MAHENDRA SINGH ASWAL Vs. STATE OF UTTARAKHAND
LAWS(UTN)-2013-9-6
HIGH COURT OF UTTARAKHAND
Decided on September 04,2013

Mahendra Singh Aswal Appellant
VERSUS
STATE OF UTTARAKHAND Respondents

JUDGEMENT

- (1.) In the public interest litigation registered as Writ Petition (P.I.L.) No. 66 of 2012, the contention of the petitioner was that as many as 15 criminal cases were filed alleging commission of various offences against respondent No. 8 and in connection therewith some non-bailable warrants of arrest have been issued but they are not being executed, despite the Hon'ble Supreme Court directing respondent No. 8 to surrender before the Courts before whom those cases are pending. It was contended that there is no law and order in the State as hardcore criminals are being protected by the administration. In course of hearing the writ petition, it transpired that in one of those cases a non-bailable warrant was issued followed by a proclamation, but no effort was made to pursue the same effectively, and at the same time wife of the respondent No. 8 has been provided with a Police gunman. It also transpired that in relation to the self-same case, an application made under section 321 of the Code of Criminal Procedure has been allowed without considering public interest in the withdrawal of the said case. The State Government and the respondent No. 8 agreed to recall the order allowing the said application. By reason thereof, the non-bailable warrant as well as the proclamation stood arrive. We, accordingly, while disposing of the public interest litigation directed a fresh decision to be rendered on the application under section 321 of the Code, and at the same time asked the respondent No. 8 to surrender before the Court and to apply for bail. We also directed that in the event such surrender is made at or before 11 A.M. in the morning and simultaneously a bail application is filed, the Court shall decide the bail application in accordance with law immediately and make over a copy of the order to respondent No. 8. In course of hearing the said public interest litigation, it also transpired that there is another case where also there is a pending non-bailable warrant of arrest against respondent No. 8. In relation to the said non-bailable warrant, while disposing of the public interest litigation, we permitted one month's time to take such recourse to law as the respondent No. 8 may be advised to challenge the said non-bailable warrant of arrest. At the same time, we provided that if after the expiry of one month the non-bailable warrant of arrest remains outstanding, the Director General of Police will ensure arrest of respondent No. 8 for his production before the Court. After the public interest litigation was, thus, disposed of, respondent No. 8 filed a review application contending that as on the date when the public interest litigation was disposed of, no non-bailable warrant of arrest was outstanding against the said respondent. The learned Counsel for the writ petitioner did not dispute the said contention. In the circumstances, the order disposing of the public interest litigation was substantially reviewed and direction for surrender and simultaneously applying for bail was withdrawn.
(2.) In the present application filed under section 340 of the Code of Criminal Procedure, writ petitioner is contending that as on the date when the public interest litigation was decided, a non-bailable warrant, a proclamation and an attachment were outstanding against respondent No. 8. It has been contended that the same were also outstanding as on the date of filing of the review application and, accordingly, respondent No. 8 must be suitably dealt with. Respondent No. 8 is not disputing the fact that a non-bailable warrant followed by a proclamation and attachment were outstanding against the said respondent as on the date when the writ petition was disposed of as also at the time when the review application was allowed, but he is contending that having regard to the fact that on 9th December, 2011 the Hon'ble Supreme Court had stayed execution of the non-bailable warrant of arrest as well as the proclamation in application for Special Leave to Appeal (Criminal No. 9104 of 2011) and during the pendency of the said application on 15th October, 2012, the State Government issued a notification, and thereby, decided to withdraw the said case, in that backdrop, respondent No. 8 felt that neither the said non-bailable warrant, nor the proclamation and the attachment were surviving as on the date when the public interest litigation was decided and when the review application was filed. The fact remains that during the pendency of the application made under section 340 of the Code, the application for withdrawal of the case under section 321 of the Code was initially rejected by the concerned Judicial Magistrate and upon revision the learned District and Sessions Judge, Dehradun has allowed the said application.
(3.) In the circumstances, respondent No. 8 has clearly hoodwinked the Court by making an untrue assertion knowing that his assertion is untrue. The question is, whether a proceeding under section 340 of the Code should or should not be initiated against respondent No. 8? Various technical points have been taken by the learned Senior Counsel appearing on behalf of respondent No. 8. We are absolutely certain that respondent No. 8 has scant regard for the orders of the Court as well as those pertaining to administration of justice and the manner, in which matters have been dealt with by him in the Court suggests he is above law. We are also of the view that total apathy on the part of the administration, is encouraging people like respondent No. 8 to act in the manner he has acted. Be that as it may, still the question is, whether proceeding under section 340 of the Code should or should not be initiated against respondent No. 8? We are of the view that when a matter attracts clause (b) of sub-section (1) of section 195 of the Code and when interest of justice demands such matter to be dealt with under section 340 of the Code, recourse thereto can be taken. We also feel that an appropriate case therefore has been made out in the instant case. Respondent No. 8, at the time of filing of the review application, was assisted by lawyers. A willful untrue assertion by respondent No. 8 that no non-bailable warrant is pending against him having not been objected or opposed by the public interest litigant did not give the respondent No. 8 right to make such an assertion, nor by reason thereof the untruth becomes truth. However, having regard to the fact that ultimately the non-bailable warrant has been withdrawn by reason of withdrawal of the criminal case in connection wherewith the non-bailable warrant of arrest was issued, it will not be appropriate on our part to initiate proceeding under section 340 of the Code of Criminal Procedure. We think we should deal with the matter in exercise of our jurisdiction under the principles applicable to Contempt of Court. It is significant to note that respondent No. 8 has not even tendered unconditional apology for supplying untrue information to the Court. We feel that a further notice to respondent No. 8 would yield nothing more. We, accordingly, conclude the matter by directing respondent No. 8 to be present before the Registrar General of this Court on 23rd September, 2013 at 11.00 A.M. and to remain seated in a chair to be provided by the Registrar General of the Court for one hour as a punishment for hoodwinking this Court by supplying untrue information to the Court.;


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