# Mohd. Ishtiyak Khan v. State of U.P. & Anr. Opp. Parties 600 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 10 ILRA 599
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-17
- **Case number:** Crl. Misc. Bail Cancellation Application No. 177 of 2023
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-ishtiyak-khan-v-state-of-u-p-anr-opp-parties-600-indian-law-reports-49486
- **Pages:** 4

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section 439(2) - Indian
Evidence Act, 1872 - Section 44 - Bail
Cancellation - Fraud on Court - Concealment of
Criminal Antecedents - Criminal Miscellaneous
Bail Cancellation Application Crl. Misc. Bail
Cancellation Application No. 177 of 2023
seeking cancellation of anticipatory bail granted
to opposite party no. 2 on 09.12.2022 in
Criminal Misc. Anticipatory Bail Application u/s
438 Cr.P.C. No. 10933 of 2022, in Criminal Case
No. 2177 of 2018 (Case Crime No. 303 of 2018,
under Sections 420, 467, 468, 471 IPC, Police
Station Kurra, District Mainpuri). The applicant
(complainant) alleged that opposite party no. 2
obtained bail by concealing seven criminal
antecedents, misleading the court. The court
held
that
suppression
of
material
facts,
particularly criminal history, constituted fraud
under Section 44 of the Indian Evidence Act,
rendering the bail order a nullity (A.VS Papayya
Sastry).
The
opposite
party's
claim
of
unawareness of antecedents was untenable, as
he admitted to three acquittals and bail in other
cases but failed to disclose them in the bail
application. The court distinguished cancellation
based on fraud from cancellation due to
misconduct or new facts (Puran Vs Rambilas).
Anticipatory bail order dated 09.12.2022 set
aside, with opposite party no. 2 granted two
weeks to surrender before the trial court and
seek regular bail per Satender Kumar Antil.

Application allowed.

Case Law Cited:

## Text

10 All. Mohd. Ishtiyak Khan Vs. State of U.P. & Anr.
599
award in segregating bad part from good
part. It has been held as follows :-

16. Thus, the rival contentions need to be
decided on the touchstone of jurisdiction
clarified as above. It is also relevant to refer to
the Full Bench judgement of this Court in the
case of R. S. Jiwani Vs. Ircon International
Limited (supra), for the reason that the
respondents have specifically invoked the
position of law clarified therein, to claim that
the impugned award can be partly set aside,
restricted to the second direction issued to the
respondents for refunding specific amount with
interest. It is submitted that the first finding or
direction in the impugned award rejecting the
prayer for specific performance made by Mr.
Fernandes deserves to be confirmed and
sustained. The Full Bench of this Court in the
case of R. S. Jiwani Vs. Ircon International
Limited (supra) took into consideration
judgement of the Supreme Court in the case of
McDermott International Inc. Vs. Burn
Standard Company Limited and others, (2006)
11 SCC 181, wherein it was laid down that a
court under Section 34 of the said Act can only
quash an award, leaving the parties free to begin
arbitration again, if they so desire. But the Full
Bench of this Court in the said Judgement found
that the principle of severability could certainly
apply to arbitral awards, so long as the
objectionable part could be segregated. This Court
is convinced that the respondents are justified in
invoking the said principle and contending that if
their contentions are accepted, the impugned
award could be partially set aside. This would not
amount to modification or correction of errors of
the learned arbitrator. In this backdrop, the arbitral
award needs to be examined in the light of the
contentions raised on behalf of the rival parties.

146. We have thus, no hesitation in holding
that scheme of the Act does not put any limitation
on power of the court to apply the doctrine of
severability to an arbitral award while considering
the objections under Section 34 of the Act. It is
well within the power of court to segregate, severe
and set aside part of the award and uphold the
remaining part. The only restriction is (i) that
while exercising the power, the court cannot
proceed to modify the findings returned on any of
the issues decided by the arbitral tribunal and (ii)
the remaining part is capable of surviving on its
own.

147. Coming to the facts of the instant case,
we find that Claim No. 2 of Rs.35.92 crores
towards liquidated damages under Clause No.
13(ii)(b) of GCC which has been held to be
unsustainable, is separate and distinct from the
remaining claims found to be valid and lawful.
The claims found to be valid are capable of
surviving on their own strength, without in any
manner getting affected by severance of Claim
No.2 towards liquidated damages. Therefore,
applying the doctrine of severability, the award in
respect of liquidated damages (Claim No. 2) alone
is set aside. Resultantly, the award of pendenti lite
and future interest in respect of Claim No. 2
would also stand set aside, leaving the
remaining award intact.

148. As a result, the appeal stands
allowed in part.

149. No order as to costs.
----------
(2023) 10 ILRA 599
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.10.2023

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Crl. Misc. Bail Cancellation Application No. 177
of 2023

Mohd. Ishtiyak Khan ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties
600 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicant:
Sri Sanjay Yadav, Sri Deepak Singh Yadav

Counsel for the Opp. Parties:
G.A., Sri Arun Kumar Sharma

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 439(2) - Indian
Evidence Act, 1872 - Section 44 - Bail
Cancellation - Fraud on Court - Concealment of
Criminal Antecedents - Criminal Miscellaneous
Bail Cancellation Application Crl. Misc. Bail
Cancellation Application No. 177 of 2023
seeking cancellation of anticipatory bail granted
to opposite party no. 2 on 09.12.2022 in
Criminal Misc. Anticipatory Bail Application u/s
438 Cr.P.C. No. 10933 of 2022, in Criminal Case
No. 2177 of 2018 (Case Crime No. 303 of 2018,
under Sections 420, 467, 468, 471 IPC, Police
Station Kurra, District Mainpuri). The applicant
(complainant) alleged that opposite party no. 2
obtained bail by concealing seven criminal
antecedents, misleading the court. The court
held
that
suppression
of
material
facts,
particularly criminal history, constituted fraud
under Section 44 of the Indian Evidence Act,
rendering the bail order a nullity (A.VS Papayya
Sastry).
The
opposite
party's
claim
of
unawareness of antecedents was untenable, as
he admitted to three acquittals and bail in other
cases but failed to disclose them in the bail
application. The court distinguished cancellation
based on fraud from cancellation due to
misconduct or new facts (Puran Vs Rambilas).
Anticipatory bail order dated 09.12.2022 set
aside, with opposite party no. 2 granted two
weeks to surrender before the trial court and
seek regular bail per Satender Kumar Antil.

Application allowed.

Case Law Cited:

1. A.VS Papayya Sastry Vs Government of A.P.,
(2007) 4 SCC 221 (Para 4)

2. Lazarus ESt.s Ltd. Vs Beasley, (1956) 1 All ER
341 (Para 5)

3. Puran Vs Rambilas, (2001) 6 SCC 338 (Para
6)

4. Gurcharan Singh Vs St. (Delhi Admn.), AIR
1978 SC 179 (Para 6)

5. Satender Kumar Antil Vs Central Bureau of
Investigation, (2022) 10 SCC 51 (Para 13)

(Delivered by Hon'ble Krishan Pahal, J.)

1. Heard Sri Sanjay Yadav, learned
counsel for the applicant, Sri Arun Kumar
Sharma, learned counsel for the opposite
party no. 2 and Sri Sunil Kumar, learned
A.G.A. for the State.

2. The instant 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 this
Court on 9.12.2022 passed in Criminal
Misc. Anticipatory Bail Application u/s 438
Cr.P.C. No. 10933 of 2022, in Criminal
Case No. 2177 of 2018, relating to Case
Crime No. 303 of 2018, under Sections
420, 467, 468, 471 IPC, Police Station
Kurra, District Mainpuri.

RIVAL CONTENTIONS:

CONTENTIONS ON BEHALF OF
THE APPLICANT:

3. Learned 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. Learned
counsel has next stated that the said order
itself indicates as follows:-

"Learned counsel for the applicant has
stated that the applicant has been falsely
implicated in the present case. The said sale
deed has been executed in favour of his
wife Sudha @ Neelam. A civil suit has
10 All. Mohd. Ishtiyak Khan Vs. State of U.P. & Anr.
601
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. The said order is
annexed as SA-1 dated 28.11.2022. Several
other submissions have been made on
behalf of the applicant to demonstrate the
falsity of the allegations made against him.
The circumstances which, as per counsel,
led to the false implication of the applicant
have also been touched upon at length.
Learned
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."

4. Learned counsel has placed
reliance on the judgement of the Apex
Court passed in A.V. Papayya Sastry &
others vs. Governmnet of A.P. & Others1,
wherein it has been held as follows:-

"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 law. Even the Chief Justice Edward
Coke proclaimed "Fraud avoids all
judicial acts, ecclesiastical or temporal".

5. 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."

6. Learned counsel has placed
reliance
on
the
judgement
of
the
judgement of the Apex Court passed in
Puran vs. Rambilas and another2,
wherein it was held as under:-

"11. Further, it is to be kept in mind
that the concept of setting aside the
unjustified illegal or perverse order is
totally different from the concept of
cancelling the bail on the ground that the
accused has misconducted himself or
because of some new facts requiring such
cancellation. This position is made clear
by this Court in Gurcharan Singh v. State
(Delhi Admn.) reported in AIR 1978 SC
179. In that case the Court observed as
under:-

"If, however, a Court of Session had
admitted an accused person to bail, the
State has two options. It may move the
Sessions
Judge
if
certain
new
circumstances have arisen which were
not earlier known to the State and
necessarily, therefore, to that Court. The
State may as well approach the High
Court being the superior Court under S.
439 (2) to commit the accused to custody.
When, however, the State is aggrieved by
the order of the Sessions Judge granting
bail and there are no new circumstances
that have cropped up except those already
existing, it is futile for the State to move the
Sessions Judge again and it is competent in
law
to
move
the
High
Court
for
cancellation of the bail. This position
602 INDIAN LAW REPORTS ALLAHABAD SERIES
follows from the subordinate position of the
Court of Session vis-a-vis the High Court."

7. It was laid down in this judgement that
even the complainant being an aggrieved person,
can move the bail cancellation application.
Learned 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.

CONTENTIONS
ON
BEHALF
OF
OPPOSITE PARTY NO. 2:

8. Per contra, learned 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 No. 10933 of 2022. 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, although the said order could
not be annexed to the rejoinder affidavit.

CONCLUSION:

9. A bare perusal of Section 44 of the Indian
Evidence Act is being reproduced as follows:-

"44. Fraud or collusion in obtaining
judgment, or incompetency of Court, may be
proved.-Any party to a suit or other proceeding
may show that any judgment, order or decree
which is relevant under section 40, 41 or 42 and
which has been proved by the adverse party, was
delivered by a Court not competent to deliver it, or
was obtained by fraud or collusion."

10. The opposite party no. 2 has not come
with clean hands to this 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.

11 . 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.

12. The present bail cancellation application
is allowed.

13. 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
another3.
----------
(2023) 10 ILRA 602
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.10.2023

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Crl. Misc. Anticipatory Bail Application No. 10246
of 2023
(under Section 438 Cr.P.C.)

Deepak Prakash Singh @ Deepak Singh
 ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel
for
the
Applicant: