# Vinay Jaiswal v. State of U.P. & Anr. Opp. Parties 50 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 12 ILRA 49
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-26
- **Case number:** Crl. Misc. Anticipatory Bail Cancellation Application No. 390 of 2023
- **Bench:** Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinay-jaiswal-v-state-of-u-p-anr-opp-parties-50-indian-law-reports-allahabad-49610
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 173(2) & 482 - Indian
Penal Code, 1860 - Sections 384, 504, 506
& 507 - Application for cancellation of
Anticipatory Bail - FIR - Anticipatory Bail
Application moved by opposite party no. 2 -
interim bail granted by Session Court till
submission of Police report U/s 173(2) Cr.P.C. -
Charge sheet - cognizance - an Application u/s
482 Cr.P.C. filed - Second Anticipatory Bail
before Session Court - Interim Bail granted -
Application
for
cancellation
of
Interim
Anticipatory Bail - Plea taken that Interim Bail
was obtained by suppressing the material fact of
challenging the Charge-sheet before this Court
through an Application u/s 482 Cr.P.c. which was
still pending - Anticipatory Bail Application was
allowed - court finds that, it was the duty of the
litigant/applicant to disclose the fact of filing and
pendency of the application u/s 482 Cr.P.c. in
clear terms in his application for grant of
Anticipatory Bail Application, but the same was
deliberately concealed - held, court cannot shut
its eyes to the fact that the Session Court
ignored the factum of pendency of Application
u/s 482 CrPC - therefore, such unfair accused
can never be permitted to be circumventive,
alike the present one and resultantly the said
order granting anticipatory bail to the Opposite
party no. 2 is not sustainable and is liable to be
set aside - Accordingly, instant Bail cancellation
application is allowed. (Para - 12, 14)

Bail Cancellation Application Allowed. (E-11)

List of Cases cited:

## Text

12 All. Vinay Jaiswal Vs. State of U.P. & Anr.
49

13. The court below neglected to make
any finding in regard to the objections to the
arbitral award, while passing the impugned
order. The impugned order is vitiated by non
application of mind.

14. In these facts, the prerequisites for
exercising powers under Section 34 of the Act
are fully satisfied. Learned court below
misdirected itself in fact and law by declining
to give the arbitral tribunal an opportunity to
resume the arbitral proceedings and cure the
aforesaid defects.

15. The question now arises as to
whether the matter should be remitted to the
court below for resuming proceedings under
Section 34 of the Act or to the arbitral tribunal
for resuming arbitral proceedings.

16. In light of the provisions of Section 34
of Arbitration and Conciliation Act, 1996 and the
appellate powers of this Court, interest of justice
which are consistent with the provisions of law
will be served by remitting the matter to the
Arbitral Tribunal. The narrative will be fortified
by authorities in point. The Supreme Court in
National Highways Authority of India Vs. P.
Nagaraju and Ors. reported at 2022 SCC
OnLine SC 864 while examining the course of
action before the appellate court while dealing
with the infirmities in an arbitral award has held:

"That being the fact situation and
also the position of law being clear that it
would not be open for the court in the
proceedings under Section 34 or in the appeal
under Section 37 to modify the award, the
appropriate course to be adopted in such event
is to set aside the award and remit the matter to
the learned Arbitrator in terms of Section
34(4) to keep in view these aspects of the
matter and even if the notification dated
28.03.2016 relied upon is justified since we
have indicated that the same could be relied
upon, the further aspects with regard to the
appropriate market value fixed under the said
notification for the lands which is the subject
matter of the acquisition or comparable lands
is to be made based on appropriate evidence
available before it and on assigning reasons for
the conclusion to be reached by the learned
Arbitrator. In that regard, all contentions of the
parties are left open to be put forth before the
learned Arbitrator."

17. The impugned order dated 21.08.2023
passed by learned Additional District Judge,
Kanpur Nagar in Arbitration Case No. 17 of
2022 (National Highway Authority of India vs.
Parimal Bajpai and Others) is liable to be set
aside and is set aside.

18. The matter is remitted to the
Arbitrator to resume proceedings in Case
No. C202103000000613 and to determine
the objections raised by the appellant on
merits. The proceeding shall be completed
within a period of two months. The
Arbitrator shall decide the objections made
by the appellants against the award by the
competent authority in accordance with law
and after giving an opportunity of hearing to
both the parties.

19. The appeal is accordingly allowed.
----------
(2023) 12 ILRA 49
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.10.2023

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Crl. Misc. Anticipatory Bail Cancellation
Application No. 390 of 2023

Vinay Jaiswal ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties
50 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicant:
Sri Santosh Singh, Sri Narendra Singh, Sri
Vinod Kumar

Counsel for the Opp. Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 173(2) & 482 - Indian
Penal Code, 1860 - Sections 384, 504, 506
& 507 - Application for cancellation of
Anticipatory Bail - FIR - Anticipatory Bail
Application moved by opposite party no. 2 -
interim bail granted by Session Court till
submission of Police report U/s 173(2) Cr.P.C. -
Charge sheet - cognizance - an Application u/s
482 Cr.P.C. filed - Second Anticipatory Bail
before Session Court - Interim Bail granted -
Application
for
cancellation
of
Interim
Anticipatory Bail - Plea taken that Interim Bail
was obtained by suppressing the material fact of
challenging the Charge-sheet before this Court
through an Application u/s 482 Cr.P.c. which was
still pending - Anticipatory Bail Application was
allowed - court finds that, it was the duty of the
litigant/applicant to disclose the fact of filing and
pendency of the application u/s 482 Cr.P.c. in
clear terms in his application for grant of
Anticipatory Bail Application, but the same was
deliberately concealed - held, court cannot shut
its eyes to the fact that the Session Court
ignored the factum of pendency of Application
u/s 482 CrPC - therefore, such unfair accused
can never be permitted to be circumventive,
alike the present one and resultantly the said
order granting anticipatory bail to the Opposite
party no. 2 is not sustainable and is liable to be
set aside - Accordingly, instant Bail cancellation
application is allowed. (Para - 12, 14)

Bail Cancellation Application Allowed. (E-11)

List of Cases cited:

1. Amar Singh Vs U.O.I. & ors. - 2010 vol. 2
SCC 114,

2. Arunima Baruah Vs U.O.I. & ors. - 2007 vol.
6 SCC 120,

3. Prestige Lights Ltd. Vs S.B.I. - 2007 vol. 8
SCC 449,
4. Dalip Singh Vs St. of U.P. - 2010 vol. 2 SCC
114,

5. Kishore Samrite Vs St. of U.P. - 2013 vol. 2
SCC 398,

6. Pratibha Machanda & anr.Vs St. of Har.- 2023
vol. 8 SCC 181,

7. Shivam Vs St. of UP & anr.- 2021 SCC Oline
All 264.

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Present application has been moved
by the applicant - Vinay Jaiswal for
cancellation of anticipatory bail granted in
favour of opposite party no.2 in Case
Crime No.74 of 2022, under Sections 384,
504, 506, 507 IPC, Police Station -
Kaushambi,
District
-
Ghaziabad
in
criminal misc. anticipatory bail application
No. 796 of 2023 (Smt. Rita Sharma vs.
State of U.P.) vide order dated 28.3.2023
passed by the Sessions Judge, Ghaziabad.

2. Heard learned counsel for the
applicant, learned A.G.A. for the State and
perused the material available on record.
None appeared for the opposite party no.2
even in the revised call.

3. In this matter, from the perusal
of the record it reveals that on 16.5.2022
the opposite party no.2 had moved
anticipatory bail application before the
Court concerned being Anticipatory Bail
Application No. 891 of 2022 wherein vide
order dated 16.5.2022 interim anticipatory
bail was granted to her by the Sessions
Court at Ghaziabad and vide order dated
10.6.2022 the said interim bail was
confirmed till submission of police report
under Section 173(2) CrPC or for a period
of two months whichever is earlier. On
26.8.2022 charge sheet was submitted into
12 All. Vinay Jaiswal Vs. State of U.P. & Anr.
51
the matter and thereafter on 8.2.2023 an
Application under Section 482 CrPC No.
6205 of 2023 challenging the charge sheet
and cognizance / summoning order was
filed before this Court. It also reveals that
in the meantime the applicant moved
second anticipatory bail application before
the Sessions Court being Criminal Misc.
Anticipatory Bail Application No. 796 of
2023 after submission of charge sheet into
the matter wherein vide order dated
1.3.2023 interim anticipatory bail was
granted to her. It also reveals that an
application dated 1.3.2023 was filed before
the Sessions Court by the objector / present
applicant as well with the averments that
the interim anticipatory bail granted in
favour of the opposite party no.2 should be
cancelled, as the said order was obtained by
suppressing the material fact of challenge
to charge sheet before this Court through
the aforesaid application U/S 482 CrPC
which was still pending and the Sessions
Court fixed 28.3.2023 for hearing on the
said application but the anticipatory bail
application was fixed for hearing on
22.3.2023 and on the said date, the interim
anticipatory bail granted to the opposite
party no.2 was extended and 28.3.2023 was
fixed as next date. It further reveals that on
28.3.2023 the aforesaid second anticipatory
bail application moved by the opposite
party no.2 was allowed.

4. It is submitted by the learned
counsel for the applicant that by playing
fraud and suppressing the material facts the
opposite
party
no.2
has
obtained
anticipatory bail by the Sessions Court. The
opposite party no.2 had not approached the
Sessions Court with clean hands and
obtained the said bail order by concealing
the fact that an application under Section
482 CrPC moved by her before High Court
challenging the charge sheet, cognizance /
summoning order dated 20.2.2022, was
pending. Thus, he has misled the Court in
obtaining
the
order
granting
her
anticipatory bail. It is further submitted that
any party seeking relief from a Court has to
come with clean hands. In support of his
submissions, learned counsel for the
applicant has laid down emphasis on the
decision of this Court in Shivam vs. State
of U.P. and another, 2021 SCC OnLine
All 264 wherein it has been held in subparagraph (8) of paragraph 45 that :

"45. However, in the following
cases, anticipatory bail cannot be granted to
an accused after submission of charge sheet
:-

8)
Where
the
accused
has
unsuccessfully challenged the charge-sheet
before this Court or any proceedings are
pending before this Court regarding the
charge-sheet
submitted
against
the
accused;"

5. Relying upon the aforesaid
judgment it has been pleaded that since
application under Section 482 CrPC was
pending, the application for grant of
anticipatory bail was not even maintainable
in itself.

6. I have considered the submissions
made by the learned counsel for the
applicant and the learned AGA and have
gone through the entire record carefully.

7. In Pratibha Manchanda and
another vs. State of Haryana and
another, (2023) 8 SCC 181, the Hon'ble
Apex Court has held in paragraph 31 that
"it is essential to ensure that all the material
facts are brought on record and thereafter
only the discretionary jurisdiction is
exercised
in
accordance
with
the
fundamental principles of anticipatory bail
52 INDIAN LAW REPORTS ALLAHABAD SERIES
laid down in various decisions over time by
this Court."

8. In Dalip Singh vs. State of Uttar
Pradesh, (2010) 2 SCC 114 and Kishore
Samrite vs. State of U.P., (2013) 2 SCC
398, it has been clarified that a party who
approaches the court by suppressing the
facts and to mislead the Court is not
entitled to be heard on merits and that it is a
bounden duty of anyone approaching the
Courts to state the whole case fully and
fairly and any attempt to mislead and
approach with unclean hands should be
dealt with severely.

9. In the case in hand, it is evident
that concealing the fact of filing and
pendency of the application U/S 482 CrPC,
the applicant moved second anticipatory
bail application before the Sessions Court
being Criminal Misc. Anticipatory Bail
Application No. 796 of 2023 in which vide
order dated 1.3.2023 interim protection was
granted to her and subsequently the said
anticipatory bail application was allowed
finally vide order dated 28.3.2023 by the
Sessions Court at Ghaziabad. The opposite
party no.2 while pursuing the second
anticipatory bail application concealed the
material fact of pendency of application
under Section 482 CrPC challenging the
charge sheet and cognizance / summoning
order before the High Court and by
suppressing the said material fact he
obtained anticipatory bail by the Court
concerned. Hence, it is clear that the
opposite party no. 2 has not come with
clean hands before the Court concerned and
obtained the impugned order by concealing
a material fact.

10. In Prestige Lights Ltd., v. State
Bank of India, (2007) 8 SCC 449, the
Hon'ble Apex Court impressed upon that 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.

11. In Arunima Baruah v. Union of
India, (2007) 6 SCC 120, the Hon'ble
Supreme court has held that it is trite law
that to enable the court to refuse to exercise
its discretionary jurisdiction suppression
must be of material fact. Material fact
would mean material for the purpose of
determination of the lis. It was further held
that it is also a trite that a person invoking
the discretionary jurisdiction of the court
cannot be allowed to approach it with a pair
of dirty hands.

12. Thus, in the opinion of the Court,
the opposite party no.2 has played an unfair
role in obtaining the order, as enunciated in
Section 44 of the Indian Evidence Act. This
Court cannot shut its eyes to the fact that
the Sessions Court ignored the factum of
pendency of application U/S 482 CrPC
although it was objected to forcefully in the
application moved by the applicant and
surprisingly the same has not been
considered at all while passing the
impugned order. It was the duty of the
litigant / applicant to disclose the fact of
filing and pendency of the application U/S
482 CrPC in clear terms in his application
for grant of anticipatory bail application,
but the same was deliberately concealed by
him.

13. In Amar Singh v Union of India
and others, (2010) 2 SCC 114, the Hon'ble
Apex Court observed that Courts have,
over the centuries, frowned upon litigants
who, with intent to deceive and mislead the
courts, initiated proceedings without full
disclosure of facts, such litigants who have
12 All. M/S Docket Care Systems Lko. Vs. Union of India & Ors.
53
come with ?unclean hands? are not entitled
to be heard on the merits of their case.

14. In view the aforesaid discussions
and the settled law on the point, I am of the
considered view that such unfair accused
can never be permitted to be circumventive,
alike the present one and resultantly the
said
order
dated
28.3.2023
granting
anticipatory bail to the opposite party no. 2
is not sustainable in the eyes of law and
same is liable to be set aside, as it has been
garnered by misleading the Court and
committing fraud with it.

15.

Hence,
the
present
bail
cancellation application is allowed and the
impugned order dated 28.3.2023 is set
aside.
----------
(2023) 12 ILRA 53
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.12.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Civil Misc. Review Application No. 135 of
2023

M/S Docket Care Systems Lko.
 ...Petitioner
Versus
Union of India & Ors. ...Opp. Parties

Counsel for the Petitioner:
Madhusudan Srivastava, Sudeep Kumar

Counsel for the Opp. Parties:
Rajesh Tewari, Ritwick Rai, Vaibhav Tiwari

(A)
Civil
Law
-
The
Code
of
Civil
Procedure, 1908 - Section 114 - Order
XLVII Rule 1 - Application for review of
judgement - The Allahabad High Court
Rules' 1952 - Chapter-V, Rule 12 -
Application for review , MSMED Act, 2023
-
Section
18
,
The
Arbitration
&
Conciliation Act, 1996 - Sections 20, 23,
24 ,25, 34(1), 34(2) - Court's jurisdiction
of review - not same as that of an appeal -
Court can correct a mistake but not
substitute the view taken earlier merely
because there is a possibility of taking two
views in a matter - distinction between an
erroneous decision as against an error
apparent on the face of the record -
erroneous decision can be corrected by
Superior Court - error apparent on the
face of the record can only be corrected by
exercising
review
jurisdiction
-
nonconsideration of a judgment cannot be a
ground for review as that would lead to
substituting the view already taken by this
Court. (Para - 16, 17)

(B) The Constitution of India, 1950 -
Article 226 - Writ Jurisdiction - power and
scope of a High Court to review its order -
power of review may be exercised on the
discovery of new and important matter or
evidence which, after the exercise of due
diligence was not within the knowledge of
the person seeking the review or could not
be produced by him at the time when the
order was made - may be exercised where
some mistake or error apparent on the
face of the record is found - may also be
exercised on any analogous ground - may
not be exercised on the ground that the
decision was erroneous on merits. (Para -
13)

(C) Word of phrases - distinction between
conciliation
and
arbitration
-
in
conciliation proceedings, the conciliator
assists parties to arrive at an amicable
settlement - in arbitration, an arbitral
tribunal adjudicates dispute between the
parties - general laws do not prevail over
special laws - whenever there is an
apparent conflict between two statutes -
provision of a general statute must yield
and give way to that of a special statute.
(Para -18, 20)

Review applicant sought a review of judgment -
ground - citing an error apparent on the face of