Ram Kishan vs State of U.P. and Satish Kumar Dubey

R.K. Rastogi, J.—Complainant Satish Kumar Dubey, arrayed as opposite party No. 2 in Crl. Misc. Application No. 26431 of 2007 has filed Criminal Misc. Recall Application No. 265084 of 2007 for recall of the order dated 31.10.2007 passed by Hon''ble S.S. Kulshrestha, J in the above Criminal Misc. Application No. 26431 of 2007, Ram Kishan v. State of U.P. and Anr.

The facts relevant for disposal of this application are that Sri Satish Kumar Dubey had moved an application before the S.S.P. Ghaziabad on 17.6.2006 against the accused Ram Kishan (applicant in Criminal Misc. Application No. 26431/07) and co accused Damodar Das, Suresh Chand Dobariyal, P.K. Banerji, K.C. Dobariyal and K.K. Kaushik with these allegations that he is a member of ''Vartalok Sahkari Samiti Vasundhara'', P.S. Indrapuram District Ghaziabad and the accused are office bearers of that Society. He and other members of that Society had deposited approximately rupees one Crore in respect of their Flats and they had details of those deposits with them. ''However, upon inquiry made from the authorities of the Housing Board they came to know that no amount had been deposited by the Society with the Housing Board and in spite of repeated requests, these office bearers of the Society were not executing any sale deed in favour of their members nor they were depositing the amount with the Housing Board, nor they were giving any satisfactory reply, and, in this way, they had committed criminal breach of trust in respect of that amount of one crore rupees and they were getting the flats released from the Housing Board on the basis of fictitious documents. It was, therefore, prayed that action should be taken in the matter against the accused persons.

On the basis of the orders of the S.S.P. Ghaziabad passed on the aforesaid application, the police of P.S. Indirapuram District Ghaziabad registered a F.I.R. against the accused persons on 1.7.2006 as case Crime No. 384/06 under Sections 420 467 468 471 I.P.C P.S. Indirapuram and investigated the same. After completion of investigation, the I.O. submitted a charge sheet against all the above named accused persons in the court of C.J.M., Ghaziabad under Sections 420 467 468 471 I.P.C. The Chief Judicial Magistrate took cognizance on that charge sheet on 9.8.2007.

Aggrieved with the above order taking cognizance, all the above named accused persons filed an application, being Criminal Misc. Application No. 22268 of 2007, Damodar Das Upadhyay and Ors. v. State of U.P. and Anr. u/s 482 Cr.P.C. through Sri Anurag Pathak Advocate on 5.9.200 7. Ram Kishan (the sole applicant in Crl. Misc. Application No. 26431/07) was Impleaded as applicant No. 6 in this Crl. Misc. Application No. 22268/07. Sri Kamal Krishna, Advocate had put in appearance on behalf of the complainant opposite party No. 2. at the time of hearing on admission of this application, and Hon''ble Vinod Prasad, J., after hearing both the parties finally disposed of the above application at the stage of admission on 11.9.2007 with the following order:

Sri Kamal Krishna Advocate has filed his power on behalf of the respondent, which is taken on record.

Heard learned Counsel for the applicants and learned AGA.

The applicants through this application have prayed for quashing of the charge sheet in Case crime No. 384/06 under Sections 420 467 468 471 I.P.C. pending in the court of CJM Ghaziabad.

There is no reason to quash the charge sheet. This application is merit less. The said prayer is refused.

However, it is directed that if the applicants appear or surrender before the trial court on or before 21.9.2007 and move an application for bail in the aforesaid case, the same shall be disposed off as expeditiously as possible, if possible off the same day by both the courts below, after giving opportunity of hearing to the prosecution.

Non bailable warrant issued against the applicants shall remain in abeyance till 21.9.2007 to enable them to appear before the court concerned and to seek bail. In case of default property of the applicants shall be attached forthwith.

With the aforesaid direction this application is finally disposed of.

It is apparent form perusal of the above order that the prayer for quashing of the charge sheet was refused on merits but it was directed that if the applicants appear or surrender before the Court on or before 21.9.07 and move an application for bail, the same shall be disposed of as expeditiously as possible, and if possible on the same day, by both the courts below, after giving opportunity of hearing to the prosecution and execution of non bailable warrant was directed to be stayed till 21.9.2007 to enable the applicants to appear before the trial Court and to apply for bail. It was further ordered that in case of default, property of the applicants shall be attached forthwith.

It appears that the accused applicants did not comply with the above order and Ram Kishan, who was applicant No. 6 in the above case (Crl. Misc. application No. 22268/07), moved another application being Criminal Misc. Application No. 26431/07 u/s 482 Cr.P.C. in this Court on 29.10.2007 for quashing of the above charge sheet, concealing the filing of aforesaid Criminal Misc. Application No. 22268/07 and obtained orders from Hon''ble S.S. Kulshrestha, J staying further proceedings of Criminal Case No. 13608 of 2007 under Sections 420 467 468 and 471 I.P.C., P.S. Indirapuram Ghaziabad pending in the court of Addl. District Judge Ghaziabad at that time. When notice of this case was received by opposite party No. 2 Satish Kumar Dubey, he moved Criminal Misc. Recall Application No. 265084 of 2007 before this Court for recalling the stay order dated 31.10.07 alleging that it had been obtained by concealing the material facts as well as the filing of previous Criminal Misc. Application No. 22268/07 before this Court and so the stay order dated 31.10.2007 should be vacated and suitable action may be taken against Ram Kishan for tiling a false affidavit in Crl. Misc. Application No. 26431/07.

A counter affidavit has been filed by Ram Kishan in this Misc. recall application No. 265084/07 in which he has alleged that he had never instructed any person to move Criminal Misc. Application No. 22268/07 and this application had been moved without his instruction and so the order passed in that case was not binding upon him and he has legal right to move the present application No. 26431/07 and as such no illegality was committed by him by moving this application.

I have heard the learned Counsel for both the parties and perused the record.

It is to be seen that Criminal Misc. Application No. 22268 of 2007 was filed on behalf of all the six accused persons of Case crime No. 384 of 2006, P.S. Indirapuram District Ghaziabad through Sri Anurag Pathak Advocate. The Parcha (power) filed by Sri Anurag Pathak on behalf of the applicants is on record and on this Parcha it is written that he was filing this Memo on behalf of all the accused applicants as instructed by their pairokar. This application is supported by an affidavit of Sri Suresh Chandra Dobariyal, applicant No. 2 in that case and para 1 of his affidavit runs as under:

That the deponent is the applicant No. 2 and pairokar of remaining applicants in the above noted case and as such he is well acquainted with the facts of the case deposed to below.

It is thus clear that the above application u/s 482 Cr. P.C. was filed on behalf of all the applicants and Sri Suresh Chanra Dobariyal, Who had filed his affidavit in support of that application, was acting as pairokar on behalf of all the applicants including the present applicant Ram Kishan. It is true that no Vakalatnama or memo of appearance signed by the applicants was filed in that case but there has been an old practice in the court to accept memo of appearance signed by Advocates in criminal cases in which the Advocates state as to on whose behalf they are appearing in the case and that authority is considered to be valid without insisting for signatures of the party. The same practice was adopted in the present case also, and so it can not be said that the previous application No. 22268 of 2007 was filed without authority of Ram Kishan. It is noteworthy that all the accused applicants including Ram Kishan were office bearers in the same Society i.e. ''Vartalok Sahkari Samiti Vasundhara'', P.S. Indirapuram District Ghaziabad, hence it can not be imagined that other office bearers of the Society would have included the name of Ram Kishan in this case without his consent.

It is also to be seen that the aforesaid Miscellaneous application No. 22268/07 u/s 482 Cr.P.C. was decided on merits by Hon''ble Vinod Prasad, J vide his order dated 11.9.2007 in which he held that no case for quashing of the charge sheet was made out. He, however, provided an opportunity to the applicants of that case to surrender before the court by 21.9.2007 and apply for bail. It was further ordered that the bail application moved by them be decided expeditiously, if possible on the same date by both the courts below and execution of non bailable warrant against them shall remain stayed till 21.9.2007 to enable them to appear before the court concerned.

If further appears from record that the applicants did not appear before the court concerned by the aforesaid date and as such they moved another application on 24.9.07 Crl. Misc. Application No. 228276/07 for extension of time for their appearance before the court. In this application also Ram Kishan has been arrayed as applicant No. 6 and it has been moved by the same counsel Sri Anurag Pathak. However, none appeared to press this application for extension of time though it was listed for hearing on 5.10.07, 9.10.07, 10.10.07 and 11.10.07 and so ultimately it was ordered to be listed in ordinary course. On the other hand Ram Kishan moved another application (No. 26431/07) u/s 482 Cr.P.C on 29.10.2007 through Sri Rakesh Mohan Srivastava Advocate on which the stay order dated 31.10.2007 was passed by Hon''ble S.S. Kulshrestha, J., after admitting the application u/s 482 Cr.P.C. However, the noteworthy aspect of this case to be seen is that with this application Ram Kishan has not filed any Vakalatnama or Parcha signed by him but a memo of appearance has been filed by Sri Rakesh Mohan Srivastava Advocate who has stated in it that he was appearing on behalf of the applicant as instructed by Ram Kishan. Thus, the position is that in both the cases there is no written authority of Ram Kishan and both the counsel have stated that they were appearing in the case as instructed by the party.

In this way, it becomes clear that in the previous Crl. Misc. application No. 22268/07 filed u/s 482 Cr.P.C. the memo of appearance (Parcha) was filed under instructions of the applicants of that case including Ram Kishan also, who has filed the present Crl. Misc. application No. 26431/07 and, therefore, he can not be permitted to say that Crl. Misc. application No. 22268 of 2007 was moved without his instructions. When that application, filed under his instructions, had been decided finally with certain directions and when Ram Kishan instead of following those directions moved this fresh Crl. Misc. application No. 26431 of 2007 u/s 482 Cr.P.C. concealing the order passed by this Court on the previous Crl. Misc. Application No. 22268/07, he is guilty of committing fraud with the court and so the order passed on the subsequent Crl. Misc. application No. 26431 of 2007 dated 31.10.2007 which has been obtained by committing fraud with the court, can not be permitted to sustain and it is liable to be vacated.

Therefore, the application for recall of the interim order dated 31.10.07 passed in Criminal Misc. Application No. 26431 of 2007 deserves to be allowed and the interim order dated 31.10.07 passed in the above case is liable to be vacated. Since Crl. Misc. application No. 26431 of 2007 has been filed for the same relief which was sought in Crl. Misc. Application No. 22268/07 concealing the fact of institution of that previous application and concealing the order passed in that case, the present application No. 26431/07 is not maintainable and it is hereby dismissed. The Criminal Misc. Recall Application No. 265084 of 2007 is allowed and the order dated 31.10.2007 passed in Crl. Misc. Application No. 26431/07 stands recalled.

Before parting with the judgement, I would like to observe that in criminal cases also there should be a provision requiring the party to sign or put thumb mark on the power/ memo of appearance/Parcha filed by the Advocate except in those cases where accused is in Jail so as to avoid taking of such excuses in future alleging that the power filed by Advocate was not valid and that he had no knowledge of institution of the case. Even in those cases where the accused is in Jail, the Power in favour of the counsel must bear the signature/thumb mark of the pairokar with his full name and address with particulars of his relationship with the accused in Jail.

The Registrar General of the Court is, therefore, directed to take necessary steps for making suitable amendments in the relevant Rules in this regard with the assent of the Hon''ble court.