Bar & Bench ( The petitioner, above named, most respectfully begs to submit as

Transcription

1 MAY IT PLEASE THE HON BLE COURT:- The petitioner, above named, most respectfully begs to submit as under:- 1. That, the petitioner is a citizen of India and is thus competent to maintain the present petition challenging the legality and validity of the order dated whereby Respondent No.2 has been appointed as an Additional Advocate General by the Government of Rajasthan. 2. That, petitioner is an Advocate by profession. He is enrolled with Bar Council of Rajasthan with his registration number as R/100/1999 and is regularly practising before this Hon ble Court for last more than 19 years. 3. That, Respondent No.2 holds public office and he can hold so only when he is eligible/qualified to hold so. Respondent No.2 disqualified himself to be appointed as a Govt. Lawyer or an Additional Advocate General when he made an unconditional, unequivocal and unqualified statement before Hon ble Supreme Court of India that he is willing not to exercise any of the duties and functions of a Govt. Lawyer and /or an Additional Advocate General and that he would voluntarily demit the office of Additional Advocate General. Respondent

2 No.2 suffered from ineligibility to be appointed as a Govt. Law Officer or an Additional Advocate General, when before Hon ble Supreme Court, he did not choose to contest the judgment of High Court on merits, which had held him not eligible to be appointed as an Additional Advocate General on the premise of absence of personal integrity and for lack of effective consultation which had compromised the institutional integrity of the office of Additional Advocate General. By not choosing to contest the judgment of High Court on merits, Respondent No.2 tacitly accepted the disqualification / ineligibility recorded by the High Court on account of absence of personal integrity which had compromised the institutional integrity of the office of Additional Advocate general. Thus, writ of quo warranto needs to be issued against Respondent No.2 for usurping the public office of Additional Advocate General contrary to his unconditional, unqualified and unequivocal statement made before Hon ble Supreme Court of India. Appointment of Respondent No.2 as an Additional Advocate General is not only invalid for the reason of being in contravention of his unequivocal, unqualified and unconditional statement made before Hon ble Supreme Court but is also invalid for being contrary to provisions of The Rajasthan Law and Legal Affairs Departmental Manual, 1999, Litigation Policy of 2011 and contrary to law declared by Hon ble Supreme Court in the case of State

3 of Punjab Vs Brijeshwar Singh Chahal (2016) 6 SCC 1. Thus, appointment of Respondent No.2 as an Additional Advocate General made vide order dated deserves to be declared non est and void ab initio. 4. That, the facts in brief necessary to appreciate the controversy are as follows:- (i) That, the Respondent No.2 stood appointed as an Additional Advocate General vide order dated True and correct photocopy of the order dated is submitted herewith and marked as Annexure-1. (ii) That, challenging the legality and validity of the order dated , petitioner preferred D. B. Civil Writ Petition No / 2014 (Sunil Samdaria Vs State of Rajasthan and Another) before this Hon ble Court. (iii) That, this Hon ble Court vide judgment and order dated allowed the writ petition quashing and setting aside the order dated , holding Respondent No.2 to be not eligible for appointment as an Additional Advocate General inter alia on the premise of absence of personal integrity which had compromised the institutional integrity of the

4 office of Additional Advocate General. Consequently, a writ of quo warranto was issued against Respondent No.2. The operative part of the judgment and order dated is reproduced herein below:- 54. For the aforesaid reasons, the writ petition is allowed, and it is declared that Dr. Abhinav Sharma, respondent No.2, was not eligible to be appointed as an Additional Advocate General of the State, in the absence of personal integrity, and for lack of effective consultation, which has compromised the institutional integrity of the Office. A writ of quo warranto is issued, setting aside the order of his appointment as an Additional Advocate General of the State of Rajasthan, dated The petitioner will be entitled to a cost of Rs.10, 000/-, from the State Government. True and correct internet copy of the judgment and order dated rendered in D. B. Civil Writ petition No.2624/2014 is submitted herewith and marked as Annexure-2. (iv) That, the Hon ble High Court throughout the judgment and order dated (supra) recorded serious adverse remarks / observations

5 against Respondent No.2 having far reaching consequences. Some of the grossly incriminating portions of the judgment supra against Respondent No.2 are reproduced herein below:- 39. The duties of the Office of the Additional Advocate General as a Law Officer of the Government, are to share, assist and shoulder the responsibility of the Advocate General. The letter of appointment of the respondent No.2, dated , prescribes that as an Additional Advocate General, he will be required to discharge the duties prescribed under Rule 7 to 10 of the Department Manual, Under Rule 7 to 10 of the Department Manual, 1999, the duties and liabilities of an Additional Advocate General are that of the Advocate General. The letter of appointment, thus, enjoins an Additional Advocate General, to perform the duties of the Advocate General, for which holder of the Office must have impeccable integrity. He should not have suffered any proceedings of law of the nature of moral turpitude, and certainly not the criminal cases, in which he is an accused of offence of cheating, and having committed rape on a person of a woman, who has alleged deceit and fraud, at the hands of her husband, of not only obtaining an ex parte decree of divorce without her knowledge, but also

6 to have cohabitate with her by fraud falsely inducing her to be a legally wedded wife, whereas he had the full knowledge that he had obtained an ex parte decree of divorce against her, of which she had no knowledge. The Court has taken cognizance of the offence, against which the revision petition was dismissed, and that the High Court has not granted any interim order. He is facing trial of the offences under Sections 193, 196, 198, 420, 429 read with Section 120B IPC in pursuance to FIR No.188/2011, and the offence under Sections 498-A and 406 IPC in FIR No.104/2011, in which reinvestigation was ordered, against which the revision was allowed. A criminal case is also pending for an offence under Section 376 IPC in Criminal Complaint No.180/2012, in which the statement of the complainant was recorded, and an enquiry was ordered, and against which a revision was filed by the respondent No.2, in which it was directed that instead of enquiry being conducted by the police, it should be held by a Magistrate. The respondent No.2, thus, cannot be said to have possessed the personal integrity of the nature, that he may be appointed as an Additional Advocate General, which has the same duties and functions, to be discharged, as that of the Advocate General, with

7 considerable influence on the judiciary including the Prosecutors and trial Courts 51. Dr. Abhinav Sharma is not only accused in the matters of serious offences alleged by his exwife, in which cognizance has been taken, the disciplinary proceedings are also pending against him in the Bar Council of Rajasthan. There is no averment in the reply that these proceedings were in the knowledge of the Advocate General, or the State Government, at the time of appointment of the respondent No.2. The defence on his appointment despite pendency of these criminal cases treating them to be only matrimonial disputes, will not only jeopardize the rights of his wife in prosecuting the cases, as he will undoubtedly have considerable influence not only on the Prosecutors, but also on the Courts while holding the Office of the Additional Advocate General. His continuance in the Office has seriously jeopardized the institutional integrity of the Office of the Additional Advocate General. 52. On the aforesaid facts and circumstances, we also find that the State Government has not only grossly compromised the institutional integrity by appointing a person, who has not cleared himself of the allegations of cheating, deceit, fraud and rape by his own wife, and is facing disciplinary

8 proceedings before the Bar Council of Rajasthan, his appointment is a brazen act of official arbitrariness. The State Government does not appear to have any concern with the Office, which will not only influence but will also prejudice a large number of persons, who appear as litigants in the Courts, of the integrity of the Advocates of the State conducting the cases in the Court, and the Senior Officers in the State, who will be in consultation with the respondent No.2, on important matters of the State. 53. On the aforesaid discussion, we are of the view that Dr. Abhinav Sharma, respondent No.2, has not only withheld the fact of the pendency of the criminal cases pending against him on the date of his appointment on as an Additional Advocate General, which affected his personal integrity, but in the absence of such materials with the functionaries, with whom an effective consultation was required to be made, the consultation was totally ineffective and breached the procedure of appointment of an Additional Advocate General under the Department Manual, The lack of personal integrity of the respondent No.2 in holding the Office, has compromised the institutional integrity of the Office of the Additional Advocate General. The State

9 Government has taken the matter very lightly in treating it to be only the matrimonial disputes, initiated on the complaints of his wife, which are personal to respondent No.2. It is difficult to believe that the State Government would, on the facts and circumstances of the case, accept the explanation of the respondent No.2, which was also placed before us, to treat the offences, in which cognizance has been taken against the respondent No.2 of having played fraud with his wife in obtaining an ex parte decree of divorce and thereafter indulged in the activity in which she has alleged an offence of rape against her, as offences, the consequence of which could have been ignored by the State Government. (v) That, challenging the judgement and order dated (supra), Respondent No.2 as well as State of Rajasthan preferred Special Leave Petition No.14427/2015 and Special Leave Petition No /2015 before Hon ble Supreme Court. (vi) That, aforesaid Special Leave Petitions came up for preliminary audience before the Hon ble Court on (vii) That, before Hon ble Supreme Court, Respondent No.2, instead of contesting the judgment of High Court on merits, offered to quit the office of

10 Additional Advocate General by making an unconditional, unequivocal and unqualified statement that he is willing not to exercise any of the functions and duties of a Government Lawyer and / or Additional Advocate General and he would voluntarily demit the office of Additional Advocate General. Statement made by Respondent No.2 before Hon ble Supreme Court is reproduced here-in-below:- At the very threshold, the Appellant - Dr. Abhinav Sharma states that in order to preserve the high standards that attach to the profession of an advocate, he is willing not to exercise any of the functions and duties of a Government Lawyer and / or Additional Advocate General and he would voluntarily demit the office of Additional Advocate General. (viii) That, Hon ble Supreme Court recorded the statement made by Respondent No.2 and taking the statement on it s face value, quashed and set aside the detailed and exhaustive judgment of High Court by a short order, on the sole premise of statement made by him, without entering into merits of the matter and without interfering the judgment of the High Court on merits, in order to impart quietus to the entire issue which was

11 subject matter of appeal, including the observations which had been made against him in the judgment of the High Court. It is reiterated that judgment of the High Court which had held Respondent No.2 as not eligible for appointment as an Additional Advocate general inter alia on the premise of absence of personal integrity had not been interfered by Hon ble Supreme Court on merits. The text of the order dated passed by Hon ble Supreme Court solely on the basis of statement made by Respondent No. 2 is reproduced herein below:- Leave Granted. At the very threshold, the appellant-dr. Abhinav Sharma states that in order to preserve the high standards that attach to the profession of an advocate, he is willing not to exercise any of the functions and duties of a Govt. Lawyer and/ or Additional Advocate General and he would voluntarily demit the office of Additional Advocate General. We record his statement. In these circumstances and in light of the statement made by the petitioner, nothing survives in the proceedings. The impugned judgment stands accordingly set aside so as to impart quietus to the entire issue which is the subject matter of this

12 appeal including all the observations made in the impugned order. The Appeals are accordingly allowed. Impugned order is set aside. As a consequence, the writ petition out of which these appeals arise stand dismissed. No costs True and correct internet copy of the order dated conjointly passed in Special Leave Petition No.14427/2015 [Civil Appeal No / 2015] and Special Leave Petition No /2015 [Civil Appeal No / 2015] is submitted herewith and marked as Annexure-3. (ix) That, aforesaid order of Hon ble Supreme Court dated clearly demonstrates that interference in the judgment of High Court had been made in view of conceding stand taken by Respondent No.2 that he is willing not to exercise the functions and duties of Government Lawyer and that he would demit the office of Additional Advocate General and not on merits.

13 (x) That, Respondent No.2 demitted the office of Additional Advocate General in sequel to his statement made before Hon ble Supreme Court. Government of Rajasthan accepted the resignation vide order dated w.e.f True and correct photocopy of the order dated is submitted herewith and marked as Annexure-4. (xi) That, in view of demitting the office of the Additional Advocate General in terms of his un conditional, unequivocal and unqualified statement made before Hon ble Supreme Court, Respondent No.2 could not have been reappointed as an Additional Advocate General because judgment of the High Court dated which had annulled his appointment as an Additional Advocate General had not been set aside on merits but had been set aside on his making of clear and an unambiguous statement that he is willing not to exercise the functions of Government Law Officer and / or Additional Advocate General. (xii) That, by not contesting the judgment of High Court on merits and by making the statement that he would demit the office of Additional Advocate General, Respondent No.2 had tacitly accepted the judgment of the High Court, thus

14 disqualifying himself to be appointed as a Govt. Lawyer or Additional Advocate General for all times to come. The only respite which the Hon ble Supreme Court had given to Respondent No.2 was that in view of his statement made to demit the office of Additional Advocate General, it had quashed the order of High Court and the observations which had been made therein, thus saving Respondent No.2 from an ignominious exit. (xiii) That, by accepting the statement of Respondent No.2 permitting him to demit the office of Additional Advocate General, Hon ble Supreme Court gave a decent burial to grossly stigmatic conclusion of absence of personal integrity qua Respondent No.2, which had compromised the institutional integrity of the office of Additional Advocate General. (xiv) That, it is submitted that aforesaid benevolence shown by Hon ble Supreme Court could not have been misused by Respondent No.2 to return to the office of Additional Advocate General, eschewing/ignoring his statement made before Hon ble Supreme Court, on the premise that he allegedly stood discharged in the criminal proceedings which were pending at the time of his

15 initial appointment as an Additional Advocate General, ignoring the vital fact that certain criminal proceedings are still pending against him pursuant to the order dated passed by Hon ble High Court in S. B. Criminal Writ Petition No.26 / 2014, and that challenge to the dismissal of certain criminal proceedings is also pending before this Hon ble Court. (xv) That, ignoring the statement made by Respondent No.2 before Hon ble Supreme Court of India and so also ignoring pending criminal proceedings and acting contrary to Rajasthan Law and Legal Affairs Departmental Manual, 2011, Litigation Policy of 2011 and judgment of Hon ble Supreme Court in the case of State of Punjab Vs Brijeshwar Singh Chahal (2016) 6 SCC 1, Government has arbitrarily appointed Respondent No.2 as an Additional Advocate General vide order dated True and correct photocopy of the order dated appointing Respondent No.2 as an Additional Advocate General is submitted herewith and marked as Annexure-5. (xvi) That, in sequel to the order dated supra, Respondent No.2 submitted his joining and assumed the office of Additional Advocate General on itself. True and correct

16 photocopy of joining letter dated is submitted herewith and marked as Annexure-6. (xvii) That, challenging the legality and validity of order dated and the consequential actions, petitioner preferred Writ Petition (Civil) No. 473/2018 before Hon ble Supreme Court of India. (xviii) That, Writ Petition (Civil) No. 473 / 2018 came up for preliminary audience before Hon ble Supreme Court on Hon ble Court found the aforesaid petition to be lacking in many material facts. In view thereof, petition was permitted to be withdrawn with the liberty to file fresh petition with adequate particulars. True and correct internet copy of the order dated passed by Hon ble Supreme Court in Writ Petition No.473/2018 is submitted herewith and marked as Annexure-7. (xix) That, in view of aforesaid liberty, petitioner maintained fresh petition with adequate particulars. Same stood registered as Writ Petition (Civil) No.915/2018. (xx) That, Writ Petition (Civil) No.915 / 2018 came up for preliminary audience on At the threshold, Hon ble Supreme Court inter alia orally observed that petitioner should first invoke the

17 jurisdiction of High Court because earlier also originally, legality and validity of appointment of Respondent No.2 as an Additional Advocate General had been examined by the High Court. In view of the oral observations of Hon ble Supreme Court of India, petitioner sought leave of the Court to withdraw the petition with the liberty to approach the High Court. Liberty sought by the petitioner was granted by Hon ble Supreme Court and petition was permitted to be withdrawn. True and correct internet copy of the order dated passed in Writ Petition (Civil) No.915/2018 is submitted herewith and marked as Annexure-8. (xxi) That, in view of the liberty granted by Hon ble Supreme Court of India, petitioner presents the present petition challenging the legality and validity of order dated (xxii) That, inter alia details in relation to criminal proceedings against Respondent No.2 are as follows:- 1 st Criminal Case (F.I.R. No.104/2011) (a) A criminal case came be registered against Respondent No.2 on by registration

18 of F.I.R No. 104 / 2011 under section 498-A, 406 and under section 4 of Dowry Prohibition Act, True and correct photocopy of F.I.R No.104/2011 registered on is submitted herewith and marked as Annexure- 9. (b) In sequel to registration of F.I.R No. 104 / 2011, Station-in-charge of Women Police Station South sought permission from Assistant Police Commissioner to arrest Respondent No.2 vide letter dated True and correct photocopy of letter dated is submitted herewith and marked as Annexure-10. (c) A Negative Final Report was submitted in relation to F.I.R No. 104 / 2011 on True and correct photocopy of the Negative Final Report dated is submitted herewith and marked as Annexure- 11. (d) On submission of Negative Final Report, complainant made an application before the trial court seeking re-investigation in F.I.R No. 104 /2011. (e) The trial court vide order dated ordered for re-investigation in the matter. True

19 and correct photocopy of the order dated is submitted herewith and marked as Annexure-12. (f) Challenging the legality and validity of the order dated , Respondent No.2 filed Criminal Revision Petition No. 69 / 2013 before the revisional court. The latter decided the criminal revision vide order dated setting aside the order dated on the premise that re-investigation could not have been ordered and only further investigation could have been ordered. Matter was remanded back to the trial court with the direction to see whether case for further investigation was made out or not and appropriate orders were directed to be passed in accordance with law. True and correct photocopy of the order dated is submitted herewith and marked as Annexure- 13. (g) Challenging the legality and validity of the order dated , complainant filed S.B. Criminal Misc. Petition No / 2013 before this High Court. In the aforesaid Criminal Misc. Petition, Hon ble High Court did cause any interference in the order dated but directed the trial court vide order dated

20 to decide whether further investigation is called for or not within two weeks of receipt of certified copy of the order dated True and correct photocopy of the order dated is submitted herewith and marked as Annexure-14. (h) In sequel to the order of Hon ble High Court, trial court vide order dated directed for further investigation in the matter. True and correct photocopy of the order dated is submitted herewith and marked as Annexure-15. (i) Challenging the legality and validity of the order dated directing further investigation, Respondent No.2 filed Criminal Revision Petition No. 36 / 2013 on the premise that he had not been heard before passing the order of further investigation. The revisional court vide order dated partly allowed the revision petition and remanded the matter back to the trial court for passing the order afresh after considering the written submission submitted by both the sides. True and correct photocopy of the order dated is submitted herewith and marked as Annexure-16.

21 (j) After matter stood remanded to the trial court, Respondent No.2 imputed allegations against the trial judge and expressed lack of faith in him and on that basis made an application seeking transfer of the case. Aforesaid application was decided by the trial judge vide order dated wherein it was expressed by the trial judge that because of imputation which have been made by Respondent No.2 expressing in him lack of faith, it is not expedient for him to pass any order. By the order dated , trial judge requested District and Session Judge to transfer the matter to another court. True and correct photocopy of the order dated is submitted herewith and marked as Annexure- 17. (k) After transfer of matter to other court, learned magistrate passed an order dated directing further investigation. True and correct photocopy of the order dated is submitted herewith and marked as Annexure-18. (l) Challenging the legality and validity of the order dated , Respondent No.2 filed yet another S.B. Criminal Writ Petition No. 105/2014 before Hon ble High Court. The

22 latter did not quash the order dated but modified it directing fair and transparent investigation vide order dated and it was directed that conclusion of investigation be submitted at the earliest. Respondent No.2 was granted liberty to make representation and submit along with the representation documents he wanted to rely upon to be considered by investigating agency. True and correct internet copy of the order dated passed in S. B. Criminal Writ Petition No.105 / 2014 is submitted herewith and marked as Annexure-19. (m) Police conducted further investigation in the matter and again submitted Negative Final Report on True and correct photocopy of the Negative Final Report dated is submitted herewith and marked as Annexure nd Criminal Case (F.I.R. No. 188 / 2011) (n) An ex-parte decree of divorce dated was obtained by Respondent No.2 against his wife by allegedly effecting service of summons at a wrong address. True and correct photocopy of the ex-parte decree dated

23 is submitted herewith and marked as Annexure-21. (o) A criminal case came be registered against Respondent No.2 as F.I.R No. 188 / 2011 on , pursuant to the complaint, on the premise that Respondent No.2 had fraudulently obtained the ex-parte decree of divorce by using deceitful means by effecting service of summons at a wrong address imputing therein serious allegations of cruelty, mental illness and of disease of private nature. True and correct photocopy of the F.I.R No. 188 / 2011 registered on is submitted herewith and marked as Annexure- 22. (p) Negative Final report was submitted by Police in relation to F.I.R. No.188 / 2011 on True and correct photocopy of the Negative Final Report dated is submitted herewith and marked as Annexure- 23. (q) On protest petition being filed, cognizance stood taken by the Court of Magistrate against the Respondent No.2 vide order dated under section 193, 196, 198, 420, 469 and 120-B of the Indian Penal Code. True

24 and correct photocopy of the order dated is submitted herewith and marked as Annexure-24. (r) A Criminal Revision Petition No. 19/2013 was preferred by Respondent No.2 against the order dated taking cognizance for the offences under section 193, 196, 198, 420, 469 and 120-B of the Indian Penal Code. Aforesaid revision petition was dismissed by order dated upholding the taking of cognizance by the trial court. True and correct photocopy of the order dated is submitted herewith and marked as Annexure-25. (s) Inter alia challenging the legality and validity of the order dated and , Respondent No.2 preferred S. B. Criminal Writ Petition No. 26/ 2014 inter alia taking the objection that for offences under section 193, 196, 198 etc, a complaint would be maintainable under section 195(1)(b)(i) of Code of Criminal Procedure. It was also urged that complainant had instituted proceedings under section 340 of Code of Criminal Procedure Code before the Family Court therefore independent criminal proceedings against him

25 before regular criminal court were not maintainable. (t) Hon ble High Court vide judgment and order dated accepted the objection of Respondent No.2 and allowed the Criminal Writ Petition No. 26/2014 on the premise that allegations which were made by the complainant against the Respondent No.2 could be examined in the proceedings instituted by the her under Sec. 340 of Code of Criminal Procedure before the Family Court. Hon ble High Court further opined that offence under section 420 of I.P.C apart from other offences can be taken care of in proceedings under section 195 read with section 340 of the Code of Criminal Procedure. Hon ble High Court further held the proceedings under section 340 of the Code of Criminal Procedure could not have been consigned to records merely because application for setting the exparte decree was not pursued by the complainant. It was further directed that Family Court would consider the proceedings under section 340 as per provisions of Law. True and correct internet copy of the order dated S. B. Criminal Writ Petition No.

26 26 / 2014 is submitted herewith and marked as Annexure-26. (u) Aforesaid order dated , whereby criminal proceedings under section 340 of Code of Criminal Procedure were permitted to be continued, to the understanding of petitioner, was not challenged by Respondent No.2 before any superior court, thus the same attained finality. (v) In sequel to the order dated passed in S. B. Criminal Writ Petition No. 26 / 2014, complainant submitted an application under section 340 of the Code of Criminal Procedure on , which was objected to by the Respondent No.2 by making an application on Application and objections to the application were considered by the Family Judge vide order dated The latter vide order dated rejected the objections submitted by the Respondent No.2 and permitted continuance of 340 proceedings. It was also observed that there was no requirement for complainant to have made the II-application because there was no such direction by the High Court for the complainant to make II-application. Family

27 Judge directed for restoration of application made on which had been earlier been consigned to records and posted the matter for True and correct photocopy of the order dated is submitted herewith and marked as Annexure- 27. (w) Challenging the legality and validity of order dated , Respondent No.2 filed S. B. Criminal (Miscellaneous) Petition No.535/2017. (x) Pending the aforesaid petition, Respondent No.2 made yet another application before Family Court on objecting to the continuance of the proceedings under section 340 of Code of Criminal Procedure on the premise that arising out of ex-parte decree of divorce dated , Civil Misc. Appeal No. 1688/2015 is pending before Division Bench of the High Court. Family Court vide order passed an order staying the proceedings under section 340 of Code of Criminal Procedure on the premise that Civil Misc. Appeal No / 2015 against the exparte decree is pending before the Division Bench of the High Court. True and correct

28 photocopy of the order dated is submitted herewith and marked as Annexure- 28. (y) Hon ble Division Bench of the High Court rejected the appeal of the complainant against the ex-parte decree of divorce vide order dated on the ground of limitation. Hon ble Division Bench did not go into the merits of the appeal though it gave sufficient indication that there could be fraud committed by Respondent No.2 in obtaining ex-parte decree of divorce. True and correct internet copy of the order dated is submitted herewith and marked as Annexure-29. (z) After the decision of Civil Misc. Appeal No / 2015, Respondent No.2 again made an application before the Family Court on again seeking dismissal of proceedings under Section 340 of Code of Criminal Procedure. (aa) The Family Court vide order dated rejected the application made by Respondent No.2 and permitted continuance of proceedings under Section 340 of Code of Criminal Procedure inter alia on the premise that Division Bench had dismissed the appeal

29 against the ex-parte decree of divorce on the ground of limitation and not on merits. Secondly, it was stated that proceedings under Section 340 of Code of Criminal Procedure had been restored pursuant to the order dated passed by High Court in S. B. Criminal Writ Petition No.26/2015. Thus, it was held that there was no legal bar in continuance of proceedings under section 340 of Code of Criminal Procedure. True and correct photocopy of the order dated is submitted herewith and marked as Annexure-30. (bb) Challenging the legality and validity of the order dated , Respondent No.2 preferred S. B. Criminal Misc. Petition No / 2018 before High Court wherein Hon ble High Court was pleased to issue notices upon the petition to the complainant vide order dated and by the same order directed that court below shall adjourn the matter pending before it beyond the date fixed in the High Court. True and correct internet copy of the order dated passed in S. B. Criminal Misc. Petition No. 2615/2018 is submitted herewith and marked as Annexure-31.

30 (cc) After issuance of notices in S. B. Criminal Misc. Petition No. 2615/2018, Respondent No.2 withdrew the S.B. Criminal Misc. Petition No.535/2017 on the premise that after the order impugned in the latter petition, another order had been passed and former has merged in the latter and subsequent order had been assailed in the separate petition. So, S.B. Criminal Misc. Petition No.535/2017 was permitted to be withdrawn vide order dated True and correct internet copy of the order dated is submitted herewith and marked as Annexure-32. (dd) In view of aforesaid state of facts, it is submitted that criminal proceedings against Respondent No.2 under section 340 read with section 195 of Code of Criminal Procedure are in praesenti pending against Respondent No.2 in terms of order passed by Hon ble High Court dated passed in S. B. Criminal Writ Petition No.26 / 2014 same have been directed to be adjourned beyond the date fixed in the High Court in terms of the order dated passed in S. B. Criminal Misc. Petition No.2615 / 2018.

31 3 rd Criminal Case (Complaint No.180 / 2012) (ee) One Criminal Complaint No. 180 / 2012 was lodged against Respondent No. 2 on by one Richa Sharma alleging offence of rape under section 376 of Indian Penal Code because former had entered into physical relationship with latter after deceitfully obtaining ex-parte decree of divorce against her and latter had entered in physical relationship with the former under the belief that she was wife of the former because she was totally unaware of ex-parte decree of divorce which had been obtained by Respondent No.2 against her. Thus, according to the complaint, Respondent No.2 had entered into physical relationship with complainant knowingly fully well that he had obtained ex-parte decree of divorce by deceitful means, thus Respondent No.2 committed an offence of rape against her. True and correct photocopy of the complaint No.180/2012 dated is submitted herewith and marked as Annexure-33. (ff) In the criminal complaint supra, statement of complainant and of one Smt. Deep Shikha was inter alia recorded. True and correct photocopy

32 of the statement of complainant and of Smt. Deep Shikha Sharma are submitted herewith and are marked as Annexure-34. (gg) Despite the aforesaid state of facts, complaint filed by the complainant was directed to be consigned to records vide order dated on the premise that complaint had already been dismissed in default on granting her liberty to challenge the order dated before competent court. True and correct photocopy of the order dated and is submitted herewith and marked as Annexure-35 and Annexure-36 respectively. (hh) That, challenging the legality and validity of the order dated , complainant maintained S. B. Criminal Misc. Petition No / 2018 in which Respondent No.2 was directed to be impleaded as Respondent No.2 vide order dated True and correct internet copy of the order dated passed in S. B. Criminal Misc. Petition No / 2018 is submitted herewith and marked as Annexure-37.

33 5. That, in conspectus of aforesaid state of facts, petitioner maintains the present petition challenging the legality and validity of order dated appointing Respondent No.2 as an Additional Advocate General on following cogent grounds inter alia amongst others:- GROUNDS OF CHALLENGE A. The, the impugned order dated appointing Respondent No.2 as an Additional Advocate General is non est and void ab initio, therefore deserves to be declared so and consequently deserves to be quashed and set aside. B. That, Respondent No.2 was held to be not eligible to be appointed as an Additional Advocate General vide judgment and order dated inter alia on the premise of absence of personal integrity which had compromised the institutional integrity of the office of Additional Advocate General. Hon ble High Court throughout the judgment and order dated (supra) recorded serious adverse remarks / observations against Respondent No.2 having far reaching consequences. Challenging the judgement and order dated (supra), Respondent No.2 as well as State of Rajasthan preferred Special Leave Petition

34 No.14427/2015 and Special Leave Petition No /2015 before Hon ble Supreme Court. Aforesaid Special Leave Petitions came up for preliminary audience before Hon ble Supreme Court on Before Hon ble Supreme Court, Respondent No.2, instead of contesting the judgment of High Court on merits, offered to quit the office of Additional Advocate General by making an unconditional, unequivocal and unqualified statement that he is willing not to exercise any of the functions and duties of a Government Lawyer and / or Additional Advocate General and he would voluntarily demit the office of Additional Advocate General. Hon ble Supreme Court recorded the statement made by Respondent No.2 and taking the statement supra on it s face value, quashed and set aside the detailed and exhaustive judgment of High Court by a short order, on the sole premise of statement made by him, without entering into merits of the matter and without interfering the judgment of the High Court on merits, in order to impart quietus to the entire issue which was subject matter of appeal, including the observations which had been made against him in the judgment of the High Court. Bare perusal of the order dated passed by Hon ble Supreme Court clearly demonstrates that interference in the judgment of High Court had not been made on merits but it had been made in view of

35 conceding stand taken by Respondent No.2 that he is willing not to exercise the functions and duties of Government Lawyer and that he would demit the office of Additional Advocate General. Respondent No.2 demitted the office of Additional Advocate General in sequel to his unequivocal and unqualified statement made before Hon ble Supreme Court. Government of Rajasthan accepted his resignation vide order dated w.e.f In view of demitting the office of the Additional Advocate General in terms of the statement made before Hon ble Supreme Court, Respondent No.2 could not have been re-appointed as an Additional Advocate General because judgment of the High Court, which had annulled his appointment as an Additional Advocate General had not been set aside on merits but had been set aside on his making of the statement that he is willing not to exercise the functions of Government Law Officer and/or Additional Advocate General and that he would demit the office of Additional Advocate General. By not contesting the judgment and order dated of Rajasthan High Court on merits and by making the statement that he would demit the office of Additional Advocate General, Respondent No.2 tacitly accepted the judgment of the High Court, thus disqualifying himself to be appointed as a Govt. Lawyer or Additional Advocate General for all times

36 to come. The only respite which the Hon ble Supreme Court had given to Respondent No.2 was that in view of statement made by him to demit the office of Additional Advocate General, it had quashed the order of High Court and the observations which had been made therein, which had tarnished his reputation as a lawyer beyond repair and beyond time and which had besmirched him as a Govt. Lawyer for all times to come. Hon ble Supreme Court by setting aside the judgment of High Court, in view of statement made by Respondent No.2, had not restored the eligibility of Respondent No.2 to hold the office of Additional Advocate General. Rather statement made by Respondent No.2 before Hon ble Supreme Court forbears him to hold the office of any Govt. Law Officer or Additional Advocate General for all times to come. By accepting the statement of Respondent No.2 permitting him to demit the office of Additional Advocate General, Hon ble Supreme Court saved Respondent No.2 from an ignominious exit and it gave a decent burial to grossly stigmatic conclusion of absence of personal integrity qua Respondent No.2, which had compromised the institutional integrity of the office of Additional Advocate General. Aforesaid benevolence shown by Hon ble Supreme Court could not have been misused by Respondent No.2 to return to the office of Additional Advocate General, eschewing his

37 statement made before Hon ble Supreme Court of India, on the alleged premise that he stood allegedly discharged in the criminal proceedings, ignoring the vital fact that certain criminal proceedings are still pending against him pursuant to the order dated passed by Hon ble High Court in S. B. Criminal Writ Petition No.26 / 2014, and also ignoring that challenge to the dismissal of certain criminal proceedings is pending before this Hon ble Court. In conspectus of aforesaid state of facts, Govt. did not have any lawful authority to re-appoint Respondent No.2 as an Additional Advocate General. Hence, the impugned order dated is patently non est and void ab initio and deserves to be declared so. C. That, the impugned order of appointment of Respondent No.2 as an Additional Advocate General is a clear case of fraud upon the constitutional courts and so also upon the Constitution of India. It is submitted that Respondent No.2 had been appointed as an Additional Advocate General vide order dated Aforesaid order came be challenged by the petitioner before Rajasthan High Court by instituting D.B.CIVIL WRIT PETITION NO.2624/2014 (Sunil Samdaria Vs State of Rajasthan and Others). Hon ble Rajasthan High Court vide judgment and order dated

38 allowed the writ petition supra quashing and setting aside the order dated holding Respondent No.2 as not eligible for being appointed as an Additional Advocate General inter alia on the premise of absence of personal integrity which had compromised the institutional integrity of the office of the Additional Advocate General. A writ of quo warranto was accordingly issued against Respondent No.2. Challenging the judgment and order dated , Respondent No.2 as well as State of Rajasthan preferred Special Leave Petitions before Hon ble Supreme Court. When matter came up for preliminary audience before Hon ble Supreme Court, Respondent No.2 instead of contesting the judgment of the High Court on merits, offered to quit the office of Additional Advocate General by making an unconditional, unequivocal and unqualified statement that he is willing not to exercise any of the functions and duties of a Government Lawyer and / or Additional Advocate General and he would voluntarily demit the office of Additional Advocate. Hon ble Supreme Court took the statement of Respondent No.2 on it s face value, recorded his statement and on the basis of his statement, quashed and set aside the judgment of the High Court in order to give quietus to the entire issue. It is submitted that Hon ble Supreme Court had not tinkered with the judgment of High Court on merits

39 at all. Rather when judgment of High Court was not chosen to be contested on merits, there was no occasion for the Hon ble Supreme Court to have examined the judgement of the High Court on merits. By not contesting the judgment of High Court on merits, Respondent No.2 had accepted the disqualification recorded by the High Court qua his appointment as an Additional Advocate General. In view thereof, he could not have been re-appointed as an Additional Advocate General in teeth of his statement made before Hon ble Supreme Court as well as judgment of High Court, which had neither chosen to be contested on merits, nor examined on merits nor it had been tinkered on merits by Hon ble Supreme Court. Thus, re-appointment of Respondent No.2 as an Additional Advocate General, after demitting the same, in view of his statement made before Hon ble Supreme Court is a clear case of fraud and deceit upon the constitutional court(s) and so also upon the Constitution of India, which is required to be set at naught by this Hon ble Court. It is submitted that fraud and deceit vitiates everything, even the most solemn acts and proceedings. Lord Denning quoted in Lazarus Estates v Beasley [1956] 1 All ER 341- No court in this land will allow a person to keep an advantage, he has obtained by fraud. No judgment of a Court, no order of a Minister can be allowed to stand if it has

40 been obtained by fraud. Fraud unravels everything. Respondent No.2 deceived Hon ble Supreme Court of India - hook, line and sinker, by making a statement that he willing not to exercise the functions of a Government Lawyer and / or Additional Advocate General. Hon ble Supreme Court believed upon his statement and set aside the order of High Court and the observations made against him. Respondent No.2, thereafter, took a U-Turn, breached the faith of Hon ble Supreme Court of India, which it had reposed in him and accepted the appointment as an Additional Advocate General vide order dated Thus, appointment of Respondent No.2 as an Additional Advocate General made vide order dated is tainted with fraud and deception and thus deserves to be quashed and set aside lock, stock and barrel. D. That, the impugned appointment of Respondent No.2 as an Additional Advocate General is in utter breach and in gross violation of statement made by Respondent No.2 before Hon ble Supreme Court of India, wherein he made an unequivocal, unconditional and unqualified statement that in order to preserve the high standards of legal profession he is willing not to exercise the duties and functions of Govt. Lawyer and /or Additional Advocate General and that he would demit the office

41 of Additional Advocate General. By not contesting the judgment of the High Court on merits and consequently demitting the office of Additional Advocate General in terms of his statement made before highest Court of the Country, Respondent No.2 is estopped in law as well as in morality to accept the appointment as an Additional Advocate General. Thus, appointment of Respondent No.2 as an Additional Advocate General made vide order dated is non est and void ab initio, being in clear breach of his statement made before Hon ble Supreme Court of India. E. That, it is submitted that Respondent No.2 cannot have best of both the worlds. On one hand he would get the judgment of the High Court set aside on the premise that he is willing not to exercise the functions of a Govt. Lawyer and or Additional Advocate General and on other hand he would again assume office of Additional Advocate General contrary to his unequivocal and unconditional statement made before Hon ble Supreme Court of India. It is a settled principle of law and equity that no person can be permitted to approbate and reprobate at the same time. Appointment and continuance of Respondent No.2 as an Additional Advocate General is required to be interjected at this

42 stage itself, else it would set a very wrong precedent for future. F. That, the order dated appointing Respondent No.2 as an Additional Advocate General is a manifest example of colourable exercise of power by Govt. It is submitted that State of Rajasthan was also in appeal against the judgment and order dated and the order dated passed by Hon ble Supreme Court was conjointly passed in both the appeals preferred against the judgment and order dated , one at the instance of Respondent No.2 and another at the instance of State of Rajasthan. Thus, it cannot be said that State of Rajasthan was not in knowledge of statement made by Respondent No.2 before Supreme Court that he is willing not to exercise the functions of Govt. Law Officers and/or Additional Advocate General and that he would demit the office of Additional Advocate General. It was more so when Govt. of Rajasthan had accepted the resignation of Respondent No.2. Thus, it is patently clear that functionary of the Government of Rajasthan has played in the hands of Respondent No.2. After Respondent No.2 had demitted the office of Additional Advocate General after making an unconditional, unequivocal and unqualified statement made before Hon ble Supreme Court,

43 Govt. of Rajasthan did not derive any jurisdiction or authority to re-appoint Respondent No.2 as an Additional Advocate General. Govt. of Rajasthan has thus acted wholly without jurisdiction in appointing Respondent No.2 as an Additional Advocate General in teeth of his statement made before Hon ble Supreme Court. Thus, action of Government in making the appointment of Respondent No.2 as an Additional Advocate General is clearly ultra vires to the orders of Hon ble Supreme Court and is therefore null and void. G. That, the Respondent No.2 by resuming the office Additional Advocate General, after expressing his unwillingness to exercise the functions and duties of Additional Advocate General and demitting the same before Hon ble Supreme Court, has proved the High Court right that he lacked personal integrity to hold the office of Additional Advocate General, else nobody possessing personal integrity would have resumed in the office after making an unambiguous statement before the highest court of the country. Respondent No.2 by the accepting the appointment as an Additional Advocate General has breached the uberrima fides reposed in him by Hon ble Supreme Court of India. Thus, appointment of Respondent No.2 as an Additional Advocate General vide order dated deserves to be quashed and set