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IN THE HIGH COURT AT CALCUTTA
SHAMPA DUTT (PAUL), J.
Sushil Kumar Mohanka & Others - Appellant
Versus
The State of West Bengal & Another
- Respondent
CRAN. No. 5 of 2023 in CRR. No. 3659 of 2019
Decided On : 24-01-2024
FRAUD - Criminal Revision - Section 362 of the Cr.P.C. - [Section 498A of the Indian Penal Code, Section 362 of the Cr.P.C.] - The court discussed the fraudulent means used to obtain an ex parte quashing of the proceeding under Section 498A and cancellation of bail, the intentional misrepresentation of the address of the opposite party, and the abuse of the process of law. The court referred to various judgments and held that the judgment/order dated 24.01.2023 was recalled on the finding that fraud had been practiced by the petitioners.
Fact of the Case:
The applicant sought recall of a judgment and order dated 24.01.23, alleging that it was obtained by presenting fraudulent facts before the Court, causing irreparable loss to the opposite party no. 2.
Finding of the Court:
The court found that the judgment/order dated 24.01.2023 was obtained by practicing fraud, and accordingly, it was recalled. The court also noted that the entire application was based on surmises and conjectures and was liable to be dismissed.
Issues: The issues involved fraudulent means used to obtain the judgment, intentional misrepresentation of the address of the opposite party, and abuse of the process of law.
Ratio Decidendi: The court held that the judgment/order dated 24.01.2023 was recalled on the finding that a fraud had been practiced by the petitioners, and it referred to various judgments to support the decision.
Final Decision: The judgment/order dated 24.01.2023 was recalled, and the matter was restored to its own file. The case records were to be placed before the Hon’ble the Chief Justice for assignment.
JUDGMENT
1. The present application has been preferred praying for recall of the judgment and order dated 24.01.23 passed by this Court disposing of the criminal revision on merit and thereby quashing the proceeding being no. 4312/2018 arising out of Newtown Police Station Case No. 437/2018 dated 11.10.2018 under Section 498A of the Indian Penal Code and Charge sheet No. 10/2019 dated 15.01.2019 under Section 498A of the Indian Penal Code.
2. The said prayer has been made invoking Section 362 of the Cr.P.C.
3. The applicant/opposite party no.2’s case is that the impugned order has been obtained by presenting fraudulent facts before this Court and for this reason the said order needs to be recalled since it has caused irreparable loss to the opposite party no. 2.
4. That the petitioner has kept this Court in darkness while mentioning the address as Uniworld City Cascades, Tower 3, Flat no. 901, Kolkata-700156, Rajarhat, whereas she was forced out of the said flat in November, 2020 by the petitioner no. 1, 2 and 3 and was forced to shift downstairs in the same tower in flat 002 (duplex) ground floor where the entire family shifted by 22nd November, 2020 and in which flat she is also a 25% owner.
5. The applicant further states that after the letter of the opposite party to bring the investigation to a halt, many other incidents have been reported by the opposite party no. 2 and none of them have been taken into the Case Diary. The opposite party no. 2 has filed a writ alleging such biased behavior by the Investigating Officer and the same is registered as WPA No 21285/2021.
6. The applicant/opposite party no. 2 states that she has not signed nor received any summons in this case and it is most likely that they have suppressed the new address of the applicant/opposite party no. 2.
7. The appellant further states that she was in severe mental trauma when she found out about the ex parte quashing and the cancellation of bail being disposed off, that it disturbed her for months because she couldn't believe the way the petitioners had abused the due process of law.
8. Adopting such fraudulent means of keeping the Court in darkness and preventing the opposite party no. 2 from contesting the case the petitioner has abused the process of law and for this reason the order dated 24.01.23 needs to be recalled.
9. The applicant further states that this has led to not just the proceeding under Section 498A getting quashed but along with it has taken away the case of cancellation of bail available with the petitioner. It is only when the cancellation of bail order came out, the opposite party wife learnt that there was a quashing proceeding pending against her which has been decided ex parte and thereafter started taking steps to take recourse in law.
10. It is also stated that the documents of service was fraudulently obtained and the directions carried out were done in a cryptic manner by using the address over which the petitioner had full control while they had driven away the opposite party/wife from there along with her belongings.
11. The applicant states that the address has been incorrectly given. Directions of service upon non appearance of the opposite party was all done intentionally at the address where she was not residing. That at a time if any service was done, it was clearly not done upon her but accepted through their servant like before.
12. Through the letter dated 27.08.21 by Advocate Guha & Co. to the lawyer of opposite party no. 2, it is an admitted fact that the said flat was sold long back and the opposite party no. 2 was no more residing there.
13. The petitioner wasted the time and effort of this Court and those of the other State agency knowing fully well that the opposite party did not reside in the address given in the cause title while parallelly contesting this revisional application against the opposite party.
14. It is submitted that the petitioner with the intention to mislead the Court and prevent the opposite party to
The main legal point established in the judgment is that a judgment obtained by practicing fraud can be recalled, and the court has inherent power to recall its own order obtained by fraud.
The court affirmed that authorities possess inherent jurisdiction to revoke fraudulent orders even in the absence of specific statutory provisions for review.
Judgments obtained through fraud can be recalled; however, mere allegations without proof do not suffice.
The court clarified that a dismissal for default does not amount to a final order, allowing recall and reinstatement for hearings on merits under inherent powers of the High Court.
Wrong nomenclature or erroneous citation of a provision of law cannot debar a party from having its application considered by the Court if it is otherwise legally maintainable.
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