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2018 DIGILAW 490 (ALL)

Fakhrul Hasan @ Chand v. State of U. P.

2018-02-22

DEVENDRA KUMAR UPADHYAYA, DINESH KUMAR SINGH

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JUDGMENT : DEVENDRA KUMAR UPADHYAYA, J. 1. Heard learned counsel for the petitioner and Sri R.K. Dwivedi, learned Additional Government Advocate for the State-respondents. 2. These proceedings instituted under Article 226 of the Constitution of India seek a prayer to issue a writ of mandamus commanding the opposite parties to close the history sheet no. 265-A/2007 initially maintained at Police Station Hazratganj which now stands transferred to Police Station Wazirganj, Lucknow, opened against the petitioner. 3. At the outset, learned Additional Government Advocate appearing for the respondents has brought to the notice of the Court that an order dated 20.07.2011 passed by this Court in Writ Petition No. 7101 of 2011, which too was filed by the petitioner, seeking a prayer for issuing direction for closure of history sheet. The said order has been annexed as annexure no. 1 to the writ petition and reads as under:- "Heard learned counsel for the petitioner, learned A.G.A. and perused the record. With the consent of learned counsel for the parties, the writ petition is disposed of finally. The grievance of the petitioner is that petitioner's history sheet No. A-265/2007 has been opened at the Police Station-Hazratganj, District-Lucknow. Being aggrieved by the inaction on the part of opposite parties, the petitioner has preferred a representation dated 27-05-2011, copy of which has been filed as Annexure No. 7 to the writ petition, but, in-spite of his best efforts, no order has been passed on the said representation. The petitioner is still under surveillance and the continuance of surveillance deprives the petitioner of his right of free movement as provided under Article 19 of the Constitution of India. As the petitioner's representation for his grievance is already pending for disposal and as such, we are entering into the merits of the case and we provide that the representation which has been submitted by the petitioner for closure of the history sheet No. A-265/2007, may be decided by the competent authority, in accordance with law, after affording opportunity of hearing to the petitioner, expeditiously and preferably within a period of one month from the date of production of certified copy of this order as has been held by Hon'ble Apex Court in the Case of Chaman Lal v. State of U.P. and Others (1992 Supreme Court Cases (Crl) 516). With these observations, the writ petition is disposed of finally." 4. With these observations, the writ petition is disposed of finally." 4. From a perusal of the aforesaid order dated 20.07.2011, it clearly appears that the said writ petition was also filed for the same cause of action for which jurisdiction of this Court in this petition has again been invoked. The Court, while disposing of the said petition, directed the competent authority to decide the representation said to have been preferred by the petitioner for closure of history sheet in view of the law laid down by the Hon'ble Supreme Court in the case of Chaman Lal v. State of U.P. and others (1992 SCC (Crl) 516). 5. Admittedly, no fresh cause of action can be said to have accrued to the petitioner to have invoked the writ jurisdiction of this Court by filling the instant petition in the wake of earlier petition already filed by him which stood decided by a coordinate Bench of this Court on 20.07.2011. 6. Under Rules of the Court, on the same cause of action, no second petition is permitted to be filed. The petitioner is a teacher employed with an intermediate institution of this city and cannot be said to be unaware of the basics of invoking the writ jurisdiction of this Court. He is represented by a lawyer. 7. We do find any event/any fresh happening which may give rise to any fresh cause of action to the petitioner to file this petition. 8. The petitioner, in fact, by filing this petition on the same cause of action has attempted to misuse the process of the court and law. 9. At this juncture, learned counsel for the petitioner has feebly sought to justify filing of the instant petition stating that the order dated 20.07.2011 has yet been complied with by the authority concerned, though in pursuance thereof the petitioner had already represented to the competent authority. He has further stated that on account of non-compliance of the said order dated 20.07.2011, the history sheet against the petitioner is still alive and he is under constant surveillance of the police authorities and accordingly he having left with no other alternative remedy has approached this Court again by filing the instant writ petition. He has further stated that on account of non-compliance of the said order dated 20.07.2011, the history sheet against the petitioner is still alive and he is under constant surveillance of the police authorities and accordingly he having left with no other alternative remedy has approached this Court again by filing the instant writ petition. In support of his submission, he has cited the judgment of Hon'ble Supreme Court in the case of The Commissioner, Karnataka Housing Board v. C. Muddaiah, rendered in Civil Appeal No. 4108 of 2007. 10. Drawing attention of this Court to the observations made by the Hon'ble Supreme Court in the said case in paras 30 and 31, it has been stated by learned counsel for the petitioner that any order passed by the Court has to be necessarily complied with by the authorities concerned and in case it is ignored it will result in an end of Rule of Law. 11. We are afraid, the aforesaid judgment cited by learned counsel for the petitioner does help him in his cause of defending filing of the second petition. The facts of the aforesaid case decided by the Hon'ble Supreme Court are entirely different and in any case the Hon'ble Supreme Court in the said case has nowhere observed that in case any judgment or order of Court of Law is complied with by the authorities concerned, the same would give another chance or another cause of action to invoke the jurisdiction of the Court again on the same facts. The said judgment is applicable to the facts of the present case. 12. Learned counsel for the petitioner lastly submitted that the petitioner is compelled to file the instant petition for the reason that limitation for invoking the contempt jurisdiction of this Court under the Contempt of Courts Act has expired for the reason that the order by a coordinate Bench in the earlier petition filed by the petitioner was passed way back on 20.07.2011. 13. Merely because the petitioner has been conscious and alive to the limitation to invoke the contempt jurisdiction of this Court and has been negligent, will, in our considered opinion, give any liberty to him to invoke the writ jurisdiction of this Court again for the same cause of action. Submission made by learned counsel for the petitioner, thus, merits rejection, 14. The petition is, thus, dismissed. 15. Submission made by learned counsel for the petitioner, thus, merits rejection, 14. The petition is, thus, dismissed. 15. As already observed above, since filing of the instant petition clearly amounts to misuse/abuse of the process of the court and law, we deem it appropriate to propose imposing cost on the petitioner which we quantify to be Rs. 50,000/-. 16. At this juncture, learned counsel for the petitioner has repeatedly prayed in right earnest that the petitioner at present is unemployed and that he will never repeat such mistake, hence cost as proposed may not be imposed. 17. In ordinary course, we would have not only imposed the cost as proposed above but would have even ordered for its realization by taking legally permissible coercive measure as well, however having regard to the sincerely made prayer of the learned counsel for the petitioner Sri Siddharth Sinha, who is a promising young lawyer practicing in this Court, we are not passing any order imposing cost. The petitioner is, however, warned and cautioned that he will never misuse/abuse process of court and law in future.