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Court Name : Allahabad High Court

Law Point: Wife played fraud concealing material facts in Domestic violence petition, High court asks the trial court to decide afresh considering full matrix of facts.Decision in favor of wife set aside in domestic violence case for concealing material facts

AFR
(Reserved)
Case :- CRIMINAL REVISION No. – 879 of 2015


Revisionist :- Chiranjeev Kumar Arya
Opposite Party :- State Of U.P. & Another
Counsel for Revisionist :- Ranjana Srivastava,Ratnakar Rao,Vinay
Tripathi
Counsel for Opposite Party :- Govt. Advocate,Pankaj Tiwari,Shri Pal
Singh Yadav
Hon’ble Sudhir Kumar Saxena, J.
1. This revision has been filed by husband aggrieved with
the order dated 02.09.2015 passed by Additional District & Sessions
Judge, court No. 17, Lucknow under Section 29 of Protection of Women
from Domestic Violence Act, 2005 (in short ‘the Act’).
2. It appears that Prathama Singh claiming to be the wife
of present revisionist filed an application under Section 12 of the Act
before learned Magistrate, Lucknow. Application was allowed by learned
Magistrate ordering Rs. 1000/- per month as interim maintenance. An
appeal was filed against said order by the wife of revisionist claiming
maintenance @ Rs. 30,000/- per month. Said appeal has been allowed
by Additional Sessions Judge, Court No. 17, Lucknow on 02.09.2015.
This very order has been challenged in revision.
3. I have heard Smt. Ranjana Srivastava, learned counsel
for revisionist and Sri Pankaj Tiwari, learned counsel appearing for
respondent.
4. A preliminary objection has been raised by Sri Pankaj
Tiwari that revision against the order passed in appeal under Section 29
of the Act would not be maintainable. He has relied upon the judgment
of Hon’ble Apex court given in Criminal Appeal No. 2070 of 2014,
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Shalu Ojha vs. Prashant Ojha in which Hon’ble Apex Court while
discussing the scheme of D.V. Act in para-27 has been pleased to
observe as under:
“It can be seen from the DV Act that no further appeal or
revision is provided to the High Court or any other Court
against the order of the Sessions Court under Section
29.”
5. Under Section 12 of the Act, application is filed before
Magistrate. Magistrate has power to pass protection order under section
18, residence order under section 19, monetary relief order under
Section 20, custody order under section 21 and compensation order
under Section 22 of this Act. Under Section 23 of the Act, Magistrate
can pass ex-parte interim order as it deems fit and proper. Appeal is
provided under Section 29 of the Act. Section 28 provides that
proceedings under Sections 12, 18, 19, 20, 21, 22, 23 and offence
made under section 31 shall be governed by the Code of Criminal
Procedure. Section 31 provides for penalty for breach of orders. Such
offences have been made non-cognizable and non- bailable under
Section 32 of the Act. Section 29 of the Act is being reproduced below:
“Section 29: There shall lie an appeal to the Court of
Session within thirty days from the date on which the
order made by the Magistrate is served on the aggrieved
person or the respondent, as the case may be whichever
is later.”
6. From the above it is apparent that orders passed by
Magistrate are to be governed by the procedure prescribed under
Cr.P.C. and said order can be challenged in appeal before the court of
session. Court of session is admittedly an inferior/subordinate criminal
court to High Court. Section 397 of Cr.P.C. enables High Court or
session court to call for record of any proceeding from any inferior
criminal court. 
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7. Section 397 Cr.P.C. is being reproduced below:-
“Calling for records to exercise of powers of
revision;- (1) The High Court or any Sessions Judge may
call for and examine the record of any proceeding before
any inferior criminal Court situate within its or his local
jurisdiction for the purpose of satisfying itself or himself
as to the correctness, legality or propriety of any finding,
sentence or order, recorded or passed, and as to the
regularity of any proceedings of such inferior Court, and
may, when calling for such record, direct that the
execution of any sentence or order be suspended, and if
the accused is in confinement, that he be released on bail
or on his own bond pending the examination of the
record.
Explanation- All Magistrates, whether Executive or
Judicial, and whether exercising original or appellate
jurisdiction, shall be deemed to be inferior to the Sessions
Judge for the purposes of this sub-section and of Section
398.
(2) The powers of revision conferred by sub-section
(1) shall not be exercised in relation to any interlocutory
order passed in any appeal, inquiry, trial or other
proceeding.
(3) If an application under this section has been
made by any person either to the High Court or to the
Sessions Judge, no further application by the same
person shall be entertained by the other of them.”
8. Hon’ble Apex Court in the case of Thakur Das (Dead)
by Lrs. vs. State of Madhya Pradesh and another (AIR (1978) 1
SCC 27 ) while interpreting the provisions of section 6 of Essential
Commodities Act, 1955, has held in para-11, as under:
“We are accordingly of the opinion that even though the
State Government is authorized to appoint an appellate
authority under Section 6C, the legislature clearly
indicated that such appellate authority must of necessity
be a judicial authority. Since under the Constitution the
courts being the repository of the judicial power and the
officer presiding over the court drives his designation
form the nomenclature of the court, even if the the
appointment is made by the designation of the judicial
officer the appellate indicated is the court over which he
presides discharging functions under the relevant Code
and placed in the hierarchy of courts for the purposes of
appeal and revision. Viewed from this angle, the Sessions
Judge, though appointed an appellate authority by the
notification, what the State Government did was to
constitute an appellate authority in the Sessions court
over which the Sessions Judge presides. The Sessions
Court is constituted under the Code of Criminal
Procedure and indisputably it is an inferior criminal
court in relation to High Court. Therefore, against the
order made in exercise of powers conferred by S. 6C. a
revision application would lie to the High Court and the
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High Court would be entitled to entertain a revision
application under Sections 435 and 439 of the Code of
Criminal Procedure 1898 which was in force at the
relevant time and such revision application would be
competent.”
(Emphasis Supplied)
9. It is true that there is no provision in the Act providing
further appeal or revision before the High Court against the order
passed by the Court of session in appeal under Section 29 of the Act.
However, no finality has been attached to the order passed under
Section 29.
10. Breach of the order passed by the Magistrate or
Sessions Judge is punishable under Section 31 of the Act and procedure
prescribed in the Cr.P.C. has been made applicable by virtue of section
28 of the Act. Moreover, proceedings under Sections 12, 18, 19, 20, 21,
22 and 23 of the Act are also governed by the Cr.P.C. Nothing otherwise
has been provided in the Act like attaching finality to the order passed
by the Magistrate or Sessions Judge or excluding further recourse.
Courts of Session are established under Section 9 of Cr.P.C. Presiding
Officer of Sessions court is appointed by the High Court. High court has
also been empowered to appoint Additional Sessions Judge and
Assistant Sessions Judge.
11. Sections 397 and section 401 Cr.P.C. prescribe
revisional powers of High Court. Section 397 Cr.P.C. contemplates that
revisional power can be exercised by the High Court not only on the
application of aggrieved person but also suo moto.
12. Section 4 (2) of Cr.P.C. provides that all offences under
any other law (other than I.P.C.) shall be investigated, inquired into,
tried and otherwise dealt with according to provisions of Cr.P.C. Section
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4 of Cr.P.C. is being reproduced below:
“4. Trial of offences under the Indian Penal
Code and other laws
(1) All offences under the Indian Penal Code (45
of 1860) shall be investigated, inquired into, tried, and
otherwise dealt with according to the provisions
hereinafter contained
(2) All offences under any other law shall be
investigated, inquired into, tried, and otherwise dealt with
according to the same provisions, but subject to any
enactment for the time being in force regulating the
manner or place of investigating, inquiring into, trying or
otherwise dealing with such offences.”
13. It is thus, apparent that the supervisory power or
revisional jurisdiction of the High Court has not been excluded by any
provisions of the D.V. Act expressly or impliedly.
14. Thus, revisional power of the High Court is not
dependent upon any other statute providing for offences unless there is
a specific exclusion of Cr.P.C.
15. A Division Bench of Allahabad High Court in case of
Shafaat Ahmad vs. Smt. Fahmida Sardar, AIR 1990 All 182, while
considering the provisions of Muslim Women (Protection of Rights on
Divorce) Act, 1986, has laid down that this Act is silent so far as
revisional power is concerned but it is of no consequence as Act does
not exclude the application of Cr.P.C. Para-2 of the judgment is being
reproduced below:
“A preliminary objection has been raised on behalf of the
wife that the revision is not maintainable and the learned
counsel for the wife has referred to the case of A.A.
Abdullah. AIR 1988 Guj 141. In this case some other
point was under consideration and casually to support the
argument that the matter should be disposed of
expeditiously the single Judge of Gujarat High Court
observed that it would be worthwhile to note that no
appeal or revision is provided against the order passed by
the Magistrate under Section 3 or 4 of the Act. The
learned Judge was not deciding the point whether revision
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is maintainable or not. This stray observation was made
casually while considering other point. Hence, it appears
that this point was not properly debated and this stray
observation cannot be of much help. The simple thing is
that under the Act this order is passed and was passed by
the Magistrate. Section 397 of the Code of Criminal
Procedure provides that the High court may call and
examine the record of any proceedings before any inferior
criminal court and the Court of the Magistrate is an
inferior criminal court. Hence, there is no reason why the
order should not be revisable by the High court. The fact
that it has not been said in the Act that the order is
revisable, is of no consequence. A provision need
not be made in every Act and it is sufficient if it is
provided in one Act. The Act provides that the order
is to be passed by the Magistrate and the Cr.P.C.
provides that the order of the Magistrate can be
revised by the High Court. The Act does not exclude
the application of the Cr.P.C. So, Cr.P.C. has to be
given effect and the order passed by the Magistrate
under Section 3 of the Act becomes revisable in
view of the provisions in the Cr.P.C.. Therefore, the
preliminary objection is rejected.”
(Emphasis Supplied)
16. Similar question was raised before Hon’ble Kerala High
Court in Crl. M.C. No. 969 of 2010 (Baiju and another vs. Latha
and others) wherein Hon’ble Thomas P. Joseph (J) has held in Para-16
of the Judgment as under:
“The next question is whether the judgment of the Court
of Sessions in an appeal under Section 29 of the Act is
amenable to the revisional jurisdiction of the High Court
under Section 397(1) and 401 of the Code. I stated that
the appeal is governed by the provisions of the Code
though right of appeal is provided by Section 29 of the
Act. The Act does not say that judgment of the Court of
Sessions is subject to challenge before any other court.
Under Section 397(1) of the Code, High Court may call
for and examine the records of any proceeding before any
inferior criminal court. A Court of Sessions is a
criminal court inferior to the High Court for the
purpose of exercise of revisional power under
Section 397(1) and 401 of the Code . Section 397 (1)
of the Code empowers the courts specified therein to call
for records of the inferior criminal court and examine
them for the purpose of satisfying themselves as to
whether a sentence, finding or order of such inferior court
is legal, correct or proper or whether the proceedings of
such inferior court is regular. The object of conferring
revisional power is to give the superior criminal courts
supervisory jurisdiction in order to correct miscarriage of
justice arising from misconception of law, irregularity of
procedure, neglect of proper precautions or apparent
harshness of treatment which has resulted on the one
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hand in some injury in the due maintenance of law and
order, or on the other hand in some undeserved hardship
to individuals. The power of revision is supervisory in
character enabling the superior courts to call for records
of the inferior criminal courts and examine them for the
purpose of satisfying themselves that the sentence,
finding, order or proceeding of such inferior court is
legal, correct or proper. The Allahabad High Court in
Shafaat Ahmad vs. Smt. Fahmida Sardar (AIR 1990 All.
182) considered whether an order under Section 3 of the
Muslim Women (Protection of Rights on Divorce) Act is
revisable under Section 397(1) of the Code.”
17. Hon’ble Kerala High Court relied upon the judgment of
Division Bench of Allahabad High Court in Saman Ismail vs. Rafiq
Ahmad and another (2002 Cr.L.J. 3648) in which, it was held that
even if, Act does not provide any procedure of the revision Magistrate
being criminal court, his order is amenable to revisional jurisdiction.
18. Brother Hon’ble Manoj Misra, J. in Crl. Misc. Writ
Petition No. 15337 of 2012 (Prabhunath Tiwari & another vs.
State of U.P. and another) has held that order passed in appeal
under Section 29 of the Act is amenable to revisional jurisdiction.
Relevant para is being quoted below:
“Having considered the preliminary objection raised
by learned A.G.A. as also on perusal of the provisions of
Section 28, 29 and 31 of the Protection of Women from
Domestic Violence Act, 2005, I do not find any provision
under the said Act, which may provide finality to an order
passed in exercise of powers under Section 29 of the Act.
Moreover, as the proceedings under Section
31 of the Protection of Women from Domestic Violence
Act, 2005 are governed by the provisions of the Code of
Criminal Procedure, 1973 as revision would be
maintainable before the High Court against the appellate
order passed by a Court of Session in exercise of power
under Section 29 of the Act.”
19. Madurai Bench of Madras High Court in Crl. R.C. (MD)
No.287 of 2012of (Arivazhagan vs. M. Uma and others) has held
that a criminal revision against the order passed by Magistrate was not
maintainable as he has an alternative viable remedy of an appeal as per
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Section 29 of the Act. This decision, therefore, does not deal with
relevant point.
20. In the case of Shalu Ojha vs. Prashant Ojha
(supra) there was a protection order passed by Magistrate awarding
Rs. 2.5 lacs towards monthly maintenance, an appeal was preferred
under Section 29 of the Act. In appeal an interim order was passed by
Additional Sessions Judge. Appeal was dismissed for non compliance of
the interim order. Matter was taken to High Court and ultimately to
Apex Court. No question whether order passed in appeal was revisable
under Section 397 Cr.P.C. was before the Court. It has been stated in
the above case that in D.V. Act no further appeal or revision has been
provided to the High Court. Relying upon these observations this Court
(Hon’ble Mahendra Dayal, J.) has held that no further appeal or revision
is maintainable. Relevant paragraph of the judgment passed in Writ
Petition (M/S) No. 7926 of 2015 ( Mrs. Manju Sree Robinson & 2
others vs. State of U.P. and others) is reproduced below:
“Having heard learned counsel for the parties and having
gone through the case laws relied upon by the parties, I
find that the latest pronouncement of the Hon’ble
Supreme Court is that against the order passed by the
Session Judge in appeal, no further appeal or revision is
maintainable. In these circumstances, the only remedy
available is to file writ petition or an application under
Section 482 Cr.P.C. Since the jurisdiction of this Court
under Article 226 of the Constitution of India is an extra
ordinary jurisdiction, the aggrieved party has a right to
seek remedy under section 482 Cr.P.C. would be
maintainable. At this stage, Mr. Lalit Shukla submits that
the writ petition may be treated as an application under
Section 482 Cr.P.C., to which learned counsel for the
opposite party no. 2 submits that this writ petition should
be dismissed and liberty be given to the petitioners to file
application under section 482 Cr.P.C. Since this exercise
would amount to further delay in the matter therefore, in
the interest of justice, the petitioners are permitted to
convert this writ petition into application under Section
482 Cr.P.C.”
21. Hon’ble Apex Court has only said that in D.V. Act no
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further appeal or revision has been provided.
22. Code of Criminal Procedure has not been excluded in
the D.V. Act. Since, High court’s supervisory power of revision which it
can exercise suo moto against the order passed by subordinate criminal
courts i.e. Magistrate or Sessions Judge has not been taken away, this
court is of the view that observation made by Apex Court has been
wrongly interpreted and the view taken by Hon’ble Manoj Misra, J. in
the case of Prabhu Nath Tiwari (supra) appears to be a correct law.
Division Bench of this court referred above was not placed before
Hon’ble M. Dayal, J. Consequently, this Court is of the opinion that
Sessions Judge being subordinate/inferior criminal court to the High
court and there being no specific exclusion of the Cr.P.C., the revisional
power of the High Court, against the order passed under Section 29 of
the D.V. Act are intact and unaffected. In view of above, preliminary
objection raised by Sri Pankaj Tiwari is overruled.
23. So far as merits are concerned, it has been alleged in
the application filed under Section 12 of D.V. Act that applicant
Prathama Singh was married to Chiranjeev Kumar Arya on 28.02.2009.
She was serving as teacher on contract basis in Kasturba Gandhi
Residential Girls School, Nindura, Barabanki, which job she left on
19.08.2010. She came to know on 21.03.2011 that her husband has
established illicit relations with other lady. She was turned out on
21.03.2011 from her husband’s house and thereafter she took
admission in Narvdeshwar Mahavidhyalaya, Lucknow. Her father has
retired while husband is earning nearly Rs. 3,64,000/- per annum. She
is residing in rented house and preparing for judicial service etc. She
claimed Rs. 30,000/- per month apart from Rs. 5,00000/- (five lacs) as
lump sum amount. It was also stated in para-22 of the affidavit that
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against the husband petition under Section 125 Cr.P.C. and petition
under Section 24 of Hindu Marriage Act have been filed, while husband
has filed case under Section 13 of Hindu Marriage Act.
24. Learned Magistrate in its order dated 25.06.2014 has
observed that Family court has already ordered payment of Rs. 2000/-
per month as interim maintenance. A sum of Rs. 1000/- per month was
ordered by the Magistrate under D.V. Act.
25. An appeal was filed by wife against the order passed
by Magistrate, which has been allowed on 02.09.2015 by Additional
Sessions Judge, Lucknow.
26. Appellate Court was of the view that income of the
husband comes to Rs. 30,000/- per month while wife is staying in
rented house as such amount of Rs. 5000/- per month would be just
and proper towards maintenance.
27. In the revision filed in this court, it is alleged that
parents of wife are residing in Barabanki while in-laws at Hardoi, as
such, there is no justification for her to live in Lucknow. Copy of the
order whereby service of Prathama Singh was terminated shows that
she was found to be indiscipline, negligent and mischievous (Upadravi).
It is further submitted that despite repeated request she did not stay in
Hardoi, as such, husband had to file a petition for divorce on
22.04.2011 before Family Court, Hardoi, which was transferred to
Family court, Lucknow. It is stated in para-14 that she is a Science
teacher, runs a coaching from which she earns Rs. 25,000/- per month.
She is an advocate and has willingly deserted her husband (para-15).
In para-16 it is specifically mentioned that wife has strong financial
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position. She has six accounts in different banks namely UCO bank,
Lalbhag, Aliganj, United Bank of India etc. Details of the account
number and amount lying in the said accounts, have also been given,
which shows that there is a one recurring deposit account, two fixed
deposit account and rest are saving account.
28. A short counter affidavit has been filed by Smt.
Pathama Singh. In short counter affidavit, it is stated that income of
husband is more than Rs. 40,000/- per month. The order for
terminating her services was subject matter of writ petition No. 6076
(S/S) of 2010, said writ petition was disposed of directing District
Magistrate to decide the matter within one month after giving
opportunity to the petitioner.
29. Smt. Prathama Singh however, has not denied the
allegation made in para- 15 & 16 to the effect that she is an advocate
having number of accounts in various banks.
30. Rejoinder affidavit has been filed by husband, in which
it is stated that petition was filed concealing the fact that she is an
Advocate and she is an earning member. Moreover, she was terminated
because of her character and conduct, as is apparent from the
termination order and not because of domestic violence as alleged by
her. It is further stated that the transfer application seeking transfer of
the matter from Family Court, Hardoi to Lucknow was filed by Pal Singh
Yadav (Enrolment No. UP-6850 of 2007) and Awadhesh Kumar Yadav.
Enrolment number shown by Pal Singh Yadav belongs to Sri Shiv Pal
Singh, Advocate, as such, Pal Singh Yadav has used the enrolment
number of another counsel i.e. Sri Shiv Pal Singh. Actual enrolment
number of Pal Singh Yadav is U.P.-04987 of 2014. It is apparent from
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papers filed alongwith supplementary affidavit by Chiranjeev Kumar
Arya-revisionist, that Prathama Singh, Shiv Pal Singh & Pal Singh Yadav
were Advocates for petitioner, and petition was dismissed on
29.05.2015. In writ petition No. 1065 (M/B) of 2015, it has been shown
that Prathama Singh and Pal Singh Yadav were counsel for petitioner.
31. Submission of learned counsel is that Prathama Singh
an Advocate has been appearing regularly before the Courts, thus
petition under section 12 of the D.V. Act was filed by concealment of
facts. She is not unable to maintain herself. Allegation made in para-10
of the affidavit as well as in petition filed under Section 12 of D.V. Act
that she is studying and dependent solely upon father, is incorrect. In
para-15 of the petition, it is stated that she does not earn anything and
is dependent fully upon her parents. This petition has been filed by
concealing the fact that she is a regular practicing Advocate. Courts
below should not have ordered any maintenance under the D.V. Act.
Had she disclosed the facts of her income, courts below would not have
passed impugned order. Apart from six accounts mentioned in revision,
two more accounts have been detailed in supplementary affidavit (one
FD and one saving in SBI Barabanki).
32. In any case it has come on record that wife has
become Advocate and she has number of accounts (approx eight), as
such, matter requires reconsideration. Amount has to be fixed, keeping
in view the income of the husband as well as income of the aggrieved
person requiring her to live with the standard of living to which person
is accustomed.
33. It is apparent that Prathama Singh is appearing as
counsel in number of cases. She is a regularly practicing Advocate,
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consequently, courts below are required to consider the matter afresh
in the light of documents, which have been placed before the Court.
Revision thus deserves to be allowed.
34. It has been brought to the notice of this court that
Pankaj Tiwari and Pal Singh Yadav appeared on behalf of Prathama
Singh by using different enrolment numbers. In the case at hand
Vakalatnama has been filed by Pankaj Tiwari and Pal Singh Yadav.
Enrolment number shown in Vakalatnama of Pankaj Kumar Tiwari is UP-
1514 of 1996 and that of Pal Singh Yadav is UP-6850 of 2007. In the
court of District Judge, Lucknow, Vakalatnama was filed by Pal Singh
Yadav and Pankaj Kumar Tiwari with enrolment numbers shown above.
Further enrolment number 6850 of 2007 belongs to Shri Shiv Pal Singh
as is apparent from Annexure RA-5. Enrolment number of Prathama
Singh is UP-4988 of 2014. Enrolment number of Pal Singh Yadav is UP-
4987 of 2014. Shocked by these revelations, this court called for report
from the District Judge, Lucknow, who reported that in seven courts
below Pal Singh Yadav, Shiv Pal Singh, Prathama Singh, Awadesh
Kumar, Pankaj Kumar Tiwari have filed their Vakalatnama using
different enrolment numbers.
35. Problem is compounded further by Shri Shiv Pal Singh,
who filed an affidavit through Sri Ravi Shanker Tiwari. Shiv Pal Singh in
his affidavit states that he was shocked to know that his name and
enrolment number was used by lawyers. He states in para-5 of the
affidavit that he does not know either Prathama Singh or Pal Singh
Yadav, who have used his enrolment number. In para-6 of affidavit, it is
stated that Pal Singh Yadav has not only used the enrolment number
but has also used the name of counsel in different cases. In para-7 of
the affidavit, it is stated that he never appeared before the Family
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court. Paras- 5, 6, 7 & 8 of the affidavit filed by Sri Shiv Pal Singh,
Advocate, are being reproduced below:
5. That it was orally informed to the Hon’ble Court
that the deponent do not know Prathama Singh, who is
one of the opposite party No. 2 in the instant case nor
does he knows Sri Pal Singh Yadav, who from the record
has been shown to use the registration number of the
deponent as his own.
6. That it has also come to the fore through the
counsel for the petitioner that Sri Pal Singh Yadav has not
only used the enrolment number of the deponent but in a
few cases he has also used the name of the deponent as
counsel for his different clients, which was without any
authority or any knowledge of the deponent and as such
the such act of Pal Singh Yadav is not only Mischievous
but against the ethics of the legal practice which needs to
be dealt with by stern hands.
7. That at the very outset the deponent craves leave
of this Hon’ble court to state that he has not visited the
family curt even once not to say that he has formed any
such caucus or racket. It is further reiterated that the
deponent has not signed any vakalatnama with these
persons nor has he authorized any of them to use his
name as he even does not know them personally.
8. That the action of Pal Singh Yadav is so grave and
unethical that he deserves to be taken out of the roll of
the registered practitioner not only from the Bar Council
of U.P. but if it all he is member of any of the
Associations he is liable to be expelled from the same as
well. Such act of Pal Singh Yadav or any of his associate
amounts to polluting the purest stream of justice as a
lawyer is not only the officer of the court but he is
indispensable in our judicial system and as such his duty
towards the society as well as the Hon’ble Courts is to
remain honest and put the truth as far as possible and his
knowledge before the Hon’ble court but the action of the
erring lawyer is such that it further erodes the already
lost faith from the fraternity by the respective clients.
36. He prayed that matter be referred to Bar council so
that they are stripped of their registration at the Bar.
37. Pankaj Tiwari states that Pal Singh Yadav is his junior.
One Vakalatnama filed by Sri Pankaj Tiwari alongwith Pal Singh Yadav
in case of Navneet Kaur vs. Kamaljeet, before this court shows that
enrolment number of Pankaj Tiwari is 1514 of 2006 and Pal Singh
Yadav’s continues to by 6850/2007. It is apparent that Pankaj Tiwari,
Pal Singh Yadav, Prathama Singh have been jointly practicing, as is
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apparent from the names appearing in cases filed before this Court. Pal
Singh Yadav is using the enrolment No. 6850 of 2007, which belongs to
Shiv Pal Singh, who is a member of Oudh Bar having enrolment No.
UP06850/2007. It is also apparent from the affidavit that Shiv Pal
Singh’s name in addition to enrolment number has also been used by
these persons, as is apparent from the name of the Advocates
(alongwith Pankaj Tewari, Prathama Singh and Pal Singh Yadav) (SA-1)
appearing in 407 Cr.P.C. petition No. 38 of 2008. It further appears that
Pal Singh Yadav has filed a petition as Proprietor of Vidhya Travel
Agency, as such, he appears to be engaged in travel business. In this
case Pankaj Tewari & Prathama Singh are his advocates (SA-2). Sri Pal
Singh Yadav appeared and stated that under some mistaken belief he
had used the enrolment number of Shiv Pal Singh. Such an explanation
from a law graduate well-versed with the procedure of the court is not
acceptable at all and is rejected.
38. Pal Singh Yadav himself is party in Case No. 130 of
2012 pending before A.C.J.M. Court No. 20, Lucknow. Pal Singh Yadav
has also been shown as accused in Crime Nos. 312 of 2009 & 168 of
2009, under Sections 384, 506, 420 & 406 I.P.C. respectively, Police
Station Naka Hindola, Lucknow. These cases are pending before
A.C.J.M. Court No. 32, Lucknow. It is also apparent from the record that
Pal Singh Yadav, Prathama Singh were enrolled by Bar Council on the
same day i.e. on 28th August, 2014 and their enrolment numbers are
UP-4987 of 2014 and UP-4988 of 2014 respectively.
39. It appears that Pankaj Tewari too has used two
different enrolment numbers (A) U.P.1514 of 1996 filed in this case (B)
UP-1514 of 2006 filed in case No. 270 of 2013 (984 of 2013) under
Section 12 of D.V. Act P.S. Alambagh filed before Additional Civil Judge
(Junior Division/JM-II) (Navneet Kaur vs. Kamaljeet Sachdeva and
-16-
others).
40. Moreover enrolment number of other Advocates are
being used brazenly with impunity not only before this Court but other
courts of district Lucknow.
41. Prima facie, it appears to be a case of impersonation
using somebody else’s name and identity. A fraud has been done, which
is apparent from the record.
42. In case of K.D. Sharma vs. Steel Authority of
India Limited, (2008) 12 SCC 481 Hon’ble Apex Court has
held that High Court will be failing in its duty if it does not reject
the petition on the same ground. It was a case where fraud was
made upon court. Concealment in filing case also amounts to
fraud. Relevant paragraph of the case is being reproduced
hereinbelow :-
“26. It is well settled that “fraud avoids all judicial
acts, ecclesiastical or temporal” proclaimed Chief
Justice Edward Coke of England about three
centuries before. Reference was made by the
counsel to a leading decision of this Court in S.P.
Chengalvaraya Naidu vs. Jagannath wherein
quoting the above observations, this Court held
that a judgment/decree obtained by fraud has to
be treated as a nullity by every court.
27. Reference was also made to a recent decision
of this Court in A.V. Papayya Sastry vs. Govt. of
A.P. Considering English and Indian cases, one of
us (C.K.Thakker, J.) (SCC p.231, para 22)
’22. It is thus settled proposition of law that
a judgment, decree or order obtained by playing
fraud on the court, tribunal or authority is a nullity
and non est in the eye of the law. Such a
judgment, decree or order-by the first court or by
the final court-has to be treated as 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.‘
-17-
The court defined “fraud” as an act of deliberate
deception with the design of securing something by
taking unfair advantage of another. In Fraud one
gains at the loss and cost of another. Even the
most solemn proceedings stand vitiated if they are
actuated by fraud. Fraud is thus an extrinsic
collateral act which vitiates all judicial acts,
whether in rem or in personam.”
43. In case of A. Shanmugam vs. Ariya Kshatriya
Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam
and others, (2012) 6 SCC 430, Hon’ble Apex Court has held as
under:
“2.15. The adversarial system lacks dynamism
because it has no lofty ideal to inspire. It has not
been entrusted with a positive duty to discover
truth as in the inquisitorial system. When the
investigation is perfunctory or ineffective, Judges
seldom take any initiative to remedy the situation.
During the trial, the Judges do not bother if
relevant evidence is not produced and plays a
passive role as he has no duty to search for truth.”
44. Relying upon these decisions, it is urged by learned
counsel for revisionist that entire proceedings are liable to be quashed,
as fraud vitiates everything. Submission has force, but material that
wife is practising advocate having sufficient income reflected from
various Bank accounts has been placed before this court for the first
time, it is but proper that matter is remanded to learned Magistrate to
take a holistic view of the matter while deciding the application under
Section 12 of D.V. Act.
45. In view of discussions made above, this revision is
allowed.
46. Since fraud appears to have been played while filing
petition under Section 12 of D.V. Act by concealing material facts in the
ends of justice exercising power under Sections 397/401 & 482/483
-18-
Cr.P.C., order dated 02.09.2015 passed by Additional Sessions Judge,
Court No. 17, Lucknow as well as order dated 25.06.2014 passed by
learned Additional Chief Judicial Magistrate-II, District Lucknow are setaside.
Concerned Magistrate is directed to decide the application under
Section 12 of D.V. Act considering the entire matrix of the case, in the
light of observations made in the judgment, expeditiously, if possible
within two months from today.
47. An Advocate has an independent identity and
personality. It takes years to shape the personality and build an image.
This image works althrough his life. Lot of dedication, commitment,
sincerity and impeccable integrity is required to generate and sustain
an image. Using somebody else’s identity and name is most
sacrilegious act as such outrage and annoyance of Sri Shiv Pal Singh is
not unfounded and is fully justified.
48. So far as prayer of Sri Shiv Pal Singh, Advocate seeking
action against Pal Singh Yadav, Advocate is concerned, matter is
referred to Bar Council of Uttar Pradesh and Oudh Bar Association. Till a
final decision is taken by State Bar Council, Pal Singh Yadav, Advocate
is restrained from entering the premises of High Court, Lucknow Bench,
Family Court, the court of District Judge, Lucknow and other courts
subordinate to him.
49. Senior Registrar will get the Vakalatnama available in
this file sealed and an F.I.R. lodged against Pal Singh Yadav for
impersonation, stealing and using the identity of other Advocate by
using his name and enrolment number.
50. Investigating Officer will also investigate the role of
-19-
other Advocates/personnel who were also party to the fraud played with
the court.
51. Copy of the order along with affidavit of Sri Sheo Pal
Singh, Advocate will be sent to District Judge Lucknow, Secretary, Bar
Council of Uttar Pradesh as well as President Oudh Bar Association for
taking action against erring Advocates in accordance with law.
52. Senior Registrar will also issue instruction to computer
section to ensure that enrolment number and other details of counsels
are properly verified before approving the case.
Order Date : 29.06.2016
Reena/-

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