Sonu vs State of Uttarakhand

Lok Pal Singh, J.

1. Bail application no.454 of 2017 was filed on behalf of Sonu S/o Banarasi in connection with F.I.R No. 165 of 2016, under Section 302 of I.P.C,

registered at Police Station Prem Nagar, District Dehradun.

2. The first bail application no. 454 of 2017 was filed by the pairokar (real brother Monu Kumar) on behalf of accused applicant Sonu through Mr.

Lalit Sharma and Mr. Sanjay Bhatt, Advocates.

3. In Bail application no. 454 of 2017, counter affidavit was filed by the State. When counter affidavit was received by the counsel for the applicant,

he did not file any rejoinder affidavit. Subsequently, during the pendency of first bail application no. 454 of 2017, another bail application no. 978 of

2017 was filed on behalf of the applicant Sonu through his pairokar/his father in the same case crime through Mohd. Safdar, Advocate.

4. In the first bail application a free copy of the bail rejection order was annexed subsequently certified copy of bail order was annexed in present

bail application.

5. This Court after hearing the learned counsel for the parties allowed the bail application no. 978 of 2017 vide order dated 27.02.2018 and directed

to release the applicant on bail.

6. When the first bail application was listed before the Court the counsel appearing for the complainant has made a statement before the Co-

ordinate Bench of this Court that by playing fraud upon the Court, bail application no. 978 of 2017 was filed claiming it to be the first bail application.

7. Now the matter is listed before this Court.

8. Mr. Mohd. Safdar, Advocate who filed the present bail application has filed the same on the basis of document supplied to him.

9. A perusal of subsequent bail application it would reveal that bail application was filed along with certified copy of the bail rejection order. It was

incumbent upon Mr. Mohd. Safdar, Advocate while filing the subsequent bail application alongwith the certified copy of the bail rejection order to ask

from the pairokar of the applicant about the free copy of the bail rejection order and bail application is to be file with the free copy supplied to the

accused but it appears that Mr. Mohd. Safdar, Advocate deliberately filed the bail application on the strength of certified copy and succeeded in

playing fraud with this Court by obtaining the bail.

10. The submission advanced by Ms. Pushpa Joshi, Senior Advocate appearing on behalf of the applicant is that the act of Mr. Mohd. Safdar,

Advocate was not deliberate and is un-intentional.

11. Mr. Mohd. Safdar, Advocate submits that it is a mistake committed by him first time, therefore, a lenient view be taken against him and no stern

action be taken against him.

12. In recent days filing of false and misleading affidavits is a common practice prevailing in the Court. An Advocate is considered to be a prudent

person having the knowledge of law. But Mr. Mohd. Safdar, Advocate filed the present bail application without verifying the fact whether any other

bail application for the same cause was filed earlier or not? He also failed to consider the fact that bail of the applicant was rejected long back by the

Sessions Judge. This amounts to perjury with the Court.

13. The Hon’ble Apex Court in the case of In RE Suo Motu Proceedings against R. Karuppa, Advocate 2001 (5) SCC 289 has held that giving

false affidavit and committing perjury has become general practice. Paragraph 15 is extracted hereunder:

“15. In India, law relating to the offence of perjury is given a statutory definition under Section 191 and Chapter XI of the Indian Penal Code,

incorporated to deal with the offences relating to giving false evidence against public justice. The offences relating to giving false evidence against

public justice. The offences incorporated under this Chapter are based upon recognition of the decline of moral values and erosion of sanctity of oath.

Unscrupulous litigants are found daily resorting to utter blatant falsehood in the Courts which has, to some extent, resulted in polluting the judicial

system. It is a fact, though unfortunate, that a general impression is created that most of the witnesses coming in the courts despite taking oath make

false statements to suit the interests of the parties calling them. Effective and stern action is required to be taken for preventing the evil of perjury,

concededly let loose by vested interest and professional litigants. The mere existence of the penal provisions to deal with perjury would be a cruel joke

with the society unless the courts stop to take an evasive recourse despite proof of the commission of the offence under Chapter XI of the Indian

Penal Code. If the system is to survive, effective action is the need of the time. The present case is no exception to the general practice being

followed by many of the litigants in the country.â€​

14. The Hon’ble Apex Court in the case of Sciemed Overseas Inc vs. BOC India Limited & others 2016(3) SCC 70 has held in paragraph nos.

20 to 26 which are extracted hereunder:

“20. On a consideration of the Report, the High Court took the view that Sciemed had given a false affidavit in this Court to the effect that the

work was near completion. In this view of the matter, the High Court dismissed the appeal filed by Sciemed and imposed costs of Rs. 10 lakhs to be

deposited with the Jharkhand State Legal Services Authority.

21. At this stage, it is important to mention that Sciemed through its proprietor Shailendra Prasad Singh son of Rameshwar Prasad Singh, had filed

an affidavit on or about 10th July, 2008 in the High Court in which it was explained that the statement made in this Court on affidavit was because the

deponent was of the view that the installation of the complete system of gas pipeline is one part of the award and installation of liquid oxygen tank is a

separate work. It was stated that the affidavit filed in this Court was due to some misconception and was not with a view to mislead this Court. In

other words, the deponent sought to justify his affidavit in this Court notwithstanding the Report of the learned advocate. The deponent after giving the

above explanation tendered an unconditional and unqualified apology to the High Court for the statement regarding the near completion of the project.

22. The High Court did not accept the apology given by the proprietor of Sciemed and, therefore, imposed costs of Rs.10 lakhs on Sciemed.

23. While impugning the order passed by the High Court, it was submitted by the learned counsel for Sciemed that in fact the statement made in the

affidavit filed in this Court was not a false statement but was bona fide and not a deliberate attempt to mislead this Court. It was also submitted that

the allegedly false or misleading statement had no impact on the decision taken by this Court and should, therefore, be ignored.

24. We are unable to accept either contention raised by learned counsel.

25. The correctness of the statement made by Sciemed was examined threadbare not only by the learned Single Judge but also by the Division

Bench and it was found that a considerable amount of work had still to be completed by Sciemed and it was not as if the work was nearing completion

as represented to this Court. Additionally, the Report independently given by the learned advocate appointed to make an assessment, also clearly

indicated that a considerable amount of work had still to be performed by Sciemed. The Report was not ex parte but was carefully prepared after an

inspection of the site and discussing the matter with Shailendra Prasad Singh the proprietor of Sciemed and an engineer of Sciemed as well as officers

from the RIMS.

26. The conclusion drawn by the learned advocate after a thorough inspection and discussion of the issues is as follows:- “From a detailed

inspection of the entire Liquid Oxygen Gas System as required to be installed under the tender conditions land the work Order, I was able to gather

that at the originating point/inlet the main Liquid Oxygen Gas Tank of the required specification has not yet been installed. I also found that a separate

3-Phase Electric Supply System for commissioning of the project has not yet been installed and is reportedly in the process. I was informed by the

hospital authorities that the 3- Phase electricity connection is to be supplied by the hospital authorities and are not required under the tender conditions

or work order to be done on the part of the Contractor i.e. M/s Sciemed Overseas Inc. On the part of the Contractor i.e. respondent no.5 I was

repeatedly informed that the delay in the execution of the work has occasioned primarily due to repeated thefts of the costly Copper pipes,

whitewashing and distemper work underway in the RIMS and also the operational and practical difficulties in installation in the ICU’s, OT’s,

Labour Rooms in the Gynae Department which had to be vacated by the hospital authorities completely after much persuasion, before any installation

could be carried out.

It appears that on account of delay in installation of the Main Liquid Oxygen Tank and the 3 Phase electrical connection, the commissioning of the

complete system of Liquid Medical Oxygen Gas together with other gases. Vacuum and Air are being delayed. The entire outlet system upto the

individual outlets have been put in place as already stated above. I also noticed that at the point of the final outlets at the end of the Branch pipeline at

the Bed heads wherever they are specified by the Work Order, the double lockout with parking facility has been installed but the electrical switches

for which space is left in the panel has not yet been fixed.â€​

15. Though perjury has been committed by Mr. Mohd. Safdar, Advocate with the Court for the benefit of his client and on the request made by Mr.

Mohd. Safdar that considering it as first wrong done by him and on the request made by Ms. Pushpa Joshi, Senior Advocate, this Court is not taking

stern action against Mr. Mohd. Safdar, Advocate and he is warned that he shall refrain himself not to commit such wrong in future.

16. Since, the applicant Sonu obtained bail by playing fraud upon the Court through his Counsel, the bail application no. 978 of 2017 is hereby

cancelled. The applicant Sonu S/o Banarasi who was released on bail

earlier shall surrender forthwith. In case the applicant did not surrender before the Magistrate Concerned, the Court below shall take appropriate steps

for his arrest and he shall be sent to jail in the aforesaid case crime. Consequently, bail application no. 454 of 2017 is also rejected.

17. Registrar General of this Court to send the copy of this order passed by this Court to the learned Sessions Judge, Dehradun for compliance.