# Ram Kishan v. State of U.P. and another

- **Citation:** (2008) 2 ILRA 451
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-04-18
- **Case number:** IN Criminal Misc. Application No.26431 of 2007
- **Bench:** R.K Rastogi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kishan-v-state-of-u-p-and-another-41095
- **Pages:** 5

## Headnote

Code of Criminal Procedure-Section 482Practice of Procedure-earlier application
dismissed having no force-subsequent
application on the same set of facts by
concealing earlier application-amounts
to fraud on court-not maintainable-recall
application-allowed-direction issued to
Registry-to ensure the signature or
Thumb impression of the applicant or his
pairokar
if
in
Jail-No
power
of
appearance accepted unless duly signed
by the person instructing the counsel for
appearance-court expressed its great
concern for necessary amendment in
relevant Rules.

Held: Para 15

Before parting with the judgement, I
would like to observe that in criminal
cases also there should be a provision
requiring the party to sign or put thumb
mark
on
the
power/
memo
of
appearance/Parcha filed by the Advocate
except in those cases where accused is
in Jail so as to avoid taking of such
excuses in future alleging that the power
filed by Advocate was not valid and that
he had no knowledge of institution of the
case. Even in those cases where the
accused is in Jail, the Power in favour of
the counsel must bear the signature/
thumb mark of the pairokar with his full
name and address with particulars of his
relationship with the accused in Jail.

## Text

2 All] Ram Kishan V. State of U.P. and another
451
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.04.2008

BEFORE
THE HON'BLE R.K RASTOGI, J.

Criminal Misc. Recall Application no.
265084 of 2007
IN
Criminal Misc. Application No.26431 of
2007

Ram Kishan

...Applicant
Versus
State of U.P. & another ...Opposite parties

Counsel for the Applicant:
Sri T.K. Misra
Sri R.M. Srivastava

Counsel for the Opposite Parties:
Sri Shashi Kant Shukla
Sri Ratnesh
A.G.A.

Code of Criminal Procedure-Section 482Practice of Procedure-earlier application
dismissed having no force-subsequent
application on the same set of facts by
concealing earlier application-amounts
to fraud on court-not maintainable-recall
application-allowed-direction issued to
Registry-to ensure the signature or
Thumb impression of the applicant or his
pairokar
if
in
Jail-No
power
of
appearance accepted unless duly signed
by the person instructing the counsel for
appearance-court expressed its great
concern for necessary amendment in
relevant Rules.

Held: Para 15

Before parting with the judgement, I
would like to observe that in criminal
cases also there should be a provision
requiring the party to sign or put thumb
mark
on
the
power/
memo
of
appearance/Parcha filed by the Advocate
except in those cases where accused is
in Jail so as to avoid taking of such
excuses in future alleging that the power
filed by Advocate was not valid and that
he had no knowledge of institution of the
case. Even in those cases where the
accused is in Jail, the Power in favour of
the counsel must bear the signature/
thumb mark of the pairokar with his full
name and address with particulars of his
relationship with the accused in Jail.

(Delivered by Hon'ble R.K. Rastogi, J.)

1. Complainant Satish Kumar
Dubey, arrayed as opposite party no. 2 in
Crl. Misc. Application No. 26431 of 2007
has
filed
Criminal
Misc.
Recall
Application No. 265084 of 2007 for recall
of the order dated 31.10.2007 passed by
Hon'ble S.S. Kulshrestha, J. in the above
Criminal Misc. Application no. 26431 of
2007, Ram Kishan Vs. State of U.P. and
another.

2. The facts relevant for disposal of
this application are that Sri Satish Kumar
Dubey had moved an application before
the S.S.P. Ghaziabad on 17.6.2006 against
the accused Ram Kishan (applicant in
Criminal
Misc.
Application
No.
26431/07) and co accused Damodar Das,
Suresh Chand Dobariyal, P.K. Banerji,
K.C. Dobariyal and K.K. Kaushik with
these allegations that he is a member of
'Vartalok Sahkari Samiti Vasundhara',
P.S. Indrapuram District Ghaziabad and
the accused are office bearers of that
Society. He and other members of that
Society had deposited approximately
rupees one Crore in respect of their Flats
and they had details of those deposits with
them. However, upon inquiry made from
the authorities of the Housing Board they
came to know that no amount had been
deposited by the Society with the Housing
Board and in spite of repeated requests,
452 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
these office bearers of the Society were
not executing any sale deed in favour of
their members nor they were depositing
the amount with the Housing Board, nor
they were giving any satisfactory reply,
and, in this way, they had committed
criminal breach of trust in respect of that
amount of one crore rupees and they were
getting the flats released from the
Housing Board on the basis of fictitious
documents. It was, therefore, prayed that
action should be taken in the matter
against the accused persons.

3. On the basis of the orders of the
S.S.P. Ghaziabad passed on the aforesaid
application, the police of P.S. Indirapuram
District Ghaziabad registered a F.I.R.
against the accused persons on 1.7.2006
as case Crime No. 384/06 under sections
420,467,468, 471 I.P.C P.S. Indirapuram
and
investigated
the
same.
After
completion of investigation, the I.O.
submitted a charge sheet against all the
above named accused persons in the court
of C.J.M, Ghaziabad under Sections 420,
467, 468, 471 I.P.C. The Chief Judicial
Magistrate took cognizance on that charge
sheet on 9.8.2007.

4. Aggrieved with the above order
taking cognizance, all the above named
accused persons filed an application,
being
Criminal
Misc.
Application
No.22268
of
2007,
Damodar
Das
Upadhyay and others Vs. State of U.P.
and another under Section 482 Cr.P.C.
through Sri Anurag Pathak Advocate on
5.9:2007. Ram Kishan (the sole applicant
in Crl. Misc. Application no. 26431/07)
was impleaded as applicant no. 6 in this
Crl. Misc. Application no.22268/07. Sri
Kamal Krishna, Advocate had put in
appearance on behalf of the complainant
opposite party no. 2 at the time of hearing
on admission of this application, and
Hon'ble Vinod Prasad, J., after hearing
both the parties finally disposed of the
above
application
at
the
stage
of
admission
on
11.9.2007
with
the
following order:

"Sri Kamal Krishna Advocate has
filed his power on behalf of the
respondent, which is taken on record.
Heard learned counsel for the
applicants and learned AGA.
The
applicants
through
this
application have prayed for quashing of
the charge sheet in Case crime no. 384/06
under sections 420,467,468,471 I.P.C.
pending in the court of CJM Ghaziabad.
There is no reason to quash the
charge sheet. This, application is merit
less. The said prayer is refused.
However, it is directed that if the
applicants appear or surrender before the
trial court on or before 21.9.2007 and
move an application for bail in the
aforesaid case, the same shall be disposed
off as expeditiously as possible, if possible
on the same day by both the courts below,
after giving opportunity of hearing to the
prosecution.
Non bailable warrant issued against
the applicants shall remain in abeyance
till 21.9.2007 to enable them to appear
before the court concerned and to seek
bail. In case of default property of the
applicants shall be attached forthwith.
With the aforesaid direction this
application is finally disposed of."

5. It is apparent form perusal of the
above order that the prayer for quashing
of the charge sheet was refused on merits
but it was directed that if the applicants
appear or surrender ,before the Court on
or before 21.9.07 and move an application
"for bail, the same shall be disposed of as
2 All] Ram Kishan V. State of U.P. and another
453
expeditiously as possible, and if possible
on the same day, by both the courts
below, after giving opportunity of hearing
to the prosecution and execution of non
bailable warrant was directed to be stayed
till 21.9.2007 to enable the applicants to
appear before the trial Court and to apply
for bail. It was further ordered that in case
of default property of the applicants shall
be attached forthwith.

6. It appears that the accused
applicants did not comply with the above
order and Ram Kishan, who was applicant
no. 6 in the above case (Crl. Misc.
application no. 22268/07), moved another
application
being
Criminal
Misc.
Application No.26431/07 under section
482 Cr.P.C. in this court on 29.10:2007
for quashing of the above charge sheet,
concealing
the
filing
of
aforesaid
Criminal Misc. Application No. 22268/07
and obtained orders from Hon'ble S.S.
Kulshrestha,
J.
staying
further
proceedings of Criminal Case No. 13608
of 2007 under sections 420,467,468 and
471 I.P.C. , P.S. Indirapuram Ghaziabad
pending in the court of Addl. District
Judge Ghaziabad at that time. When
notice of this case was received by
opposite party no.2 Satish Kumar Dubey,
he
moved
Criminal
Misc.
Recall
Application No. 265084 of 2007 before
this court for recalling the stay order
dated 31.10.07 alleging that it had been
obtained by concealing the material facts
as well as the filing of previous Criminal
Misc. Application no. 22268/07 before
this court and so the stay order dated
31.10.2007 should be vacated and suitable
action may be taken against Ram Kishan
for filing a false affidavit in Crl. Misc.
Application No. 26431/07.

7. A counter affidavit has been filed
by Ram Kishan in this Misc. recall
application no. 265084/07 in which he has
alleged that he had never instructed any
person
to
move
Criminal
Misc.
Application No. 22268/07 and this
application had been moved without his
instruction and so the order passed in that
case was not binding upon him and he has
legal right to move the present application
no. 26431/07 and as such no illegality was
committed by him by moving this
application.

8. I have heard the learned counsel
for both the parties and perused the
record.

9. It is to be seen that Criminal
Misc. Application No. 22268 of 2007 was
filed on behalf of all the six accused
persons of Case crime no. 384 of 2006
P.S.
Indirapuram
District
Ghaziabad
through Sri Anurag Pathak Advocate. The
Parcha (power) filed by Sri Anurag
Pathak on behalf of the applicants is on
record and on this Parcha it is written that
he was filing this Memo on behalf of all
the accused applicants as instructed by
their
pairokar.
This
application
is
supported by an affidavit of Sri Suresh
Chandra Dobariyal, applicant no. 2 in that
case and para 1 of his affidavit runs as
under:

"That the deponent is the applicant
no. 2 and pairokar of remaining applicants
in the above noted case and as such he is
well acquainted with the facts of the case
deposed to below."

10. It is thus clear that the above
application under section 482 Cr.P.C. was
filed on behalf of all the applicants and
Sri Suresh Chanra Dobarlyal, who had
454 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
filed his affidavit in support of that
application was acting as pairokar on
behalf of all the applicants including the
present applicant Ram Kishan. It is true
that no Vakalatnama or memo of
appearance signed by the applicants was
filed in that case but there has been an old
practice in the court to accept memo of
appearance signed by Advocates in
criminal cases in which the Advocates
state as to on whose behalf they are
appearing in the case and that authority is
considered to be valid without insisting
for signatures of the party. The same
practice was adopted in the present case
also, and so it can not be said that the
previous application no. 22268 of 2007
was filed without authority of Ram
Kishan. It is noteworthy that all the
accused applicants including Ram Kishan
were office bearers in the same Society
i.e. 'Vartalok Sahkari Samiti Vasundhara',
P.S. Indirapuram District Ghaziabad,
hence it can not be imagined that other
office bearers of the Society would have
included the name of Ram Kishan in this
case without his consent.

11. It is also to be seen that the
aforesaid Miscellaneous application no.
22268/07 under section 482 Cr.P.C. was
decided on merits by Hon'ble Vinod
Prasad, J. vide his order dated 11.9.2007
in which he held that no case for quashing
of the charge sheet was made out. He,
however, provided an opportunity to the
applicants of that case to surrender before
the court by 21 .9.2007 and apply for bail.
It was further ordered that the bail
application moved by them be decided
expeditiously, if possible on the same date
by both the courts below and execution of
non bailable warrant against them shall
remain stayed till 21.9.2007 to enable
them
to
appear
before
the
court
concerned.

12. If further appears from record
that the applicants did not appear before
the court concerned by the aforesaid date
and
as
such
they
moved
another
application
on
24.9.07
Crl.
Misc.
Application no. 228276/07 for extension
of time for their appearance before the
court. In this application also, Ram
Kishan has been arrayed as applicant no.
6 and it has been moved by the same
counsel Sri Anurag Pathak. However,
none appeared to press this application for
extension of time though it was listed for
hearing on 5.10.07, 9.10.07, 10.10.07 and
11.10.07 and so ultimately it was ordered
to be listed in ordinary course. On the
other hand Ram Kishan moved another
application (No. 26431/07) under section
482 Cr.P.C, on 29.10.2007 through) Sri
Rakesh Mohan Srivastava Advocate on
which the stay order dated 31.10.2007
was passed by Hon'ble S.S. Kulshrestha,
J., after admitting the application under
section
482
Cr.P.C.
However,
the
noteworthy aspect of this case to be seen
is that with this application Ram Kishan
has not filed any Vakalatnama or Parcha
signed by him but a memo of appearance
has been filed by Sri Rakesh Monan
Srivastava, Advocate who has stated in it
that he was appearing on behalf of the
applicant as instructed by Ram Kishan.
Thus, the position is that in both the cases,
there is no written authority of Ram
Kishan and both the counsel have stated
that they were appearing in the case as
instructed by the party.

13. In this way, it becomes clear that
in the previous, Crl. Misc. application No.
22268/07 filed under section 482Cr:P.C.
the memo of appearance (Parcha) was
2 All] Noor Ali Ansari V. State of U.P. and others
455
filed under instructions of the applicants
of that case including Ram Kishan also,
who has filed the present Crl. Misc.
application No. 2643/07 and, therefore, he
can not be permitted to say that Crl. Misc.
application No. 22268 of 2007 was
moved without his instructions. When that
application, filed under his instructions,
had been decided finally with certain
directions and when Ram Kishan instead
of following those directions moved this
fresh Crl. Misc. application No. 26431 of
2007
under
section
482
Cr.P.C.
concealing the order passed by this court
on the previous Crl. Misc. Application no.
22268/07, he is guilty of committing
fraud with the court, and so the order
passed on the subsequent Crl. Misc.
application No. 26431 of 2007 dated
31.10.2007 which has been obtained by
committing fraud with the court, can not
be permitted to sustain and it is liable to
be vacated.

14. Therefore, the application for
recall of the interim order dated 31.10.07
passed in Criminal Misc. Application
No.26431 of 2007 deserves to be allowed
and the interim order dated 31.10.07
passed in the above case is liable to be
vacated. Since Crl. Misc. application No.
26431 of 2007 has been filed for the same
relief which was sought in Crl. Misc.
Application No. 22268/07 concealing the
fact of institution of that previous
application and concealing the order
passed in that case, the present application
no. 26431/07 is not maintainable and it is
hereby dismissed. The Criminal Misc.
Recall Application No. 265084 of 2007 is
allowed and the order dated 31.10.2007
passed in Crl. Misc. Application No.
26431/07 stands recalled.

15.

Before parting with the
judgement, I would like to observe that in
criminal cases also there should be a
provision requiring the party to sign or
put thumb mark on the power/ memo of
appearance/Parcha filed by the Advocate
except in those cases where accused is in
Jail so as to avoid taking of such excuses
in future alleging that the power filed by
Advocate was not valid and that he had no
knowledge of institution of the case. Even
in those cases where the accused is in Jail,
the Power in favour of the counsel must
bear the signature /thumb mark of the
pairokar with his full name and address
with particulars of his relationship with
the accused in Jail.

16. The Registrar General of the
Court is, therefore, directed to take
necessary steps for making suitable
amendments in the relevant Rules in this
regard with the assent of the Hon'ble
Court.
 Recall Application allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.04.2008

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No.18568 of 2008

Noor Ali Ansari

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Arvind Srivastava
Sri Z.A. Siddiqui

Counsel for the Respondents:
Sri H.N. Singh
Sri R.B. Pradhan
S.C.