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2016 DIGILAW 1216 (ALL)

Gyan Chandra Agrawal v. State Of U. P.

2016-04-04

KARUNA NAND BAJPAYEE

body2016
JUDGMENT Karuna Nand Bajpayee,J. (Ref : Recall Application No.38130 of 2005) This is an application moved on behalf of opposite party no.2 seeking the recall of the order dated 18.5.2004 passed by this Court and restore the criminal misc. application to its original number and thereafter dismiss the same Criminal Misc. Application filed by the accused u/s 482 Cr.P.C. which has been wrongly allowed in the ignorance of its earlier order of dismissal. 2. Heard Shri Samit Gopal, learned counsel for the applicants and Shri S.N. Tiwari in person who himself is opposite party no.2 and Shri Vimlendu Tripathi, learned Additional Government Advocate for the State. 3. The record of the case reveals that the applicants of the present application u/s 482 Cr.P.C. No.7853 of 1991 are accused in Criminal Case no.257 of 1999 (Shri Narain vs. Gyan Chandra and others) pending before Second Additional Chief Judicial Magistrate, Mirzapur for offence u/s 465, 466, 467 and 471 I.P.C., Police Station-Chunar, District-Mirzapur who were facing proceeding which was at the stage of recording evidence u/s 244 of Cr.P.C. when this application u/s 482 of Cr.P.C. No.7853 of 1991 was preferred before this Court, which after certain developments was allowed vide order dated 18.5.2004. This recall application has been pressed by the opposite party no.2 seeking the recall of the aforesaid order. 4. Facts of the case are that the complainant/opposite party no.2 filed a complaint dated 3.2.1981 before the Court of Judicial Magistrate, Mirzapur as Case No.47 of 1981 against the applicant nos.1, 2 and 3 with the allegations that the complainant/opposite party no.2 and his brother Jagdish took a loan of Rs.45,000/- from State Bank of India, Branch-Chunar, District-Mirzapur for purchase of Escort tractor and at the relevant point of time the applicant no.3 was Manager of the Bank. The opposite party no.2 and his brother received the Escort tractor from the company on 5.7.1978 on which the company had given a guarantee of six months. The opposite party no.2 and his brother received the Escort tractor from the company on 5.7.1978 on which the company had given a guarantee of six months. When the tractor came into possession of opposite party no.2 and his brother, they found that the tractor machine had some fault and was emitting black smoke and also that the hydrolic pump was not working and there were some other defects also in the machine and as a result thereof the tractor could not be used for a single day in the agriculture field in the month of July and as such the opposite party no.2 and his brother did not apply for its registration in R.T.O. Office. They informed the Escort company and the bank through registered letters that the tractor purchased by them is standing and they also sent objections to various other authorities. Ultimately the Escort company got the engine of the tractor repaired on 10.8.1979. However in the meantime, the applicant nos.1, 2 and 3 conspired with each other and got the registration of the tractor done from R.T.O. office on the basis of forged documents in order to get the instalment of loan started and to enable themselves to recover the instalment of loan for the period during which the tractor was standing useless. Allegation is that for this purpose the accused-applicant no.1 prepared a document in his own handwriting and also made a forged signature of one Jokhu Sarpanch and also put a forged seal of said Jokhu Sarpanch. Likewise, the applicant no.2 filled the Form No.22 which was also signed by the applicant no.3. It was further alleged in the complaint that when the opposite party no.2 approached the R.T.O. office for registration of his tractor he was informed that registration has already been done, whereupon the opposite party no.2 obtained the duplicate copies of all the relevant documents and retained the same for the purpose of prosecution of applicants. With these allegations, summoning and awarding punishment to the applicants-accused was prayed by the opposite party no.2 u/s 120-B, 465, 467, 468, 471 and 34 of I.P.C. 5. With these allegations, summoning and awarding punishment to the applicants-accused was prayed by the opposite party no.2 u/s 120-B, 465, 467, 468, 471 and 34 of I.P.C. 5. Upon this complaint the court below proceeded under Chapter-XV of Cr.P.C. and passed the order dated 9.3.1981 issuing summons against the applicant nos.1, 2 and 3 for offences u/s 465, 467, 471 I.P.C. After issuance of summons against the accused vide said order dated 9.3.1981, the accused-applicants challenged the entire proceedings of Case No.47 of 1981 before this Court by means of Crl. Misc. Application No.7017 of 1981 which was ultimately dismissed by this Court vide its order dated 12.4.1982. It shall be necessary to quote the aforesaid order of dismissal herein below which reads as thus : "Hon'ble S. Malik, J. This is an application under section 482 Cr.P.C. praying that the criminal proceedings pending against the three applicants in the court of the III Additional Munsif Magistrate, Mirzapur be quashed for reasons enumerated in the application. The learned counsel for the parties were heard at length. The facts not in controversy are that applicants nos. 1 and 2, namely, gyan Chand Agarwal and Vijay Kumar Gupta are agent and employee, respectively, of Messrs Agarwal Auto Sales, Mirzapur. Applicant No.3 R.N. Tandon was the Manager of the State Bank of India, Chunar Branch in district Mirzapur at the relevant time. Respondent no.1 along with his brother purchased a tractor for Rs.45,000/- from Agarwal Auto Sales, Mirzapur on 5.7.78 after obtaining a loan from the State Bank of India, Chunar branch, as agriculturists. It is also not in dispute that the said tractor was got registered at the office of the R.T.O., Varanasi, during the month of August 1979. According to the allegations made in the complaint resulting in the criminal prosecution against the applicants, the complainant and his brother were not required to repay by instalments the loan they had taken from the State Bank of India, Chunar till they were able to obtain a tractor with the amount of loan and use the same. After the complainant and his brother took deliver of the tractor they discovered that it was defective and could not be used. They therefore, sent complaints not only to the Agarwal Auto Sales, but also to the higher authorities, including the Chief Minister and others. After the complainant and his brother took deliver of the tractor they discovered that it was defective and could not be used. They therefore, sent complaints not only to the Agarwal Auto Sales, but also to the higher authorities, including the Chief Minister and others. The tractor remained lying useless at their place till applicants nos.1 and 2 got it repared in August 1979 and obtained a letter from the complainant that the tractor had been satisfactorily repaired. It is said that to induce the complainant and his brother to deposit the instalments for repaying the loan even while the tractor was lying useless and idle, the three accused-applicants conspired and got the tractor registered which it was lying idle and was not used even for a day, with the R.T.O. Some photostat copies have been filed along with the affidavit and some copies were also produced during arguments. Section 482 Cr.P.C. is not meant to have an inquiry or trial transferred to the High Court for disposal from the subordinate court where the matter is pending. The High Court should only interfere under Section 482 Cr.P.C. to give effect to any order passed under the code of Criminal Procedure or to prevent abuse of the process of any court, or otherwise to secure the ends of justice. The only clause appearing in section 482 Cr.P.C. relevant for the purposes of this case is whether non-interference by this Court would result in an abuse of the process of the court of the III Additional Munsif-Magistrate. What amounts to 'an abuse of the process of the court' has been dealt with in detail by the Supreme Court in a number of cases, including Dr. Vimla vs. Delhi Administration (A.I.R. 1963 SC, Page 1572). The recent pronouncement of the Supreme Court is to be found in the case Khacheru Singh vs. State of U.P., reported in A.I.R. 1982 S.C., Page 784 (2). Vimla vs. Delhi Administration (A.I.R. 1963 SC, Page 1572). The recent pronouncement of the Supreme Court is to be found in the case Khacheru Singh vs. State of U.P., reported in A.I.R. 1982 S.C., Page 784 (2). As observed by the Supreme Court, the High Court in order to decide whether there has been an abuse of the process of the court or whether non-interference by the High Court is going to result in an abuse of the process of the court, should consider whether the allegations made against the accused in the complaint, as in this case, amount to a criminal offence, or whether allegations made in the complaint are so very unnatural or are so absurd that no reasonable man could believe the same to be true. Nothing could be brought to the notice of the Court due to which it could be said that the allegations, if believed, do not amount to a criminal offence or that they are so unnatural that no reasonable person could believe them. It would not be proper at this stage to to comment on the merits of the case or the documents produced before the Court. It may be observed that it would be open to the accused-applicants to convince the trial court that even if the allegations in the complaint are believed no case is made out against them, and to obtain their discharge on that ground. I, therefore, do not consider this a fit case in which interference under Section 482 Cr.P.C. is called for. The application is rejected and the stay order is hereby vacated. D/- 12.4.1982" 6. Thereafter, the proceedings of Case No.47 of 1981 continued and the case reached to the stage of 244 of Cr.P.C. and three witnesses were examined at that stage namely Shri Narain as P.W.-1, Uma Shankar Mishra-P.W.-2 and Bhagwati Prasad as P.W.-3. After recording of oral evidence of these persons, arguments were heard before the stage of framing of charge and the concerned Judicial Magistrate passed order dated 18.4.1991 holding therein that the offences u/s 465, 466 and 471 I.P.C. are made out and the charges for the same be framed. The concerned court below also held that the case was not one wherein the accused could be discharged u/s 245 of Cr.P.C. Despite the earlier dismissal of their application by this Court, the applicants once again preferred Crl. Misc. The concerned court below also held that the case was not one wherein the accused could be discharged u/s 245 of Cr.P.C. Despite the earlier dismissal of their application by this Court, the applicants once again preferred Crl. Misc. Application No.7853 of 1991 on 7th July, 1991 before this Court with the prayer of quashing of entire proceedings of Criminal Case No.257 of 1990 (Old No.47 of 1981) u/s 465, 466, 467 and 471 I.P.C. Police Station-Chunar District-Mirzapur. On this application u/s 482 Cr.P.C. filed for quashing of the proceedings of aforesaid criminal case, initially notices were issued and further proceedings of said criminal case were stayed vide interim order dated 11.7.1991 passed by this Court. The order sheet reveals that the notices so issued by this Court to the opposite party no.2 had returned back after service and a noting thereof was made by the office of this Court on 17.5.2004. On 18.5.2004 the case was listed before this Court and was heard in the presence of counsel for the applicant and learned A.G.A. for the State and this Court allowed the application u/s 482 of Cr.P.C. and the proceedings of aforesaid criminal case were quashed. To appreciate the rival contentions, it would be apt to quote the order dated 18.5.2004 also passed by this Court which reads as follows : - "Hon'ble Imtiyaz Murtaza, J." Heard learned counsel for the applicant and the learned A.G.A. for the State. Present application has been filed for quashing of the proceedings of Case No.257 of 1990 pending in the court of Addl. C.J.M. Mirzapur under Section 465 , 466, 467 and 471 I.P.C. Police Station Chunar District Mirzapur. Opposite party no.2 has filed complaint on the ground that applicants had sold Tractor to the complainant which developed some defects and after repeated request the defects were rectified by the applicants. The applicants were aggrieved by the complainant because the papers which were sent for registration including certain documents verifying the address of the owner of the Tractor contained wrong name. The name of the owner is wrongly shown as Jokhu Sarpanch. On these grounds opposite party no.2 had filed the present complaint. Applicants' counsel submits that on the basis of complaint there is no evidence to prove that the document which was filed for registration was a false document and no damage or injury is caused to the opposite party no.2. On these grounds opposite party no.2 had filed the present complaint. Applicants' counsel submits that on the basis of complaint there is no evidence to prove that the document which was filed for registration was a false document and no damage or injury is caused to the opposite party no.2. The Tractor is registered in the name of complainant and there is no dispute about the ownership of the Tractor. After hearing learned counsel for the parties. Perusal of the complaint and the statement of witnesses indicates that no injury or damage is caused to the complainant. The tractor is registered in the name of the complainant and despite the service of notice of this petition no one had appeared to oppose the same. The ingredients of the offence are missing. The complaint does not disclose any offence. Accordingly application is allowed and the proceedings of Case No.257 of 1990 pending in the court of II Addl. Chief Judicial Magistrate, Mirzapur are quashed. Dated : 18.5.2004." 7. After passing of aforesaid order dated 18.5.2004 by this Court, the opposite party no.2 filed this recall application dated 13.2.2005 supported with delay condonation application along with stay vacation application and also with the counter affidavit disclosing therein that the applicants had obtained the order dated 18.5.2004 by concealing the crucial fact that they had earlier preferred a Criminal Misc. Application No.7017 of 1991 (Gyan Chandra Agarwal and another vs. Shree Narain Tripathi and another) and said criminal misc. application was dismissed by this Court vide order dated 12.4.1982 with the observation that the perusal of complaint makes out prima facie offences and the applicants have liberty to raise their grievances before the trial court. It has also been stated in this recall application that the copy of notice of Criminal Misc. application was dismissed by this Court vide order dated 12.4.1982 with the observation that the perusal of complaint makes out prima facie offences and the applicants have liberty to raise their grievances before the trial court. It has also been stated in this recall application that the copy of notice of Criminal Misc. Application No.7853 of 1991 was served to the opposite party no.2 but he could not appear before this Court as in the mean time two brothers and two sisters-in-law of the opposite party no.2 died and the opposite party no.2 came to know about the order passed by this Court on 18.5.2004 only in the first week of February by a rumour in the area, whereupon the opposite party no.2 inquired and ultimately found on 9.2.2005 that the order dated 18.5.2004 has been passed by this Court in favour of applicants and hence this recall application was being pressed before this Court for recall of the order dated 18.5.2004 which has been obtained by the applicants on the basis of concealment of facts and by misleading this Court. Further prayer to restore the Criminal Misc. Application No.7853 of 1991 to its original number and thereafter to dismiss the same as being misconceived was also made. The order-sheet discloses that the record of Criminal Misc. application No.7017 of 1981 was sent for by this Court vide order dated 20.5.2005 and hence the record of said criminal misc. application was also tagged with Criminal Misc. Application No.7853 of 1991 and is available at present before this Court. 8. It would further be apt to quote the prayer of the earlier Criminal Misc. Application No.7017 of 1981, which is as follows : "It is, therefore, most respectfully prayed that proceedings in Case No.47 of 1981 pending in the Court of III Additional Munsif Magistrate, Mirzapur, Sri narain Tripathi v. Gyan Chand Agarwal and others, under Sections 465, 466, 471 I.P.C. be quashed." 9. Initially this Court vide order dated 17.11.1981 passed interim order staying the further proceedings of aforesaid criminal case by issuing notice, however later on the present opposite party no.2, who was impleaded as opposite party no.1 in the said Criminal Misc. Application No.7017 of 1981, put his appearance through counsel and ultimately this Court after hearing counsel for the parties at length passed order of dismissal dated 12.4.1982 which has already been quoted above. 10. Application No.7017 of 1981, put his appearance through counsel and ultimately this Court after hearing counsel for the parties at length passed order of dismissal dated 12.4.1982 which has already been quoted above. 10. The main contention of Shri Tiwari is that the impugned proceedings were already challenged earlier by way of another 482 Cr.P.C. application which was rejected by the Court. Subsequently, concealing the aforesaid fact of dismissal, another application under Section 482 Cr.P.C. has been filed after a long gap of time and the Court has been virtually duped to pass an ostensibly incompatible order as this second application was got allowed and the proceedings of the complaint case have been quashed. Further submission is that though the applicant-opposite party no. 2 was served with the notice, but he could not put his appearance due to the reasons disclosed in his affidavit filed in support of recall application regarding the repeated deaths of his family members. Contention is that the order of getting the impugned proceedings quashed was obtained by concealment of fact, therefore, the recall application is well maintainable and the order dated 18.5.2004 deserves to be recalled and the present application, which is nothing but just an another application virtually with the same prayer, should be dismissed. 11. Shri Samit Gopal, counsel appearing for accused-applicants was heard who submitted that after rejection of the first application, the witnesses were produced under Section 244 of Cr.P.C. and therefore, the stage of case changed and the applicants were entitled to come up before this Court with the fresh developments and could have challenged the impugned proceedings going on against them at a later stage also. Therefore, another application allowing which the impugned proceedings were quashed, was maintainable and there is nothing wrong in the same. In this regard, Shri Gopal referred paragraphs no. 3, 12 and 13 of the affidavit filed along with the application. 12. Entire record has been perused in the light of submissions made at the bar. 13. In view of the submissions made by the parties and in the light of record of both the cases, questions arise as to whether the Criminal Misc. Application No.7853 of 1991 tantamounts to be the second petition for the same relief on the basis of same cause of action or not and also as to whether the non disclosure of earlier Criminal Misc. Application No.7853 of 1991 tantamounts to be the second petition for the same relief on the basis of same cause of action or not and also as to whether the non disclosure of earlier Criminal Misc. Application No.7017 of 1981 filed by the applicants in the proceedings of Crl. Misc. Application No.7853 of 1991 amounts to be the concealment of material fact or not. Although Shri Samit Gopal, counsel for the applicants tried to defend the stand of applicants by submitting that both the criminal misc. applications relate to different stages of case and as such the applicants became entitled to come up before this Court with such prayer as has been sought by them and hence neither the subsequent criminal misc. application is second petition nor there is any concealment of material fact and for this purpose he has referred to para nos.3, 12 and 13 of the affidavit filed along with the Criminal Misc. Application No.7853 of 1991 wherein it has been stated that the stage of Section-244 of Cr.P.C. had commenced before the court below. Contention is that the evidence u/s 244 of Cr.P.C. is different from the stage when statements are recorded u/s 200 and 202 Cr.P.C. The contention of Shri Samit Gopal, learned counsel for the applicants appears to be apparently fallacious in as much as both the criminal misc. applications were preferred seeking the relief of quashing of entire criminal proceedings of the case pending before the court below. The order of summoning dated 9.3.1981 was neither challenged in the first criminal misc. application nor the order rejecting discharge nor the order directing the framing of charges u/s 465, 466 and 471 I.P.C. dated 18.4.1991 was challenged in subsequent Criminal Misc. Application No.7853 of 1991. Challenge to the entire proceedings of the case does not stand on similar footing with that of the challenge of different respective orders passed by the court below at different stages of criminal proceedings. The cause of action in view of relief claimed by the applicants in the present case was one and the same i.e. relief against continuation of criminal proceedings against accused before the court below. Had it been a case of challenge against the respective orders passed by the concerned court below, it could have been a slightly different position in shade as the cause of action for filing criminal misc. Had it been a case of challenge against the respective orders passed by the concerned court below, it could have been a slightly different position in shade as the cause of action for filing criminal misc. application or petition before this Court could then have been called by the counsel to be somewhat different. But once any of the respective orders that might have been passed at different stages have not been challenged by the applicants before any superior court, or to put it in other words, once they have attained finality having been accepted and acquiesced in by the applicants, then the applicants cannot be treated to be aggrieved from such respective orders. That being so, the genus and species of both the criminal misc. applications appear to be one and the same, which doubtlessly makes the criminal Misc. Application No.7853 of 1991 a second petition for the same relief and cause of action. 14. Although there may be some instances of filing second petition under section 482 of Cr.P.C. in the wake of change of circumstances like, compromise between parties in matrimonial dispute matters, etc. but then such second petition is entertained only when the parties come before this Court with clean hands disclosing all the relevant eventualities they might have come across before coming to this Court including the fact of filing or the dismissal of their earlier petition at some earlier stage of the criminal proceedings. 15. The desirability or expedient need of entertaining subsequent petition regarding same criminal case by the same party before this Court even though it may be a second petition requires determination and consideration of several factors and the fair disclosure or the unfair non-disclosure of filing of earlier petition is one of the major factors to be taken into account before embarking upon the course of such determination. 16. The disclosure about filing of earlier petition by the applicants in the proceeding of subsequent petition is disclosure of one such material fact which is not only essential for appropriate adjudication by this Court but also essential to ensure fairness and bonafide intentions of the applicants who have approached this Court to invoke its inherent jurisdiction u/s 482 of Cr.P.C. which is to be used sparingly and not in any cavalier or casual manner. In this respect it would be worthwhile to refer to a judgement of Hon'ble Supreme Court in Murlidhar vs. State of U.P. etc. (1995) Suppl-3 SCC 662, wherein the order was obtained from the High Court by filing petition u/s 482 of Cr.P.C. without disclosing the fact that an earlier revision petition filed u/s 379/401 of Cr.P.C. had already been rejected by the High Court. The Supreme Court deprecated such practice resorted to the party in the case with following observations : - "2. It appears that the impugned order dated 3.1.1994 was obtained by filing a petition u/s 482 of the Code of Criminal Procedure without disclosing the fact that an earlier revision petition filed under sections 397/401 of the Criminal Procedure Code had been rejected by the High court on 23.12.1993. It is not disputed that in the memo of petition under section 482 of the Code this important fact was not disclosed. What would have been the effect of disclosure is not a matter on which we would like to comment. We would leave that for the High Court to decide but we certainly do not appreciate a party obtaining an order from the High Court without disclosing the material fact which may have a bearing on the ultimate order that the High Court may like to make. We, therefore, cannot allow the impugned order to stand." 17. The Apex Court has held time and again that the fraud, concealment or suppression of material fact makes the whole proceeding void and one who does not come with clean hands deserves no sympathy. In Smt. Shrisht Dhawan vs. M/s. Shaw Brothers: (1992) 1 SCC 534 , it has been held as under : - "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. 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 another case S. P. Chengalvaraya Naidu v. Jagannath: AIR 1994 SC 853 , Apex court has observed as follows: - "7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence". 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. 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 whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation." 18. 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 whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation." 18. The opposite party no.2 has also relied upon judgements of Supreme Court in Ram Chandra Singh vs. Savitri Devi and others, 2004 (54) ALR 400 SC and Union Bank vs. Satyam Fibres (India) Pvt. Ltd. (1996) 5 SCC 550 , which also deal with issue of obtaining orders/ judgements from the court on the basis of fraud/concealment of material fact. 19. In this regard learned A.G.A. Shri Vimlendu Tripathi, rendering his valuable assistance, has also pointed out that when this Court came across with repeated instances of filing of second petition u/s 482 of Cr.P.C., it appears that the Rules of the Court, 1952 (Allahabad High Court Rules) were amended and sub-rule (4) and (5) were added in Rule-3 of Chapter-XVIII (proceedings other than original trials) in Part-III (Criminal Jurisdiction) of the said Rules by means of Notification No.241/VIII-C-2 dated 11.6.2012 published in U.P. Gazatte Part-I (ka), dated 16.6.2012 (w.e.f. 11.6.2012). The said sub-rule (4) and (5) may be quoted herein below : - "(4)- In first paragraph of application under Section 482 of Cr.P.C., criminal revision, transfer application or writ petition (or supporting affidavit thereof) it should be mentioned that no earlier application/ criminal revision/writ petition has been filed in Allahabad High Court or Lucknow Bench against the impugned order (if any) on the same or related cause of action or seeking the same or related reliefs, and no such criminal revision or transfer application for the same relief was pending in the lower court, if any such application was pending, details of the same are to be furnished. Any substantial omission or misstatement on these facts would result ill dismissal of the petition, imposition of costs and prosecution for perjury. Any substantial omission or misstatement on these facts would result ill dismissal of the petition, imposition of costs and prosecution for perjury. (5).- In first paragraph of application under Section 482 Cr.P.C. Criminal Revision, transfer application or writ petition (or supporting affidavit thereof) it should be mentioned that no earlier application/criminal revision/writ petition has been filed in Allahabad High Court or Lucknow Bench against the impugned order (if any) on the same or related cause of action or seeking the same or related reliefs, and no such criminal revision or transfer application for the same relief was pending in the Lower Court. If any such application was pending, details of the same are to be furnished. ........................." 20. In respect of applicability of above noted amended rules, learned A.G.A. has also submitted that the statutes or Rules or Regulations dealing with merely such matters of procedure are presumed to be retrospective unless such a construction is textually inadmissible. He has placed reliance of a number of case laws in this regard. (Ref. : Delhi Cloth & General Mills Co. Ltd. vs. CIT, Delhi, AIR 1927 PC 242 , P.244; Jose De Costa v. Bascora Sadashiva Sinai Narcornim, AIR 1975 SC 1843 , p.1849 : (1976) 2 SCC 917 ; Gurbachan Singh v. Satpal Singh, AIR 1990 SC 209 , p.219). 21. Likewise, according to learned A.G.A. it has also been held by Hon'ble Apex Court that the law relating to procedure, unlike the law relating to vested rights, is not only prospective but is retrospective and would apply to pending matters too. He has tried to substantiate his submission again on the strength of following decisions. (Ref. : Anant Gopal Sheorey vs. State of Bombay, AIR 1958 SC 915 , p.917; Union of India vs. Sukumar Pyne, AIR 1966 SC 1206 ; Tikaram & Sons vs. Commr. of Sales Tax, U.P. AIR 1968 SC 1286 , p. 1292; State of Madras vs. Lateef Hamid & Co., AIR 1972 SC 1781 , p. 1784 : (1971) 3 SCC 560 ; Balumal Jamnadas Batra v. State of Maharashtra, AIR 1975 SC 2083 : (1975) 4 SCC 645 ). 22. According to learned A.G.A. in view of such position of law, the amended Allahabad High Court Rules would be applicable in the present matter and on this score also the Criminal Misc. Application No.7853 of 1991 suffers with material omission or misstatement. 23. 22. According to learned A.G.A. in view of such position of law, the amended Allahabad High Court Rules would be applicable in the present matter and on this score also the Criminal Misc. Application No.7853 of 1991 suffers with material omission or misstatement. 23. At this stage this Court does not propose to finally adjudicate on this aspect of the matter and therefore without going into the question as to whether the amended Allahabad High Court Rules would be retrospectively applicable in the present matter or not, suffice to say that such practice of suppressing the material facts or the suppressing of the earlier similar petitions has been deprecated by this Court in clear terms by inserting such amendment in Allahabad High Court Rules. The amendment is a kind of statutory recognition to the trite maxim that the litigant must come and approach the court with clean hands and that he must not conceal facts the disclosure of which could seriously alter the view of the Court. 24. Keeping in perspective the position of law as discussed above when this Court reverts back to the delay on the part of complainant it appears that although the opposite party no.2 did not appear before this Court prior to the order dated 18.5.2004 despite due service upon him, such default should not dis-entitle him from pressing the present recall application, which enlightens this Court about the mischief played by the applicants for the purpose of obtaining the said order in question dated 18.5.2004. Apart from considering the extremely unfortunate personal circumstances of the complainant the delay in filing the recall application has also been condoned for the aforesaid reason. 25. The record of the present matter reveals and it appears that the applicants have deliberately not disclosed the filing of and the rejection of earlier Criminal Misc. Application No.7017 of 1981 to their counsels for obvious reasons which has resulted into non disclosure of such a material fact in the application. 26. Under the facts as discussed above this Court feels constrained to hold that the Criminal Misc. Application No.7853 of 1991 is a second petition for the same relief and cause of action and suffers from non disclosure of crucially material fact of filing of earlier Criminal Misc. application No.7017 of 1981. 27. 26. Under the facts as discussed above this Court feels constrained to hold that the Criminal Misc. Application No.7853 of 1991 is a second petition for the same relief and cause of action and suffers from non disclosure of crucially material fact of filing of earlier Criminal Misc. application No.7017 of 1981. 27. Now a further question arises as to what is the course available to this court exercising its jurisdiction u/s 482 of Cr.P.C. in the peculiar facts of the present case, when the provisions of Section-362 of Cr.P.C. specifically provide as follows : - "362. Court not to after judgement. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error." 28. The above noted provision gives a clear impression that the court exercising its jurisdiction under any of the provisions of Code of Criminal Procedure has no power of review after the judgment or final order has been rendered or the matter has been finally disposed off by the Court. However, when the High Court encounters with any situation where the judgement or final order has been obtained by any of the parties to the case on the basis of such concealment of material fact which amounts to abuse of process of court, the High Court can always exercise its inherent powers to recall such order in order to maintain the supremacy of law and to ensure that the court proceedings may not be ill used by any unscrupulous person for ulterior motives and the sanctity of this high seat of justice be preserved. In this respect the Hon. Supreme Court has expatiated upon the position of law in State of Punjab vs. Davinder Pal Singh Bhullar and others, 2011 (14) SCC 770 , and the relevant extract of the judgment from paragraphs no.26 to 30 may be profitably quoted herein below : "III. BAR TO REVIEW/ALTER- JUDGMENT 26. There is no power of review with the Criminal Court after judgment has been rendered. The High Court can alter or review its judgment before it is signed. When an order is passed, it cannot be reviewed. BAR TO REVIEW/ALTER- JUDGMENT 26. There is no power of review with the Criminal Court after judgment has been rendered. The High Court can alter or review its judgment before it is signed. When an order is passed, it cannot be reviewed. Section 362 Cr.P.C. is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and is disentitled to entertain a fresh prayer for any relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the order for disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. There is also no provision for modification of the judgment. (See: Hari Singh Mann v. Harbhajan Singh Bajwa & Ors., AIR 2001 SC 43 ; and Chhanni v. State of U.P., AIR 2006 SC 3051 ). Moreover, the prohibition contained in Section 362 Cr.P.C. is absolute; after the judgment is signed, even the High Court in exercise of its inherent power under Section 482 Cr.P.C. has no authority or jurisdiction to alter/review the same. (See: Moti Lal v. State of M.P., AIR 1994 SC 1544 ; Hari Singh Mann (supra); and State of Kerala v. M.M. Manikantan Nair, AIR 2001 SC 2145 ). 27. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Cr.P.C. would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recalllteration has to establish that it was not at fault. (Vide: Chitawan & Ors. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recalllteration has to establish that it was not at fault. (Vide: Chitawan & Ors. v. Mahboob Ilahi, 1970 Crl.L.J. 378; Deepak Thanwardas Balwani v. State of Maharashtra & Anr., 1985 Crl.L.J. 23; Habu v. State of Rajasthan, AIR 1987 Raj. 83 (F.B.); Swarth Mahto & Anr. v. Dharmdeo Narain Singh, AIR 1972 SC 1300 ; Makkapati Nagaswara Sastri v. S.S. Satyanarayan, AIR 1981 SC 1156 ; Asit Kumar Kar v. State of West Bengal & Ors., (2009) 2 SCC 703 ; and Vishnu Agarwal v. State of U.P. & Anr., AIR 2011 SC 1232 ). 28. This Court by virtue of Article 137 of the Constitution has been invested with an express power to review any judgment in Criminal Law and while no such power has been conferred on the High Court, inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code itself. (Vide: State Represented by D.S.P., S.B.C.I.D., Chennai v. K.V. Rajendran & Ors., AIR 2009 SC 46 ). 29. In Smt. Sooraj Devi v. Pyare Lal & Anr., AIR 1981 SC 736 , this Court held that the prohibition in Section 362 Cr.P.C. against the Court altering or reviewing its judgment, is subject to what is "otherwise provided by this Code or by any other law for the time being in force". Those words, however, refer to those provisions only where the Court has been expressly authorised by the Code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 Cr.P.C. and, therefore, the attempt to invoke that power can be of no avail. 30. Thus, the law on the issue can be summarised to the effect that the criminal justice delivery system does not clothe the court to add or delete any words, except to correct the clerical or arithmetical error as specifically been provided under the statute itself after pronouncement of the judgment as the Judge becomes functus officio. Any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law." 29. Any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law." 29. In view of aforesaid discussion the order dated 18.5.2004 passed by this Court is hereby recalled and the criminal misc. application no.7853 of 1991 is restored to its original number and is thereafter being dismissed for the reasons of being a second petition vitiated by the concealment of material fact of filing the earlier Criminal Misc. Application No.7017 of 1981 before this very Court by the same applicant with the same prayer and cause of action. As the merit of the case in hand has already been dealt with by this Court in its order dated 12.4.1982 passed in earlier Criminal Misc. Application No.7017 of 1981, and the same has already been dismissed for being sans merit, there is no occasion or need to deal with the merits of the case once again. 30. Before parting with this case, this Court feels constrained to observe that while passing the present order the Court was all the time conscious of the fact that this is a very old matter relating to a complaint filed in the year 1981 and criminal proceedings of such an old complaint are being revived by allowing this recall application. It was a hard choice but at the same time a necessary one. Ordinarily the long pendency of cases, by itself, is viewed as a favourable circumstance for the accused and some times in extreme cases the extra-ordinary delays not attributable to the accused can even result in termination of the proceedings in a given case. But while hearing the complainant in person in this matter it was not very difficult to see or understand and appreciate the predicament of the complainant who has been waiting, and waiting almost in vain, for all these decades in the quest of justice which has so incessantly eluded him for all these long years. The ordeal of the complainant cannot be said to be in any manner less than that of the accused. In fact the assiduity with which the complainant has pursued his cause speaks of the great faith which he has reposed in this institution. 31. The ordeal of the complainant cannot be said to be in any manner less than that of the accused. In fact the assiduity with which the complainant has pursued his cause speaks of the great faith which he has reposed in this institution. 31. It is so relevant to take note of the fact after dismissal of application by the High Court which was moved on behalf of the accused in the year 1982, the proceedings of the complaint case continued till 1991 when the accused preferred the present second Criminal Misc. Application u/s 482 Cr.P.C. No.7853 of 1991 on 7th July, 1991 before this Court and obtained the interim stay on 11.7.1991 on the basis of concealment of materially crucial fact of earlier dismissal of his application. The pendency of application continued till 2004 when ultimately the entire proceedings of complaint case were quashed as this Court was never made aware of any previous application or the previous order passed by the Court. Thereafter, the recall application was filed in the year 2005 which remained pending till date for one reason or the other. The aforesaid chronology would not make it difficult to understand that since 1991 the time period which has elapsed is principally attributable to the applicants as they themselves have been guilty of not coming to the court with clean hands. All this delay or the long pendency of the proceedings is not attributable to the complainant-opposite party no.2 who is the applicant of the instant recall application. He therefore cannot be deprived of his right to pursue the proceedings of his complaint case and seek justice. Moreover, once the deliberate wrong committed by the accused has come to the notice of this Court, it cannot turn a blind eye to the same nor can the accused claim any advantage or sympathy on the basis of the long pendency of the proceedings which to a great extent is attributable to themselves. No person can be permitted to claim advantage out of his own wrong. The accused might have successfuly duped this Court to pass an order in their favour which was flying in the face of its own earlier verdict, but once such dichotomy has been exposed the only prudent course open for this Court was to act decisively and iron out the incompatibility of the two judicial verdicts pronounced on the same subject matter. This Court can ill-afford to succumb to the trickeries and chicanery of an unscrupulous litigant and shall always do the needful to resuscitate not only the faith of the people in this institution but also to uphold the majesty of law which is supreme. It was in view of this peculiar background that this Court felt impelled to recall its order and allow the reopening the case at hand. 32. It is directed that the Court shall make an endeavour to proceed with the case preferably on day to day basis without granting any adjournment unless required in the interest of justice. As the unfair conduct of the applicants has resulted in colossal waste of public time, a token cost of Rs.5,000/- is imposed upon the applicants to be deposited within a period of four months from today, failing which, the same would be recovered as arrears of land revenue. Office is directed to communicate this order forthwith to the concerned court below in order to proceed with the case accordingly.