The Allahabad High Court, while canceling the anticipatory bail granted to the accused of cheating, said that the order obtained by misleading the court is rebuttable.
A Single Bench of Justice Krishan Pahal passed this order while hearing a Criminal Misc Bail Cancellation Application filed by Mohd Ishtiyak Khan.
The bail cancellation application has been filed on behalf of the applicant (complainant) with the prayer to cancel the bail granted to opposite party no 2 by the Court on 9.12.2022 passed in Criminal Misc Anticipatory Bail Application u/s 438 Cr.P.C, in Criminal Case under Sections 420, 467, 468, 471 IPC, Police Station Kurra, District Mainpuri.
Counsel for the applicant has stated that the said order is liable to be cancelled, as it was garnered by the opposite party no 2 by misleading the Court and concealing the fact of seven criminal antecedents of the applicant.
The Court noted that,
Counsel has next stated that the order itself indicates as follows:-
“Counsel for the applicant has stated that the applicant has been falsely implicated in the case. The said sale deed has been executed in favour of his wife Sudha @ Neelam. A civil suit has been filed by the informant in the court of Civil Judge Junior Division, Mainpuri, wherein the wife of the applicant has categorically stated that she does not want to carry on the sale deed executed in her favour and the said property may be handed over to the informant. There is no other criminal history of the applicant except one case in which he has been acquitted vide order dated 15.12.2010.
Counsel for the applicant undertakes that he has co-operated in the investigation and is ready to do so in trial also failing which the State can move appropriate application for cancellation of anticipatory bail.”
Counsel has placed reliance on the judgement of the Apex Court passed in A.V Papayya Sastry & others vs Government of A.P & Others.
It was also opined in the said judgement that a judgement, decree or order obtained by fraud by the first Court or by the final court has to be treated as a nullity by every Court, superior or inferior. It can be challenged in any Court at any time, in appeal, revision, writ or even in collateral proceedings. Lord Denning had observed that in the leading case of Lazarus Estates Ltd v Beasley, (1956) 1 All ER 341 : (1956) 1 QB 702 : (1956) 2 WLR 502, that “No judgment of a court, no order of a Minister, can be allowed to stand, if it has been obtained by fraud.”
Counsel has stated that any party seeking relief from a court has to come with clean hands and as such, in light of the aforesaid judgements, any order garnered by playing fraud with it, has no sanctity in law and is thus, liable to be set aside.
Per contra, counsel for the opposite party no 2 has vehemently opposed the application on the ground that the applicant has no knowledge of the said criminal history and he has stated that he has explained three cases, in which he has been acquitted, although he could not dispute the fact that the said factum of criminal history has not been mentioned in the said anticipatory bail application.
It is also stated that in one case, the applicant is on bail, in one other case, he is not wanted and the remaining case is under U.P Gangsters Act, in which he is on bail.
“The opposite party no 2 has not come with clean hands to the Court and has obtained the previous order dated 9.12.2022 by concealing the fact of seven criminal antecedents of him. Thus, he has played fraud in obtaining the judgement, as enunciated in Section 44 of the Indian Evidence Act.
As such, the said order dated 9.12.2022 granting anticipatory bail to the opposite party no 2 cannot be sustained in the eyes of law and is set aside, as it has been garnered by misleading the Court and committing fraud with it”, the Court observed while allowing the bail cancellation application.
“However, two weeks’ time from the date of pronouncement of this Judgment is granted to opposite party no 2 to surrender before the concerned Trial Court and thereafter it will be open for opposite party no 2 to pray for regular bail, which may be considered in accordance with law laid down by the Apex Court in the case of Satender Kumar Antil vs Central Bureau of Investigation and another”, the Court ordered.