Supreme court’s earlier judgments on filing fabricated document by the litigant to obtain favour order
3. About three decades ago, this Court in Chandra Shashi v. Anil Kumar Verma [(1995) 1 SCC 421] was faced with a situation where an attempt was made to deceive the Court and interfere with the administration of justice. The litigant was held to be guilty of contempt of court. It was a case in which husband had filed fabricated document to oppose the prayer of his wife seeking transfer of matrimonial proceedings. Finding him guilty of contempt of court, he was sentenced to two weeks’ imprisonment by this Court. This Court observed as under:
“1. The stream of administration of justice has to remain unpolluted so that purity of court’s atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of court’s environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned.
2. Anyone who takes recourse to fraud, deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice.
14. The legal position thus is that if the publication be with intent to deceive the court or one made with an intention to defraud, the same would be contempt, as it would interfere with administration of justice. It would, in any case, tend to interfere with the same. This would definitely be so if a fabricated documents is filed with the aforesaid mens rea. In the case at hand the fabricated document was apparently to deceive the court; the intention to defraud is writ large. Anil Kumar is, therefore, guilty of contempt.”
4. In K.D. Sharma Vs. Steel Authority of India Limited and others [(2008) 12 SCC 481] it was observed by this Court:
“39. If the primary object as highlighted in Kensington Income Tax Commrs., (1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA) is kept in mind, an applicant who does not come with candid facts and “clean breast” cannot hold a writ of the court with “soiled hands”. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court.”
[emphasis supplied]
Hon’ble Supreme court placing reliance in its previous judgments Dalip Singh v. State of Uttar Pradesh and others [(2010) 2 SCC 114] and Moti Lal Songara Vs. Prem Prakash @ Pappu and another [(2013) 9 SCC 199].
8. In a recent matter, this Court again came across a litigant who had tried to overreach the Court by concealing material facts in Saumya Chaurasia v. Directorate of Enforcement – 2023 INSC 1073. It was a case where the appellant before this Court had challenged the order passed by the High Court6 rejecting his bail application. He was accused of committing various crimes under the Indian Penal Code and the Prevention of Money Laundering Act, 2002. His bail application was rejected by the High Court on 23.06.2023. In the pleadings before this Court, it was mentioned that the High Court had committed gross error in not considering the chargesheet dated 08.06.2023 and the cognizance order dated 16.06.2023, which clearly suggested that there was error apparent on the fact of it. The fact which was available on record was that an order in the bail application was reserved by the High Court on 17.04.2023 and pronounced on 23.06.2023. Having some suspicion, this Court directed the appellant to file an affidavit to clarify the aforesaid position. There was no specific reply given to the aforesaid query to the Court. Rather vague statements were made. Considering the facts available, this Court observed that there was a bold attempt by and on behalf of the appellant therein to misrepresent the facts for challenging the order impugned therein, regarding the conduct of the parties and the counsel, this Court made the following observations:
“14. It cannot be gainsaid that every party approaching the court seeking justice is expected to make full and correct disclosure of material facts and that every advocate being an officer of the court, though appearing for a particular party, is expected to assist the court fairly in carrying out its function to administer the justice. It hardly needs to be emphasized that a very high standard of professionalism and legal acumen is expected from the advocates particularly designated Senior advocates appearing in the highest court of the country so that their professionalism may be followed and emulated by the advocates practicing in the High Courts and the District Courts. Though it is true that the advocates would settle the pleadings and argue in the courts on instructions given by their clients, however their duty to diligently verify the facts from the record of the case, using their legal acumen for which they are engaged, cannot be obliviated.”
(emphasis supplied)
8.1. Finally, this Court dismissed the appeal with costs of ₹1,00,000/-.
9. In Pradip Sahu v. The State of Assam [Special Leave Petition (Criminal) No. 4876 of 2022, decided by this Court on 24.08.2023] the accused who was found to be guilty of concealing material facts from the court and against him the High Court8 had directed for taking appropriate legal action, had challenged the order passed by the High Court before this Court. In the aforesaid case, first bail application filed by the appellant there was dismissed by the High Court, thereafter he moved second bail application before the High Court in which notice was issued on 30.11.2021. During the pendency of the aforesaid application before the High Court, the appellant therein moved fresh bail application before the Trial Court on 01.12.2021, which was granted on the same day. The aforesaid facts came to the notice of the High Court on 08.12.2021 when a report of the Registrar (Judicial) was received, who was directed to conduct the enquiry in the matter. However, on an apology tendered by the appellant therein and also considering the facts as stated that he belonged to Tea Tribe community and his brother, a cycle mechanic, who was also pursuing the case, did not appreciate the intricacy of the law. As a result of which, the mistake occurred. This Court, having regard to the unqualified apology tendered by the appellant therein, had set aside the order passed by the High Court to file FIR/complaint against the appellant therein.
10. May be in the facts of the aforesaid case, this Court had accepted unconditional apology tendered by the appellant therein and the given facts situation accepted his apology but it is established that there is a consistent effort by the litigants to misrepresent the Court wherever they can.
Prayer in the SLP is for grant of bail in pending trail
11. The prayer in the present appeal is for grant of bail pending trial. The appellant claimed that he is in custody since 03.02.2022 in connection with crime registered under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The allegation in the FIR is that the appellant and the co-accused Gangesh Kumar Thakur @ Gangesh Thakur were in exclusive and conscious possession of 23.8 kg Ganja and were transporting the same.
12. The appellant and his co-accused Gangesh Kumar Thakur @ Gangesh Thakur filed an application for release on bail pending trial before the Sessions Judge-cum-Special Judge, Malkangiri immediately after their arrest on 03.02.2022. The same was rejected vide order dated 04.02.2022. At that stage even the chargesheet had not been filed.
Hon’ble High Court granted bail for the appellant pending the present SLP
12.1 Being aggrieved against the order of rejection of the bail application by the Sessions Judge, the appellant filed first bail application before High Court. While the same was pending the co accused Gangesh Thakur also filed bail application before the High Court. The High Court vide order dated 17.01.2023 allowed the bail application filed by Gangesh Kumar Thakur @ Gangesh Thakur. However, the bail application filed by the appellant was dismissed vide impugned order dated 06.03.2023. Aggrieved against the same, the appellant filed the SLP before this Court. Notice in the same was issued on 22.09.2023. When the matter was listed on 08.11.2023, learned counsel for the State sought time to file counter affidavit. On 06.12.2023, the learned counsel for the appellant pointed out that during the pendency of the present matter before this Court, the High Court vide order dated 11.10.2023 had granted bail to the appellant. As he did not have hard copy of the order passed by the High Court, he placed before us a soft copy of the said order through his mobile phone. On a reading of the aforesaid order, this Court found that the same neither mentioned the fact that it was the second bail application filed by the appellant nor pendency of the SLP before this Court, in which notice had already been issued. Taking the matter seriously and deprecating such a practice this Court passed the following order on 06.12.2023:
“………………..”
Original release order of second bail application received by the Supreme Court
13. In terms of the aforesaid order, this Court received the original record pertaining to second bail application filed by the appellant in which he was granted bail by the High Court vide order dated 11.10.2023; a report dated 08.12.2023 from the High Court along with a note from the Hon’ble Judge who had dealt with the bail application filed by the appellant and passed the order on 11.10.2023; affidavit of Special Secretary, Home Department, Government of Odisha dated 11.12.2023 and affidavit and report of Principal Secretary, Law Department, Government of Odisha dated 12.12.2023.
State informed that the state has no knowledge of first bail application and pending SLP
15. In the Affidavit dated 11.12.2023 filed by the Principal Secretary, Law Department, Govt. of Odisha, while narrating the facts of the case, it was stated that the learned counsel appearing for the State in the High Court did not have the knowledge of the fact that the first bail application filed by the appellant was rejected on 06.03.2023 by the High Court and also regarding filing of the SLP by the petitioner before this Court.
State informed that the Inspector incharge did not give any instructions regarding pendency of present SLP
15.2 Along with the affidavit a report from the State Counsel was also annexed. It was mentioned therein that in second bail application though the appellant had disclosed about filing of his first bail 18 application, he had not disclosed any fact regarding pendency of the SLP before this Court. It was further mentioned that in the list of dates the factum of rejection of earlier bail application or filing of the SLP was not mentioned. Even at the time of hearing this fact was not disclosed. Learned State Counsel did not have any instructions from the Inspector Incharge regarding pendency of the present petition before this Court.
Hon’ble High court reported that the appellant did not mentioned about the present SLP
16. In compliance to the order dated 06.12.2023 passed by this Court, a report has been received from the High Court. The comments of Judge ‘B’, as requested, were annexed with the report and original file of second bail application of appellant was also received from the High Court. It is mentioned therein that at the time of hearing of the second bail application, the court was not apprised of the factum of pendency of the SLP before this Court, in which notice had already been issued on 22.09.2023.
Direction of mandatory mentioning of previous bail application details
20. In our opinion, to avoid any confusion in future it would be appropriate to mandatorily mention in the application(s) filed for grant of bail:
(1) Details and copies of order(s) passed in the earlier bail application(s) filed by the petitioner which have been already decided.
(2) Details of any bail application(s) filed by the petitioner, which is pending either in any court, below the court in question or the higher court, and if none is pending, a clear statement to that effect has to be made.
This court has already directed vide order passed in Pradhani Jani’s case (supra) that all bail applications filed by the different accused in the same FIR should be listed before the same Judge except in cases where the Judge has superannuated or has been transferred or otherwise incapacitated to hear the matter. The system needs to be followed meticulously to avoid any discrepancies in the orders.
In case it is mentioned on the top of the bail application or any other place which is clearly visible, that the application for bail is either first, second or third and so on, so that it is convenient for the court to appreciate the arguments in that light. If this fact is mentioned in the order, it will enable the next higher court to appreciate the arguments in that light.
(3) The registry of the court should also annex a report generated from the system about decided or pending bail application(s) in the crime case in question. The same system needs to be followed even in the case of private complaints as all cases filed in the trial courts are assigned specific numbers (CNR No.), even if no FIR number is there.
(4) It should be the duty of the Investigating Officer/any officer assisting the State Counsel in court to apprise him of the order(s), if any, passed by the court with reference to different bail applications or other proceedings in the same crime case. And the counsel appearing for the parties have to conduct themselves truly like officers of the Court.
Apex court left open to the trial court to cancel the bail
22. Though considering the conduct of the petitioner, one of the option available was to cancel his bail, however, we do not propose to take such an extreme step in the case in hand. However, this can be the option exercised by the Court if the facts of the case so demand seeing the conduct of the parties.
Parties
KUSHA DURUKA vs. THE STATE OF ODISHA – CRIMINAL APPEAL NO._303 OF 2024 (ARISING OUT OF S.L.P. (CRL.) NO. 12301 OF 2023) – January 19, 2024 – 2024 INSC 46
https://main.sci.gov.in/supremecourt/2023/28887/28887_2023_13_1501_49651_Judgement_19-Jan-2024.pdf
Kusha Duruka vs. The State of Odisha
Further study on the subject
Bail can be granted despite the presence of the accused if he is in police custody
Stender Kumar Antil – A complete encyclopedia on bail
Bail – No interim compensation
Section 167(2) Cr.P.C – Default Bail and its Cancellation
Principles governing grant of bail
Difference between cancellation of bail and appeal against the bail already granted
Court must extremely be cautious in passing adverse remarks in bail
Parameters of granting bail in commercial quantity u/s 37 of ndps act
Direction to dispose bail on the same day does not mean dispose favourably
PMLA – all the offences under the pmla are cognizable and non-bailable
Bail refused till recording of statements of protected witnesses
Section 167 cr.p.c – an oral application for grant of default bail would suffice
Only revision lies against the order dismissal of statutory bail u/s 167(2) cr.p.c
Time limit to furnish bail bond and sureties in default/mandatory bail u/s. 167(2) cr.p.c
