HARSAHAY BAIRWA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This matter depicts how a counsel, only with a view to securing an order favourable to his client, can mislead the Court. Matter has been laid before us on an application filed by the State of Rajasthan with the prayer to recall the judgment dated 02.12.2015 passed by this Court in D.B. Special Appeal (W) No. 1037/2015, directing release of the appellant on permanent parole, which was obtained by the non-applicant-writ petitioner, concealing the fact that operation of judgment dated 27.02.2015 passed by the Single Bench of this Court, allowing earlier writ petition filed by the same non-applicant-writ petitioner for his premature release on parole, was stayed by the Division Bench of this Court vide order dated 09.07.2015 in the appeal preferred by the State of Rajasthan(D.B. Civil Special Appeal(Writ) No. 439/2015). The non-applicant then filed another writ petition bearing No. 15642/2015 for his release on permanent parole without disclosing the factum of aforesaid stay order, which was dismissed by the Single Bench of this Court vide order dated 29.10.2015. It is in the appeal filed against that order that this Court allowed the appeal filed by the non-applicant-writ petitioner vide judgment dated 02.12.2015 directing his release on permanent parole, of which judgment recall is sought by the applicants.

(2.) Mr. B.N. Sandu, learned Additional Advocate General appearing on behalf of the applicants submitted that at the time of filing of S.B. Civil Writ Petition (Parole) No. 15642/2015 on 12.10.2015, the non-applicant-petitioner was fully aware of the fact that operation of judgment dated 27.02.2015 passed by the Single Bench of this Court in his earlier writ petition for his premature release has been stayed by the Division Bench of this Court vide order dated 09.07.2015. This fact was deliberately concealed by the non-applicant in the writ petition as also in the special appeal. The non-applicant-petitioner owed a moral obligation to disclose this fact in the aforesaid writ petition and also at the time of filing special appeal there against, especially when he was represented by the same counsel. Thus, judgment dated 02.12.2015 passed by this Court in D.B. Special Appeal(Writ) No. 1037/2015 for release of the non-applicant on permanent parole has been obtained by him by playing a fraud on the Court and concealing the aforesaid vital fact. However, the non-applicant-prisoner Harsahay Bairwa has yet not been released in view of interim order of stay and continues to remain in jail. Learned Additional Advocate General therefore prayed for recall of the judgment dated 02.12.2015.

(3.) Mr. B.R. Choudhary, learned counsel appearing on behalf of the non-applicant tried to justify his aforesaid act by contending that earlier writ petition, which was allowed by Single Bench of this Court vide order dated 27.02.2015, was for premature release of the non-applicant on parole, which is regulated by executive orders whereas subsequent writ petition filed by the same non-applicant on 12.10.2015 sought a direction for his release on permanent parole under Rule 9 of the Rajasthan Prisoners Release on Parole Rules, 1958. Purpose of filing two writ petitions was different and, therefore, it was not necessary for the writ petitioner or for him, to make such disclosure about filing of earlier writ petition and the interim order passed by the Division Bench staying operation of the judgment passed therein, while filing subsequent writ petition or while arguing the appeal there against.