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Allahabad High Court · body

2013 DIGILAW 1780 (ALL)

RAMESH CHANDRA v. STATE OF U. P.

2013-07-05

BHARAT BHUSHAN

body2013
JUDGMENT : This criminal revision is directed against the judgement and order dated 11.1.2007 passed by learned Addl. Sessions Judge, Court No. 8, Meerut whereby the Criminal Appeal No. 99 of 2006 ( Ramesh Chandra and others Vs State of UP) arising out of Criminal Case No. 1035 of 2005 ( Case Crime No. 52 of 1990, State Vs Ramesh Chandra and others) under Sections 498-A/494 IPC and Section 3 /4 of Dowry Prohibition Act, P.S. Saroorpur, District Meerut convicting the appellant and other co accused persons was partly allowed by acquitting the appellants namely Ramesh Chandra, Smt Ramkali, Smt Rajesh and Smt Mundro under Section 4 98-A IPC and Section 3 /4 Dowry Prohibition Act and further the appellant Ramesh Chandra was convicted under Section 4 94 IPC and sentenced for two years rigorous imprisonment along with fine of Rs. 1000/- with default stipulation. 2. Brief facts of the case are that the revisionist initially solemnised marriage with the complainant Smt Ramo Devi on 8.5.1984. The revisionist secured ex-parte decree of divorce on 6.1.1988 from the Addl. District Judge, Ludhiana. After the divorce the revisionist Ramesh Chandra solemnised another marriage under Special Marriage Act with Madhubala. Subsequent to this marriage, the first wife Smt Ramo Devi moved the Ludhiana court for cancellation of the ex-parte decree of divorce on 22.8.1989 which was allowed and ex-parte decree of divorce was set aside on 16.5.1992 by the learned Addl. District Judge, Ludhiana. 3. The first wife Ramo Devi lodged an FIR for cruelty on non fulfilment of dowry demands and also for bigamy on 16.5.1992. Trial Court vide order dated 30.11.1994 passed by IXth Addl. Chief Judicial Magistrate, Meerut convicted the revisionist Ramesh Chandra under Section 4 98-A IPC and sentenced him to undergo 2 years imprisonment along with fine of Rs. 1000/- with default stipulation. He was also convicted and sentenced under Section ¾ Dowry Prohibition Act for six months imprisonment and fine of Rs. 2000/- with default stipulation. The revisionist was also convicted and sentenced under Section 4 94 IPC for two years imprisonment along with fine of Rs. 1000/- with default stipulation. The other co accused persons namely Smt Rajesh, Smt Mundaro and Smt Ramkali were also convicted and sentenced under Sections 498-A IPC ¾ D.P. Act read with Section 3 4 of IPC for varying degree of imprisonments and also fine in all sections with default stipulations. 1000/- with default stipulation. The other co accused persons namely Smt Rajesh, Smt Mundaro and Smt Ramkali were also convicted and sentenced under Sections 498-A IPC ¾ D.P. Act read with Section 3 4 of IPC for varying degree of imprisonments and also fine in all sections with default stipulations. 4. Against this order, the revisionist and other co accused preferred criminal appeal in the court of learned Sessions Judge, Meerut and the appellate court set aside the judgement and order dated 30.11.1994 passed by IXth Addl. Chief Judicial Magistrate, Meerut and remanded the matter back. 5. Thereafter, the matter was again tried and the revisionist along with other co accused were convicted and sentenced vide order dated 17.2.2006 passed by Special CJM, Meerut. The revisionist and other co accused preferred an appeal against this order in the court of Addl. Sessions Judge, Court No. 8, Meerut which was partly allowed. All the appellants were acquitted under Sections 498-A IPC and Section ¾ Dowry Prohibition Act but the revisionist Ramesh Chandra was convicted under Section 4 94 IPC and sentenced for two years rigorous imprisonment along with fine of Rs. 1000/- with default stipulation. Feeling aggrieved, the instant criminal revision has been preferred. 6. It is contended by learned counsel for the revisionists that on the date when the second marriage took place i.e. 22.6.1989, the ex-parte decree of divorce dated 6.1.1988 was subsisting. Even the application for setting aside the ex-parte decree was moved by complainant on 22.8.1989 i.e. after the date of second marriage and as a matter of fact, ex-parte decree was set aside on 16.5.1992. 7. In support of this contention, counsel for the revisionist has relied upon a judgement of the Supreme Court in the case of Krishna Gopal Divedi Vs Prabha Divedi, 2004 SCC ( Cri) 473, which has been followed by this Court in Deepak Kumar Vs Murari Lal, 2004 ( 50) ACC 372. 8. On the other hand, learned AGA contended that the revisionist obtained the ex-parte decree of divorce by playing fraud upon the court. 8. On the other hand, learned AGA contended that the revisionist obtained the ex-parte decree of divorce by playing fraud upon the court. His further contention is that in the light of cancellation of the ex- parte decree by the Court vide order dated 16.5.1992, there remains no dispute with regard to the validity and subsistence of the first marriage of revisionist with the first wife and therefore, the offence committed by the revisionist is clearly proved and that he has been rightly convicted by the courts below. 9. Heard learned counsel for the revisionist, learned AGA and have perused the material on record. 10. I have gone through the impugned judgment and order and also other materials on record. It is settled position of law that High Court will exercise its revisional power where there is a material error or defect in law or procedure, misconception or misreading of evidence, failure to exercise or wrong exercise of jurisdiction or where the facts admitted or proved do not disclose any offence. 11. As a broad proposition, the interference may be justified ( a) where the decision is grossly erroneous; ( b) where there is no compliance with the provisions of law; ( c) where the finding of fact affecting the decision is not based on the evidence; ( d) where the material evidence of the parties has not been considered; and ( e) where the judicial discretion is exercised arbitrarily or perversely. 12. Hon'ble the Apex Court in "Jagannath Chaudhary Vs. Ramayan Singh", AIR 2002 SC 2229 , has held that revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error or point of law and consequently there has been a flagrant miscarriage of justice. 13. The facts of the present case are not in dispute. The marriage between revisionist and the complainant Smt Ramo Devi was solemnized on 8.5.1984. A suit for divorce was filed by revisionist on 13.11.1987. Revisionist obtained an ex-parte decree of divorce on 6.1.1988. The second marriage was performed by the revisionist with another woman on 22.6.1989. Application under Order IX Rule 13 C.P.C. for setting aside the ex-parte decree was filed by the complainant on 22.8.1989. A suit for divorce was filed by revisionist on 13.11.1987. Revisionist obtained an ex-parte decree of divorce on 6.1.1988. The second marriage was performed by the revisionist with another woman on 22.6.1989. Application under Order IX Rule 13 C.P.C. for setting aside the ex-parte decree was filed by the complainant on 22.8.1989. One of the grounds taken therein was that her husband had obtained an ex-parte decree of divorce against her by using an imposter and forged power of attorney purporting to have been executed by her in favour of one Piara Singh, Advocate to represent her in the petition for the divorce. This was done by the revisionist to procure the decree of divorce. It is averred that she was not served with any summons and fraud was played on her as well as on the court. The application for setting aside ex-parte decrees was allowed by the Court vide order dated 16.5.1992, wherein connivance of the revisionist came to light. The court at Ludhiana held that the ex-parte decree of divorce was obtained by managing to show that the complainant Smt Ramo Devi was represented by a counsel in the petition for divorce and thereafter the ex-parte decree was passed on account of the failure of her counsel to put in appearance in the court on the date fixed. The court also held that fraud was played on the first wife but also on the Court. 14. In this regard, the statement of the first wife adduced before the Court of A.D.J at Ludhiana is on record. The statement indicates that the first wife was living with her husband under normal circumstances. She was selected for the police service and went for training on 14.5.1988. Her husband accompanied and left her at training centre. The relevant part of the statement is reproduced herein below:- " I was married to the petitioner Ramesh Chander on 8.5.1984 at Meerut City. I had been living with my husband and before going to my training in the police department on 14.5.1988, I was living with him at V Sudhar in the building of Labh Singh. The training was of 15-17 months duration and my husband had accompanied me for leaving me for training at the training centre. After completion of my training I was posted as ASI in PS Vivek Bihar on my first appointment. The training was of 15-17 months duration and my husband had accompanied me for leaving me for training at the training centre. After completion of my training I was posted as ASI in PS Vivek Bihar on my first appointment. In the first week of August, 1989, I visited Sudhar my husband's house. I was stunned to see that another girl Madhu Bala was living with my husband, who represented herself to be the wife of Chander, She told me that she was given to understand that a divorce had been taken from my husband by me. She could not tell any particulars about the divorce case. On 20.8.1989, I enquired from the Ludhiana Courts Record Office. The particulars about the decree being of Ludhiana Court were disclosed to me by a friend of Ramesh Chander Sargent B.P. Singh. The file was got inspected through my counsel. I never authorised any Piara Singh advocate, nor I appointed him to represent me in any case. I do not know even any advocate by the name of Piara Singh. I have seen the Original power of attorney dated 8.12.1987, placed on the file of the divorce petition, purporting to have been executed by me in favour of Shri Piara Singh, Advocate. I have seen the signatures thereunder which are forged and the are not my signatures. I do sign on the petition for setting aside the decree." 15. This statement was given for setting aside the exparte decree of divorce. Some other evidence was also produced before the Court at Ludhiana. Her contention was accepted by the Court at Ludhiana. Exparte decree of divorce was set aside on the ground that fraud was committed on the first wife as well as on the court in procuring the exparte decree of divorce. It was done by managing to show that the first wife was represented by a counsel in the petition for divorce and thereafter the exparte decree was obtained on the failure of her counsel to put in appearance on the date fixed before the court at Ludhiana. It was done by managing to show that the first wife was represented by a counsel in the petition for divorce and thereafter the exparte decree was obtained on the failure of her counsel to put in appearance on the date fixed before the court at Ludhiana. The relevant part of the conclusion of the judgement dated 16.5.1992 of Ludhiana Court is quoted as under: "On account of the denial of the signatures by Ms Ramo Devi on the power of attorney filed in the main petition for divorce by Shri Piara Singh I as a matter of abundant caution took place the specimen signatures of Ms Ramo Devi in order to obviate her to recall from Delhi of hoping that Ramesh Chander may like to examine a handwriting expert to compare the signatures on the various documents got produced by him from the Bank bearing signature of Ms Ramo Devi applicant with the signatures on the power of attorney but he did not examine any expert. What is shocking is the fact that the statement of Ms Ramo Devi that the power of attorney in question was forged and she never engaged Shri Piara Singh, Advocate to represent her has remained completely unchallenged. No evidence was produced to prove the execution of the power of attorney by her in favour sri Piara Singh by RameshChander and I consider it to be an exercise in futility to refer to the evidence that has been adduced in the rebuttal by Ramesh Chander in view of the clinching and conclusive evidence available on record to show that a fraud was committed on the court in procuring the exparte decree of divorce by managing to show that Ms Ramo Devi was represented by a counsel in the petition for divorce and thereafter the exparte decree was passed on account of the failure of her counsel putting an appearance in the court on the date fixed. Evidently, this court would be under a legal obligation to set aside such an exparte decree and there are sufficient grounds for doing so. The question of the applicability of any bar of limitation would not arise in such a case where fraud was played not only on Ms Ramo Devi but also on the court and accordingly, decide both the issues in favour of the applicant." 16. The question of the applicability of any bar of limitation would not arise in such a case where fraud was played not only on Ms Ramo Devi but also on the court and accordingly, decide both the issues in favour of the applicant." 16. It is therefore clear the ex-parte decree of divorce was the result of fraud played on the court. The law is very much settled that a decree obtained by fraud is not a decree in the eyes of law. 17. In A.V. Papayya Sastry and others vs. Govt. of A.P and others ( 2007) 4 SCC 221 the Supreme Court explained the consequences, where any judgment or order is obtained by the party by playing fraud on the Court. The Supreme Court observed in paragraphs 21 to 33, as follows:- "21. Now, it is well settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed; "Fraud avoids all judicial acts, ecclesiastical or temporal". 22.It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the first Court or by the final Court has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings. 23.In the leading case of Lazarus Estates Ltd. v. Beasley, ( 1956) 1 All ER 341 : ( 1956) 1 QB 702 : ( 1956) 2 WLR 502, Lord Denning observed: "No judgment of a court, no order of a Minister, can be allowed to stand, if it has been obtained by fraud." 24. In Duchess of Kingstone, Smith's Leading Cases, 13th Edn., p.644, explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was 'mistaken', it might be shown that it was 'misled'. There is an essential distinction between mistake and trickery. In other words, though it is not permissible to show that the court was 'mistaken', it might be shown that it was 'misled'. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment. 25. It has been said; Fraud and justice never dwell together ( fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none ( fraus et dolus nemini patrocinari debent). 26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of 'finality of litigation' cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants. 27. In S.P. Chengalvaraya Naidu ( dead) by LRs. V. Jagannath ( dead) by LRs. & Ors. ( 1994) 1 SCC 1 : JT 1994 ( 6) SC 331, this Court had an occasion to consider the doctrine of fraud and the effect thereof on the judgment obtained by a party. In that case, one A by a registered deed, relinquished all his rights in the suit property in favour of C who sold the property to B. Without disclosing that fact, A filed a suit for possession against B and obtained preliminary decree. During the pendency of an application for final decree, B came to know about the fact of release deed by A in favour of C. He, therefore, contended that the decree was obtained by playing fraud on the court and was a nullity. The trial court upheld the contention and dismissed the application. During the pendency of an application for final decree, B came to know about the fact of release deed by A in favour of C. He, therefore, contended that the decree was obtained by playing fraud on the court and was a nullity. The trial court upheld the contention and dismissed the application. The High Court, however, set aside the order of the trial court, observing that "there was no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". B approached this Court. 28. Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as 'wholly perverse', Kuldip Singh, J. stated: "The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan- dodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation". 30. The Court proceeded to state: "A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as on the opposite party". 31. The Court concluded: "The principle of 'finality of litigation' cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants". 32. In Indian Bank v. Satyam Fibres ( India) Pvt. Ltd., ( 1996) 5 SCC 550 : JT 1996 ( 7) SC 135, referring to Lazarus Estates and Smith v. East Elloe Rural District Council, 1956 AC 336 : ( 1956) 1 All ER 855 : ( 1956) 2 WLR 888, this Court stated; "22. The judiciary in India also possesses inherent power, specially under Section 151 C.P.C., to recall its judgment or order if it is obtained by Fraud on Court. The judiciary in India also possesses inherent power, specially under Section 151 C.P.C., to recall its judgment or order if it is obtained by Fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the Constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business". 32. In United India Insurance Co. Ltd. v. Rajendra Singh & Ors., ( 2000) 3 SCC 581 : JT 2000 ( 3) SC 151, by practising fraud upon the Insurance Company, the claimant obtained an award of compensation from the Motor Accident Claims Tribunal. On coming to know of fraud, the Insurance Company applied for recalling of the award. The Tribunal, however, dismissed the petition on the ground that it had no power to review its own award. The High Court confirmed the order. The Company approached this Court. 33. Allowing the appeal and setting aside the orders, this Court stated; "15. It is unrealistic to expect the appellant company to resist a claim at the first instance on the basis of the fraud because appellant company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the company to file a statutory appeal against the award. Not only because of bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then. 16.Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. 16.Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No Court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim. 17. The allegation made by the appellant Insurance Company, that claimants were not involved in the accident which they described in the claim petitions, cannot be brushed aside without further probe into the matter, for, the said allegation has not been specifically denied by the claimants when they were called upon to file objections to the applications for recalling of the awards. Claimants then confined their resistance to the plea that the application for recall is not legally maintainable. Therefore, we strongly feel that the claim must be allowed to be resisted, on the ground of fraud now alleged by the Insurance Company. If we fail to afford to the Insurance Company an opportunity to substantiate their contentions it might certainly lead to serious miscarriage of justice". 18. If this court allows this revision on the ground that the second marriage was contracted while the ex-parte decree of divorce was in force then it would amount to rewarding the revisionist for the fraud committed by him on the Ludhiana Court. Fraud obliterated the effect of so called ex-parte decree of divorce. 19. Considering the above judgements of the Hon'ble Apex Court it is clear that any judgement or order obtained by fraud cannot be said to be a judgement or order in the eyes of law. Exparte decree obtained by the revisionist was really not in force on the date of second marriage. Therefore, the revisionist cannot be given any benefit of judgement of Hon'ble Apex Court in Krishna Gopal Dwivedi's case ( Supra). The revisionist solemnised second marriage on the strength of decree of divorce obtained by fraud which was set aside by the Court at Ludhiana on 16.5.1992 on the said ground therefore, the argument of non existence of the first marriage on the date of second marriage cannot be accepted. 20. In view of the discussions made herein above, the revision has no force and is hereby dismissed. 20. In view of the discussions made herein above, the revision has no force and is hereby dismissed. The revisionist is directed to surrender before the court below forthwith to serve out the remaining period of sentence. In case the revisionist does not surrender before the court below, the court below shall be at liberty to issue coercive process against the revisionist. Copy of this order and the record of the courts below be sent back to the trial court within a fortnight for compliance.