclosure of every fact does not vitiate the agreement. "In a contract every person must look for himself and ensure that he acquires the information necessary to avoid bad bargain." Anson's Law of Contract. In public law the duty is not to deceive. For instance non-disclosure of any reason in the application under Section 21 of the Act about its need after expiry of period or failure to give reason that the premises shall be required by son, daughter or any other family member does not result in misrepresentation or fraud. It is not misrepresentation under Section 21 to state that the premises shall be needed by the landlord after expiry of the lease even though the premises in occupation of the landlord on the date of application or, after expiry of period were or may be sufficient. A non-disclosure of fact which is not required by law to be disclosed does not amount to misrepresentation. Section 21 does not place any positive or comprehensive duty on the landlord to disclose any fact except that he did not need the premises for the specified period. Even the Controller is not obliged with a pro-active duty to investigate. Silence or nondisclosure of facts not required by law to be disclosed does not amount to misrepresentation. Section 21 does not place any positive or comprehensive duty on the landlord to disclose any fact except that he did not need the premises for the specified period. Even the Controller is not obliged with a pro-active duty to investigate. Silence or nondisclosure of facts not required by law to be disclosed does not amount to misrepresentation. Even in contracts it is excluded as is clear from explanation to Section 17 unless it relates to fact which is likely to affect willingness of a person to enter into a contract. Fraud or misrepresentation resulting in vitiation of permission in context of Section 21 therefore could mean disclosure of false facts but for which the Controller would not have exercised jurisdiction." 11. In the matter of S.P. Chengalvaraya Naidu (Dead) By Lrs. Vs. Jagannath (Dead) By Lrs. and others (1994) 1 SCC 1 , it has been held thus in paragraph 1 that "Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is thus settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a-judgment/decree by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings and further that a fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a cheating intended to get an advantage. 12. In view of the above pronouncement by the Supreme Court and having found that the applicant has procured order by committing fraud on the court, this court is of the considered opinion that the bail granted to the applicant/accused by the court of First A.S.J., Raipur in bail application No. 1712/2012 decided on 3/09/2012 deserves to be cancelled. 13. The said order is hereby cancelled. The concerned SHO is directed to arrest the accused forthwith and send him to custody. 14. Cr. M.P. stands disposed of. Application Rejected.