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2023 DIGILAW 2328 (ALL)

Vaibhav Jaiswal v. State Of U. P.

2023-10-10

SANJAY KUMAR SINGH

body2023
JUDGMENT : 1. Heard Mr. Ram Raj Pandey, learned counsel for the applicant, Mr. Deepak Mishra, learned Additional Government Advocate assisted by Mr. Ajay Singh, learned Brief Holder representing the State, Mr. Shubham, learned counsel for accused (opposite party nos. 2, 3 and 4). 2. This application under Section 482 Cr.P.C. has been preferred by the complainant-applicant with a prayer to quash the impugned order dated 26.05.2023 passed by the Additional Sessions Judge, Court No. 15, Bulandshahr in Criminal Revision No. 49 of 2023 (Vichitra Gupta and others Vs. State of U.P.) arising out of summoning order dated 29.03.2022 in Complaint Case No. 55 of 2022, under Sections 323, 325, 504, 506, 452 IPC, police station Kotwali City, district Bulandshahr. 3. Brief facts of the case, which are required to be stated are that in an incident which took place on 09.12.2021, applicant/complainant-Vaibhav Jaiswal received injuries, in respect whereof the applicant filed a criminal complaint dated 01.01.2022 in the Court of Chief Judicial Magistrate, Bulandshahr against opposite party nos. 2, 3 and 4. The learned Magistrate, after recording the statements of the complainant and the witnesses under Section 200 and 202 Cr.P.C respectively, summoned opposite party nos. 2, 3 and 4 under Section 204 Cr.P.C. to face trial for the offence under Sections 323, 325, 504, 506, 451 I.P.C. vide order dated 29.03.2022. The said summoning order dated 29.03.2022 was challenged by the accused-opposite party nos. 2, 3 and 4 before the High Court by filing an application under Section 482 Cr.P.C. No. 10374 of 2022. The High Court vide order dated 15.09.2022, while declining to interfere with the summoning order dated 29.3.2022, directed the applicants therein to surrender before the Trial Court and to file bail application, which was directed to be decided by the Trial Court in terms of the judgment of the Supreme Court in Satender Kumar Antil Vs. CBI and another, (2021) 10 SCC 773 . 4. Instead of complying with the order of this Court dated 15.09.2022, the applicants therein (opposite party nos. CBI and another, (2021) 10 SCC 773 . 4. Instead of complying with the order of this Court dated 15.09.2022, the applicants therein (opposite party nos. 2, 3 and 4 ) by concealing the order dated 15.09.2022 passed by the High Court filed criminal revision under Section 397, 399 Cr.P.C. on 03.10.2022 before the Additional Sessions Judge, Court No. 15, Bulandshahr against the same summoning order dated 29.03.2022, in which, the applicant, who is complainant, filed objection dated 19.04.2023 mentioning the relevant facts about dismissal of the application under Section 482 Cr.P.C. No. 10374 of 2022 vide order dated 15.09.2022 by the High Court (copy whereof has been brought on record as Annexure No. 10 to this application) but the revisional court, ignoring the said fact, allowed the criminal revision vide order dated 26.05.2023 setting aside the summoning order dated 29.03.2022 directing the learned Magistrate concerned to pass fresh order, which is the subject matter of challenge by the complainant in the present application. 5. On putting query as to whether pursuant to order dated 26.05.2023, Chief Judicial Magistrate, Bulandshahr has passed any further order in the matter or not, it has been informed by learned counsel for the parties that no further order has been passed by the Chief Judicial Magistrate. 6. Assailing the impugned order dated 26.05.2023, main substratum of argument of learned counsel of the applicant is that the accused persons-opposite party nos. 2, 3 and 4 have preferred criminal revision under Section 397 and 399 Cr.P.C. against the summoning order dated 29.03.2022 before the Additional Sessions Judge by concealing the material fact that their application under Section 482 Cr.P.C. against the same summoning order has already been rejected by the High Court vide order dated 15.09.2022. The said fact and order dated 15.09.2022 of the High Court was brought to the notice of the revisional Court by the applicant through his objection, but the revisional Court ignoring the objection of the applicant illegally allowed the criminal revision filed by the accused vide impugned order, which is not sustainable and is liable to be quashed. 7. Learned A.G.A. representing the State has supported the summoning order dated 29.03.2022 by contending that considering the allegations levelled in the complaint as well as statement under Section 200 Cr.P.C. of the complainant and witnesses under Section 202 Cr.P.C., the cognizable offence is made out against the opposite party nos. 7. Learned A.G.A. representing the State has supported the summoning order dated 29.03.2022 by contending that considering the allegations levelled in the complaint as well as statement under Section 200 Cr.P.C. of the complainant and witnesses under Section 202 Cr.P.C., the cognizable offence is made out against the opposite party nos. 2, 3 and 4, hence summoning order was not liable to be interfered with and the same has been illegally set aside by the revisional Court. 8. Learned Additional Government Advocate has fairly conceded that after the High Court has declined to interfere with the summoning order 29.03.2022 vide order dated 15.09.2022 and this fact has been brought to the notice of the Additional Sessions Judge, Court No. 15, Bulandshahr by the applicant by means of objection, the Additional Sessions Judge should not have entertained the revision and pass order, but the learned Judge has not only entertained the revision, but also set aside the summoning order, which is in the teeth of the order of this Court. 9. Learned counsel for opposite party nos. 2, 3 and 4 in response submits that after dismissal of the application under Section 482 Cr.P.C. No. 10374 of 2022 of the accused-opposite party nos. 2, 3 and 4 on 15.09.2022 by this Court, Criminal Revision No. 49 of 2023 was filed by opposite party nos. 2, 3 and 4 on the ill-advise of their counsel. 10. Having heard the submissions of learned counsel for the parties and perusing the record, I find that it is also not in dispute that the complainant, who himself is injured, has received as many as eight injuries on his body and in the x-ray report, his nasal bone was found fractured. It is well settled that at the stage of summoning the accused under Section 204 Cr.P.C., the Magistrate is not required to go into the merit and demerit of the case. Genuineness or otherwise of the allegations cannot be even determined at the stage of summoning the accused. Only prima facie satisfaction of the learned Magistrate about the existence of sufficient ground to proceed in the matter is required. 11. In K.D Sharma Vs. Steel Authority of India Limited and others, (2008) 12 SCC 481, Supreme Court held that no litigant can play "hide and seek" with the courts or adopt "pick and choose". Only prima facie satisfaction of the learned Magistrate about the existence of sufficient ground to proceed in the matter is required. 11. In K.D Sharma Vs. Steel Authority of India Limited and others, (2008) 12 SCC 481, Supreme Court held that no litigant can play "hide and seek" with the courts or adopt "pick and choose". To hold a writ of the court one should come with candid facts and clean breast. Suppression or concealment of material facts is forbidden to a litigant or even as a technique of advocacy. 12. The Supreme Court in Dalip Singh Vs. State of Uttar Pradesh and others, (2010) 2 SCC 114 came down heavily on unscrupulous litigants by holding that it is now well established that a litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. 13. In K. Jayaram and others Vs. Bangalore Development Authority and others, (2022) 12 SCC 816, Hon'ble Supreme Court held as under: "It is necessary for us to state here that in order to check multiplicity of proceedings pertaining to the same subject-matter and more importantly to stop the menace of soliciting inconsistent orders through different judicial forums by suppressing material facts either by remaining silent or by making misleading statements in the pleadings in order to escape the liability of making a false statement, we are of the view that the parties have to disclose the details of all legal proceedings and litigations either past or present concerning any part of the subject-matter of dispute which is within their knowledge. In case, according to the parties to the dispute, no legal proceedings or court litigations was or is pending, they have to mandatorily state so in their pleadings in order to resolve the dispute between the parties in accordance with law. In the instant case, since the appellants have not disclosed the filing of the suit and its dismissal and also the dismissal of the appeal against the judgment of the civil court, the appellants have to be non-suited on the ground of suppression of material facts. They have not come to the court with clean hands and they have also abused the process of law. Therefore, they are not entitled for the extraordinary, equitable and discretionary relief." 14. They have not come to the court with clean hands and they have also abused the process of law. Therefore, they are not entitled for the extraordinary, equitable and discretionary relief." 14. Having considered the factual aspect of the matter in hand and the dictum of the Supreme Court, it is well settled that honesty, fairness, purity of mind should be of the highest order to approach the court. In the present case, the accused/opposite party nos. 2, 3 and 4 have misused the process of law by filing criminal revision before the Additional Sessions Judge, Bulandshahr suppressing the material facts and documents that their application under Section 482 Cr.P.C. against the same summoning order has already been dismissed vide order dated 15.09.2022 and despite written objection of the complainant that an application under Section 482 Cr.P.C. against the same summoning order has already been dismissed by the High Court, the revisional court did not even care to mention and discuss the same in the impugned order dated 26.05.2023. As a fall out of the above discussion, keeping in view the judicial hierarchy, proprieties and discipline, this Court is of the view that after dismissal of an application under Section 482 Cr.P.C. against the summoning order by the High Court, the criminal revision under Section 397 and 399 Cr.P.C. against the same summoning order before the Additional Sessions Judge is not maintainable. 15. In view of the above, I do not find any illegality in the summoning order dated 29.03.2022 passed by the Magistrate and the same is impeccable. So far as impugned order dated 26.05.2023 passed by revisional Court (District and Sessions Judge, Bulandshahr) is concerned, the same is not sustainable in the eye of law and is liable to be quashed. 16. Accordingly, the impugned order dated 26.05.2023 passed by the Additional Sessions Judge, Court No. 15, Bulandshahr is quashed and summoning order dated 29.03.2022 passed by the learned Magistrate is upheld. 17. The instant application under Section 482 Cr.P.C. stands allowed. 18. The opposite party nos. 2, 3 and 4 shall immediately surrender before the concerned Court below, failing which the coercive measure shall be adopted against them in order to secure their presence. The concerned Court below shall proceed with the matter pursuant to summoning order dated 29.03.2022 in accordance with law. 19. 18. The opposite party nos. 2, 3 and 4 shall immediately surrender before the concerned Court below, failing which the coercive measure shall be adopted against them in order to secure their presence. The concerned Court below shall proceed with the matter pursuant to summoning order dated 29.03.2022 in accordance with law. 19. Registrar General of this Court is directed to place a copy of this order before the Hon'ble Administrative Judge, Bulandshahr for information.