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2019 DIGILAW 306 (ORI)

Sanjida Bibi v. State of Orissa

2019-04-11

S.K.SAHOO

body2019
JUDGMENT : S.K. Sahoo, J. This is an application under section 439 (2) of Cr.P.C. for cancellation of bail which was granted to the opposite party no.2 Sk. Moji @ Miajan in BLAPL No.3687 of 2017 as per order dated 24.05.2017 in connection with G.R. Case No.600 of 2016 pending on the file of learned S.D.J.M., Bhadrak. 2. Mr. M.A. Ali, learned counsel for the petitioners submitted that that opposite party no.2 Sk. Moji @ Miajan approached this Court for bail for the first time in an application under section 439 of Cr.P.C. vide BLAPL No.1568 of 2017 which was rejected as per order dated 13.04.2017 taking into account that the opp. party no.2 had set fire to the victim by pouring kerosene on her body in connection with non-fulfillment of demand of dowry and the medical examination report indicated that the victim had sustained 70% of burn injuries and that the burn injuries had completely disfigured the victim who presented herself in Court at the time of hearing of the bail application being identified by her advocate and further taking note of the fact that the act of the petitioner was extremely shocking and inhuman and further keeping in view the nature and gravity of the accusation. 3. Learned counsel for the petitioners further submitted that the opp. party no.2 again moved an application for bail before this Court during vacation in BLAPL No.3687 of 2017 which was filed on 22.05.2017 and it was not brought to the notice of this Court about the earlier rejection of his bail application in BLAPL No.1568 of 2017. It is further submitted that the learned Court taking into account the submission made on behalf of the opposite party no.2 that he is in judicial custody since 08.07.2016, granted bail to him since final charge sheet had already been submitted. It is further contended that not only at the time of rejection of the earlier bail application in BLAPL No.1568 of 2017, final charge sheet had been submitted but the opposite party no.2 was taken into custody on 24.01.2017 and not on 08.07.2016 as was submitted before the Court and by suppressing material facts and misleading the Court, bail order was obtained during vacation on 24.05.2017 and therefore, since the order has been obtained by playing fraud on the Court, the bail order should be cancelled. 4. 4. Notice was issued to the opposite party no.2 by Special Messenger and service return is back with noting of valid service. None appears on behalf of the opposite party no.2. 5. Mr. Prem Kumar Patnaik, learned counsel for the State supported the submission made by the learned counsel for the petitioners and contended that since it is a heinous crime and the victim has sustained 70% burn injuries due to overt act committed by the opposite party no.2 and opposite party no.2 has obtained the bail order by playing fraud on the Court, the bail order is required to be cancelled. 6. On perusal of the file of BLAPL No.3687 of 2017, it appears that it is mentioned therein that the matter out of which the bail application arose was never before this Court in any form whatsoever. This is obviously suppression of material fact relating to the earlier rejection of the bail order by this Court. Since the earlier application was rejected in BLAPL No.1568 of 2017 by another Bench, had it been pointed out to the Vacation Judge, it would have been directed to be listed before the Hon'ble Judge who rejected the earlier bail application in view of the standing order of the Hon'ble Chief Justice as well as decisions of the Hon'ble Supreme Court in case of Shahzad Hasan Khan -Vrs.- Ishtiaq Hasan Khan, (1987) 2 SCC 684 and in case of Harjeet Singh @ Seeta -Vrs.- State of Punjab, (2002) AIR SC 3040. 7. Law is well settled as held in the case of Moti Lal Songara -Vrs.- Prem Prakash @ Pappu and another, (2013) 55 OCR 881 (SC) that anyone who takes recourse to method of suppression in a Court of law, is, in actuality, playing fraud with the Court, and the maxim suppresio veri, expression falsi i.e. suppression of the truth is equivalent to the expression of falsehood, gets attracted. It has been further held that as the order has been obtained by practicing fraud and suppressing material fact before a Court of law to gain advantage, the said order cannot be allowed to stand. In case of K.D. Sharma -Vrs.-. It has been further held that as the order has been obtained by practicing fraud and suppressing material fact before a Court of law to gain advantage, the said order cannot be allowed to stand. In case of K.D. Sharma -Vrs.-. Steel Authority of India Limited and Ors., (2008) 12 SCC 481, it is held that the party who invokes the extraordinary jurisdiction of the Supreme Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all the material facts without any reservation, even if those are against him. Suppression or concealment of material facts is not an advocacy. In case of A. V. Papayya Sastry and others -Vrs- Government of A.P. and others, (2007) 4 SCC 221 , it is held that judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non-est in the eye of the law. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceeding. 8. It is apparent from the order dated 24.05.2017 passed in BLAPL No.3687 of 2017 that not only the period of detention of the petitioner has been stated wrongly but also there was suppression of rejection of earlier bail order in BLAPL No.1568 of 2017. Therefore, the bail order has been obtained by playing fraud on the Court, by suppression of material fact and by misrepresentation of fact. Even though very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted as held by the Hon'ble Supreme Court in the case of Daulat Ram -Vrs.- State of Haryana,1995 1 SCC 49, but in view of the fraud committed and misrepresentation of fact, I am inclined to accept the prayer made by the petitioners in this application. Accordingly, the bail order passed in favour of the opp. party no.2 Sk. Moji @ Miajan in BLAPL No.3687 of 2017 as per the order dated 24.05.2017 stands cancelled. 9. The opp. party no.2 shall surrender in the Court below within a week from today failing which immediate steps shall be taken for his arrest. 10. A copy of the order be communicated to the learned S.D.J.M., Bhadrak. 11. The CRLMA is accordingly allowed.