Allahabad High Court
Khargesh Alias Golu vs State Of U.P. And 3 Others on 12 May, 2025
Author: Gautam Chowdhary
Bench: Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:77009 A.F.R. Court No. - 86 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4923 of 2025 Applicant :- Khargesh Alias Golu Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Prashant Yadav,Rajeev Kumar Counsel for Opposite Party :- G.A. With Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6793 of 2025 Applicant :- Karan Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Narendra Kumar Pathak Counsel for Opposite Party :- G.A. Hon'ble Dr. Gautam Chowdhary,J.
1. The instant bail applications are second bail applications moved before this Court for enlarging the applicant namely, Khargesh alias Golu on bail in Special Criminal Case No. 214 of 2021 arising out of Case Crime No. 599 of 2021 under Sections 323, 363, 376-D, A, 506, 392 I.P.C., Section 5 (G)/6 of POCSO Act and Section 3 (2) (5) A of SC/ST Act and to release the accused-applicant namely, Karan on bail in Case Crime No. 599 of 2021 under Sections 323, 363, 376-D, A, 506, 392 , 411 I.P.C. and Section 5 (G)/6 of POCSO Act and Section 3 (2) (5) A of SC/ST Act Police Station Khora, District Ghaziabad.
2. Vide order dated 04.04.2025, this Court had issued notice to the first informant of the case crime in the both the bail applications.
3. Office report dated 01.05.2025 shows that notice issued to the first informant has been served personally. Pursuant to which name of Sri Susheel Kumar, learned counsel has been shown in the cause list, who did not appear before this Court even in the revised call.
4. Heard Sri Prashant Yadav, learned counsel for the applicant- Khargesh alias Golu in Criminal Misc. Bail Application No. 4923 of 2025 and Sri Narendra Kumar Pathak, learned counsel for the applicant- Karan in Criminal Misc. Bail Application No. 6793 of 2025, Sri Chandan Singh, learned A.G.A. for the State and perused the material on record.
5. Learned counsel for the applicants contend that this Court vide order dated 11.08.2023 passed in Criminal Misc. First Bail Application No.44142 of 2021 (Khargesh @ Golu Vs. State of U.P. and others) as well as in Criminal Misc. First Bail Application No. 43380 of 2021 (Karan Vs. State of U.P. and others) has been pleased to grant bail to the accused-applicants. He further submits that against the aforesaid order of this Court, the informant-‘X’ approached the Supreme Court and filed Criminal Appeal No. 5385 of 2024 (‘X’ Vs. The State of Uttar Pradesh and another) arising out of Special Leave Petition (Crl) No. 5027 of 2024 and Criminal Appeal No. 5386 of 2024 (‘X’ Vs. The State of Uttar Pradesh and other) arising out of Special Leave Petition No. 5305 of 2024 respectively. The Hon’ble Apex Court heard both the appeals together and allowed the same vide order dated 13.12.2024, setting aside the orders passed by this Court and the concerned respondents (in the appeal) i.e. the present applicants were directed to surrender before the trial Court on or before 30.12.2024. Pursuant to which the applicants appeared before the trial Court, who are languishing in jail.
6. Learned counsel for the applicants submits that before the Hon’ble Apex Court, it was argued by the counsel for the ‘X’ that whether the appellant (‘X’) should have been given an opportunity of hearing and should have been made party in the bail proceedings filed by the concerned respondents before the High Court. Further it was argued that the ‘X’ has not been impleaded as party-respondent in the bail proceedings before this Court and the concerned Pubic Prosecutor had not informed the victim (‘X’) about the said proceedings. Learned counsel further argued that while allowing the appeal, Hon’ble Apex Court observed that statutory provisions contained in Section 439 (1A) of Cr.P.C. and Section 15 A(3) of the SC/ST Act have been violated and the High Court also, in the impugned order, has not considered the mandatory requirement of both the Acts and granted bail to the concerned respondents (applicants in the present case) in a very casual and cursory manner and proceeded to set aside the impugned orders. Learned counsel further argued that the co-ordinate Bench of this Court vide order dated 06.12.2021 had issued notice to the complainant/informant of the case in Criminal Misc. Bail Application No. 44142 of 2021, whereas perusal of the order dated 15.11.2021 passed in Criminal Misc. Bail Application No. 43380 of 2021 (Karan Vs. State of U.P. and others) shows that Sri Deepak Kumar Verma and Sri Siya Ram Verma, learned counsel have put in appearance on behalf of the informant ‘X’ and on their request, the matter was directed to be listed on 02.12.2021 as fresh. It is thus contended that the informant (‘X’) has concealed the material facts before Hon’ble Apex Court and had obtained the order dated 13.12.2024. It is thus contended that since the informant was issued notice and on her behalf learned counsel had put in appearance therefore it cannot be said that the informant was not heard while passing the order dated 11.08.2023, therefore, considering the facts and circumstances, the accused applicants may be enlarged on bail.
7. Learned A.G.A. though has opposed the bail application moved on behalf of applicants but could not dispute the submissions advanced by learned counsel for the applicants.
8. Perusal of the record shows that there were as many as four accused persons, who had sought bail by way of filing separate bail applications on their behalf before this Court arising out of same case crime. The details of which are as under:-
(I) Criminal Misc. Bail Application No. 44142 of 2021 (Khargesh @ Golu Vs. State of U.P.).
(II) Criminal Misc. Bail Application No. 43380 of 2021 (Karan Vs. State of U.P).
(III) Criminal Misc. Bail Application No. 44390 of 2021 (Sumit @ Lefty Vs. State of U.P. and another).
(IV) Criminal Misc. Bail Application No. 43514 of 2021 (Suraj Vs. State of U.P.).
9. In Criminal Misc. Bail Application No. 44142 of 2021 (Khargesh @ Golu Vs. State of U.P. ), the co-ordinate Bench of this Court vide order dated 06.12.2021 had been pleased to issue notice to the complainant returnable at an early date fixing the matter for 20.12.2021 as fresh. The order 06.12.2021 is quoted below:-.
“Issue notice to the complainant returnable at an early date.
Steps be taken within one week.
List on 20.12.2021 as fresh.”
10. Therefore, it is crystal clear that the first informant i.e.’X’ of the case was issued notice in Criminal Misc. Bail Application No. 44142 of 2021 (Khargesh @ Golu Vs. State of U.P. and others.)
11. Record also shows that in Criminal Misc. Bail Application No. 43380 of 2021 (Karan Vs. State of U.P.) notice was also issued to the informant and on 15.11.2021 the co-ordinate Bench of this Court, on the request of learned counsel for the informant had fixed the matter as fresh for 02.12.2021. The order dated 02.11.2021 is quoted below:-
“Learned counsel for the applicant, learned counsel for the informant and learned AGA for the State are present.
As requested by learned counsel for the informant, list on 02.12.2021, as fresh.”
12. In Criminal Misc. Bail Application No. 44390 of 2021 (Sumit @ Lefty Vs. State of U.P. and another), the co-ordinate Bench of this Court vide order dated 14.12.2021 had issued notice to the ‘X’-informant. The order dated 14.12.2021 is quoted below:-
“Issue notice to the informant through Chief Judicial Magistrate, Ghaziabad returnable at an early date.
Put up this case on 21.1.2022 as fresh. Meanwhile, learned A.G.A. may also file counter affidavit.”
13. Again, on 21.01.2022, an order was passed in Criminal Misc. Bail Application No. 44390 of 2021 (Sumit @ Lefty Vs. State of U.P. and another), whereby the co-ordinate Bench of this Court had been pleased to pass the following order:-
“Shri Rishi Chaddha, learned AGA on the basis of instructions submits that the police authorities have substantially complied with the directions issued by this Court in Criminal Misc. Bail Application No. 46998 of 2020 (Junaid Vs State of U.P. and another) reported at 2021 (6) ADJ 511. Notice of the bail application has been served upon the victim. However, Form A and Form B have not been sent by the police authority. The C.W.C. district Ghaziabad, has failed to sent any instructions. The C.W.C. district Ghaziabad, has not complied with the directions issued by this Court in Junaid (supra) and also not implemented the protective provisions of POCSO Act, 2012 read with POCSO Rules, 2020.
Learned AGA prays for and is granted four weeks time to file counter affidavit.
Put up this case on 28.02.2022 in the list of fresh cases.”
14. So far as Criminal Misc. Bail Application No. 43514 of 2021, (Suraj vs State of U.P.) is concerned, in that case too, notice was issued to the first informant of the case in terms of the order dated 28.10.2021, which is quoted below:-
“Heard.
Let, a notice be issued to informant through Chief Judicial Magistrate concerned.
List, as fresh, on 23.11.2021.”
15. Vide order dated 11.04.2022 passed in Criminal Misc. Bail Application No. 44390 of 2021 (Sumit @ Lefty Vs. State of U.P. and another), the co-ordinate Bench of this Court had been pleased to connect all the aforesaid four bail applications i.e. Criminal Misc. Bail Application No. 43380 of 2021 (Karan Vs. State of U.P.), Criminal Misc. Bail Application No. 43514 of 2021 (Suraj Vs. State of U.P), Criminal Misc. Bail Application No. 44142 of 2021 (Khargesh @ Golu Vs. State of U.P.) with Criminal Misc. Bail Application No. 44390 of 2021 (Sumit @ Lefty Vs. State of U.P. and another). The order dated 11.04.2022 is quoted below:-
“Heard Mr. Faiz Ahmad, Advocate, holding brief of Mr. Imran Ullah, learned counsel for applicant and learned A.G.A. for State.
At the very outset, learned A.G.A. submits that following bail applications filed by co-accused are already pending before this Court.
(i) Criminal Misc. Bail Application No. 43380 of 2021, (KARAN vs State of U.P)
(ii) Criminal Misc. Bail Application No. 43514 of 2021, (SURAJ vs State of U.P.)
(iii) Criminal Misc. Bail Application No. 44142 of 2021, (KHARGESH @ GOLU vs State of U.P.)
In view of above, connect aforementioned criminal misc. bail applications along with this application for bail.
Matter shall reappear as fresh on 25.4.2022 along with connected matters.”
16. This Court has summoned the record of Criminal Misc. First Bail Application No.44142 of 2021 (Khargesh @ Golu Vs. State of U.P. and others). The notice issued to the informant had been served personally as is evident from the report of the Chief Judicial Magistrate, Ghaziabad dated 17.12.2021..
17. So far as Criminal Misc. Bail Application No. 43380 of 2021 (Karan Vs. State of U.P.) is concerned, Sri Deepak Kumar Verma and Sri Siya Ram Verma, learned counsel have put in appearance on behalf of the informant, after service of notice upon the informant.
18. In Criminal Misc. Bail Application No.44390 of 2021 (Sumit @ Lefty Vs. State of U.P.) it has been observed in the order dated 21.01.2022 that notice of the bail application has been served upon the victim.
19. With regard to Criminal Misc. Bail Application No. 43514 of 2021 (Suraj Vs. State of U.P), notice was also issued to the first informant of the case vide order dated 28.10.2021.
20. All the four bail applications were listed on 11.08.2023. Notice was served upon the informant in Criminal Misc. First Bail Application No.44142 of 2021 (Khargesh @ Golu Vs. State of U.P. and others), Criminal Misc. Bail Application No. 43380 of 2021 (Karan Vs. State of U.P.) Criminal Misc. Bail Application No.44390 of 2021 (Sumit @ Lefty Vs. State of U.P.) as has been observed by this Court vide order dated 21.01.2022 that notice of the bail application has been served upon the victim.
21. The subject matter before this Court is that the informant ‘X’ had approached Hon’ble Apex Court against the order dated 11.08.2023 passed in Criminal Misc. Bail Application No. 44142 of 2021 (Khargesh @ Golu Vs. State of U.P. and others), Criminal Misc. Bail Application No. 43380 of 2021 (Karan Vs. State of U.P.) whereby the accused-applicants were enlarged on bail, on the ground that the ‘X’ was not afforded an opportunity of hearing and should have been made party in the bail proceedings filed by the applicants. The Hon’ble Apex Court while setting aside the order dated 11.08.2023 had observed that mandatory requirement of both the Acts has not been fulfilled.
22. Now the present/second bail applications have been moved before this Court for enlarging the accused-applicant Khargesh @ Golu and Karan on bail. Merit issues apart, learned counsel also had taken ground that ‘X’ was served with the notice personally and she did not appear through counsel in the bail application of Khargesh @ Golu Vs. State of U.P. but in the connected bail of Karan Vs. State of U.P. her counsel had put in appearance on her behalf.
23. As already observed in the preceding paragraph, notice issued to the ‘X’ in Criminal Misc. Bail Application No. 44142 of 2021 (Khargesh @ Golu Vs. State of U.P. and others), was served personally as is evident from the perusal of report dated 17.12.2021 sent by the concerned Chief Judicial Magistrate, whereas in Criminal Misc. Bail Application No. 43380 of 2021 (Karan Vs. State of U.P.) pursuant to the service of notice upon the informant, Sri Deepak Kumar Verma and Sri Siya Ram Verma, learned counsel have put in appearance on behalf of the informant. ‘X’ appeared through her counsel Sri Deepak Kumar Verma and Sri Siya Ram Verma in only one case i.e. Criminal Misc. Bail Application No. 43380 of 2021 (Karan Vs. State of U.P.) and in another case, she did not care to put in appearance, inspite of service of notice long back.
24. When the case was taken up on 11.08.2023 in the revised reading of the list, learned counsel for the informant did not appear and all the four accused including the applicants were enlarged on bail, vide order dated 11.08.2023. However, the victim after concealing the material fact of having been received notice of the bail applications, took a ground before the Hon’ble Apex Court that she was not granted opportunity of hearing and has obtained an order from the Hon’ble Apex Court under misrepresentation.
25. Besides the above fact, it is not the case of the victim that she did not have knowledge of all the bail applications filed on behalf of the accused in Case Crime No. 599 of 2021, Police Station Khora, District Ghaziabad as all the four bail applications were clubbed and heard together. It is noteworthy that if the accused persons (in same case crime) have filed separate bail application and if all the bail applications are connected and heard together on the same day, then in such case if the informant’s counsel put in appearance in a single case it is presumed that he is appearing in all the cases on behalf of the informant, irrespective of the fact as to whether he has any instruction or not.
26. Thus, from the above discussion, it is apparent that statutory provisions as contained in Section 439(1A) of Cr.P.C. and Section 15A(3) of the SC/ST Act has not only been complied in letter and spirit by this Court but also the victim has manipulated, mis-represented, and concealed the material fact before Hon’ble Apex Court and had obtained the order dated 13.12.2024,which is nothing but gross misuse of the process of the Court and because of the conduct of the ‘X’ the accused applicants are languishing in jail since 02.01.2025.
27. Today when the instant second bail application of the accused-appellants have been taken up, Sri Susheel Kumar, learned counsel for the informant has not appeared even in the revised reading of the list, though in both the bail applications, his name has been shown in the cause list.
28. It is settled law that one should approach the Court with clean heart and clean mind to get a relief and one who does not come with clean heart and clean mind, dis-entitles himself from getting any relief from the Court. From what has been mentioned above, it is clear that the ‘X’ had approached Apex Court with oblique motives and has not presented the correct facts just to gain undue advantage. Such type of practice should always be discouraged and is highly deprecated. They belong to the category of persons who not only attempt, but succeed in polluting the course of justice.
29. In Arunima Baruah Vs. Union of India (2007)6 SCC 120, Supreme Court held that it is trite law that to enable the Court to refuse to exercise its discretionary jurisdiction suppression must of material fact. Material fact would mean material for the purpose of determination of the lis. It was further held that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands.
30. In Prestige Lights Limited Vs. State Bank of India (2007)8 SCC 449, Apex Court held as under:
“…… If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, the Court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. …..”
31. In Udyami Evan Khadi Gramodyog Welfare Sanstha and another Vs. State of U.P. and others, (2008)1 SCC 560, it has been observed as below:
“… Any person approaching a superior court must come with a pair of clean hands. It neither should suppress any material fact, but also should not take recourse to the legal proceedings over and over again which amounts to abuse of the process of law.
For the reasons aforementioned, there is no merit in this appeal which is dismissed accordingly with costs. Counsel’s fee quantified at Rs. 50,000/-”
32. In K.D Sharma Vs. Steel Authority of India Limited and others, (2008)12 SCC481, 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. In such cases the Court is duty bound to discharge rule nisi and such applicant is required to be dealt with for contempt of Court for abusing the process of the court.
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.
33. Having considered the factual aspect of the case and the dictum of the Supreme Court, I am of the considered view that the informant X” has misused the process of law by suppressing the material facts and documents and misled the Court. Honesty, fairness, purity of mind should be of the highest order to approach the court, failing which the litigant should be shown the exit door at the earliest point of time.
34. In view of the above discussion, it is apparent that the order of the Hon’ble Apex Court dated 13.12.2024 has been obtained under concealment and misrepresentation. Accordingly, the applicants are found entitled to bail.
35. Let applicant Khargesh alias Golu on bail in Special Criminal Case No. 214 of 2021 arising out of Case Crime No. 599 of 2021 under Sections 323, 363, 376-D, A, 506, 392 I.P.C., Section 5 (G)/6 of POCSO Act and Section 3 (2) (5) A of SC/ST Act and accused-applicant Karan on bail in Case Crime No. 599 of 2021 under Sections 323, 363, 376-D, A, 506, 392 , 411 I.P.C. and Section 5 (G)/6 of POCSO Act and Section 3 (2) (5) A of SC/ST Act Police Station Khora, District Ghaziabad, be released on bail on furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned subject to the following conditions:-
i) The applicants shall not tamper with the prosecution evidence.
ii) The applicants shall not threaten or harass the prosecution witnesses.
iii) The applicants shall appear on the date fixed by the trial court.
iv) The applicants shall not commit an offence similar to the offence of which the applicants are accused, or suspected of the commission.
v) The applicants shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade such person from disclosing facts to the Court or to any police officer or tamper with the evidence.
36. In case of breach of any of the above condition, the trial Court shall be at liberty to cancel the bail of the applicant in accordance with law.
37. The bail applications are allowed.
38. Before parting with the matter, the Court takes serious note of the conduct offered by the informant ‘X’ in not only misusing the process of the Court but also has not hesitated to even mislead or misrepresent the material facts even to the Apex Court of the country only to gain undue advantage and order of her choice. For the said conduct offered, the informant is saddled with costs of Rs. 10,000/- to be deposited by her before the High Court Legal Service Committee within two months from the date of this order. Failing that, the Chief Judicial Magistrate, Ghaziabad is directed to recover the amount of costs from the first informant as arrears of land revenue.
39. The Chief Judicial Magistrate, Ghaziabad is directed to submit his compliance report at the earliest.
40. A copy of this order be sent to the Chief Judicial Magistrate Ghaziabad for compliance and communication to the first informant, through Registrar Compliance of this Court.
Order Date :- 12.5.2025
S.Ali (Dr. Gautam Chowdhary,J.)
[ad_1]
Source link