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8-year-old exposes cheating mum who accused her dad of domestic violence

Woman filed case accusing hubby of suspecting her fidelity

 

Gitesh Shelke

 

Posted On Thursday, July 21, 2011 at 12:53:03 AM

 
In a twist to a domestic violence case filed by a 26-year-old woman, the Pimpri court quashed her alimony claim after her eight-year-old daughter nailed her lies. The woman had accused her husband of torturing her and suspecting her fidelity. The accusations turned on their heads when the little girl said that she saw her mother sleep with another man in the house when her father was not around.

The woman had accused her husband of physically and mentally harassing her under the influence of alcohol. The so-called victim had lodged a case against her 39-year-old husband, his mother, his brother and his married sister. Barring her and her husband, all the others stay in a village in Akola district.

The couple were married on March 31, 2000 in Akola. They then migrated to Pune in 2003. The man managed to land a job in the industrial township of Pimpri-Chinchwad, while the woman started a beauty parlour.

Trouble started brewing between the two in 2010 after she started claiming that her husband abused her, suspecting that she was having an affair with another man. She even approached the Pimpri police on February 13, 2010 and complained about her husband. The police registered a non-cognisable offence.

The man’s counsel, advocate Rajendra Anbhule told Mirror that his client finally left home with his daughter. “His wife filed a divorce petition in the family court, in which she had not demanded alimony,” he said. Later on, she asked for maintenance when she filed a case under the Domestic Violence Act. “In reply to this, we submitted that the man came to know about her illicit relationship from their daughter.
 
On January 15, 2010, the man came home in the afternoon from office and saw a man in the house,” he said. “His wife failed to explain why the strange man was in the house when he was out. After this, my client moved out with his daughter,” he added.

When this fact came to light, Anbhule said she even filed cases against her own father and brother. “Her eight-year-old daughter had seen a man visiting her mother in the absence of her father, which we submitted to the court,” he said.
 
The case papers had the daughter’s statement in detail, where she even says that she saw the man lie on top of her mother on the bed but did not understand what they were doing. The court stated the woman’s application did not prove her case prima facie hence her claim of interim maintenance was rejected, Anbhule added.

The Section 125 (4) of the Criminal Procedure Code reads that “no wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent”. Anbhule said that now it was the responsibility of the woman to prove that she was not living in adultery.

http://www.punemirror.in/article/62/2011072120110721005311292fd521686/8yearold-exposes-cheating-mum-who-accused-her-dad-of-domestic-violence.html

Categories: Crime by Women

Girl arrested for plotting father’s murder

LUCKNOW: A girl was arrested along with her lover and his friend for allegedly plotting her father’s murder, police said here.

Ram Khelawan was shot dead by two unidentified persons at his residence in Banthara on July 12 and an FIR was lodged by his daughter Preeti in this connection, they said.

Investigation revealed that Preeti herself plotted Khelawan’s murder as he was opposed to her relationship with Manoj Chaurasiya.

Preeti, Manoj and his friend Sunil Kumar were arrested on Wednesday and the country made fire-arm used in the murder was also found, they said.

http://timesofindia.indiatimes.com/city/lucknow/Girl-arrested-for-plotting-fathers-murder/articleshow/9308162.cms

Categories: Crime by Women

Jealous man kills ‘unfaithful’ lover

Sees condoms in her house, kills her in a fit of rage. Steals gold items to cover his tracks, but is run down by cops

 

Manjunath L Hanji

 

Posted On Thursday, July 07, 2011 at 06:48:57 AM

 
A heap of used condoms lying around in her house enraged her paramour, who bashed her head in with an iron rod. He tried to cover his tracks by removing cash and jewellery from the house, but a jeweller’s tip-off proved his undoing.

Rajamma (40), a resident of Kumaraswamy Layout, had shifted to Subramanyapura after her husband Basavareddy died following a cardiac arrest seven months ago. She was a habitual drunkard and had multiple partners, each of whom thought he was the only one.
 

suspicions aroused
Pillareddy, a civil contractor and one of her paramours, would help her with money and would exhort her to quit drinking, but to little avail. On May 29, he came over and found Rajamma in an inebriated state. He looked into one of the rooms and was taken aback to see a heap of condoms lying around. Not one for using condoms himself, his suspicions were aroused.

A verbal altercation ensued, and in a fit of rage he hit her on the head with an iron rod, killing her on the spot. In a funk, he first thought of shifting the body but then changed tack and removed cash and gold items from the house, thinking it would look like a murder for gain.

Pillareddy sold the gold items to jewellers, and the Subramanyapura cops were able to nab him on July 3 after a tip-off by a jewellery shop owner.

The police have recovered all the stolen items, worth Rs 2.5 lakh, and have sent him to judicial custody. They have learnt that Rajamma had six partners and kept each one in the dark about the others.

DCP (South) Sonia Narang said, “She was a habitual drunkard and had multiple partners. Pillareddy, one of her paramours, was enraged and killed her. He tried to throw us off the track by stealing the gold items and making it look like murder for gain.”

http://www.bangaloremirror.com/article/10/201107072011070706494273823921c82/Jealous-man-kills-%E2%80%98unfaithful%E2%80%99-lover.html

Categories: Crime by Women

Man attacks wife, mother-in-law, kills self

Lucknow: An air force personnel jumped to his death on a train track in Uttar Pradesh after brutally assaulting his wife and mother-in-law, police said Wednesday.

Crime

Pawan Pandey, 32, of Hamirpur district, fatally hurled himself before a train Tuesday after attacking his wife and mother-in-law with the butt of a rifle in Ekdil town. The two women are battling for life in a hospital.

“We are yet to ascertain what prompted Pawan to take the extreme step. It appears Pawan committed suicide as he thought the women had died,” Deputy Superintendent of Police M.P. Salonia said Wednesday in Etawah, some 200 km from Lucknow.

Pawan’s wife and mother-in-law were both teachers in a government school.

Source: IANS

 

http://news.in.msn.com/crimefile/article.aspx?cp-documentid=5266995

Categories: Other news

Days after hubby reunites lovers, boy dumps girl

Meerut: A few days after a husband accepted his newly-wedded wife as his sister and decided to reunite her with her old lover, the woman has reportedly been dumped by her former lover.

Nitish accepted Aarti, whom he had married on May 6, as his sister after she told him about her affair with Vineet on the night of their marriage.

When Aarti told her new husband that she had already married Vineet a few days back, Nitish decided to reunite the two lovers.

Days after hubby reunites lovers, boy dumps girl

However, Vineet has now apparently been trying to avoid any contact or encounter with Aarti.

Even the efforts of Meerut Police, already struggling to sort out this ‘first of its kind’ case, have failed to deliver any result.

Aarti and Nitish, who were invited by the district administration at the family counselling centre here on Sunday to sort out the issue, turned down the suggestion of experts to live together again, saying that it was not possible as both of them had accepted each other as brother and sister.

When the counsellors tried to contact Vineet, he refused to meet them saying that there was a threat to his life.

Aarti has now decided to go back to her parents house for now.

Categories: Other news

CRISP Press coverage of Father’s Day – 2011

1. Right to fatherhood

http://www.thehindubusinessline.com/features/life/article2110042.ece?homepage=true

Fathering a movement: Members of CRISP at a Father’s Day rally in Bangalore to demand enforcement of child-visit rights for single dads. - Photo: K. Gopinathan
Business Line Fathering a movement: Members of CRISP at a Father’s Day rally in Bangalore to demand enforcement of child-visit rights for single dads. – Photo: K. Gopinathan
 

On Father’s Day (June 19), like every year, a group of men will gather in Bangalore to draw attention to the plight of single dads who are denied access to their children and the joys of shared parenting.

 

Desperate emails and phone calls from fathers who have been denied access to their children pour in each week for Kumar Jahgirdar, president of Children’s Rights Initiative for Shared Parenting (CRISP). He replies to all the mails promptly, but with Father’s Day (June 19) just round the corner, his plate is full. He is making plans, like every year, to organise a rally in Bangalore to highlight the grievances of single fathers, some of whom haven’t seen their children in years.

Jahgirdar says Indian courts hearing child custody cases tend to be biased towards the mothers even when they may not be the more suitable parent. He says the adversarial approach to divorce law turns children into the spoils of marriage and there is too much focus on a father’s responsibility to make alimony payments and not enough on his right to visit his child.

Bangalore-based NGO CRISP was founded around five years ago as a forum to support and fight on behalf of single dads. The organisation wants divorced/ separated parents to be granted equal access to their children, and punishment for those who misuse the anti-dowry law (Section 498A IPC) and the Domestic Violence Act to deny fathers access to their kids.

Jahgirdar shares several heartrending tales of hapless fathers. He mentions a dad for whom the only contact with his daughter is watching her from behind the school gates. Then there is Sunil*, who talks of the “emotional desolation” after his wife moved out of the family home with their two children, aged five and two, in February last year.

“It was really dreadful. The worst thing, practically, was finding the house so quiet because it was always so full of laughter and rampaging and stampeding,” he adds. “There were many times when I felt suicidal.”

“It’s important to emphasise that family breakdown is a nightmare for everyone. Mothers suffer, and so do grandparents and even close friends. Most crucially, the children suffer. Not only are they deprived of having two parents living in the same house, quite often they will lose a parent altogether,” says Jahgirdar. This, in effect, amounts to, as singer Bob Geldof once put it, “a form of child abuse”.

Many fathers lose all contact with their children when they are separated from their partner or after divorce. “This is often put down to the indifference of the father, but it’s actually about the barriers that are put in the way of contact. They are erected by the courts or the mother, or both,” says Vijay*, a SIFF (Save Indian Family Foundation) activist.

Vijay last met his two children, a boy aged 12 and a girl aged six, nearly 18 months ago. His wife had suddenly decided two years ago that she didn’t want him in her life, but neither did she want a divorce. She threw him out of his own home, along with his belongings, and threatened him saying he could do nothing as the laws of the land favoured women where marital disputes were concerned. A despondent Vijay, who has all along been supporting his wife and children financially, sought a divorce. His wife responded by invoking the draconian Domestic Violence Act against him and his father. As the legal tangles take time to straighten out, Vijay’s children have been unfairly deprived of their father’s company.

CRISP has more than 1,000 members across India and is adding more each day. It holds weekly meetings, and has established several centres in the country to counsel fathers, provide support and educate them on the laws of the land. Its Web site, http://www.crisp-india.org, receives hundreds of visitors who access the information posted there. Jahgirdar and the other members of CRISP are determined to carry on, with greater vigour than ever, the struggle to ensure a fair deal for dads and guarantee that no child is unfairly deprived of his/ her father’s love.

CRISP, which is part of the Save Indian Family Foundation (SIFF), favours educating couples going through a divorce on the benefits of shared parenting, and setting up special courts to speedily deal with child custody cases in a just and sensitive manner.

Its demands include

settling all child custody cases within three months from the date of filing;

an end to the practice of interviewing very young children, especially when they haven’t had adequate access to the non-custodial parent;

punishment for parents who don’t comply with court orders;

a separate ministry for children that is delinked from the present Ministry for Women and Child Development;

setting up evening courts so that litigants are not forced to take leave from work to attend the proceedings;

employing mediators who have been trained by child psychologists.

* Names changed to protect identity.

2. Rally to mark Father’s Day
 
Rally to mark Father’s Day

 

Staff Reporter 

 

 

 

BANGALORE: To mark Father’s Day, non-governmental organisation Children’s Rights Initiative for Shared Parenting (CRISP), is organising a rally on Saturday between 10 a.m. and 1 p.m. at Town Hall on J.C. Road.

Speaking to presspersons here on Wednesday, secretary of CRISP Lokesh Reddy M.N. said a large number of fathers who are facing trauma owing to alienation of their children caused by separation and divorce will participate in the rally. On the occasion, the members will demand that the government revise laws related to family and highlight the grievances of fathers who are deprived of access to their children.

Impact on children

Avinash Kumar, child rights activist, said CRISP is concerned with the growing custody battles between parents and the ill-effects on children due to parents’ separation.

Mr. Kumar said, “We speak for the rights of the innocent children who are deprived of love and affection from their natural parent. Shared parenting is the only alternative arrangement to spend quality time with children.”

3. New-age nanny dads – Tribune 

http://www.tribuneindia.com/2011/20110619/spectrum/main1.htm

Daddies denied
Nivedita Choudhuri

ALL too often, fathers get the fuzzy end of the lollipop — slaves to their jobs, chauffeurs to their children and incidental to their wives. This Father’s Day, fathers and many father figures will be honoured. Many men will get gifts, ranging from pens to mugs that say ‘World’s Greatest Father’ or ‘I Love My Dad’. However, the day will also bring pain and sorrow to many households, which have divorced or separated fathers.But there is a ray of hope for such fathers. These men, some of whom are often denied access to their children for months and years, can now turn to the Children’s Rights Initiatives for Shared Parenting (CRISP), which takes up cudgels on behalf of harassed fathers. CRISP is part of the Save Indian Family Foundation (SIFF), an organisation that primarily supports men trapped in false cases lodged against them by their wives.Bangalore-based NGO CRISP was formed around five years ago, when some citizens came together to fight for the rights of single fathers and ensure that children did not lose touch with their dads if their parents divorced. “The courts are so geared to the mother that the father gets no justice and that means the kids don’t get justice, too. So many people have lost contact with their children that it was inevitable something like CRISP would emerge,” says Kumar Jahgirdar, one of the founders of CRISP.CRISP activists receive calls from hundreds of aggrieved fathers each year, many of whom are ‘falsely’ charged by their wives with taking dowry. There are others who are unjustly booked under the draconian Domestic Violence Act. Their lives are in tatters when they approach CRISP. On the one hand, there are the mounting court cases and, on the other hand, there is total alienation from their children. The insensitive Indian courts take ages to hand out verdicts. The hapless fathers have no choice but to put their lives on hold and pray for divine intervention.Anil (name changed to protect identity), a SIFF activist, has had to put his life on hold for the past few years ever since his wife told him she wanted to have nothing to do with him but that she was not willing to go in for a divorce either. After exhausting all means for a reconciliation, Anil suggested to his wife that they divorce. However, she responded by filing a false case under the Domestic Violence Act against Anil and his father. `A0Anil has not stopped paying for her upkeep or for their two children even for a single day. Unfortunately, he has not met his children for the past two years or set foot in his own house, which his estranged wife is currently occupying with their children after throwing him out along with his belongings.“It comes down to the simple fact that we face a Herculean struggle. The politicians are not dealing with this with the degree of urgency this matter deserves. Fathers are forced to support children`A0even when mothers are not being forced to allow those fathers access,” says Jahgirdar. He wants fathers and grandparents to be given a legal right to see their children and grandchildren.According to the members of CRISP, couples contemplating divorce should be counselled on the benefits of shared parenting. This will eliminate unnecessary child custody battles, stress caused to both the parents and the children and save the precious time of the already overburdened courts. `A0Jahgirdar wants the law changed so that equal parenting is presumed, whereas at present the pendulum swings in favour of the mother. “All we want is equality between the genders, equality of treatment,” he adds.


4Estranged fathers demand better access to their children

http://www.thehindu.com/todays-paper/tp-national/tp-andhrapradesh/article2119375.ece

Estranged fathers demand better access to their children

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Demanding a change in the existing legal provisions which control a divorced father’s engagements with his children and to increase the frequency and quality of these interactions, Children’s Rights Initiative for Shared Parenting (CRISP) began a four-day hunger strike at Dharna Chowk, Indira Park on Sunday.

The NGO aims to highlight the plight of estranged fathers in their effort to reconnect with their children. It also advocates the removal of the gender bias in the divorce laws to bring back qualitative parental engagement with their children.

Shah Ali, a CRISP activist participating in the hunger strike, said that in any divorce, children are the worst sufferers as they harbour the feelings of guilt, and the effects of parental alienation and resulting trauma can be long-lasting.

He says that only shared parenting can heal these children’s emotional scars.

5. Are dads dispensable commodities?

http://www.hindu.com/op/2011/06/19/stories/2011061950071100.htm

 

Are dads dispensable commodities?

 

 

 

RAGHURAM SHANMUGASUNDARAM

 

 

 

 

 

 

 

All alone, or in twos/The ones who really love you/Walk up and down outside the wall/Some hand in hand/Some gathering together in bands/The bleeding hearts and the artists/Make their stand/And when they’ve given you their all/Some stagger and fall after all it’s not easy/Banging your heart against the Wall

 

— Roger Waters from

 

“The Wall”

 

It is said that simple questions are the most difficult to answer. As a matter of fact, it’s impossible to answer if that “simple” question is asked by a child. My five-year-old son the other day whispered into my ears, “Daddy, can we go to Daddy House?” For most, it might seem to be the simplest question with a one-word answer. But my response was one of hollowed look and silence. Welcome to the world of Divorced fathers – the Throwaway Dads!

 

Today, many Indian families are plagued by marital discord and divorce — once a social stigma but now an unremarkable passing event. What was once considered the very defining elements of family life are now subject to re-examination. Gender roles within the family are no longer enforced.

 

A successful working woman is seen as a role model in society. But the concept of childhood and parenthood has remained stable and is still considered the foundation and pillars of our culture. Yet, in the murky events of divorce and child custody, there is an undeniable conflict between biological, legal and social conceptions of parenthood.

 

In a typical divorce and child custody case, the father ends up as a non-custodial parent (save for a handful of instances over the past few decades). Ostracised from active parenting, his role is now limited to being a “paying visitor” for a few hours a month. These few hours cannot be a substitute for an involved parental relationship. What sin has the child done to be cut off from his father, who till the other day was his playmate, coach and guard? Overnight, there is no recipient for one of the most said words of the child — “Daddy.”

 

The principle used in child custody cases is the doctrine of “best interest of the child.” In theory, the law is gender neutral — it neither says that the mother has to be the custodial parent nor does it mandate that only one of the parents can have custody. Therefore, in theory, both mother and father can be joint custodians. So, why this madness? The answer lies in its interpretation and adoption — an unwritten method of determining the best interests by selection. Here a warm thought of motherhood tilts the balance.

 

The overwhelming feeling towards the father and his role seem applicable only in reel-life. I’ve seen many a woman shed tears when the father and son have their last breakfast together in the movie, Kramer vs Kramer. Even for an animation movie Finding Nemo, tears are shed for Marlin, the daddy fish. But when it comes to real life, it is all swept clean from memory — convenience and egos take precedence over conscience and welfare.

 

Granted, the mother’s role is indispensable in the child’s life. The same applies to the father’s role too — certain roles can be fulfilled only by a father. Studies done on single-parent children show that the loss of paternal care and stability is the cause of most of their social aberrations.

 

Divorce being a new-age phenomenon in India, it is time we learnt from the lost generation of those countries and took some preventive measures. The law should broaden the idea of parenthood and dilute the traditional interpretations and beliefs. First and foremost should be the shift from the “winner takes all” custody framework to a presumptive shared parenting framework. Joint and equal custody must be the interpretation of the best interest of the child principle.

 

Australia, France, Denmark, Belgium and some States in the U.S. have already brought in legislative changes towards shared parenting. Results of studies conducted on shared parenting have been positive — it showed more parental involvement, a higher happiness index in child and reduced inter-parental conflicts.

 

For a child, every day should be Mother’s day and Father’s day — separation of mom and dad should not make any difference. Await the day.

 

“From the first moments of life, the bond forged between a father and a child is sacred. Whether patching scraped knees or helping with homework, dads bring joy, instil values, and introduce wonders into the lives of their children. Fathers are our first teachers and coaches, mentors and role models. When fathers are not present, their children and families cope with an absence government cannot fill.” — Barack Obama in his Father’s Day proclamation of 2010.

 

(The writer is Member, Children’s Right Initiative for Shared Parenting (CRISP). His email is: shanraghuram@gmail.com)

6. Papas out in pursuit of happiness

http://epaper.timesofindia.com/Repository/ml.asp?Ref=VE9JQkcvMjAxMS8wNi8xOSNBcjAwNDAz&Mode=HTML&Locale=english-skin-custom

Publication: The Times Of India Bangalore; Date: Jun 19, 2011; Section: Times City; Page: 4    

FATHER’S DAY

Papas out in pursuit of happiness

TIMES NEWS NETWORK

Bangalore: For every daddy, the little one is an apple of his eye. Distanced from their heart-throbs on the eve of Fathers’ Day it was only natural for them to vent out their anguish. Separated from their

wives, woebegone fathers came together under the umbrella of Crisp (Children’s Rights Initiative For Shared Parenting), an NGO that focuses on furthering rights of children to remain connected withboth parents,even after a couple’sseparation.

    Daddy dears demanded family law reforms, immediate halt to abuse of Section 498A(dowry harassment) and more accesstotheir kids.

    “ Conflict between parents will reduce and the mental and emotional health of children will improve when divorcing parents can be assured of equal and meaningful contact. They should also stop wasting precious time in the court,” said Kumar Jaghirdar, president Crisp. Stressing on equal rights for both parents, Jaghirdar observed that in divorce and separation cases, often one of the parents deprive the child of the love and care of theother.

    “This is one of the worst forms of child abuse, as the kidsuffersfrompsychological damage resulting in disorders like parental alienation syndrome and reactive associative disorders that warp a child’s development,” said Kesava Vishwanathan, a design engineer who’s a single parent.

 

 

 https://picasaweb.google.com/116802290314274346291/Jun182011?authkey=Gv1sRgCJ7q0tHByOf4XQ&feat=email#

https://picasaweb.google.com/117609073144184200949/CRISPFatherSDay18062011DrawingCompetition?authkey=Gv1sRgCIyV856U-vXXHg&feat=directlink#

For them, Father’s Day has no relevance

http://www.deccanherald.com/content/169987/for-them-fathers-day-has.html

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For them, Father’s Day has no relevance
Shimla, June 19 (IANS)
Sunday, June 19, 2011
For them, International Father’s Day has no relevance. They are a group of ”harassed” men who have been denied their parenting rights. These are divorced fathers who have been demanding equal access to their children.
 
These fathers are keen to take care of their children as a practice and to make this law mandatory through legislation.”This Father’s Day (June 19), we are seeking parenting rights and joint custody of children in case of divorce or separation,” Shimla-based software engineer Atul Sood (name changed) told IANS.Sood, who has been facing a divorce case, said: “Despite a court order, my wife and her family is not allowing me to meet my kid. For more than three years, I have not met her and even not seen her.”Added Ramandeep Bajwa of Chandigarh, “In spite of the court giving me the permission to meet my child, the mother tutors the kid not to speak to me when the meeting takes place. So when I go to meet my child, she doesn’t speak to me at all.””It’s really shameful that I have fathered the child but I can’t speak to her,” he added.
Bangalore-based NGO Children’s Rights Initiative for Shared Parenting (CRISP), with more than 2,500 members across the country, said shared parenting and joint custody of children should be implemented as a rule in divorce or separation cases.”On Father’s Day, we demand the basic rights of children to access both biological parents. For this, there is a need for implementing shared parenting and joint custody as a rule in separation and divorce cases,” CRISP Founder and President Kumar V. Jahgirdar told IANS on phone from Bangalore.”It’s not fair on the part of the court to interview the child for selecting a parent (in divorce case). There should be no interview of the child up to the age of 12,” he said.
CRISP, with its regional chapters in Chandigarh, Chennai, Hyderabad, Mumbai, Delhi and Lucknow, has been fighting to set up special courts to deal with child custody cases.
“We are demanding special courts to deal with child custody cases and address the problems faced by the parents who have been deprived of the joint custody,” said Jahgirdar, who is fighting for shared parenting of his daughter with his ex-wife.
“Moreover, all child custody cases should be settled within three months of application in the family courts,” he added.Bajwa said the courts have a more favourable approach towards mothers.
“Indian matrimonial and child custody laws are biased against men,” he added.
CRISP is demanding punishment for people who misuse the Indian Penal Code as a tool to deprive the father and his family members of access to their children.
S.P. Sidhu, a leading lawyer based in Chandigarh, said: “As per law, a child below the age of five always remains in the custody of the mother and the father doesn’t have the right to bring him or her up.””Even if the child is more than five years old, the court generally favours the mother for custody. However, only in exceptional cases the court gives custody to a father, that too after he convinces the court that the mother is not taking care of the child well,” he said.
Delhi-based child counsellor Ekta Singh said: “For a child, both the parents are equally important and isolation of one of them in most cases leads to mental distress and trauma in the child.”

According to CRISP, during 2008, 9,000 divorce cases were filed in Delhi, 7,500 in Mumbai and 5,000 in Bangalore. The figures were collected from family courts in the three cities

 

 

Child abduction by parents among Indian diaspora raises concern

http://articles.economictimes.indiatimes.com/2011-06-19/news/29676962_1_civil-aspects-international-child-abduction-indian-origin

http://articles.economictimes.indiatimes.com/2011-06-19/news/29676962_1_civil-aspects-international-child-abduction-indian-origin/2

NEW DELHI: Increasing number of child abductions by parents among the Indian diaspora has become a cause of concern as India is yet to join the international convention on the issue, a British minister has said.

“The cases where a parent abducts their child and takes it away to India are problematic because India does not have laws to deal with parental child abduction,” British Minister for Equalities Lynne Featherstone said here.

The minister urged the Indian governmentto accede to the UN Conventionon the Civil Aspects of International Child Abduction.

The British minister was here on a three-day visit to India June 15-17 to seek greater collaboration between the two countries on the issue of violence against women and gender equality issues.

According to Featherstone, the UK governmentreceives at least one complaint per month of alleged abduction of a child by a parent of Indian origin. There are about eight such cases currently being investigated, the minister said.

The children were abducted by one of the parents and brought to India in order to gain the advantage in matrimonial and child custody disputes.

Child abduction cases by parents are high in countries which have a large population of people of Indian origin such as the UK, the USand Canada.

About 70 children were abducted by parents of Indian origin in the UK in the past eight years, according to a report.

The US State Department’s Office of Child Issues, which helps in child abduction cases, is currently working on more than 100 cases of children taken to India without the consent of the parent left behind. The State Departmenthas said that there are few remedies if a child is abducted to India.

There are more unresolved cases of parental child abduction from the US to India than any other country with the exception of Mexico.

About 85 countries have ratified the 1980 Hague Convention on Parental Child Abduction. Under the convention, member countries undertake to return children abducted by a parent to their homes under the jurisdiction of the courts in the home country.

Parental child abduction has become one of the many issues that have been added to the agenda for inter-governmental discussions with visiting delegations from the US, Britainand Canada.

Several NGOs and activists in India and abroad have urged the government to accede to the Hague Convention.

On the occasion of Father’s Day (June 20), a Bangalore-based non-governmental organisation, Children’s Rights Initiative for Shared Parenting (CRISP), has demanded that India ratify the Hague Convention and reform family law in India.

California-based Rakshak Foundationhas also appealed to the union government to safeguard children’s rights and make parental abduction a cognizable, non-bailable crime.

Abduction of a child by one parent violates the child’s right to live in the security of the familiar home and prevents access to both parents. More and more child custody and abduction cases are landing in Indian courts relating to foreign citizens as well as non resident Indians (NRIs).

The Supreme Courthas ruled recently that Indian courts have jurisprudence on child custody cases even if the child is a citizen of a foreign country. The courts apply the principle of best interest of the child, taking a foreign court decree as only one of the factors for deciding on the custodial dispute.

There have been occasions when the father had taken away the child from the country of residence, gone to India and left the child with his grandparents while he flew to work in a third country.

At other times, it is the woman who took the child on the pretext of visiting India.

Many abducted children are told that the other parent is dead or has gone away. Often one parent tries to poison the child’s mind to the other parent, which often causes psychological and emotional problems for the child.

“Children in such cases are voiceless victims and their right to be connected to both biological parents needs to be protected,” according to the Rakshak Foundation.

Often child custody cases lead to the child being deprived of the love, affection and care of one parent.

” Jointcustody and shared parenting are the best solutions for normal development of the child,” the foundation said.

 http://aimwa.in/fathers-day-2011

 https://picasaweb.google.com/116802290314274346291/Jun182011?authkey=Gv1sRgCJ7q0tHByOf4XQ&feat=email

 

Bangalore’s ‘deprived dads’ to rally for parenting rights

http://newshopper.sulekha.com/bangalore-s-deprived-dads-to-rally-for-parenting-rights_news_1081176.htm

Bangalore’s ‘deprived dads’ to rally for parenting rights

posted 2 yrs ago – by sulekha news | 60 Views | View Source: Maitreyee Boruah

Bangalore, June 19 (IANS) Many Bangalore men who are separated from their wives but pine for their children are set to mark Father’s Day by taking out a rally here. Kids should get the love of both parents, they stress, even as divorce cases are going up in India.

Along with others, Saturday’s rally will see these men asserting their right to be in touch with their children. June 21 is Father’s Day.

 

It is the brainchild of Children’s Rights Initiative For Shared Parenting (CRISP), a city-based NGO, fighting for shared parenting rights, in association with Save the Indian Family Foundation (SIFF).

 

‘Not every child is lucky enough to have the love and care of both father and mother, even when both the parents are alive during their growing up days. Due to a rise in divorce cases in the country, most children of separated parents are deprived of both their parents’ affection,’ Kumar Jahgirdar, president of CRISP, told IANS.

 

‘On the occasion of Father’s Day, CRISP members will have a rally in the morning near Mahatma Gandhi statue at M.G. Road to create awareness on the importance of the father in the life of a child,’ added Kumar.

 

He himself has been battling for the custody of his daughter for almost a decade.

 

Formed in May 2008 in Bangalore, CRISP today has 1,000 members across the country. On Saturday, around 500 members of CRISP are likely to take part in the rally.

 

Explaining on CRISP’s work, the president said, the organisation has fathers, mothers and grandparents as its members.

 

‘I want to clarify one thing. The members are not only fathers who are fighting for the rights of their children’s custody. We have both fathers, mothers and grandparents, who are fighting for justice and equality in child custody laws of our country and who believe in shared parenting when the parents are either separated or divorced,’ said Kumar.

 

‘The idea of our organisation is to give every child their right to be raised equally by both parents, to get an equal amount of love and affection from both parents,’ added Kumar.

 

According to the figures available with CRISP, around 13,000 cases of divorce are pending in various family courts in Bangalore.

 

‘In the process of parents getting divorced, it is ultimately the children who suffer the most. Thus we want equal rights for both the parents over their children,’ said Lokesh Reddy, a member of CRISP.

 

‘We want a change in Indian family law which in most cases is tilted towards the mother when it comes to a child’s custody,’ he added.

 

According to CRISP, parents contemplating divorce should be given mandatory counselling on ‘shared parenting’ and its benefits by a panel of experts supervised by the family courts.

 

‘This will eliminate unnecessary child custody battles, stress to the parents and children and waste of the precious time of the courts,’ said Jayant, another member of CRISP.

 

‘It is always better to have the care and love of both mother and father while growing up. I too support the concept of shared parenting. Differences between parents should not affect children in their growing up days,’ said Sharada Patil, a Bangalore-based teacher.

 

(Maitreyee Boruah can be contacted at m.boruah@ians.in)

https://picasaweb.google.com/lh/sredir?uname=116802290314274346291&target=ALBUM&id=5619527006554349025&authkey=Gv1sRgCJ7q0tHByOf4XQ&feat=email

 

Categories: Protest News

Man sent to jail for raping wife, who is his first cousin

NEW DELHI: In the first order of its kind, a man has been convicted on charges of rape, cruelty and harassment against his wife. Though, as per law, there is no penal provision for charging a man with the rape of his wife, the court held that the accused and the victim were first cousins and he had committed rape on her even before marriage, making it “incestuous”.

While sentencing the man to a seven-year jail term for rape, the court said the man not only tortured the woman after marriage but also raped her — his first cousin — for more than 12 years before marriage, and forced her to marry him. “This is not a case where the accused has been accused of raping of his own wife for over 12 years but a case where he had been accused of raping his first cousin when she was a minor below the age of 15 years and was compelled to marry the accused on account of long term physical relations which he had made with the prosecutrix,” Additional Sessions Judge Kamini Lau said while holding Inderpreet Singh guilty under Section 376 (rape) of IPC.

Even as the accused raised the objection that he cannot be convicted under Section 498A (cruelty and harassment against a woman by her husband or any member of matrimonial home) as their marriage was void as per the Hindu Law, the court justified its conviction under the penal provision saying, “this court has been informed that a petition has been moved for declaring the marriage between the accused and the victim as nullity which is pending before the competent court but that in itself will not mitigate the offence committed by the accused. The marriage between the prosecutrix and the accused being void is yet to be declared nullity by the competent court of law, the provisions of Section 498-A Indian Penal Code would hereby apply”.

While sentencing him to a three-year jail term for harassment, the court also imposed a fine of Rs 1.05 lakh on Singh, stipulating that the amount should be given to the victim.

In its order, the court took a stern view of child abuse as the victim was raped even as a minor. “Crime against women has increased in recent years, most of the offenders being previously known to the victim or enjoying some kind of a fiduciary, family or trust relationship which they betray. It is for the Courts to meet these challenges by moulding the sentencing system to ensure that public confidence in the efficacy of law is not undermined,” the court said.

The victim told the court that she was compelled to marry her cousin in March 2008 after she became pregnant. After the marriage, her husband began physically assaulting and subjecting her to mental cruelty. She alleged that Singh had been raping her since 1996 when she was just 15. As per the prosecution, Singh, 37, and the victim were living in a joint family and he used to teach her when she was preparing for her class 10 board exams.

Court held that the accused and the victim were first cousins and he raped her for 12 years before marriage, making it “incestuous”. She was a minor below 15 years then and was forced to marry him.

http://timesofindia.indiatimes.com/city/delhi/Man-sent-to-jail-for-raping-wife-who-is-his-first-cousin/articleshow/8970166.cms

Categories: Other news

The controversial Section 498A

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Pankaj Sharma/Zee Research Group

The husband-wife dispute story has taken a new turn with the government expeditiously seeking a review of the controversial Section 498A. The Section was introduced in the year 1983 to protect married women from being subjected to cruelty by the husband or his relatives treating it as a non-bailable offence with a three years punishment plus a hefty fine.

The review was ordered by the Home Ministry which inducted Law Commission to issue a discussion paper in April this year. But the backgrounder note prepared by the Commission only leaves the option wide open with strong arguments for and against the review.

The Home Ministry ordered the review following increasing number of complaints from groups representing the interests of men charging that they had been wronged by the current law. This coincided with about 35 per cent rise in number of deaths of husbands caught in dowry dispute during 2007-09. Dowry deaths in case of women grew by just about 3.5 per cent during the period.

As per the latest figures compiled by the National Crime Record Bureau (NCRB), between 2007 and 2009 a total of 24,648 women died due to dowry disputes as against 169 in the case of men.

The Commission backgrounder argued for a review on the ground that once a complaint (FIR) is lodged with the police it becomes an easy tool in the hands of the police to either arrest or threaten to arrest the husband and other relatives named in the FIR without even considering the intrinsic worth of the allegations and making a preliminary investigation. It concluded thus that when the members of a family are arrested and sent to jail without even the immediate prospect of bail, the chances of amicable re-conciliation or salvaging the marriage would be lost once and for all.

Pragmatic realities have to be taken into consideration while dealing with matrimonial matters with due regard to the fact that it is a sensitive family problem which shall not be allowed to be aggravated by over-zealous or callous actions on the part of the police by taking advantage of the harsh provisions of the Section 498A, the commission pleaded.

In its argument for status quo, the Law Commission note argued that Section 498A and other legislations like Protection of Women from Domestic Violence Act had been specifically enacted to protect a vulnerable section of the society who has been the victim of cruelty and harassment. “The social purpose behind it will be lost if the rigour of the provision is diluted. The abuse or misuse of law is not peculiar to this provision. The misuse can however be curtailed within the existing framework of law,” it argued.

Chairperson of National Commission for Women (NCW), Yasmeen Abrar favoured amendments in Section 498A without diluting its core. “Several instances of wrong cases registered against husbands have come to the fore but it is important to recognize that vulnerability of wives has to be protected at any cost.”

However, Supreme Court senior advocate Pinki Anand opposes any amendment in the Act: “I don’t think if there is really any major amendment require in the Section 498A of IPC. Judiciary is there to take any decision if anyone misuses the Act.” She though sought exemption from arrest for relatives of husband in such disputes.

On increasing death of husbands due to dowry and divorce cases, she alleged that “these figures are misleading and far away from reality. Section 498A of IPC shouldn’t become bailable offence because if any offence becomes bailable in India it also becomes ineffective.”

The Law Commission is now busy collating the feedback it has received in response to its questionnaire and hopes to submit its report to the Home Ministry this month end.

http://zeenews.india.com/news/exclusive/the-controversial-section-498a_714675.html

Categories: Other news

HC to Family Court: Dont consider wife statement gospel truth and husband statement as lie

Categories: Judgement

Widow turns accomplice in murder of Chennai software engineer

CHENNAI: The June 2 murder near Tindivanam of a city-based software engineer is becoming more complex. A 36-year-old widow, arrested in the city on Saturday, has unwittingly become an accomplice to the killing, the police say.

According to the police, C Parthasarathy, employee of a BPO call centre in Tidel Park, was kidnapped by a gang on June 2, taken to Tindivanam and strangled before the body was burnt and dumped amidst bushes near a toll gate in Olakkur near Tindivanam.

On Friday, the police arrested Parthasarathy’s father-in-law Narasimhan, an assistant engineer with Metrowater, and the assailants Dileep Kumar, Janakiraman and his brother Hemanth Ram.

Based on their confession, the police arrested Saluja of Villivakkam. She told the police that to help Narasimhan she hired the assailants to teach a lesson’ to Parthasarathy. “Saluja met Narasimhan when she went to get a Metrowater connection for her house in Villivakkam. They again met at a yoga centre in Villivakkam and began meeting often,” the police said, based on Saluja’s statement.

When Narasimhan didn’t come to the yoga class continuously for more than a week, Saluja contacted him and learnt about the sudden marriage of his daughter Saranya to a Parthasarathy, a software engineer. Narasimhan, Salayuja told the police, wanted to teach a lesson to Parthasarathy and initially only asked her to help threaten him. Later, he expressed a desire to eliminate Parthasarathy, Saluja, who works in a marriage information centre in the city, told the police.

Saluja’s late husband and the father of Dileep one of the assailants were colleagues in the ICF and she knew Dileep and his brother Janakiraman. First asked to threaten Parthasarathy, the two demanded Rs 5 lakh when told that they would have to eliminate him, the police said. The two then engaged their friend Hemanth Ram to help them, the police added.

“The trio closely followed Parthasarathy for many days before kidnapping him on June 2 and taking him in rented Tata Indica to Tindivinam where he was done to death,” a police officer said.

“We will take Dileep Kumar and Janakiraman into custody for questioning. We have to recover many valuables from them. We are also planning to stage a demonstartion of the murder which will be videographed. An identification parade will be conducted in the prison in front of a magistrate soon,” Villupuram superintendent of police Xavier Dhanraj told TOI.

Categories: Crime by Women

CrPC amendment: AP HC: Courtesy Rajesh

Kavya’s ex-husband breathes a sigh of relief, 498A, DV Act case

Kavya’s ex-husband breathes a sigh of relief
Last Updated : 08 Jun 2011

Kavya Madhavan with Nishalchandra after their marriage- Express photo. Kavya Madhavan with Nishalchandra after their marriage- Express photo. It was 5 p.m. on May 29 when Nischal Chandra emerged from the family court in Kochi after his marriage to actress Kavya Madhavan was annulled. Some people shook his hand and said, “Congratulations, we are really happy to know that you are a free man.”For Nischal, it was a rare moment of happiness. “A few people have finally understood that there is another side to the story of what happened between Kavya and me,” he says.Ever since Kavya returned from Kuwait, in June, 2009, after barely staying for three months with Nischal, citing spousal abuse, it has been a trial by media for Nischal. “All sorts of lies and distortions have been said,” he says. One example: repeatedly, it was stated that Nischal was uneducated. “I was really surprised by this,” he says. In fact, Nischal has two master’s degrees: one in telecommunication engineering from the Stevens Institute of Technology in New Jersey, and the other in management science from Stanford University, California.Nischal has worked in top investment firms like Lehman Brothers, JP Morgan, and Merrill Lynch in New York “For the last six years, I have been the Technology Adviser of a leading bank in Kuwait,” he says. When this erroneous information was being published and broadcast, there were few journalists who were willing to listen to Nischal’s version.“As far as I know, there were no clarifications,” he says. “Even today, people suspect that I am jobless and lack educational qualifications.” He says the visual media has a stake in the entertainment industry, so it was tough for them to take a stance opposing Kavya.“Because I am a non-celebrity, they were not interested in me,” he says. Nischal says he is unable to talk about why the marriage broke down because of a legal agreement with his former spouse. “But I can tell you about the impact of Section 498 A, the domestic violence act,” he says.Kavya had filed a case under this act, whereupon a husband can be arrested, without a warrant, and put into jail. The law goes like this: ‘Whoever, being the husband or the relative of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall be liable to a fine. The offence is cognizable, non-compoundable and non-bailable.’Nischal was ready for a long drawn-out court battle with Kavya, but his lawyer said that under Section 498A, the entire family could be charged, including his elderly parents, and fighting the battle would consume a lot of time. So he opted for a mutual compromise.He admits that his family, which includes an elder brother, his sister-in-law and their child, went through a harrowing time.“It was a nightmare,” he says. “Thank God it is over.” But there was a final sting. A day after the divorce came through a vernacular newspaper reported that Nischal had refused to return gold jewellery worth Rs 97 lakh. Through his lawyer, Nischal had to issue yet another clarification stating that no dowry or gold jewellery had been taken from Kavya. Thankfully, the newspaper later published a retraction.As to the lesson he has learned from this bitter experience, Nischal says, “Family is the most important institution for a man. When members of your family come together and support you at the most crucial time, you don’t need anything more. This experience has made us stronger and more loving towards each other.”

Categories: Other news

Criminal liability for failure by husband to pay maintenence to wife

Categories: Other news

Gujrat HC: 140 days jail to husband for 14 months of arrears of maintenance

CR.MA/1040/2011 3/3 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION No. 1040 of 2011

In

SPECIAL CRIMINAL APPLICATION No. 2065 of 2010

=========================================================

JAVIDBHAI AKBARBHAI AJMERI – Applicant(s)

Versus

STATE OF GUJARAT & 1 – Respondent(s)

========================================================= Appearance :

MS BENAZIR M HAKIM for Applicant(s) : 1,MR MA SAIYAD for Applicant(s) : 1,

MR DC SEJPAL, APP for Respondent(s) : 1, MRS NASRIN N SHAIKH for Respondent(s) : 2, =========================================================

CORAM :

HONOURABLE MR.JUSTICE AKIL KURESHI

Date : 28/01/2011

ORAL ORDER

1. Rule. Learned APP Mr. Sejpal waives service of rule for respondent State.

2. Petitioner is husband of respondent no.2. He has been taken in custody for nonpayment of maintenance. By an order dated 11.1.2011 passed by the Family Court, Rajkot, he is ordered to undergo imprisonment for 140 days for 14 months of arrears.

3. Counsel for the petitioner submitted that petitioner could not pay the amount because of acute financial difficulties. He however, intends to clear all arrears including arrears arising subsequent to the Family Court passed the order. She pointed out that as of now the petitioner is in arrears of approximately Rs.75,000/- of maintenance. She prayed for a reasonable time for clearing the arrears looking to the weak financial condition of the petitioner.

4. Learned advocates drew my attention to order dated 17.1.2011 passed by this Court in Special Criminal Application No.2065/2010 which was passed in husband’s petition for reduction in maintenance. While not interfering with order of maintenance passed by the Family Court, petitioner was granted time upto 31.3.2011 to clear all arrears. This order however, was passed unmindful of the fact that petitioner is already taken in custody pursuant to the order passed by the Family Court on 11.1.2011, since this development was not known to the learned advocates also.

5. Under the circumstances, the petition is disposed of with following directions :

i. The petitioner shall deposit with the Family Court a sum of Rs.10,000/- latest by 10.2.2011.

ii. The petitioner shall deposit further sum of Rs.25,500/- with the Family Court latest by 15.4.2011.

iii. Remaining amount of arrears of maintenance shall be deposited with the Family Court latest by 31.7.2011. iv. On condition that petitioner shall abide by the above time frame of payments, he is ordered to be released forthwith from custody, pursuant to order dated 11.1.2011 which order in effect shall be kept in abeyance.

v. In case the petitioner makes default in depositing the amounts, on an application filed by wife before the Family Court, it would be open for the the Family Court to issue directions for taking him back in jail.

vi. As and when amounts are deposited before the Family Court, same will be disbursed in favour of wife without waiting for no objection from the petitioner or his advocate. These directions shall be effective in supersession of time limit granted in order dated 17.1.2011 in Special Criminal Application No.2065/2010.

At this stage in view of above-formula provided, legality of order dated 11.1.2011 is not gone into.

It is expected that petitioner shall continue to pay prospective monthly maintenance regularly.

Rule made absolute accordingly.

(Akil Kureshi,J.)

Categories: Judgement

HC: Father facing criminal charges? Child Custody cannot be given !!!

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Appeal From Order No.301 of 2008

1. Godhan Singh Jalal

S/o Shri Harak Singh Jalal

2. Smt. Gayatri Devi

W/o Shri Godhan Singh Jalal

Both R/o Village Gangapur Choi,

Police Station Ramnagar,

Tehsil Ramnagar,

District Nainital

..Appellants

Versus

Shri Kishan Singh Bisht

S/o Late Lacham Singh Bisht,

R/o Village Bokta, P.O. Chaunala,

Tehsil and P.S. Gangolihat,

District Pithoragarh .Respondent

Shri Sarvesh Agarwal, Advocate present for the appellants. Shri Vijay Bhatt, Advocate present for the respondent.

Dated: 14th March, 2011

Coram: Hon’ble Prafulla C. Pant, J.

Hon’ble V.K. Bist, J.

Prafulla C. Pant, J. (Oral)

This appeal is directed against the order dated 05.07.2008 passed by Judge, Family Court, Nainital in Misc. Civil Case no.14 of 2004, whereby said Court has allowed the application moved by the respondent for the custody of his children.

2. Heard learned counsel for the parties and perused the Lower Court’s Record. Since the parties to the litigation are present in person alongwith the children, we heard them in person also.

2

3. Brief facts of the case are that respondent-Kishan Singh Bisht got married to Padma Devi (daughter of the appellants-Godhan Singh Jalal & Smt. Gayatri Devi). Out of said wedlock, two children, namely, Pooja Bisht & Gaurav @ Paras Bisht were born. It appears that on 06.10.2003, Padma Devi died unnatural death and a criminal case was registered against the respondent relating to offences punishable under Section 304 B, 498 A, 504 I.P.C. and one punishable under Section 3/4 of the Dowry Prohibition Act, 1961. It further appears from the record that the respondent Kishan Singh Bisht was released on bail in said case, but the trial is yet not over. On 15.06.2004, respondent Kishan Singh Bisht (father of the two children) moved an application under Guardian and Wards Act, 1890 before the Family Court, Nainital seeking custody of the two children, who were living with their maternal grand parents (present appellants). The Trial Court vide impugned order dated 05.07.2008 allowed the said application and directed the maternal grand parents of the children to give their custody to the respondent (father of the children).

4. Admittedly, respondent Kishan Singh Bisht is father of the two children, namely, Pooja Bisht & Gaurav @ Paras Bisht. It is also admitted to the parties that appellants Godhan Singh Jalal and Smt. Gayatri Devi are maternal grand parents of the children. It is also not disputed that the mother of the children has died unnatural death in the year 2003. Also, there is no dispute that at that point of time Pooja Bisht 3

(daughter) was aged two years and Gaurav @ Paras Bisht (son) was aged one year. The respondent serves in the Indian Army. Being father of the children, he claimed custody of the children, after his release from the jail. The Trial Court appears to have passed the impugned order considering the fact that the respondent, being father, is a natural guardian of the children.

5. However, it is settled principle of law that in the matters of dispute relating to the custody of children, the most important consideration is the interest of the children. The children, who are present before this Court and are too young. They are being looked after by their maternal grand parents. The appellants, who are the maternal grand parents, pleaded before us that they are looking after/educating the children to the best of their ability and giving no cause of concern to the father of the children. The young children, when enquired by us, in the presence of their father, as to whether they would like to live with their maternal grand parents or with the father, they orally expressed their desire before us that they want to continue to live with their maternal grand parents. They are too young, the elder child is studying in Class III and the younger one is in Class II. Though, the father of the children (present respondent) pleaded before us that he should be given custody of his children but in the present facts and circumstances of the case, we are of the view that keeping in mind the paramount interest of the children, it is not desirable to grant custody of the 4

children to their father, at this stage. We are conscious of the fact that the father is facing a trial in respect of offence punishable under Section 304 B I.P.C. and the trial is not yet concluded. If it results in conviction, the interest of little children would get seriously affected by giving their custody to their father, at this stage. In Yogesh Kumar Gupta Vs. M.K. Aggarwal A.I.R. 2009 Uttarakhand Page 30, this Court has expressed the similar view in the similar kind of dispute.

6. In the above circumstances, we are of the view that the Trial Court has erred in law by directing the appellants to transfer the custody of the children Pooja Bisht & Gaurav @ Paras Bisht to the respondent. The application moved by the respondent before the trial court, in our opinion, is liable to be dismissed, at this stage. Accordingly, we allow this appeal and set aside the order dated 05.07.2008 passed by Family Court, Nainital in Misc. Civil Suit No.14 of 2004. However, we direct that the respondent shall be allowed to visit and meet his children in the house of the appellants, at least once in a month, if he comes to meet them.

7. No order as to costs.

(V.K. Bist, J.) (Prafulla C. Pant, J.) 14.03.2011

Arpan

Categories: Judgement

Gujrat HC: Husband in jail for non-compliance of the order of maintenance to wife

SCR.A/813/2011 1/1 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION No. 813 of 2011

=============================================

BILAL TAIYABBHAI – Applicant(s)

Versus

STATE OF GUJARAT & 2 – Respondent(s)

============================================= Appearance :

THROUGH JAIL for Applicant(s) : 1, MR AJ DESAI ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, None for Respondent(s) : 2 – 3. =============================================

CORAM :

HONOURABLE MR.JUSTICE ANANT S. DAVE

Date : 06/04/2011

ORAL ORDER

This petition is preferred by the petitioner-convict for grant of parole leave to prefer an appeal before this Court for non-compliance of the order of maintenance to be paid to his wife as ordered by the Family court, Panchmahal.

Considering overall facts and circumstances of the case, the petitioner can make suitable arrangement through office of the Central Jail, Vadodara and/or may also approach the Legal Services Authority to file an appeal.

No parole leave can be granted at this stage. This petition is rejected.

[ANANT S. DAVE, J.]

Categories: Judgement

30 Lakhs for settlement of 498a: Such husbands are promoting legal terror

CR.MA/1669/2011 5/5 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION No. 1669 of 2011

For Approval and Signature:

HONOURABLE MR.JUSTICE MD SHAH

=========================================================

1

Whether Reporters of Local Papers may be allowed to see the judgment ?

2

To be referred to the Reporter or not ?

3

Whether their Lordships wish to see the fair copy of the judgment ?

4

Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?

5

Whether it is to be circulated to the civil judge ?

=========================================================

KEYURBHAI HARSHADRAI PARIKH & 3 – Applicant(s)

Versus

STATE OF GUJARAT & 1 – Respondent(s)

========================================================= Appearance :

M/S THAKKAR ASSOC. for Applicant(s) : 1 – 4. Mr.L.R.Pujari, APP for Respondent(s) : 1,

MR RAJESH H SAHJANI for Respondent(s) : 2,

=========================================================

CORAM :

HONOURABLE MR.JUSTICE MD SHAH

Date : 22/04/2011

ORAL JUDGMENT

1. Leave to add the husband of the respondent No-2 as petitioner No.5 is granted and draft amendment is allowed. Amendment be carried out forthwith.

2. Heard learned Senior Advocate, Mr.P.M.Thakkar for M/s Thakkar Associates for the petitioners, learned APP, Mr.L.R.Pujari for the respondent No.1 and learned advocate, Mr.Rajesh Sahjani for the respondent No.2. The respondent No.2-complainant is also present in Court.

3. Rule. Learned APP, Mr.L.R.Pujari for the respondent No.1 and learned advocate, Mr.Rajesh Sahjani for the respondent No.2 waive service of notice of rule.

4. The learned advocates for the respective parties have jointly submitted that this matrimonial matter is settled between the parties and as per the settlement, the parties have decided to separate and for which, divorce application has been preferred before the competent court. Further, the petitioners have agreed to pay a sum of Rs.30,00,000/- (Rupees Thirty Lakhs only) by pay order No.015974 dated 4-3-2011 drawn on Principal Judge, Family Court, Ahmedabad, in lieu of all claims present and future arising out of marriage in full and final settlement. The respondent No.2-complainant wife, who is present in Court, has stated that she is ready to accept the said amount. It is further stated by her that since the matter is settled, she has no objection if the complaint is quashed.

5. It is clear that the parties have settled the matter by arriving at a compromise and a consent terms on affidavit is submitted which is taken on record. Reliance is placed on a decision of the Apex Court reported in AIR 2005 SUPREME COURT 757 in the case of Mohd. Shamim v. Nahid Begum wherein it has been held by the Apex Court in paragraph Nos.12, 13, 14 and 15 as under:

“12. In view of the fact that the settlement was arrived at the intervention of a judicial officer of the rank of the Additional Sessions Judge, we are of the opinion, the contention of the First Respondent herein to the effect that she was not aware of the contents thereof and the said agreement as also the affidavit which were got signed by her by misrepresentation of facts must be rejected. In the facts and circumstances of this case, we have no doubt in our mind that the denial of execution of the said deed of settlement is an afterthought on the part of the Respondent No.1 herein.

13. Ex facie the settlement between the parties appears to be genuine. If the contention of the First Respondent herein is to be accepted, she would not have accepted the sum of Rs. 2,25,000/- and in any event, she could have filed an appropriate application in that behalf before the Court of S.N. Gupta, Additional Sessions Judge, Delhi. What was least expected of her was that she would return the said sum of Rupees 2,25,000/- to the Appellants herein.

14. Section 406 is a compoundable offence with the permission of the court. It is true that Section 498-A IPC is not compoundable.

15. This Court in Ruchi Agarwal v. Amit Kumar Agrawal and others (2004 (8) Supreme 525), in almost a similar situation has quashed a criminal proceeding against the husband, stating:

“… Therefore, we are of the opinion that the appellant having received the relief she wanted without contest on the basis of the terms of the compromise, we cannot now accept the argument of the learned counsel for the appellant. In our opinion, the conduct of the appellant indicates that the criminal complaint from which this appeal arises was filed by the wife only to harass the respondents.

8. In view of the above said subsequent events and the conduct of the appellant, it would be an abuse of the process of the court if the criminal proceedings from which this appeal arises is allowed to continue.”

16. In view of the conduct of the First Respondent in entering into the aforementioned settlement, the continuance of the criminal proceeding pending against the Appellants, in our opinion, in this case also, would be an abuse of the process of the court. The Appellant No.1, however, would be entitled to withdraw the sum of Rs. 50,000/- which has been deposited in the court. We, therefore, in exercise of our jurisdiction under Article 142 of the Constitution of India direct that the impugned judgment be set aside. The First Information Report lodged against the Appellants is quashed. The Appeal is allowed. However, this order should not be treated as a precedent.”

6. Reliance is also placed on another decision of the Apex Court reported in AIR 2003 SUPREME COURT 1386 in the case of B. S. Joshi v. State of Haryana wherein complaint for the offence under Sec.498-A has been quashed by observing that High Court can exercise inherent power for quashing of criminal proceedings under Sec.482 of Cr.P.C. It has been held by the Apex Court in paras 14 and 15 of the said judgment as under:

“14. There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code.

15. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.”

7. Applying the above ratio to the facts of the present case, since the matter has been settled between the parties, I am of the opinion that no useful purpose would be served by permitting the criminal proceedings pending against the petitioners to continue. Hence, the complaint in question is required to be quashed.

8. In view of the above, FIR registered as C.R.No.I-35 of 2011 at Satellite Police Station is quashed. This Cri.Misc.Application is accordingly allowed. Rule is made absolute. Direct service is permitted.

(M.D.SHAH,J.)

radhan

Categories: 498A Judgements

HC: Divorce proceedings (adultry) after 498A, Bail rejected

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.33460 of 2010

VINOD SHARMA

Versus

STATE OF BIHAR

———–

2 19.1.2011 Heard learned counsel for the parties. Torture for demand of dowry is the allegation. Petitioner is husband. submission is about being allegation false as there is no probability of making any demand after more than seven years of marriage that also after coming from Gulf country, may be some reality in the defence but that is followed by a divorce case, as submitted leveling allegation of adultery and not joining the attempt of Sessions Judge to reconcile the differences.

Hence, prayer for anticipatory bail on behalf of petitioner is rejected. AI ( Mandhata Singh, J.)

Categories: Bail Judgement

HC: 498A filed after Divorce on adultry ground, Bail granted

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.381 of 2011

AWADHESH KUMAR RAI @ Awadhesh Yadav, son of Sudarshan Rai, resident of village- Najarmira, P.S. Sonepur, Distt.-Saran

Versus

THE STATE OF BIHAR

———–

2. 19.01.2011 Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the State.

This is an application for grant of anticipatory bail in connection with Complaint Case no. 774 of 2010 for the offences punishable under Sections 498 (A), 379 of the Indian Penal Code. There is an allegation of the cruelty for non-fulfillment of demand of a motorcycle and Rs.50,000/- in cash. Learned counsel for the petitioner submits that prior to the institution of the case he has filed a petition for divorce on the ground of adultery. Having regard to the submissions made on behalf of the party and in the fact and circumstance of the case, the petitioner, above named, in the event of arrest/surrender in the court below within four weeks from the date of receipt/ production of a copy of this order, shall be enlarged on bail on furnishing bail bond of Rs. 10,000 (ten thousand) with two sureties of the like amount each to the satisfaction of the S.D.J.M., Chapra, Saran in connection with Complaint Case no. 774 of 2010 corresponding to Tr. No. 2794 of 2010, subject to the conditions that he will appear in case on each and every date any absence for the date fixed will be subject to the satisfaction of magistrate on reasonable ground and the lower court shall expedite the trial to be concluded at earliest on the day to day basis for early disposal.

( Gopal Prasad, J.)

Amit

Categories: Bail Judgement

Vexatious Litigation (Prevention) Act dismissed and judges were called inefficent :))

Bench: B Marlapalle, A Thipsay

*1* appln.3397.03.sxw

kps

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO.3397 OF 2003

Mr.Goolam E. Vahanvati, )

Advocate General for )

the State of Maharashtra, )

having his office at Annexe Bldg., )

High Court, Mumbai400032. ) ..Petitioner Versus

Mr.Anil Gulabrai Gidwani, )

Age about 43 years, )

Indian Inhabitant, )

R/a. Ganga Bhavan, )

24th Road, Plot 459, Flat No.10, )

T.P.S.III, Bandra (W), )

Mumbai400050. ) ..Respondent ………..

Mr.H.J.Dedhia, Additional Public Prosecutor, for the Petitioner. The Respondent appears in person.

……….

CORAM : B.H.MARLAPALLE &

A.M.THIPSAY, JJ.

Reserved on : 25th March, 2011.

Pronounced on : 06th May, 2011.

JUDGMENT (Per A.M.Thipsay, J):

1 This is a petition filed by the Advocate General for the State of Maharashtra under Section 2(1) of the Maharashtra Vexatious Litigation (Prevention) Act, 1971, praying that the Respondent be *2* appln.3397.03.sxw

declared as a vexatious litigant and that he be restrained by an order of this Court from initiating any fresh proceedings against one Smt.Shanta Mhatre (mentioned as “the victim lady” in the petition) and from initiating any further application in any pending matters, without seeking prior permission of this Court.

2 This petition is based on the information received by the Petitioner from the said Smt.Shanta Mhatre (hereinafter referred to as “the victim lady”) that the victim lady is being continuously harassed by the Respondent who is habitually and without any reasonable ground, instituting various vexatious proceedings, civil as well as criminal, against her. The petition in paragraph No.1 itself gives the details of the proceedings initiated by the Respondent against the victim lady. The petition states on the basis of the information received by the Petitioner from the victim lady that the Respondent has been in the habit of using filthy language, making false, baseless and serious allegations against the Judges of the Small Causes Court, Mumbai where an ejectment suit filed by the Respondent against the victim lady is pending. The Respondent is the landlord and the victim lady is his tenant. It is also stated in the petition that in the pending suit between the parties, the Respondent has been continuously filing the applications after applications and has, in the course of argument levelled false, baseless and frivolous allegations against the victim lady using most abusive language against her. The Respondent has not only threatened *3* appln.3397.03.sxw the Judges of the Small Causes Court, Mumbai but has also cast aspersions on the judiciary by making certain statements before the learned Additional Chief Metropolitan Magistrate, 9th Court, Bandra about “inefficiency of the judicial system” and “leniency shown by the Magistrate towards criminals”. It is also stated that inspite of specific warning given by the learned Magistrate, the Respondent continued to make unwarranted statements and therefore, the Magistrate was required to warn him in open Court and by passing an order on 16.01.2003. The petition also states that the victim lady, who is an Advocate, was constrained to give up her practice, having been required to attend the various civil as well as criminal matters filed by the Respondent and due to unnecessary litigations filed against her by the Respondent. The petition also states, that with object of causing undue harassment and humiliating the victim lady, the Respondent has been referring to the victim lady by her earlier name which the victim lady has got changed. The Respondent also filed a false complaint against the victim lady with the Bar Council, which was dismissed. The Respondent has been filing the proceedings against the victim lady with malicious intention and that the applications which he files are false and frivolous. The petition also gives certain details of the proceedings between the Respondent and the victim lady. The petition gives several instances of misbehaviour of the Respondent with the victim lady and consequent harassment caused by the Respondent to the victim lady. After giving these details, the petition states that the Respondent has habitually and *4* appln.3397.03.sxw

without any reasonable ground instituted the vexatious proceedings, civil and criminal, in the Small Causes Court, the City Civil Court and Criminal Courts.

3 The petition has been opposed by the Respondent by filing a written reply. The Respondent has denied that he is, habitually and without any reasonable ground, initiating various vexatious proceedings against the victim lady. While denying the averments in the petition to the effect that the Respondent has cast aspersions on the judiciary, the Respondent has stated that “judiciary is perceived as inefficient by most citizens in India” and that “pointing this out is not casting aspersion”; and the Respondent has claimed that the same would be fair and valid criticism which has been allowed under the Constitution of India. The Respondent has undertaken to stand by and prove his statement. The Respondent has denied the allegations levelled against him and has advanced his own version with respect to alleged incidents or happenings. Ultimately, the Respondent submits that none of the proceedings initiated against the victim lady are false. According to him, seeking a legal remedy to counter the continuous violations of the provisions of the Rent Act and the terms and conditions of the tenancy agreement on the part of the victim lady, is a valuable right vested in the Respondent by the Constitution of India and cannot be lightly taken away. The Respondent, thus, prays for dismissal of the petition. *5* appln.3397.03.sxw 4 We have heard Mr.H.J.Dedhia, the learned Additional Public Prosecutor appearing for the State in support of the petition. We also permitted the victim lady to make oral submissions before us. We have heard the Respondent who appears in person.

5 The Maharashtra Vexatious Litigation (Prevention) Act, 1971 (hereinafter referred to as the Act) has been enacted to prevent the institution or continuance of the vexatious proceedings in courts. Section 2(1) of the Act reads thus:

“2. (1) If, on an application made by the Advocate General, the High Court is satisfied that any person has habitually and without any reasonable ground instituted vexatious proceedings, civil or criminal, in any Court or Courts, whether against the same person or against different persons, the High Court may, after hearing that person or giving him an opportunity of being heard, order that no proceedings, civil or criminal, shall be instituted by him in any Court (and that any legal proceedings instituted by him in any Court before the order shall not be continued by him), (a) In Greater Bombay, without the leave of the High Court; and

(b) elsewhere in the State, without the leave of the District and Sessions Judge.

At the hearing of any such application, the Advocate General may appear through a pleader.”

6 Section 3 of the Act provides that any proceeding instituted or continued in any Court by a person against whom an order under sub section (1) of Section 2 has been made without obtaining the leave referred to in that section, shall be dismissed by the Court. Section 4 *6* appln.3397.03.sxw thereof saves the applicability of the provisions of any other law for prevention of the vexatious proceedings or other abuse of legal process or necessity of consent, sanction or approval in any form of any other authority for institution or continuance of any proceeding, and makes it clear that the provisions of the Act shall be in addition to and not in derogation of the provisions of such other law.

7 It is clear that an order under subsection (1) of Section 2 of the Act can be passed by the High Court if it is satisfied that any person has habitually and without any reasonable ground instituted vexatious proceedings, civil or criminal, in any Court or Courts. Thus, what must be established before an order under subsection (1) of Section 2 of the Act is passed is that (a) a person has instituted the vexatious proceedings in the Court or Courts and (b) that such person has instituted such proceedings (i) habitually and (ii) without any reasonable ground. The Act, however, does not define the term “vexatious” or “vexatious proceedings”.

8 In common parlance, “To vex” means anger by a slight or a petty annoyance; irritate. “Vexation” means the act or an instance of vexing or annoying or distressing thing. “Vexatious” means such as to cause vexation. (See The Oxford English Reference Dictionary, Edition1995). The term “vexatious”, when used in law, signifies an action not having sufficient ground therefor and seeking only to annoy *7* appln.3397.03.sxw the adversary.

9 The Advanced Law Lexicon, 3rd Edition Reprint 2007, defines the term “Vexation” as under:

“The action of troubling or harassing by aggression or interference; the action of troubling or irritating by physical means.”

“Vexatious” has been defined as causing or likely to cause vexation. The “vexatious action” or “vexatious proceedings” has been defined as under:

“An action brought for the purpose of annoying the opponent and with no reasonable prospect of success.” 10 Black’s Law Dictionary, Eighth Edition, defines the words “vex”, “vexation”, “vexatious”, “vexatious litigant” and “vexatious proceeding” as under:

(a) Vex : to harass, disquiet, or annoy.

(b) Vexation : The damage that is suffered as a result of another’s trickery or malice.

(c) Vexatious : (Of conduct) without reasonable or probable cause or excuse; harassing; annoying.

(d) Vexatious litigant : A litigant who repeatedly files frivolous lawsuits.

(e) Vexatious proceeding : A lawsuit instituted maliciously and without good cause.

11 We have carefully gone through the petition to ascertain the *8* appln.3397.03.sxw

number, details and other particulars of the proceedings which have been initiated by the Respondent. These details are found in PartA of the petition which speaks of “brief background” and also in PartB of the petition which has been classified as “facts of the case”. Now, in PartA, there is mention of criminal case No.608/S/2001 filed by the Respondent against the victim lady and her husband. It is also stated that prior to the filing of the said case, the Respondent had also filed several complaints against the victim lady, the details of which are as follows:

1) N.C. Complaint at the Nirmal Nagar Police Station, Bandra (East) being N.C. Complaint No.4831/2000, filed on 20.11.2000.

2) Complaint filed against the victim lady at the Khar Police Station, Mumbai dated 15.11.2000.

3) Complaint dated 21.09.2000 filed at Khar Police Station, Mumbai.

4) Complaint filed against the victim lady at Khar Police Station, Mumbai dated 24.04.2000.

5) Complaint filed against the victim lady at Khar Police Station, Mumbai dated 30.07.1999.

6) Complaint filed with the Commissioner of Police regarding criminal intimidation dated 08.01.2001.

7) Criminal Appeal No.300/2000 filed by the Respondent against the order passed by the Special Executive *9* appln.3397.03.sxw

Magistrate, Bandra, West Division, Mumbai.

8) Criminal Complaint No.610/S/2002 filed by the Respondent against the victim lady under Sections 506, 504, 352, 268, 447, 107, 427 r/w 34 of the Indian Penal Code.

12 Now, in our opinion, the complaints mentioned at Sr.No.1 to 6 above would not come within the purview of the Act. It is clear that the Act seeks to prevent the institution or continuance of the vexatious proceedings in Courts. Section 2 of the Act also refers to the institution of the vexatious proceedings in any Court or Courts. Thus, the complaints made to the various Police authorities cannot be termed as “vexatious proceedings” within the meaning of the Act. 13 The matter at Sr.No.7 above, namely, Criminal Appeal No. 300/2000, cannot be termed as “vexatious proceedings” inasmuch as the Respondent had filed the same for challenging the order passed by the Special Executive Magistrate requiring the Respondent to execute a bond for good behaviour. The Respondent had a right to challenge the said order by approaching the higher court. The proceedings instituted by the Respondent for challenging an adverse order passed against him, can, by no stretch of imagination, be considered as “vexatious proceedings”. It is also significant that the Respondent succeeded in the said appeal and the Court of Sessions set aside the order passed by the Special *10* appln.3397.03.sxw Executive Magistrate.

14 So far as the Criminal Complaint No.610/S/2002 appearing at Sr.No.8 above is concerned, the same indeed requires to be taken into consideration for deciding whether the Respondent has habitually and without any reasonable ground instituted the vexatious proceedings. The petition, however, instead of highlighting as to how the said complaint is either false, frivolous or vexatious, deals more with the conduct of the Respondent in the course of hearing of the complaint. It is stated that the Respondent is in the habit of using filthy language and making false, baseless and serious allegations against the Judges of the Small Causes Court. It is stated that the Respondent also levelled false, baseless and frivolous allegations against the victim lady and used most abusive language against her. It is stated that the Respondent has cast aspersions on the judiciary by making serious statements before the learned Additional Chief Metropolitan Magistrate, Bandra. It is also mentioned that the Respondent was warned by the learned Magistrate, thrice, orally, and thereafter, by passing an order; and that while the order was being dictated the Respondent submitted an apology. Indeed, it appears from the order dated 16.03.2003 passed by the learned Additional Chief Metropolitan Magistrate, 9th Court, Bandra that the Respondent had behaved in an improper manner in the Court and had started arguing about inefficiency of the judicial system. It may be observed, at this stage, that the Respondent seems to be in the habit of speaking about the *11* appln.3397.03.sxw inefficiency of the judicial system, inasmuch as, not only he has made remarks about inefficiency of the judicial system in his reply to the petition, but the record shows that in the course of hearing of this petition itself, he has attempted to teach the Hon’ble Judges of this Court as to how they are supposed to do their job.

15 The Petition also refers to the order dated 07.01.2003 passed by the Court of Small Causes, Mumbai in Interim Notice No. 7/2003 in RAE Suit No.3000/838/1994. The Respondent is the Plaintiff No.2(d) in the said suit and the victim lady is the Defendant. Copy of the order, which has been annexed to the petition at ExhibitD, indicates that the Court of Small Causes ordered to strike out certain portion contained in the Respondent’s affidavit in reply dated 13.12.2002, under the provisions of OrderVI Rule16 of the Code of Civil Procedure. Thus, this prima facie indicates that the Respondent had resorted to scandalous and unnecessary averments in his affidavit in reply. 16 The petition then refers to a complaint filed by the Respondent against the victim lady with the Bar Council. In our opinion, the Bar Council cannot be termed as a “Court” and therefore, the proceedings filed by the Respondent against the victim lady with the Bar Council would be outside the purview of the Act and therefore, cannot be taken into consideration. Undoubtedly, the conduct of the Respondent insofar as it appears from the filing of the said proceedings may be taken *12* appln.3397.03.sxw into consideration while deciding the propriety of treating him as a vexatious litigant, but this complaint made by him to the Bar Council cannot be added to the list for showing the number of alleged vexatious proceedings initiated by him.

17 The petition then refers to the threatening language used by the Respondent to the Judge of the Court of Small Causes. An incident which has taken place in Revision Application No.16/2002 pending in the Court of Small Causes has been cited and a copy of the order passed by the Court of Small Causes has been annexed to the petition as ExhibitF. It is not clear, as to what is sought to be conveyed by referring to the said order except that the Respondent threatened or used improper language while addressing the learned Judge of the Small Causes Court.

18 Now, coming to the details given in partB of the petition classified as “facts of the case”, there is reference of the suit bearing RAE No.537/4434/63, but this suit has, admittedly, not been filed by the Respondent and apparently the same has been filed by the grandfather of the Respondent. Reference to an order dated 03.05.2003 passed by the Court of Small Causes has been made and a copy of the said order has been annexed to the petition as ExhibitH. A perusal of ExhibitH shows that it is an order passed in RAE Suit No.300/838/1994 in which the Respondent is one of the Plaintiffs and the victim lady is the *13* appln.3397.03.sxw

Defendant. By the said order, the suit filed by the Plaintiffs was dismissed. It is clear from the averments in the petition itself that the legal proceedings are pending between the parties since the year 1963. The petition itself states, that the victim lady had been suffering at the hands of the grandfather of the Respondent since 1961 and thereafter, at the hands of the father of the Respondent, who both were landlords of the victim lady. It is only subsequently that the Respondent has come on record as one of the landlord.

19 The petition then states that the Respondent has been initiating the legal proceedings by filing unnecessary, false and frivolous litigation and that he makes various applications in the legal proceedings and does not even spare the judicial officers etc.. In our opinion, if the Respondent has stepped in the shoes of his grandfather and father in his capacity as the landlord, and is continuing the suits filed by them, it cannot be said that the Respondent has initiated or instituted those suits. The petition then proposes to give history of the suit bearing RAE No. 537/4434/63 filed by the grandfather of the Respondent, and it is clear therefrom, that the Respondent came in picture in the year 1998 only. It seems that he was earlier in U.S.A. and after coming down from there, he started taking interest in the litigation which was already pending between the landlords and the victim lady.

20 The petition then narrates the instances of objectionable *14* appln.3397.03.sxw conduct of the Respondent such as filing the complaint with the Bar Council, sitting right under the window of the victim lady’s house from morning to evening and making her uncomfortable by peeping inside the house, etc.. It is alleged that the Respondent, on the pretext of reading books and doing meditation, continues to sit near the window of the victim lady reading law books and passing unwanted remarks stating that he will become a better lawyer by reading law books and will teach the victim lady a lesson. The Respondent is also alleged to have killed the kitten to whom the victim lady regularly used to feed. He is also alleged to have called three men to remove coconuts from the coconut tree and in the process broke number of flower pots belonging to the victim lady and destroyed the garden maintained by her. The victim lady also suspects that the attempt of robbery, that was committed on 04.01.2000 at the flat of the victim lady, was at the instance of the Respondent.

21 An incident dated 20.01.2000 is also quoted in the petition. The Respondent, when he attended the office of the Advocate for the victim lady, fought with the said Advocate and embarrassed him in front of his other clients, due to which, the Advocate refused to represent the victim lady who was, therefore, constrained to engage another Advocate, putting her to unnecessary harassment, financial burden and mental agony. In our opinion, the objectionable conduct of the Respondent, as alleged, and the harassment caused by him to the victim lady, by various *15* appln.3397.03.sxw methods as referred to above, is not relevant in the context of the provisions of the Act. The Act intends to prevent only the harassment as would be caused by instituting vexatious proceedings, and not other forms of harassment, for which appropriate legal action can be taken by the aggrieved person.

22 The petition then refers to a suit bearing L.C. Suit No. 157/2001 filed by the victim lady against the Municipal Corporation of Greater Bombay and others challenging the notice under Section 53(1) of the M.R.T.P. Act issued by the Municipal Corporation to the victim lady. Apparently, the Respondent who was the Defendant No.3 in the said suit had taken out the Notice of Motion No.3785/2001 praying for various reliefs including that certain copies of the affidavits filed in the same proceedings be made available to him, that the criminal complaint should be lodged against the Plaintiff i.e. victim lady, that the criminal complaints be also lodged against the persons named as Respondents in the said motion, etc.. The said Notice of Motion was dismissed as not tenable and it was observed by the learned Judge, City Civil Court, Mumbai that the Respondent had moved the Notice of Motion to pressurize the Plaintiff i.e. victim lady for ulterior motive. The learned Judge also observed that the Respondent wanted to harass the victim lady by hook or crook by filing such frivolous motion. The petition also states that the Respondent had filed a perjury application against the victim lady in L.C. Suit No.157/2001 in the City Civil Court and the *16* appln.3397.03.sxw learned Judge who dealt with the matter observed that the application had been filed with a view to harass the victim lady and other persons. 23 The petition then states, that on every date in the matter in the Small Causes Court, the Respondent misbehaved with the victim lady by instructing the Court clerk to call the victim lady by previous name i.e. Shanta Wadhva instead of calling her by changed name i.e. Shanta Mhatre, that he insists on keeping back the matter etc. with a view to cause harassment to the Court as well as the victim lady. There is a reference to the applications filed by the Respondent in the Court of Small Causes praying the action for contempt should be taken against the victim lady, which applications were dismissed by the Court. 24 The petition then refers to the Criminal Case No.608/2001 filed by the Respondent against the victim lady and her husband under the provisions of the Maharashtra (Urban Areas) Preservation of Trees Act, 1975 (wrongly referred as the Urban Land Development of Trees Act, 1975 in the petition) and Section 435 r/w 34 of the Indian Penal Code. The petition then refers to the Criminal Case No.610/2001 filed by the Respondent against the victim lady for the offences punishable under Sections 352, 268, 425 r/w 34 of the Indian Penal Code. 25 Lastly, the petition purports to give the list of all cases filed by the Respondent against the victim lady pending in various Court as *17* appln.3397.03.sxw Exhibit M to the petition. However, ExhibitM to the petition consists of some other documents, though a list of such cases is found annexed to the petition, perhaps, as a part of ExhibitM. Only four matters are mentioned in the said list which are as follows:

(1) Criminal Complaint No.608/S/2001 filed in the Court of the Additional Chief Metropolitan Magistrate, 9th Court, Bandra under Section 8 r/w 21(1) of the Maharashtra (Urban Areas) Preservation of Trees Act, 1975 and Section 435 r/w 34 of the Indian Penal Code.

(2) Criminal Complaint No.610/S/2002 filed in the Court of the Additional Chief Metropolitan Magistrate, 9th Court, Bandra under Sections 506, 504, 353, 268, 447, 107, 427 r/w 34 of the Indian Penal Code.

(3) R.A.E. Suit No.300/838/1994 filed in the Court of Small Causes Court, Bandra.

(4) Chamber Summons No.307/2003 for restoration of L.C. Suit No.2146/2001, in the City Civil Court.

26 It can be seen that R.A.E. Suit No.300/838/1994 mentioned at Sr.No.3 above, had not been filed by the Respondent alone and the same was dismissed on 03.05.2003. Apparently, the same has been restored. Who has taken out the Chamber Summons No.307/2003 mentioned at Sr.No.4 above, is not clear, as the same appears to be for *18* appln.3397.03.sxw

restoration of the victim lady’s suit being L.C. Suit No.2146/2001 in the City Civil Court.

27 Though a number of proceedings are pending between the Respondent and the victim lady, it, however, does not appear that all these proceedings have been filed by the Respondent. The relationship between the parties is that of the landlord and tenant and the original landlords had filed the proceedings under the Rent Act against the victim lady which proceedings have been continued by the Respondent as one of the heirs and legal representatives of the original landlords. On careful examination of the proceedings, there appears to be reference to only two suits one filed in the year 1963 and other filed in the year 19994 and admittedly, none of these suits have been filed by the Respondent. The details of the suits or the issues involved therein have not been mentioned in the petition. No arguments were advanced with respect to these suits to show that no relief is actually expected by the Plaintiffs, but the object of continuance of the said suits is only to harass or annoy the victim lady.

28 Reading of the petition, gives a clear impression to us that what has been highlighted is not the initiation of the proceedings without any reasonable ground, without any genuine grievance and without any intention or hope of ultimately succeeding or getting any relief. What has been highlighted, instead, is the conduct of the Respondent in prosecuting *19* appln.3397.03.sxw the proceedings. The emphasis in the petition is on the conduct of the Respondent in the course of the proceedings which are being conducted by him as a party in person. The emphasis is on how the Respondent makes allegation against the learned Judges, how he insults the victim lady in the course of those proceedings etc.. The emphasis is more on the conduct of the Respondent with the Judges, causing annoyance to the Judges.

29 Indeed, we find the conduct of the Respondent as reflected from the record is quite objectionable. It may be recalled that even while defending the present petition, the Respondent, in his affidavitinreply, stated that “the judiciary is perceived as inefficient by most citizens of India” as a justification for what he had stated against the judiciary and to claim that making such remarks does not amount to casting aspersions on the judiciary. The Respondent may be free to express his views about the judiciary, but obviously had no right to project his views as of “most citizens in India”. What survey or research has been made by the Respondent to ascertain the views of “most citizens in India”, has not been disclosed, and considering the number of the citizens in India it is impossible to believe that the Respondent has made any survey or research on these aspects, so as to be able to make an authoritative statement of what “most citizens” feel. The impropriety is so obvious that we do not wish to comment upon the same any further, except observing that this shows the tendency of the Respondent to make certain baseless *20* appln.3397.03.sxw statements, projecting them to be well studied, scholarly and authoritative. The Respondent had no business to throw the weight of the alleged perception of most citizens of India about inefficiency of the judiciary, so as to support his own perception if he really and truly has one in that regard. We also find that the Respondent, on one occasion, attempted to teach the senior Judges of this Court as to how they should do their job of judging and the occasion to do so, apparently arose because this matter was not being taken up by the learned Judges, being busy with the hearing of some other matters. It is also seen from the record, that the Respondent had filed an untenable and senseless application for initiation of “perjury proceedings” against Justice Bilal Nazki on the ground that certain statements in the order passed by Justice Bilal Nazki on 13.03.2009 in the present proceedings contained false statement. Obviously, the Respondent does not understand what is “evidence” and what constitutes offence of perjury i.e. giving false evidence.

30 The question, however, is whether the Respondent should be prevented from instituting any legal proceedings without the leave of this Court as contemplated under Section 2 of the Act. Merely because a party conducts himself in an improper manner during the course of any legal proceedings, it would not be proper to declare such a party as a “vexatious litigant” and to pass an order as contemplated under Section 2(1) of the Act against him. Passing an order under Section 2(1) of the *21* appln.3397.03.sxw

Act would put restriction on the rights of the party to initiate and/or institute the legal proceedings at his peril.

31 A party should ordinarily be allowed to initiate or institute any legal proceedings, at his peril. If a party conducts himself improperly during such proceedings, then there are various provisions in various statutes, which aim to control such improper and objectionable conduct of the party. The Contempt of Courts Act, 1971 provides, interalia, that any act which prejudices or obstructs or interferes, or tends to interfere, with the due course of any judicial proceedings, or administration of justice, would amount to criminal contempt which can be punished under the provisions of the Contempt of Courts Act, 1971. The cases of contempt contemplated by Section 228 of the Indian Penal Code can be dealt with summarily under the provisions of Section 345 of the Code of Criminal Procedure, apart from the normal procedure, which may consume some time.

32 OrderVI Rule16 of the Code of Civil Procedure empowers the Court to order striking out any matter in any pleading which the Court may think unnecessary, scandalous, frivolous or vexatious, or which may tend to prejudice, embarrass or delay the fair trial of the suit. Sections 151 and 512 of the Indian Evidence Act, empower the Court to forbid questions, which it regards as scandalous or indecent or which appear to the Court to be intended to insult or annoy or which appear to *22* appln.3397.03.sxw be needlessly offensive in form to be put to the witnesses or parties. Thus, the objectionable conduct with respect to the Presiding Officers/ Judges of the Courts and also with respect to any other person if the same would be intended to or have effect or tendency of obstructing the due course of judicial proceedings, can be properly dealt with by the Courts which undoubtedly have all powers to set things right. 33 The suit filed by a party which does not disclose any cause of action can be thrown out by the Court by rejecting the plaint. The complaint filed by a party before a Magistrate needs to be verified by the Magistrate by examining the Complainant on oath, and it is only on the satisfaction of the Magistrate about sufficiency of grounds for proceeding further, that the accused can be summoned to face the trial. Again, the Courts are empowered to award the costs and even compensation to the persons who are got groundlessly arrested or unnecessarily dragged to the Courts. All these provisions are designed to ensure a fair trial and proper determination of the disputes brought before the Courts of law. 34 In our opinion, simply because the conduct of the party to the litigation is objectionable and because the party has been causing annoyance to the Judges, by his incapacity to understand the Law and by his approach in the litigation, it would not be proper to invoke the powers under Section 2 of the Act, which according to us, should be exercised only in exceptional cases, where the various provisions *23* appln.3397.03.sxw discussed above, designed to ensure a fair trial and a fair adjudication of dispute in proper atmosphere, would prove to be ineffective. In this context, we hold the word “habitually” appearing in Section 2 of the Act to be significant. In our opinion, a number of proceedings which a party institutes must be unreasonable and sufficiently high so as to attract the provisions of the Act. In our opinion, even if other conditions mentioned in Section 2 of the Act are satisfied, the powers under the said section can be invoked only if a number of proceedings filed by the party is unreasonably high and if such conduct is persisted for sufficient span of time which is signified by the word “habitually”.

35 If we examine the present case from that angle, we find that there is mention of only four proceedings and the prayer clause (e) of the petition also speaks of the cases mentioned in ExhibitM. It may be recalled that the list of cases which forms a part of ExhibitM, is consisting only four cases, out of which, only two have been filed by the Respondent. The petition mentions about various complaints filed by the Respondent with the Police and Municipal authorities and one with the Bar Council. As already discussed above, these complaints to the authorities would not come within the purview of the proceedings contemplated by the Act. It may also be noted that a public servant to whom such complaints are filed, can take action against the Respondent in the event of coming to the conclusion that false complaints or false report have been made. In fact, the Respondent in such cases can also be *24* appln.3397.03.sxw prosecuted by the concerned public servants, apart from any other action, such as for defamation etc., which the aggrieved party may successfully bring.

36 We would like to sum up as follows:

(a) The Respondent, who appears as a party in person in various legal proceedings, has on several occasions caused annoyance to the Judges by his objectionable conduct.

(b) The Respondent probably because of his incapacity to understand the Law, has made certain unreasonable and contemptuous demands such as proceedings for perjury should be initiated against the learned Judge, claiming that a statement in the order passed by the Judge is false. Similarly, without understanding the concept of “verification” of the petition or pleading, the Respondent has tried to equate it with the finding or decision to be given about the correctness of the assertions made in such petition or pleading, without realizing that such a decision would be given by the Court and that concept of “verification” does not contemplate such decision or findings to be given by the party to the proceedings.

(c) The Respondent has claimed that the judiciary is *25* appln.3397.03.sxw inefficient, and the Respondent has tried to support his opinion by claiming that “most citizens of India” hold such an opinion about the judiciary, without giving any basis for such claim and without explaining whether, and in what manner any survey or research on this point was done by the Respondent. Thus, apparently the Respondent has attempted to throw the weight of opinion of “most citizens of India” in order to pressurize or cause embarrassment to the Judges dealing with the petition and this attempt does not appear to be bonafide.

(d) The Respondent has even attempted to teach the senior Judges of this Court as to how they should do their job of judging.

(e) The Respondent has also behaved in an objectionable and threatening manner with the Judges of Courts of Small Causes, City Civil and Metropolitan Magistrate. (Which is not surprising in view of the opinion which he holds about the judiciary and which he falsely claims to be the opinion of “most citizens of India”.)

(f) Though the Respondent has filed a number of complaints against the victim lady with the Police and Municipal authorities, these complaints cannot be considered as legal proceedings as contemplated *26* appln.3397.03.sxw under Section 2 of the Act which speaks of the proceedings in Court or Courts. Similarly, the complaint filed with the Bar Council would be outside the purview of the provisions of Section 2 of the Act. (g) The petition does not concentrate on giving the details of the nature of the proceedings initiated by the Respondent, to show that they are vexatious, but attempts to highlight his improper and objectionable conduct with the victim lady and more particularly with the Judges hearing such cases. The Act intends to protect the parties against whom bogus and vexatious proceedings are or would be instituted and to prevent their harassment. For the conduct causing annoyance to the Judges, and attempts to browbeat the Judges, the powers conferred on this Court by Section 2 of the Act should not be invoked. The Judges and Courts have sufficient powers to tackle such conduct of a litigant and do not require the support of the Act, which is aimed at preventing the harassment of the parties to the litigation and for protecting them from vexatious proceedings.

(h) Once the complaints lodged with the Police, Municipal authorities and the Bar Council are excluded from consideration, the number of proceedings instituted *27* appln.3397.03.sxw by the Respondent cannot be considered as sufficiently high so as to hold that the Respondent has habitually instituted the proceedings as contemplated by Section 2 of the Act.

37 In our considered opinion, this is not a fit case where an order under Section 2(1) of the Act should be passed. As discussed above, there are sufficient, proper and effective provisions in law to control and regulate the objectionable conduct of the party to a legal proceedings and in view of such provisions, there would be no apprehension that there would not be a fair trial or adjudication of the disputes which are pending between the parties. At any rate, since the number of proceedings instituted in different Courts by the Respondent is not so high, we are unable to hold that the requirement conveyed by the word “habitually” used in Section 2(1) of the Act has been satisfied. We are, therefore, inclined to dismiss the petition. 38 The petition is dismissed.

(A.M.THIPSAY, J.) (B.H.MARLAPALLE, J.)

Categories: Judgement

Dowry case: Plea of 85-yr-old rejected

May 13, 2011, 09.56pm IST
NEW DELHI: A trial court has rejected the plea of an 85-year-old woman that she is too old to torture her daughter-in-law for dowry, and gave the go ahead to the police to prosecute her.

Additional Sessions Judge Kaveri Baweja dismissed the woman’s plea that it was not possible to commit the offence at her age saying that detailed scrutiny of evidence is not required at the stage of framing of charges to begin the trial. The court also allowed the prosecution of the accused’s daughter for harassing and torturing her daughter-in-law.

After perusing allegations and preliminary evidence against the two women, the judge said, “It is a well settled law that at the stage of consideration of charge, the court has to prima facie consider the material on record.”

85-year-old Bishni Devi and her daughter Munesh (36) had moved the court challenging the framing of charges against them under section 498A IPC by a magisterial court on the complaint of 35-year-old Kamlesh, who was married to Bishni Devi’s son.

“A bare perusal of the record and submissions reveal that complainant Kamlesh made various allegations of beating, harassment at the hands of petitioners Bishni Devi and Munesh. She has also alleged that her dowry articles and jewellery have been taken away by Bishni Devi,” the court said.

The complainant was married to Bishni Devi’s son in 2000. She alleged that Bishni Devi used to make dowry demands, beat her up and instigate her husband against her. She told the court that her sister-in-law Munesh also used to taunt her for bringing insufficient dowry. Her jewellery and dowry articles have been taken away by her husband and his relatives, and she was forcibly thrown out from the matrimonial home after having been beaten up, the complainant told the court.

In her appeal to the sessions court, Bishni Devi said the trial court had failed to consider that at her age it was not possible for her to harass her daughter-in-law for dowry. Her daughter and co-accused Munesh also pleaded innocence. But the sessions court upheld the magisterial court’s order and directed both of them to appear before it on June 4 to face trial.

http://articles.timesofindia.indiatimes.com/2011-05-13/delhi/29539549_1_dowry-case-insufficient-dowry-dowry-demands

Categories: Protest News

HC: Non-payment of maintenance amount is required to be viewed very seriously

Print

SCR.A/1113/2010 5/5 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION No. 1113 of 2010

With

CRIMINAL MISC.APPLICATION No. 3592 of 2011

In

SPECIAL CRIMINAL APPLICATION No. 1113 of 2010

=========================================================

SHILPA MITESHBHAI PATEL – Applicant

Versus

STATE OF GUJARAT & 2 – Respondents

========================================================= Appearance : MS SM AHUJA for Applicant

PUBLIC PROSECUTOR for Respondent: 1,

MR SATYAJIT SEN for Respondent : 2,

RULE NOT RECD BACK for Respondent : 3,

=========================================================

CORAM :

HONOURABLE MR.JUSTICE S.R.BRAHMBHATT

Date : 10/05/2011

ORAL ORDER

1. This petition is filed by the petitioner against the order dated 22.04.2010 passed by learned Additional City Sessions Judge, Court No. 8, Ahmedabad in Criminal Appeal No. 17 of 2010 and also against the order dated 21.12.2009 passed by learned Metropolitan Magistrate, Court No. 9, Ahmedabad in Criminal Misc. Application No. 321 of 2008 as the court did not appreciate the provisions and the protection required to be accorded to the Women under Sections 19 and 20 of the Protection of Women from Domestic Violence Act, 2005.

2. This Court (Coram: A.S. Dave, J.) on 13.9.2010 passed the following order:

“Heard learned advocate for the parties.

Rule. Mr. Satyajit Sen, learned advocate, waives service of rule on behalf of respondent No.2.

Admittedly, both the courts below have failed to consider provisions of Sections 19 and 20 of the Protection of Women from Domestic Violence Act, 2005, which provides residence orders and monetary reliefs.

Even, the respondent-husband has not provided any residential accommodation to the petitioner-wife on the ground that, residential house is owned by respondent’s mother. The amount of Rs.3,000/- awarded towards maintenance is not adequate, fair and reasonable and also not consistent to the standard of living, to which, aggrieved wife is accustomed.

In view of the above, in addition to the amount awarded by learned Magistrate, the respondent-husband to pay Rs.5,000/-p.m. to the petitioner-wife till final disposal of this petition.”

2. The petitioner, through her advocate has contended that maintenance amount is not paid despite their being specific order. Even the amount originally accorded by learned Magistrate namely Rs.3000/- p.m has not been paid and respondent no. 2 is in arrears so far as maintenance amount is concerned. The application for modification of the interim order made by this Court (Coram : A.S. Dave, J.) dated 13.09.2010 was made by way of Criminal Misc. Application No. 12303 of 2010 in Special Criminal Application No. 1113 of 2010, which came to be rejected by this Court (Coram: Akil Kureshi, J.) by passing the following order on 14.10.2010: “No case, for modification / recall of the order dated 13.09.2010, is made out, since, the same was passed after bipartite hearing. This application is, therefore, not accepted. However, looking to the averments made in this application, Special Criminal Application No. 1113 of 2010 is ordered to be placed for hearing on 26^th November, 2010.

This application is disposed of, accordingly.”

3. The petitioner has also filed one application being Criminal Misc. Application No. 3592 of 2011 in Special Criminal Application No. 1113 of 2010, wherein, this Court (Coram: M. D. Shah, J.) on 08.04.2011 passed the following order :

“Office is directed to list Special Criminal Application No. 1113 of 2010 along with this application. S.O to 20-4-2011.”

4. Learned advocate for the petitioner submitted that this Court (Coram: S.R. Brahmbhatt, J.) passed the following order on 04.05.2011:

“Ms. Ahuja, learned advocate appearing for the applicant has made serious grievance with regard to deliberate attempt on the part of husband in avoiding paying of maintenance. She, therefore, requested for taking up the matter on priority basis out of turn. It is informed that learned advocate Shri Sen, who is appearing for respondent no. 2 has filed sick note. In view of sick note, the Court is of the view that matter be ordered to be listed on 6.5.2011 with a specific observation that in case if the advocate is unable to appear on 6.5.2011, than, appropriate arrangement shall be made. Copy of this order be made available to Ms. Ahuja for her onward communication to the advocate for respondent no. 2. At her request, matter is adjourned to 6.5.2011.”

5. Today, when the matter is called out, none is present for respondent no.2. The Court is of the view that non-payment of maintenance amount for no reason is required to be viewed very seriously. The petitioner has made avements on oath indicating that the amount of maintenance is not paid since September, 2010 and this averments have not been controverted in any manner nor has the respondent no. 2 taken care to see to it that he is being represented in the matter as no one is present when the matter is called out. These facts collectively are capable of indicating that the respondent no. 2 is avoiding the payment of maintenance without any justifiable ground. The Court is therefore of the view that bailable warrant in the sum of Rs.12,000/- (Rs. Twelve Thousand only) be issued so as to procure and bring the presence of respondent no. 2 before this court on 12.05.2011. The Court is constrained to observe that if the respondent no. 2 is not available before the Court on 12.05.2011 pursuant to the bailable warrant, then the Court would pass appropriate orders taking serious view of the matter.

S.O to 12.05.2011.

(S.R.BRAHMBHATT, J.)

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Categories: DV Judgements

Woman held for cheating senior citizen of Rs 50,000

 

The Pant Nagar police on Saturday arrested a 35-year-old woman and are on the lookout for her boyfriend for allegedly cheating a senior citizen. The accused Samreen Khan repaid the loan she had taken from a senior citizen in the form of a cheque, that was rejected as the signature and name of the account holder did not match.The incident took place on Friday when the 73-year-old complainant Hansraj Pandach went to a leading private bank to deposit a cheque of Rs 50,000.

The cashier while depositing the cheque realised that the name of the account holder in their records was Majid Suleiman whereas the signature on the cheque was in the name of Pradeep Jain.

The bank manager contacted the Pant Nagar police that questioned the senior citizen about the cheque.

Assistant police inspector KM Kasar said: “On questioning we learnt that he had received the cheque from Samreen. She gave the cheque knowing the there was no money in the account.” She confessed that the cheque was handed over to her boyfriend Suleiman who is in Uttar Pradesh.

“We are currently on the lookout for Suleiman and have registered a case of cheating against the couple,” added Kasar.

http://www.hindustantimes.com/Woman-held-for-cheating-senior-citizen-of-Rs-50-000/H1-Article1-696032.aspx

Categories: Crime by Women

HC: Husband’s illicit affair amounts to cruelty

If a man is involved in an illicit relationship, it amounts to cruelty to his wife, the Bombay high court said last week, while upholding a six-month sentence given in 1997 by a sessions court judge. Justice AR Joshi said the husband had committed an offence under section 498A (husband or husband’s relative subjecting woman to cruelty) of the Indian Penal Code by having an affair, which was known to his wife.

The court was hearing an appeal filed by Nashik resident Ratan Jagzap, who had challenged the six-month sentence imposed on him after his wife, Chandrakala, committed suicide on learning about the affair.

Jagzap has been out on bail since 1995. More than 15 years after his wife committed suicide, he will now spend six months in jail.

In November 1995, Chandrakala killed herself by consuming pesticide. A few days before the incident, she had complained to her parents that Jagzap was ill-treating her. The police had then booked him for cruelty and abetment to suicide.

During trial, the prosecution had said that Jagzap got involved with his business partner’s wife, and the duo left their homes and started living together in Dhule along with their sons from their respective marriages.

Chandrakala had gone to Dhule to convince Jagzap to return but in vain.

Though the sessions court convicted Jagzap for subjecting Chandrakala to cruelty, it acquitted him from charges of abetment to suicide, considering the “material deficient of bringing home the charge”.

An aggrieved Jagzap had filed an appeal in the high court.

Justice Joshi upheld the conviction for cruelty.

However, as neither the government nor the victim’s parents had challenged Jagzap’s acquittal for abetment to suicide, the high court did not interfere with it.

“The trial court did not consider the mental cruelty as sufficient for Chandrakala to end her life. It said Chandrakala became over-sentimental and out of desperation she took the extreme step,” the high court observed.

http://www.hindustantimes.com/Husband-s-illicit-affair-amounts-to-cruelty/Article1-696013.aspx

Categories: Other news

SC: Husband fined 250/- wrt a contempt case where he asked maintenance from wife

Equivalent citations: AIR 2000 SC 68, 2000 (1) ALT 6 SC, 2000 CriLJ 187
Bench: G Nanavati, S Phukan

Padmahasini Alias Padmapriya vs C.R. Srinivas on 16/11/1999

ORDER

G.T. Nanavati, J.

1 This suo moto contempt proceeding against the respondent was initiated in 1992. While hearing Civil Appeal No. 89 of 1992 filed by his wife against the respondent, this Court came across the counter filed by him before the Additional Family Court at Madras in I.A. No. 103 of 1992 in O.P. No. 1038 of 1988. It appeared to this Court that by making the statements contained in paragraphs 3 and 9 of the counter the respondent has committed contempt of this Court. Therefore, a notice was issued and he was called upon to show cause why action should not be taken against him for committing contempt of this Court.

2. A technical objection was taken by the respondent that the notice given to him did not clearly indicate against what the respondent was called upon to show cause. Therefore, a fresh order containing those statements was passed in his presence on 11.3.1992. By that order the respondent was again called upon to file his explanation on or before 10.4.1992. Further hearing was adjourned from time to time either because the respondent was not intimated about the date of hearing or because he did not or could not remain present on the date of hearing or because this Court could not hear it on that day. After considering the explanation, this Court on 24.2.1995 decided to issue ‘Rule’. Fresh notice under Rule 6 and in Form No. 1 was issued and the respondent was called upon to show cause why he should not be punished for committing criminal contempt. Earlier, the then Solicitor General Mr. Deepankar Gupta was requested to assist the Court, but on his ceasing to be the Solicitor General he stopped appearing in this case after 12.8.1996. It appears from the various orders passed thereafter that no other law officer was requested to assist the Court and, therefore, none appeared before this Court on any of those occasions and only the respondent used to appear in the Court. Ultimately we were able to hear this case finally on 19.7.1999.

3. The statements made by the respondent and which, according to the notice issued to him constitute contempt of Court are contained in paragraphs 3 and 9 of his counter filed before the Family Court at Madras and read as under:

Para 3 “I further submit that without any change in circumstances of the said issue or whatsoever, before the Hon’ble Supreme Court, except the change in the Division Bench by the replacement of Honourable Mr. M.M. Punchhi by Hon’ble Mr. Justice Kuldip Singh, who has thwarted justice, flouted law, denigrated the face of the judiciary and ridiculed the sanctity of the Mandatory provisions and established dictates of law on 14.1.92 by questioning me first of all as to how I can claim maintenance from my affluent wife by being a male and a husband, thus clearly manifesting intentions and depicting the mind of the learned Judge against my lawful claim, violating Article 14 of the Constitution and also Section 24 of the Hindu Marriage Act, thus falling into contempt. His Lordship Hon’ble Mr. Justice Kuldip Singh was totally responsible for making this unlawful clarification regarding the prosecution of the main O.P. through misuse of power and authority”

Para 9 “Only exhibited unilateral bent of mine in favour of the petitioner, forgetting for a while that the Supreme Court is only a trustee/interpreter/guardian/Saviour/preserver of law and justice to dispense the same without fear or favour and impartially, since law is superior to judiciary. Hence the Supreme Court cannot surpass law.”

4. As can be seen from the record the respondent had filed his explanation on 7.4.1992. It appears therefrom that the respondent had serious grievance against Mrs. Nalini Chidambaram who had appeared for his wife in the appeal referred to above. It was his feeling that Mrs. Nalini Chidambaram had “continued her foul-play through her tricks and pranks to the extent of inciting Hon’ble Mr. Justice Kuldip Singh” to make remarks which had the affect of humiliating and ridiculing him in open Court without any justification. According to him, the learned Judge, after hearing the submissions of Mrs. Nalini Chidambaram had vehemently clinched his fist and jumped out of his seat, abused and accused him in the open Court for claiming interim maintenance from his affluent actress-wife while being a male and the husband and further preached that it is the duty of a male and the husband, irrespective of his indigency and the wife’s affluence, to maintain his wife. Therefore, in his counter which he filed before the Family Court thereafter, he made the aforesaid offending statements in order to indicate that he was going to move for transfer of the proceedings pending in that Court. Before us he submitted that it was not his intention to allege anything against this Court and that he had merely criticised the attitude of the learned Judge and the remarks made by him. He also submitted that criticism of a Judge with respect to his attitude or the remarks made by him even while hearing a case cannot amount to contempt of court.

5. Though it appears to us that the respondent was very much disturbed because of the strained relationship with his wife and the manner in which Civil Appeal No. 89 of 1992 was pursued in this Court by her through her lawyer, in our opinion, he transgressed the limits of fair criticism when he made the above quoted offending statements. The offending statements made in paragraph 3 and the implications thereof have the effect of conveying that the learned Judge had acted with bias and was partial to the other side. By alleging that the learned Judge had “thwarted justice, flouted law, denigrated the face of the judiciary and ridiculed the sanctity of the mandatory provisions and established dictates of law”, the respondent has by implication attributed ulterior motive to the learned Judge. Fair criticism is that which while criticising the act of a Judge does not impute any ulterior motive to him. The respondent by alleging that on extraneous considerations and by misusing the power and authority of a Judge, the learned Judge had made the aforesaid remarks against him and also made an uncalled for clarification with respect to the “main O.P.”, has gone beyond the permissible limits of fair criticism and committed contempt of this Court. In paragraph 9 of the above quoted offending statements he has further stated by implication that the Supreme Court has not dealt with his case impartially and in accordance with law. This remark has the tendency to scandalise the Court and, therefore, by making that statement he has committed contempt of this Court. It is, therefore, not possible for us to accept his explanation or the submissions made by him. He has to be held guilty for having committed contempt of this Court.

6. Though we have found the respondent guilty of having committed the contempt of this Court, we do not think that this is a fit case in which a strict view should be taken for imposing punishment. Considering the disturbed state of mind of the respondent, the background in which he made the offending statements and the long lapse of time after initiation of this contempt proceeding and also the changed circumstances disclosed by the respondent, we are of the opinion that ends of justice would be met if only a fine of Rs.250/- is imposed upon the respondent.

7. We accordingly hold the respondent guilty of having committed contempt of this Court and impose upon him a fine of Rs.250/-. This Contempt Petition is disposed of accordingly.

Categories: Judgement

SC: 3 Months Jail and 50000/- fine on wife and her mother in contempt case

Equivalent citations: AIR 2003 SC 2925, 2003 (5) ALT 69 SC, 2003 CriLJ 3740
Bench: M Shah, A Kumar

David Jude vs Hannah Grace Jude And Ors. on 30/7/2003

JUDGMENT

Shah, J.

1. This petition for Contempt is filed by the applicant-husband with a prayer for punishing the respondents — wife and mother-in-law for the breach of undertaking given by them and also for breach of directions issued by this Court.

2. By order dated 15^th September, 1998, this Court Permitted respondent No. 1- wife to take the child to USA on the condition that respondents would file undertaking before the Court to the effect that wife will appear before the family court as and when required, and it would be open to the applicant-husband to visit the child in USA after making prior arrangement with the wife.

3. The brief facts of this case are that — applicant and respondent No. 1 were married on 7.2.1989 at Hyderabad according to Christian rites. Soon after marriage, the couple left for America, On 2.5.1997, a son was born out of this wedlock. Because of strained relationship between the wife and husband, both started living separately. Wife approached the Circuit Court, Maryland is USA and got issued a protective order against the husband on condition that the child will not be taken out of the jurisdiction of that court. The wife, however, brought the child to India on 14.4.1998 and after keeping him in the care and custody of her mother Respondent No. 2, she left India. On knowing this, husband dashed back to India on 23^rd April 1998 and on 30^th April, 1998 he took over the custody of the child from respondent No. 2 for celebrating the birthday of the child which was on 2.5.1998.

4. Thereafter, on 1.5.1998, the husband filed O.P.No. 300 of 1998 before the Family Court at Hyderabad Under Section 7, 10 and 25 of the Guardians and Wards Act 1890, seeking an order appointing him as guardian of the minor Child. Respondent No. 2-grand-mother also moved the same Court for restoring the custody of the child to her. The Family Court by order dated 19.8.1998 dismissed the application of the husband and directed him to restore the custody of child to the grandmother. Aggrieved thereby, the husband filed Civil Revision Petition No. 3229 of 1998 before the High Court of Andhra Pradesh at Hyderabad, which was allowed and the custody of the child was given to the husband with visiting rights to the wife.

5. Being aggrieved by the said order, respondent No. 1 and 2 filed S.L.P NO. 15185 of 1998 before this Court. This Court by order dated 15.9.1998 granted interim custody of the child to the wife with permission to take the child to USA on the condition of furnishing a written undertaking to bring the child back to india and disposed of the matter by passing the following order:-

“Special leave granted.

Looking to the age of the child, the interim custody of the child is given to the Ist appellant — mother. She will be at liberty to take the child to USA on condition that both the appellants file undertakings before this Court on or before 25^th of September, 1998 to bring the child back to India when so ordered by the Family Court and the Ist appellant will also file an undertaking to the effect that the Ist appellant will appear before the Family Court as and when required by the Family Court. If during the interregnum the respondent wants to visit the child in USA, he can do so after making prior arrangement with the Ist appellant to see the child. Passport of the child should be released on the filing of the undertaking. The impugned order of the High court is accordingly set aside. the Family court should dispose of the matter as expeditiously as possible, preferably within 18 months. The appeal is disposed of accordingly.”

6.After passing of the aforesaid order, both the respondents submitted their undertakings by way of affidavits in this Court. The relevant portion of the undertakings is as under:-

“by Respondent No. 1 (Wife)

As directed by this Hon’ble Court in the order dated 15.9.1998, I hereby undertake to bring the child back to India when so ordered by the Hon’ble Family Court and further undertake to appear before the Hon’ble Family Court, Hyderabad, as and when required by the Hon’ble Family Court.

By Respondent No. 2 (Mother of the Respondent No. 1)

As directed by this Hon’ble Court, I undertake to bring the child back to India as and when required by the Hon’ble Family Court, Hyderabad.”

7. Meanwhile, respondent No. 1 filed case No. 5249 of Family Law before the Circuit Court for Montgomery country, Maryland inter alia for divorce and custody of the child.

8. Thereafter, the Family Court at Hyderabad proceeded with the trial and examined the husband. That matter was kept for evidence on behalf of the wife but she failed to appear before that Court on 7.2.2000. Various orders were passed by the Family court, but she remained absent from the proceedings. Finally, on 11.4.2000, the Family Court passed the following order:-

1. The husband is appointed as the guardian of the minor child;

2. The wife is directed to restore the custody of the minor child to the husband within one month from the date of the order;

3. The wife is permitted to take interim custody of the minor child whenever she comes to Hyderabad and hand over the minor to the husband while she leaves the country;

4. The wife is not entitled to remove the custody of the minor child out of the jurisdiction of the Family Court at Hyderabad at any time;

5. The husband is directed not to handle the amounts lying in FDR of Rs. 5,00,000/- including the interest accrued thereon till the minor attains the age of majority.

9. Being aggrieved by the aforesaid order, the respondents/contemnors field appeal before the High Court of Andhra Pradesh, which is still pending.

10. Meanwhile, the husband moved this Court for initiating contempt proceedings against the respondents / contemnors for violating the undertakings given by them before this Court and the order passed by the Court in Civil Appeal No. 4797 of 1998.

11. Further, in the execution petition filed before the Family Court, the Family Court passed an order holding that the failure to restore the custody of the minor child to the husband amounts to breach of the undertakings given and ordered the arrest of respondent No. 2 (mother of respondent No. 1) to serve civil imprisonment for a period of six months. appeal filed by respondent no. 2 against the above arrest order before the High Court was also dismissed. Against that order, she has filed SLP No. 22990 of 2001 before the Court.

12. The instant Contempt Petition was first listed on 28-9-2000 and noticed was issued for 8.1.2001. Respondent No. 2, mother of respondent No. 1, was present. She was directed to abide by the undertaking given to this Court. On the next date, i.e. 12.3.2001, learned counsel for respondent No. 1 sought eight weeks time so as to enable her to remain present with the child. respondent No. 2 was directed to deposit her passport with the Registrar (judicial). On 8.5.2001. respondent No. 1 did not appear but learned counsel for respondent No. 1 assured that she would remain present before this court with child on 6^th August, 2001. On 6^th August 2001 also respondent No. 1 remained absent. On that day, at the instance of applicant, leave was granted to add the Union of India as a party respondent. thereafter, on 17^th September, 2001, the Court directed the concerned officer of Union of India to write a letter to the employer of respondent No. 1 about the undertaking given before the Apex Court and breach of undertaking and also the fact that despite the service of notice, she was not remaining present before this Court. On 7^th January, 2002, Mr. Y. Raja Gopala Rao, Advocate appeared on behalf of respondent No. 1 and stated that he would file necessary reply. On 6^th February, 2002 an order was passed to the effect that respondent Nos. 1 and 2 have committed breach of unconditional undertakings and notice was issued as to why they should not be punished for contempt of this Court. Relevant part of the said order is as under:-

“In our view, considering the unconditional undertakings given by the respondents to this Court there is no question of not taking further action against them for not bringing the child back to India as directed by the Family Court. In this view of the matter, prima facie, we are of the view that respondents have committed the contempt of this Court and appropriate action is required to be taken under the Contempt of Courts Act for committing breach of unconditional undertaking. Therefore, we direct that notice be issued as to why they should not be punished for Contempt of this Court.”

13. When the matter came up for hearing on 6^th March, 2002, at the request of the learned counsel for the respondents, the matter was further adjourned for four weeks. On 3^rd April, 2002, counsel appearing for respondent No. 2 stated that respondent No. 1 would remain present with the child without fail, on 30^th July, 2002. On 30^th July, 2002, matter was again adjourned. On 29^th August, 2002, the Court directed that respondent No. 1 shall remain present before this Court with her child on 13^th November, 2002. On 14^th November, 2002, respondent No. 1 remained absent and, therefore direction was issued to the Union Government to take necessary steps for securing her presence with child in this Court. Thereafter, matter was repeatedlyad journed to see that the wisdom prevails with respondent No. 1 to abide by the undertaking given to this Court. Subsequently, respondent No. 1 filed an affidavit on 13^th November, 2002 wherein she has stated that Maryland Circuit Court has granted full custody of the child to her in October, 2002 and that her job precludes her from being able to travel to India. She has further stated that even though she was unable to appear in person, she always retained a legal representative on each and every date of hearing of the case and submitted that taking into consideration her previous affidavits. petition against her be dismissed. Finally, in the affidavit which was tendered by her on 6^th May, 2003, it is stated that petitioner had threatened her in past by saying that he is going to show her how he intends to use the Indian Courts to get back at her, and it is her belief that her husband is now using the system against her family.

14. At the time of hearing, written submissions were filed by the parties. It is the contention of the learned counsel for the applicant that breach of undertaking given before this Court by the wife amounts not only to a civil contempt but also to criminal contempt. It is submitted that this Court’s jurisdiction under Article 129 and 142 of the Constitution is not restricted by the Contempt of Courts Act, 1971 and the Court may award even higher punishment that which is provided under the Act. It is the submission of learned counsel for the applicant that one of the primary objects of the proceeding for contempt is to see that the order or undertaking which is violated by the contemnor is effectuated. Thus, besides punishment, the Court may issue such directions to restore the custody of the child to the applicant-husband.

15. It is to be stated that High Court had directed that the custody of the child be given to the husband because respondent No. 1 gave the custody of the child to her mother and that she was staying in United States and serving in the World Bank at Washington, D.C. The Court also considered the age of the child who at the relevant time was of one year and four months and the fact that as respondent No. 1 was serving and staying alone in United States, it would be difficult for her to take care of the minor child. To see that the aforesaid order is set at naught, respondent Nos. 1 and 2 gave unconditional undertakings to this court and obtained favourable order.

16. From the facts stated above it is apparent that the attitude of the contemnors is without any doubt defiant and contemptuous. They were given custody of the minor child on the condition of filing undertakings before this Court to bring the child back to India when so ordered by the Family Court. Respondent Nos. 1 and 2 have played with the Court, by giving unconditional undertaking for securing the custody of the child. It is true that respondent No. 2, the mother of respondent No. 1 has stated before this court that respondent No.1 is now not abiding by the instructions given by her to produce the child before this Court and the Family Court.

17. Further, it is also clear from the conduct of respondent No. 1 that she has no regard for the notices issued by this Court. If the notice issued by Apex Court of this land is wilfully disobeyed, it would send a wrong signal to everybody in the country. It is a sad experience that due regard is not shown even to the undertakings/order/notice issued.

18. Hence, we hold that respondent Nos. 1 and 2 are guilty for committing contempt of this Court. Further, we do not think that this is a fit case for showing mercy as contended by learned senior counsel, Ms. Indira Jaisingh, appearing on behalf of respondent No. 2. Learned counsel for respondent No. 2 further submitted that respondent No. 2, who is aged about 65 years, has taken enough steps to secure the presence of respondent No 1 and to abide by the undertaking given by her. On the question of punishment, learned senior counsel submitted that in any case considering the age of respondent No. 2, sentence of imprisonment may not be imposed upon her. In our view, even though respondent No. 2 has played major part in the aforesaid episode, considering her age and the fact that she has an old husband to look after, we think that imposition of fine would meet the ends of justice. Hence a fine of Rs. 50,000/- is imposed upon her, in default three months simple imprisonment. It is also ordered that her passport would be seized for a period of five years.

19. For respondent No. 1 considering the fact that she is well educated, serving in prestigious institution, namely, the World Bank and her totally defiant attitude, we do not think that this would be a fit case for taking a lenient view and not imposing sentence of imprisonment. Even though she does not deserve mercy because of her motivated behavior yet we impose only three months simple imprisonment and a fine of Rs. 50,000/- and in default of payment of fine, she shall further undergo simple imprisonment for one month. Fine to be paid within one month.

20. Respondent — Union of India is directed to take appropriate steps to ensure compliance of this order qua respondent No. 1.

21. Contempt Petition stands disposed of accordingly.

Categories: Judgement

Bombay HC: Husband do not even pay tax but wife used contempt proceedings to recover maintenance

Equivalent citations: 2006 (4) BomCR 799
Bench: A Khanwilkar

Amita B. Devnani vs Bhagwan H. Devnani And Ors. on 9/3/2006

JUDGMENT

A.M. Khanwilkar, J.

Page 0902

1. Heard learned counsel for the parties. This contempt petition is filed by the wife complaining of wilful disobedience of the order passed by the Family Court II Mumbai dated 30.l0.200l in Interim Application Nos. 26 of l999 and 27 of l999 in Petition A No. 494 of l999. The direction as was passed under the said order reads thus:

Order Both the interim application are partly allowed.

The non applicant/original petitioner, Bhagwan is directed to pay maintenance @ Rs. 20,000/-p.m to the applicant/original respondent Amita for herself and for her two minor children from November 2000 onwards. He is also directed to pay the litigation expenses to the applicant, Amita at Rs. l0,000/-

The claim towards her charges per hearing is hereby rejected.

The arrears of maintenance and cost of litigation be paid by the non applicant, Bhagwan to the applicant, Amita within a period of 60 days from today.

He shall also continue to pay the maintenance which would become due before l0th of each month as per the English Calendar

2. The aforesaid order was not complied till the institution of the present contempt petition on l4.5.2003. The record indicates that inspite of notice of this petition, even till the hearing of this petition today, the order has not been complied with. No attempt has been made by the respondent Page 0903 No. 1, to atleast partly honour the obligation arising under the said order. In this background, the question that arises before me is whether it is a case of wilful disobedience or breach of order passed by the family court amounting to civil contempt.

3. In this petition the respondent Nos. 2 to 6 have been impleaded on the assertion that they are responsible for aiding and abetting the respondent No. l for non compliance of the order of the court referred to above. Even if the case as made out in the petition against the respondent Nos. 2 to 6 were to be accepted, in my opinion, that will give rise to an action for criminal contempt qua them which is not the scope of the proceedings before me being of civil contempt. The limited question therefore which I am inclined to consider is whether the respondent No. l has wilfully breached and disobeyed the order dated 30.l0.200l which amounts to having committed civil contempt.

4. The counsel for the respondent No. l mainly raised three defences. First defence is that, the averments made in the present petition are verbatim repetition of averments made in the criminal contempt filed by the petitioner before this court which is stated to be pending being contempt petition No. 2l of 2003. In other words, two parallel actions cannot be pursued. The second point is that the Family Court Act, l984 is a self contained Code. Section 18 of the said Act provides for remedy of execution of the orders passed under the provisions of the said Act. It is contended that the petitioner, therefore, could have taken recourse to that remedy (of execution of orders provided under section 18 of the said Act) for which reason this court should be slow in exercising the contempt jurisdiction. To buttress this submission reliance is placed on two unreported decisions of this court and one reported decision of the Karnataka High Court in the case of Rudraiah v. State of Karnataka and Ors. . The last submission is that, at any rate it is not a case of wilful disobedience of the directions issued by the Family Court. According to the respondent No. l, he is incapable of discharging the obligation arising under the order dated 30.l0.200l and in such a case the question of proceeding against him for contempt action does not arise.

5. I shall straightway deal with the first defence taken by the respondent No. l. Even if the argument of the respondent No. l that the averments in the present contempt petition resemble with most of the averments in the criminal contempt petition No. 23 of 2003 and are repetition thereof is to be accepted, that, by itself, cannot be the basis to hold that this action relating to civil contempt is ousted.

For, from the averments in this petition as filed it is obvious that the petitioner is pursuing the claim with regard to the deliberate non payment of the maintenance amount by the respondent No. l in terms of order dated 30.l0.200l, which on the date of filing of the contempt petition is stated to be Rs. 4.90 lacs. No other aspect is relevant for my consideration. Moreover, this aspect cannot be the basis to proceed with the action of criminal contempt. Understood thus, even if the averments in the two contempt petitions are Page 0904 overlapping, that can be no ground to throw out this petition on such technical plea.

6. To get over this position the counsel for the respondent No. l would contend that the relief claimed in this petition is founded on the jurisdictional fact that the respondent No. l was in arrears for a sum of Rs. 4.90 lacs in terms of the order dt. 30.l0.200l on the date of filing of the contempt petition on l4.8.2003. It is stated that during the pendency of this contempt petition, the petitioner resorted to the remedy of execution of the order dated 30.l0.200l as provided under section 18 of the said Act; the said remedy has been taken to its logical end and for which reason, for the same cause the respondent No. l cannot be proceeded with the contempt action. I have perused the application filed by the petitioner for execution of the order date 30.l0.200l. Indeed, the application makes reference to the amount of Rs. 4.90 lacs payable under the order dated 30.l0.200l and Rs. 7500/- payable under the order passed by this court on 26.7.2004 in writ petition No. 5ll6 of 2004. However, it is pertinent to note that the order as is passed on the said application is confined to the outstanding amount of Rs. 2.70 lacs only, payable under the order dated 30.l0.200l,which is for the period from November 2000 onwards till 23.l0.2002. It does not cover the period posterior to 24.l0.2002 till institution of the contempt petition on l4.8.2003. At least to that extent the contempt action against the respondent No. l will survive for consideration. Viewed in this perspective, even this argument canvassed on behalf of the respondent no l does not commend to me.

7. That takes me to the second contention that the provisions of Family Courts Act is a self contained Code and the mechanism for execution of the orders passed by the family court, either final or interim, is provided under section 18 thereof. On this basis it is submitted that alternate remedy is available to the petitioner, therefore, this court should be slow in exercising jurisdiction under the provisions of the Contempt of Courts Act or for that matter Article 215 of the Constitution of India. In support of this submission reliance was placed on two unreported decisions of this court. First is dated 3.7.2000-passed in Contempt Petition No. 208 of l992-. Same reads thus:

Not on board.By consent of parties taken up for final hearing.

By this petition the petitioner allege breach of order of temporary injunction passed by the trial court. I have already taken a view that when the order of temporary injunction is breached, remedy is to approach the same court under rule 2A Order 39 of CPC and the High Court will not be justified in entertaining the contempt petition. The learned counsel submits that now the suit has been disposed of and therefore he cannot file an application under Rule 2A Order 39 of CPC . In my opinion this is totally irrelevant. When the contempt petition was filed the forum to file an application under Rule 2A Order 39 of CPC. IN my opinion, this is totally irrelevant when the contempt petition was filed the forum to file an application under Rule 2A Order 39 of CPC was available. Filing a contempt petition was not remedy for them. Now that even the suit has been dismissed, no useful purpose will be served by entertaining this petition, which relates to alleged breach of an order of temporary injunction. The contempt petition,in such situation cannot be entertained. It is disposed of.

Page 0905

8. In my opinion however, the principle applied in not initiating contempt action in the aforesaid case can be distinguished, having regard to the fact situation of the present case. In the present case, the facts are so telling that, I have no hesitation in taking a view that the act of the respondent No. l is not only gross, reprehensible and replicates wilful disobedience of the order of the court.It is obvious that the respondent No. l has no regard to the orders passed by the court and has succeeded in creating a situation that the petitioner, inspite of the order for maintenance for herself and her minor daughters is rendered remediless. If such is the conduct of the respondent No. l, the aforesaid decision will be of no avail; instead this is a fit case where the court will have to invoke the provisions of the Contempt Courts Act, because of the peculiar circumstances to which reference will be made a little later.

9. Reliance is then placed on another unreported decision of this court decided on l5.l2.l995 in contempt petition No. l95 of l995 which reads thus:

The grievance of the petitioner in this contempt petition is that despite the order of injunction dated 7.l.l995 passed by the Civil Judge, Junior Division,Ulhasnagar, directing the parties to maintain status quo, the respondent has changed the position by raising construction and thereby breached the specific order of the court. According to the petitioner, the status quo order passed on 8.l.l995 has been extended from time to time.

2. At the Bar the learned counsel for the petitioner submits that on 24.8.l995 the Civil suit has already been withdrawn from the court of the Civil Judge, Junior Division, Ulhasnagar by the respondent and the suit has been dismissed accordingly.

3. The order which is alleged to have been breached was passed by the Civil Judge, Junior Division, Ulhasnagar and for that disobedience of the injunction order, the Civil Procedure Code provides efficacious and alternative remedy to a person aggrieved by initiating proceedings under Order 39 Rule 2(a) of the Civil Procedure Code before the concerned court. I am told by the learned counsel for the respondent that the petitioner had already moved an application under Order 39 rule 3(A) of the Code before the Civil Judge Junior Division Ulhasnagar for disobedience of the order dated 7.l.l995. The learned counsel for the petitioner submits that the said application filed by the petitioner under Order 39 rule 2(A) of the Code of disobedience of the order dt. 7.l.l995 is pending before the Civil Judge J D Ulhasnagar. This being the factual position, the contempt petition before this court for disobedience of the injunction order passed by the Civil Judge J D Ulhasnagar is liable to be dismissed, because this court invokes its jurisdiction under the Contempt of Courts Act sparingly and exceptionally and not by way of routine remedy. The availability of alternative and efficacious remedy for disobedience is a circumstance which always weighs with this court while invoking the jurisdiction under the Contempt of Courts Act.

4. In the case of Ali Mohomed Adamali v. Emperor AIR (32) l945 Privy Council page l47 the Privy Council held that the fact that there is another remedy available is a matter for the court to consider when exercising its discretion Page 0906 whether to commit or not to commit on contempt of court. The fact that in the present case is that the petitioner has moved the Civil Judge J D Ulhasnagar for disobedience and breach of the order passed by it on 7.l.l995

5. Besides that in the present case, the petitioner has no placed on record the position of the disputed property obtaining on 7.l.l995 when the order of status quo was made by the court below. It is difficult to comprehend that in the absence of the factual position obtaining on 7.l.l995 being disclosed by the petitioner now it could be inferred that the respondent has breached the order of status quo dt 7.l.l995. The petitioner is a public body and before filing the contempt petition, atleast to should have ensured that the basic facts relating to the position of the property obtaining on the date of the passing of the order of status quo ought to have been disclosed to enable the court to adjudicate whether the order of status quo has been breached or not. Without disclosing the position of the property obtaining on 7.l.l995 no conclusion can be reached whether the status quo has been altered or not and a vague assertion that after 7.l.l995 the respondent continued with the construction cannot lead the court to conclude whether the order of status quo has been breached or not.

6. For the reasons aforesaid, this contempt petition is liable to be dismissed and is dismissed accordingly. However, it is made clear that the dismissal of this contempt petition shall not come in the way of the petitioner to proceed against the respondent in accordance with the law for removal of the unauthorised construction, if any.

10. Once again the observations made in the aforesaid decision will have to be considered as having been made in the fact situation of that case. Suffice it to observe that the alternate remedy available to the petitioner under section 18 of the Act is one of the execution of the order of maintenance to recover the amount thereunder, which includes sending the respondent No. l to imprisonment. Whereas, the present action is to initiate action against respondent No. l for wilful disobedience of the order of a court. Besides, it is not as though the jurisdiction of this court is ousted due to the availability of remedy under section 18 of that Act. As is mentioned earlier, the fact situation of the present case is so telling that I have no hesitation to hold that the acts of commission and omission of the respondent No. l are so gross and reprehensible and obviously intended to even disregard and disobey the order of the court, this is a fit case to proceed with the contempt action against the respondent No. l. The counsel for the respondent No. l then placed reliance on the decision of the Karnataka High Court in the case of Rudraiah (supra).That decision also reiterates the general principle that the action under the Contempt of Courts Act ought not to be invoked for forcing a party to obey the order. These observations are made relying on the decision of the Apex Court which is referred to in para 6 of the reported judgment in the case of Perspective Publications Pvt. Ltd. v. State of Maharashtra reported in l97l SC 22l. In the said decision it is observed that if the matter requires detailed enquiry, it Page 0907 must be left to the court which passed an order and which presumably is fully acquainted with the subject matter of its own order. Emphasis is placed by the respondent No. l on the observation in this decision that when the matter relates to mere infringement of an order, as between the parties, it is clearly inexpedient to invoke and exercise contempt jurisdiction as a mode of executing the orders, merely because other remedies may take time or are more circumlocutory in character. It is further observed in that case that the contempt jurisdiction should be reserved for what essentially brings the administration of justice into contempt or unduly weakens it. In my opinion, the principle underlying the later observation of the Apex Court will have to be invoked in the fact situation of the present case. This is a case where the respondent No. l has resorted to,if I may say so, to all gimmicks so as to ensure that the petitioner and her minor daughters do not succeed in getting even a portion of the maintenance amount granted by the court which was required to be paid since November 2000. To my mind, this is not an action for correction of the grievance of the petitioner or dispute between two parties interse, namely, mere infringement of the order but as I would look at it, the matter concerns restoring the faith of the common man in the authority of courts. If this court were to tapke the view that the petitioner has alternate remedy that will be hyper technical view having regard to the fact situation of the present case. For, it is matter of record that the petitioner did take recourse to the alternate remedy but the respondent No. l took recalcitrant attitude and preferred to suffer imprisonment instead of offering even a portion of the amount payable under the order of the court. Besides, it is rightly pointed out by he petitioner that the respondent No. l has taken inconsistent pleas on affidavit before different forums and has succeeded in protracting to discharge his obligation of payment of maintenance. Rather, the respondent No. l is determined not to pay any amount to the petitioner inspite of order of court which has become final.

11. The counsel for the petitioner has rightly relied upon the decision of this court reported in l988 Cri Law Journal 558 in the case of Sarladevi Bharatkumar Ruingta v. Bharatkumar Shivprasad Rungta in support of his argument that even if the remedy of execution was available to the petitioner that does not preclude this court from exercising the power under the provisions of the Contempt of Courts Act. Reliance has been placed on para 8 of the said decision. Suffice it to observe that in the fact situation of the present case, the respondent No. l will have to be proceeded with for having committed contempt of court due to his wilful disobedience of the order dated 30.l0.200l

12. That takes me to the last submission canvassed on behalf of the respondent No. l. According to the respondent No. l it is not a case of wilful disobedience. In this context, I will straight way refer to the plea taken by the respondent No. l in the affidavit filed before this court in response to the present contempt petition. Reliance is placed only on the following averments occurring in para l of the said affidavit. Same reads thus:

I say that the petitioner has always being well aware that my income was negligible and that I was dependent upon my late father Hakumat Devani Page 0908 for my expenses. The petitioner is also aware that I was not assessed to income Tax. In view of my inability to pay the maintenance it cannot be stated that I have willfully disobeyed of the order dated 30.l0.200l passed by the Hon’ble family court.

This is the only averment on which reliance is placed by the learned counsel for the respondent No. l to make good the submission that it is not a case of wilful disobedience. In the first place, this averment is not enough to absolve the respondent No. l of the charge of wilful disobedience. Besides, in my opinion, the petitioner has rightly relied upon several circumstances which can be discerned from the record of the present contempt petition to show that the respondent No. l is determined not to honour the obligation arising under the order dated 30.l0.200l for the reasons best known to him. Obviously, the respondent No. l is out to see that the petitioner and her minor daughters should not get the benefit of the order which is passed by the family court on 30.l0.300l; for that the respondent No. l has succeeded in resorting to all gimmicks so far. The argument about the inability of the respondent No. l can be straight way answered against him on the basis of the following circumstances. The petitioner has rightly invited my attention to the order passed by this court on l3.7.2004 at page 7 of the cognate civil application No. 29 of 2005, in writ petition No. 5ll6 of 2004 which was filed by the respondent no l before this court challenging four different orders passed against him including issuance of warrant of arrest. I had occasion to deal with the said writ petition when I had passed the following order:

Having heard the learned counsel appearing for the parties, I am of the view that it will be unfair to the respondent to not require the petitioner to deposit the interim maintenance already directed by the court below as back as on l3th October 200l in this court. If the petitioner deposits that amount in this court within two weeks from today, only then the petitioner can be heard on merits on the controversy involved in the petition. In the circumstances, this petition to stand over for two weeks only to ascertain the bona fides of the petitioner. If the petitioner fails to deposit the arrears of interim maintenance which is stated to be around Rs. 5 lakhs in this court within two weeks, the petition will be dismissed for non prosecution. Post this matter for directions immediately after the matters under the caption Settlement on 26th July 2004.

At this stage Mr. Sakhare states that the petitioner has already paid part of the amount directly to the respondent,which is around Rs. l,45,000/- which fact, however, is disputed by the counsel for the respondent on instructions. Even if the petitioner has paid such amount as claimed, the petitioner is directed to comply with the directions already stated above of depositing Rs. 5 lakhs in this court before the next date of hearing.

13. The said writ petition was taken up for hearing on 26.7.2004,when the position remained unaltered. The court eventually while dismissing the petition was required to pass the following order:

Hearing of this matter was deferred, so as to give one opportunity to the petitioner to fulfil his obligation and also to ascertain his bonafides. However, Page 0909 inspite of opportunity given to the petitioner, no amount has been deposited by the petitioner,leave alone the outstanding amount of Rs. 5 lacs towards the interim maintenance. On the last occasion (l3th July 2004) it was made clear in the order that if the petitioner fails to deposit the requisite amount, the petition will be dismissed for non prosecution. Today,when the matter is called out, counsel for the petitioner submits that the petitioner is unable to comply with the direction given on l3th July 2004. He submits on instructions that the petitioner is incapable of paying any amount to the respondent, much less the interim maintenance determined by the court below. From the attitude adopted by the petitioner, I am more than convinced that the various proceedings taken out were the result of the petitioner trying to circumvent the orders legitimately passed by the court below. By this petition, the petitioner is challenging five different orders. The first amongst them was passed on 30th October 200l directing the petitioner to pay interim maintenance during the pendency of main proceedings pending between the parties. The petitioner neither complied with the said direction nor challenged that order at any point of time, but was conveniently advised to withdraw the main petition so as to render the respondent remediless. Accordingly, the petitioner withdrew his main petition on 23rd October 2002, by which the petitioner was already under obligation to pay about Rs. 4,90,000 to the respondent towards interim maintenance. Since the petitioner did not comply with the order passed on 30th October 200l, the respondent had no other option but to take out execution proceedings. In that execution proceedings, the petitioner was advised to take out application for setting aside the order dated 30th October 200l. Initially, the application was filed in the disposed of main petition, but the same was treated to having been filed in the execution petition. Various contentions were raised in the said application at the instance of the petitioner. However, when the said application came up for hearing, the petitioner conveniently adopted the course to go by default. The application was resultantly dismissed for default on 5th May 2004. Indeed, the petitioner has later on filed application for setting aside the order dismissing his application in default and it is stated that the same is still pending. Obviously, no serious effort has been made to get that application finally disposed of. The petitioner has his own explanation to offer as to why that application has not been finally disposed of,but the reasons stated are obviously only a ruse to take cover under the said proceedings from complying with the order dated 30th October 200l, which has been operating all throughout. Naturally, since the petitioner did not comply with the directions, the trial court was left with no option but to allow the application for arrest of the petitioner by order dated l7th May 2004. The petitioner questioned the said order by another application. The court below has shown indulgence in favour of the petitioner which can be discerned from the order dated 2lst May 2004. The court below passed a conditional order for staying the arrest of the petitioner but even that conditional order has not been complied with by the petitioner. This is the state of affairs in which the matter has been prosecuted by the petitioner, obviously to keep the respondent wife getting entangled in several proceedings without fulfilling his obligation of paying maintenance to her. The last order which has been challenged in this petition is the order passed Page 0910 on the application preferred by the petitioner for stay of all the aforesaid four orders. That application has also been rejected by the court below on 8th June 2004. The petitioner has requested for staying the coercive action being taken against him. However,the court rejected that request on the ground that the petitioner has not fulfilled the conditions and, therefore, issued warrant against the petitioner. In this background the present petition has been filed.

As mentioned earlier, an opportunity was afforded to the petitioner to deposit the entire amount due and payable under the orders of the court below. The petitioner has not complied with that direction, nor has shown willingness to pay any amount to the respondent wife. At this stage when the order has been dictated upto this part, now the counsel for the petitioner states that the petitioner is willing to deposit sum of Rs. one lac in two instalments and not any further amount. Having regard to the attitude of the petitioner, I see no reason to show any indulgence. This is not a fit case to exercise discretion in favour of the litigant, who has approached the court with unclean hands. Petition dismissed, with exemplary costs quantified at Rs. 7,500 to be paid by the petitioner to the respondent within one week from today. If the amount is not paid, it will be open to the respondent to take recourse to appropriate remedy as ma be advised and permissible by law for recovery of that amount.

All concerned to act on the copy of this order duly authenticated by the court Stenographer of this court.

14. From the above order one thing is certain that the plea taken by the respondent No. l about his inability to honour the commitment arising under the order dated 30.l0.200l is a false plea.This is so because, in the penultimate para of the order, statement of the respondent No. l through his counsel is recorded that he was willing to deposit a sum of Rs. l lac within two months and not any further amount. That plainly means the respondent No. l conceded his capability to offer amount of Rs. l lac. Besides, made it clear that he will not pay any amount to the petitioner beyond Rs. l lac. The matter does not rest there. The petitioner has rightly invited my attention to the fact that the respondent No. l has not paid even the amount of cost quantified under this order in the sum of Rs. 7500 even till date. Be that as it may, the petitioner has rightly invited my attention to the averments made in the contempt petition which have remained uncontroverted by the respondent No. l. In the petition it is categorically stated that the respondent No. l has been taking inconsistent pleas/statements in several proceedings on the point in issue. The relevant portion of the petition read thus:

(A) Statements made by respondent No. l on oath in interim application being exhibit 29 dated 2lst October 2002 in interim application No. 27 of l999 in the said divorce proceedings:

(1) paragraph 2 at page l of the petition; The petitioner says that the respondent is aware of the fact that the petitioner is not doing any business or service at all. The petitioner says that he has no source of income and is unemployed

Contradictory/inconsistent statements made by respondent No. l in the said divorce proceeding.

(I) Paragraph 9 at page 5 of the petition The petitioner says that the respondent is well educated than himself and expressed her desire to Page 0911 socialise activity outside home as both the petitioner and his father spent long hours outside the home in the course of their business and also because the petitioner being very shy and simple did not socialise actively.

(II) Paragraph l3 at page 8 of the petition. The petitioner says that the respondent persisted with her demand to live separately and independently and on and about l9th May l993, the respondent again created ugly scenes with the petitioner’s mother when the petitioner and his father were away at work and surreptitiously obtained the keys of the petitioner’s father flat No. 20lA Rising Sun Apartment, Juhu Church Road, Mumbai 400049 and occupied the same with her two daughters where she is living at present.

(III) Paragraph l5 at page l0 of the petition.

The petitioner says that maintenance bills and telephones and electricity bills in the said Juhu Church Flat and the additional expenses of the children and their maintenance are entirely borne by the petitioner and mainly by his father as the petitioning has a very limited income of about Rs. 2000 per month.

(IV) Paragraph 5 at page 4 of affidavit in reply to interim application No. 27 of l999 in the said divorce proceeding.

I say that I am employed with my father who pays the monthly salary of Rs. 3000 out of which I meet my day to day needs and requirements.

Admission

The description of the respondent No. l (i.e. petitioner therein) in the cause title states that the occupation is business.

B) The following facts speak volumes about the income and lavish lifestyle of respondent No. l, 6 and the said Hukumat and the other relatives of respondent No. l:

i) The respondent No. l and the said Hukumat and/or the Hindu Undivided family of which they are members own immovable properties worth crores of rupees. The said matrimonial home is a 4 bedrooms hall kitchen terrace flat of approximate 2,250 sq ft area. There are imported crystal crockery, silver dinner sets, imported washing machine and refrigerator etc. in the said matrimonial home. The Juhu flat is a 2 bedrooms hall kitchen flat of appropriate 775 sq ft area. The respondent No. l, 6 and the said Hukumat also own a bungalow and a plot at Lonawala. The said bungalow is well furnished and in fact has carved walnut furniture from Kashmir., The respondent No. l,6 and the said Hukumat and/or the relatives of respondent No. l are shareholders of Rajkumar Electronics Pvt Ltd. The said company owns a factory by the name of Rajkumar Electronics at Baroda., There are around 90 workers employed in the said factory where electronic components are manufactured. There are acres of land near the factory owned by the respondent No. l,6 and the said Hukumat. A well furnished 3 bedrooms hall kitchen row bungalow at Makkarpura in Baroda is owned by the said company. Respondent No. l is a director of the said Rajkumar Electronics . The respondent nos l,6 and said Hukumat also own a l bedroom hall kitchen flat and a garage in New Vena Society, Khar. The respondents No. l,6 and said Hukumat are into business of export of Page 0912 diamonds in the name and style of India Diamond Corporation of which the said Hukumat is the proprietor.

ii)The respondent No. l and the said Hukumat and/or the Hindu Undivided family of which they are members own 4 cars, namely a Maruti Esteem, a Maruti Zen, a Maruti Wagon R and a Fiat Uno.

iii) Respondent no 6′s Pali Hill Bandra address mentioned in the cause title is a 2 bedrooms hall kitchen terrace flat.He owns two cars, namely a Maruti Zen and a Maruti Esteem. Respondent. No. 6 is into textile business and has 7-8 showrooms in Dubai. During the last 3-4 years he has reduced his Dubai visits and has started interfering more with the business of the respondent No. l and the said Hukumat in India.

iv) The bank statement of one of the respondent No. l’s account namely Account No. l443 in the City Union Bank, Khar West from l.4.2000 to l.3.200l of which inspection was given in the said divorce proceedings pursuant to the order of the Hon’ble family court at Bandra, Mumbai shows that the following telephone and electricity bills have been made by the respondent No. l

1. l6.l0.2000 Rs. l0,900 respondent No. l to BSES

2. 26.9.2000 Rs. 9,960 respondent No. l to BSES

3. l4.9.2000 Rs. 9082 respondent No. l to MTNL It is pertinent to note that the said matrimonial home has various electronic and electrical gadgets like refrigerator,4 air conditioners, 4 geysers, colour television in each room, video cassette player, music systems, 3 telephones etc.

v) The said bank statement also indicates the following interest received from fixed deposit:

1. 3.4.2000 interest Rs. l300

2. l8.4.2000 interest of Rs. l625

vi) The respondent No. l had purchased a new Maruti Wagon R car on or about 2l.l2.2000 by paying Rs. 3,77,0l7.The respondent No. l has not denied that he had bought the said car. He only states that the said car was purchased for Rs. 2,7l,894 after deducting the price of the old car and not for Rs. 3,74,0l7

vii) The respondent No. land the said Hukumat and other family members of the respondent No. l have travelled extensively abroad. The respondent. No. l makes a foreign trip at least once in a year. After the order of maintenance was passed no 30.l0.200l in interim application No. 26 and 27 of l999 in the said divorce proceedings the respondent. No. l had been to Dubai.

15. There is absolutely no denial by the respondent No. l to any of the above assertions made in the contempt petition; for the respondent No. l has not bothered to file parawise reply affidavit which was expected from him to this contempt petition. The assertions made in this part of the contempt petition have remained uncontroverted. From the said averments it is more than certain that it is not as if the respondent No. l is not in a position to pay “any amount at all” to the petitioner as was required to be paid towards Page 0913 maintenance under the order dated 30.l0.200l. On the other hand, the respondent No. l has accepted the fact that he has some income. In passing it needs to be noted that the respondent No. l has seriously contested all the proceedings right upto this court and engaged battery of advocates including senior counsel.All this is not without any burden of expenses. Be that as it may, the fact that the respondent No. l has the means and will be obliged to pay Rs. 20,000 per month towards maintenance has been adjudicated in the proceedings before the family court and that finding has become final. Suffice it to observe that the respondent No. l has not disclosed any material fact so as to persuade me to take the view that he had sincere desire or intention to honour the commitment arising under the order dated 30.l0.200l but could not discharge the said commitment due to the reasons beyond his control. If that was the case, perhaps, the respondent No. l would be justified in requesting the court not to invoke the remedy under the Contempt of Courts Act. On the other hand, from the averments made in the contempt petition it is more than clear that the respondent No. l had the means to comply with the order of maintenance. If it is so, the inevitable conclusion is that the respondent No. l is guilty of wilful disobedience of the order passed by the family court on 30.l0.200l. On this finding I shall now proceed to examine the quantum of sentence to be imposed on the respondent No. l.

16. At this stage the respondent No. l was asked to step into the witness box. He was told that I have already recorded a finding of guilt against him and I intend to proceed to punish him under the provisions of the Contempt of Courts Act, l97l,for which he may offer his say on the point of sentence. As the respondent No. l said that he knows English but will not be able to converse in English and that he was found to be comfortable talking in Hindi, I conversed with him in the language known to him i.e. Hindi. The respondent No. l in the first place requested me to show mercy and to excuse him. During the conversation it was suggested to him that even now there is possibility of excusing him provided he would purge the breach committed by him by paying the amount. To that, the respondent No. l was anxious to know as to what is expected from him so as to purge the breach. He was given option for the time being to pay the amount accrued under the order dated 30.l0.200l and if he does that the court may take a lenient view of the matter. In response, the respondent No. l after giving some thought has volunteered to pay the entire amount which is payable under the order dated 30.l0.200l-provided some time is given to him to make the payment . He was told that he would be given time to which initially he stated that he would require one month’s time and then increased to 2 months period to discharge the entire liability. Eventually, the respondent No. l has agreed and has given undertaking to this court that he will pay the entire amount within two months. While I am dictating this judgment, now, the respondent No. l said that he needs 2 and half months time to deposit the entire amount. Here I may note the submission of the petitioner that the petitioner has also claimed interest for the default period in this petition. However, I am keeping the said remedy of the petitioner open. As the respondent No. l has now shown willingness to pay the entire Page 0914 amount in question arising under the order dated 30.l0.200l, I propose to pass the following order:

a) In so far as the quantum of sentence is concerned, I have no hesitation in taking a view that the conduct of the respondent No. l is so gross and reprehensible that the same deserves imposition of maximum punishment provided by law. There can be no two opinions on that count. If the respondent No. l had the ability to pay even portion of the stated maintenance amount, there was no reason for the respondent No. l to drag the proceedings for so long without offering even a single rupee till now. Obviously, the design of the respondent No. l was to create a situation that the petitioner will not be able to reap the benefits accruing under the order of maintenance dated 30.l0.200l. In other words, the attitude of the respondent No. l was that, no matter the order of maintenance in favour of the petitioner, he shall not pay any amount to the petitioner even if it is in utter disregard of the order of the court. The acts of commission and ommission of the respondent No. l constitute wilful disobedience and replicates utter disregard for the order of court amounting to civil contempt. Thus understood, this is a gross case and the facts being so telling, I have no hesitation in imposing maximum punishment of six months of civil imprisonment and fine of Rs. 2000/-.

b) However, as the respondent No. l has shown willingness to purge the contempt and has personally given assurance to the court today to respect the order of maintenance in future regularly, I proceed to pas the following order:

c) The respondent No. l is held guilty of having committed civil contempt and is ordered to suffer imprisonment in terms of section 12 of the Contempt of Courts Act, for a period of six months and to forthwith pay a fine of Rs. 2000/-.

d) This order shall however, not be acted upon and the unconditional apology tendered by the respondent No. l be deemed to have been accepted, in the event the respondent No. l purges the contempt by depositing the entire outstanding amount as of today arising out of the order dated 30.l0.200l. The said amount shall be paid within two and half months from today as per the oral request made and undertaking given by the respondent No. l, failing which the warrant of arrest be issued against the respondent No. l to be executed on 22.5.2006 so as to give effect to the order of punishment indicated earlier. In other words, the respondent No. l shall pay the entire outstanding amount of Rs. 4,97,500/- (Rs 4,90,000/-towards amount of arrears of maintenance and Rs. 7500/- towards order of costs imposed vide order dated l3.7.2004 in Writ Petition No. 5ll6 of 2004) on or before l9.5.2006.

d) It is further ordered that in the event the respondent No. l deposits the amount as referred to above within the specified time,the order of sentence and fine will stand suspended for a period of one year to observe the conduct of the respondent No. l regarding fulfilment of his obligation of future payment in terms of order dated 30.l0.200l which has become final.

Page 0915

e) Notices issued to respondent Nos. 2 to 6 stand discharged with liberty to the petitioner to take recourse to such other remedy as may be permissible by law. If such proceedings are initiated, all questions on merits are left open to be decided before the appropriate forum. It is made clear that no observation made in this judgment be construed as expression of opinion on any of the contentions arising for consideration in such proposed proceedings.

f) At this stage the counsel for the petitioner points out that in order to ensure that the respondent No. l does not remove himself from the jurisdiction of this court or from India, the respondent No. l may be directed to deposit his passport in this court till the entire amount is not deposited by him on terms referred to earlier . find substance in this submission. The respondent No. l is directed to deposit his passport in the Registry of this court, through his counsel not later than l0.3.2006. The respondent. No. l assures to comply with this requirement as well, being one of the condition for deferring the order of sentence and to enable the respondent No. l to purge the contempt. In other words, if the respondent No. l fails to deposit his passport by l0.3.2006,the warrant of arrest be issued forthwith so as to give effect to the order of sentence and the respondent No. l will be taken into custody to suffer the punishment.

Categories: Judgement

Bombay HC: Wife used contempt petition to recover maintenance from husband

Bench: T C Das, P Upasani

Reeta Bharat Arora vs Bharat Yasodanandan Arora @ Dhingra And Ors. on 13/6/2001

JUDGMENT

Pratibha Upasani, J.

1. The story revealed in these legal proceedings is the story of a husband, wife and the “other woman” in the husband’s life, as usual. The unusual angle of this usual story is the legal angle which gives food for thought as to what status this ‘other woman’ exactly has in a monogamous society, if it turns out that the ‘other woman’ also is a legally wedded wife, and has the same status? What then happens to the other wife? What if relationship goes soar with both the wives at one time or the other, the couple is divorced and reunited, and the second wife is now isolated and asks for maintenance? All this material is quite spicy and hot enough to churn out a Hindi Masala Movie, displaying sentiments like love, lust, selfishness, materialism and urge for survival. But, Reeta Bharat Arora, Indu Bharat Arora and Bharat Yasodanandan Arora are not the imaginary characters playing roles on the screen in the real life. They are the real persons, in flesh and blood, being singed by harsh circumstances. The wives are the puppets in the hands of destiny. And why blame only destiny? Their husband Bharat also has been selfish all throughout, and has spoiled the lives of these two women; and hold your breath, the Law has added to the woes of the wives. But first, the few admitted facts :

2. On or about 26th January, 1981, Bharat Arora married one Indu Kapoor at Delhi. Indu and her parents were hailing from Indore. Bharat and Indu resided together and cohabited as husband and wife at Bombay. On or about 17th August, 1981, Indu left for Indore. On 25th February, 1982, a son namely, Sunny was born to Indu from the said wedlock. Unfortunately, disputes had already started between Bharat and Indu. Earlier also she had left for her parents place, but there was some sort of compromise between husband and wife. Thereafter, when she went to Indore in the year 1981, prior to Sunny’s birth in 1982, she did not come back. Bharat then filed M. J. Petition No. 56 of 1984 in the Bombay City Civil Court for divorce on the ground of cruelty and desertion. In the said petition, Bharat had made several allegations against Indu and had even expressed doubt about paternity of the son. Indu was contesting this matrimonial petition, refuting the allegations, and written statement also was filed by her. Hearing of the matter was adjourned from time to time. During all these years, by and large, Indu used to reside with her parents at Indore. During the pendency of the above referred petition, sometime in the year 1988, Bharat developed illicit relationship with one Reeta Dhawan nee Reeta Sunil Grover. Incidentally, Reeta’s divorce proceedings with her husband Sunil Grover also were pending in the City Civil Court till November, 1987 and decree of divorce was granted by City Civil Court in Sunil Grover’s favour, dissolving his marriage with Reeta, only on 30th November, 1987. On 28th May, 1989, a daughter by name Shikha was born to Reeta from the illicit relationship with Bharat. The relationship continued, though Reeta very much knew that Bharat was a married person, and his marriage with Indu was subsisting. The stalemate in respect of marriage of Bharat with Indu continued. But on 12th September, 1989, City Civil Court Judge (Ms. R. S. Dalvi) passed ex pane decree of divorce in M. J. Petition No. 56 of 1984., after recording evidence of Bharat, in brief, when the matter was in fact appearing on the Board under the caption of “Framing of Issues”. Neither Indu, nor her Advocate was present at the hearing of this petition on 12th September, 1989. No issues Were framed, nor was any finding given in respect of the alleged matrimonial offence of desertion and cruelty, but the Judge recorded undertaking of the petitioner Bharat to the effect that “the petitioner shall not remarry for a period of thirty days from the date of the said decree”. Thus, the undertaking was restricted to a period of only thirty days. On 5th November, 1989, Bharat got married with Reeta in accordance with Hindu Vedic Rites. On 5th November, 1989, declaration that Reeta and Bharat were married was made. The said marriage was thereafter registered on 5th February, 1990. Indu Arora, allegedly, came to know of the ex pane decree passed against her, dissolving her marriage with Bharat on 9th November, 1989. By that time, Family Courts were constituted in Bombay in October, 1989. Indu Arora therefore took out Miscellaneous Application No. 2 of 1990 for setting aside the ex pane decree, in the Family Court, accompanied by application for condonation of delay. On 15th December, 1989, Indu also filed First Appeal No. 336 of 1990 in the High Court of Bombay, challenging the ex pane decree passed against her by City Civil Court Judge, dissolving her marriage with Bharat. In Family Court, in reply to the Application made by Indu Arora, for setting aside the ex pane decree, Bharat did not mention that he had remarried. On 7th August, 1991, Family Court Judge (Mr. S. D. Pandit) passed order in Miscellaneous Civil Application No. 2 of 1990, setting aside the ex pane decree. The said order of the Family Court was challenged by Bharat Arora in the High Court by filing Writ Petition No. 5884 of 1991. In the meantime, there was reconciliation between Bharat and Indu. In fact, on 2nd June, 1992, Bharat and Indu applied for withdrawal of the proceedings in the Family Court. On 3rd June, 1992, Reeta filed Civil Application No. 2846 of 1992 in Writ Petition No. 5884 of 1991 filed by Bharat in High Court for being impleaded as a party-respondent. Reeta also filed M. J. Petition No. B-52 of 1992 in the Family Court at Bandra for a declaration that her marriage with Bharat was legally valid and subsisting. She also moved interim application No. 441 of 1992 and the Family Court passed order, restraining Bharat from throwing Reeta out of the flat at Grand Paradi Apartments, August Kranti Marg, Bombay, where Reeta was staying along with her daughter Shikha. Reeta also got injunction order by way of ad-interim relief restraining Bharat from disposing of the said flat in Grant Paradi Apartments, so also restraining Bharat from entering her bed room, Reeta also moved various applications for interim reliefs in the Family Court, on which, orders came to be passed against Bharat and Bharat challenged all those orders in the High Court by filing various Writ Petitions including Writ Petition No. 2889 of 1993. In Writ Petition No. 2889 of 1993, Bharat had challenged the interlocutory order passed by the Family Court granting maintenance of Rs. 4,000/- per month to Reeta and Rs. 1,500/- per month to daughter Shikha. In addition, the Family Court also ordered Bharat to deposit Rs. 5,000/- towards maintenance of Reeta.

Indu also filed M. J. Petition No. B-64 of 1992 in the Family Court at Bandra, inter alia, praying for a declaration that Bharat and Reeta’s marriage was not valid. On 22nd September, 1993, Bharat had made application in High Court to withdraw the Writ Petition No. 5884 of 1991. Mr. V. P. Tipnis, J. however, declined to pass order permitting Bharat to withdraw the said petition, observing that complex questions of facts and law were involved in the said petition, and therefore, it was to be decided on merits only. On 29th April, 1993, Family Court again passed order being interlocutory order directing Bharat to pay Rs. 5,500/- per month to Reeta and Shikha as maintenance. This order, when challenged by Bharat, in the High Court, was upheld, and in fact, undertaking was filed by Bharat in the High Court for payment of maintenance to Reeta and daughter Shikha.

Thus, there is no dispute between the parties with respect to the dates, the chronology of events, and the pending litigation between them.

3. This Court (Mr. D. R. Dhanuka, J.) by its common Judgment and Order dated 1st March 1994 disposed of First Appeal No. 336 of 1990 which was filed by Indu, so also, Writ Petition No. 5884 of 1991 and Writ Petition No, 2289 of 1993 filed by Bharat. The matter was argued at length by the respective Advocates, and this Court, by giving exhaustive reasons, allowed the First Appeal filed by Indu, and the ex pane decree dated 12th September, 1989 was set aside and M. J. Petition No. 56 of 1984 filed by Bharat was dismissed as withdrawn. Objection of Reeta for permitting Bharat to withdraw the said M. J. Petition, was rejected.

Both the Writ petitions filed by Bharat came to be dismissed by this Court by its common judgment and Order dated 1st March, 1994, and direction was given to the Family Court to dispose of the pending petitions filed by Reeta as well as Indu being M. J. Petition No. B-52 of 1992 filed by Reeta and M. J. Petition No. B-64 of 1992 filed by Indu, as expeditiously as possible.

While disposing of these Writ Petitions and First Appeal by common Judgment and Order, this Court made certain observations with respect to the conduct of Reeta. The learned Judge observed that the conduct of Reeta in having illicit relationship with a married person like Bharat since the year 1988, was blame-worthy. Reeta also felt aggrieved because the learned Judge confirmed the interlocutory order of the Family Court, and was not happy with the quantum of maintenance. She was also unhappy because the learned Judge allowed Bharat to withdraw his M. J. Petition being M. J. Petition No. 56 of 1984, and the order of allowing the First Appeal filed by Indu and setting aside exparte decree dated 12th September, 1989 passed by the Judge of the City Civil Court, dissolving the marriage between Bharat and Indu. Being aggrieved, Reeta has filed Letters Patent Appeal No. 86 of 1994 (in Writ Petition No. 5884 of 1991), so also, Letters Patent Appeal No. 87 of 1994 (in First Appeal No. 336 of 1990). Reeta also has filed Family Court Appeal No. 3 of 2001, since the Family Court did not pass any order on arrears of maintenance payable to her and daughter Shikha, while disposing of finally heard M. J. Petition No, B-52 of 1992. Reeta was also aggrieved, as the Family Court did not express its opinion on validity of marriage of Indu with Bharat. Another ground for filing the Family Court Appeal No. 3 of 2001 by Reeta was that the Family Court Judge did not grant her prayer with respect to security deposit for future maintenance to be paid by Bharat to her. it has to be stated here that as per the directions given by Mr. D. R. Dhanuka, J. while disposing of First Appeal No. 336 of 1990, Writ Petition No. 5884 of 1991 and Writ Petition No. 2289 of 1993, the Family Court Judge recorded the evidence of parties and disposed of both the M. J. Petitions being M. J. Petition No. B-52 of 1992 filed by Reeta and M. J. Petition No. B-64 of 1992 filed by Indu by his common Judgment dated 31st December, 1999. By giving exhaustive reasoning, the Principal Judge of the Family Court at Bandra dismissed Indu’s M. J. Petition No. B-64 of 1992, and allowed Reeta’s M. J. Petition being M. J. Petition No. B-52 of 1992. The learned Judge gave a declaration that Reeta’s marriage with Bharat was valid. Bharat was restrained by an order of injunction from ousting Reeta from her matrimonial home i.e. 91-A, 9th Floor, Grand Paradi Apartments, August Kranti Marg, Bombay-36.

Family Court also directed Bharat to pay Rs. 6,000/- per month to Rceta for her own maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 as well as to pay her Rs. 3,500/- per month for the maintenance of their daughter Shikha under Section 20 of the Hindu Adoptions and Maintenance Act, 1956, from the date of the order i.e. 31st December, 1999. The learned Judge also granted Reeta permanent custody of daughter Shikha.

5. Being aggrieved by the Judgment and Order dated 31st December, 1999 passed by Family Court. Appeal No. 3 of 2001 came to be filed by Reeta.

6. Family Court Appeal No. 16 of 2000 also was filed by Bharat, being aggrieved by the said common Judgment and Order dated 31st December, 1999. Indu also filed Family Court Appeal No. 15 of 2000, aggrieved by dismissal of M. J. Petition No. B-64 of 1992 and giving a declaration that Reeta’s marriage with Bharat was valid.

7. There is also Contempt Appeal No. 2 of 1999 filed by Bharat Arora, whereby he has challenged the order of the learned Single Judge of this Court (D. K. Deshmukh, J.) dated 28th January, 1999, holding Bharat guilty of contempt of Court, and sentencing him to undergo simple imprisonment for a period of three months. The said Contempt Petition being Contempt Petition No. 180 of 1995 was initiated by Reeta, alleging wilful breach of undertaking given by Bharat in Civil Application No. 4922 of 1993 in Writ Petition No. 2289 of 1993. Her grievance was that Bharat had not complied with the interim order granting maintenance to Reeta. The learned Single Judge of this Court held that Bharat had committed breach of the undertaking given to the Court, and was of the opinion that imposition of fine would not meet the ends of justice, as undertakings given in solemnity to the Court had to be scrupulously followed. Thus, considering the pros and cons of the matter, the learned Single Judge found Bharat guilty of contempt of Court and sentenced him to undergo simple imprisonment for three months. This order was stayed on the request of Bharat for approaching the Division Bench, which Bharat did. The Division Bench admitted the contempt appeal of Bharat and granted stay of the impugned order of the learned Single Judge dated 20th January, 1999.

8. Thus, there are six proceedings before this Court, which are being disposed of by this common judgment and order.

9. We have heard Mr. Anand Grover, the learned counsel appearing for Reeta, so also, Mr. Angal, appearing for Indu Arora. We have also gone through the bulky record and proceedings of these matters. We have also carefully considered the judgment and ex pane order dated 12th September, 1989 of the City Civil Court passed in M. J. Petition No. 56 of 1984, Judgment and Order dated 7th August, 1991 passed by the Principal Judge, Family Court in Miscellaneous Application No. 2 of 1990, the Judgment of the learned Single Judge dated 1st March, 1994, the order of the learned Single Judge dated 28th January, 1999 passed in Contempt Petition No. 180 of 1995, the Judgment and Order of the Family Court dated 31st December, 1999, so also, various Judgments of this Court, other High Courts and Supreme Court cited by both the sides.

10. The observation of the learned Single Judge in his Judgment dated 1st March, 1994 about the conduct of Reeta being blameworthy, cannot be called erroneous on the background that during the pendency of Reeta’s divorce proceedings with her earlier husband Sunil Grover, she carried on affair with the much married Bharat, whose divorce proceedings against Indu also were pending. Because of this illicit relationship, Reeta delivered a baby girl Shikha and when Bharat got married with Reeta on 5th November, 1989, this love-child Shikha was already six month’s old.

11. It has to be mentioned at this stage that after carefully going through the entire record and proceedings, the picture that emerges of Bharat is that of a villain. He is the person who has played with the lives of two women, and has left them in the lurch. Firstly, he carried on illicit relationship with Reeta, when his marriage with Indu was still subsisting. He also fathered a child Shikha from her, who was born about six months earlier to Bharat’s subsequent marriage to Reeta. Initially, when Bharat had filed divorce proceedings against his first wife Indu, he had made allegations against her and he went to the extent of saying that the son namely, Sunny, born to Indu was not his, but subsequently, with the very same Indu, Bharat reconciled to the chagrin of Reeta, who along with her child Shikha, fell from grace in the eyes of Bharat. When various applications for maintenance were filed by Reeta for herself and for the maintenance of the child Shikha, they were vehemently contested by Bharat, though, he lost in all of them at all stages. Various orders came to be passed by the Family Court, so also, by this Court, ordering Bharat to pay maintenance to Reeta and child Shikha. All these orders came to be flouted with impunity by Bharat. Initially, he was paying some maintenance to Reeta and the child, however, subsequently, there is a total failure on Bharat’s part to pay the maintenance. In fact, it appears that he has completely stopped paying maintenance to Reeta and his child since August, 1994 and there is a huge amount by way of arrears. The Family Court, in fact, had passed an order dated 23rd July, 1992, ordering maintenance at the rate of Rs. 4,000/- per month to Reeta and Rs. 1,500/- to child Shikha. The Family Court had also ordered Bharat by its order dated 1st September, 1992 to deposit Rs. 5,000/-. All these orders were disobeyed by Bharat. In fact, on number of occasions, bailable warrants came to be issued against Bharat, as not only he did not pay the maintenance amount but also avoided to attend the Court. In fact, Contempt Petition being Contempt Petition No. 180 of 1995 came to be filed at the behest of Reeta, alleging wilful breach of undertaking submitted by Bharat in Civil Application No. 4922 of 1993 in Writ Petition No. 2289 of 1993. After hearing both the sides the learned Single Judge came to the conclusion that Bharat had committed breach of undertaking given to this Court. He was also of the opinion that imposition of fine would not meet the ends of justice, as undertaking given in solemnity to the Court has to be scrupulously followed and that, undertaking cannot be disregarded casually, as was done by Bharat in this case. Thus, considering the pros and cons of the matter and having found Bharat guilty of contempt of this Court, the learned Single Judge sentenced Bharat to undergo simple imprisonment for three months. This order was stayed for eight weeks on the request made by the learned Counsel appearing for Bharat. Thereafter, the Division Bench of this Court stayed the order while admitting Contempt Appeal No. 2 of 1999, and the stay is still in operation, during the pendency of all the proceedings.

12. After hearing Mr. Anand Grover, who is appearing for Reeta, and Mr. M. D. Angal, who is appearing for Indu [though he was not very much concerned, as far as the maintenance aspect (to be paid by Bharat to Reeta) is concerned], and after going through various orders passed by Family Court, as well as this Court, we are of the opinion that the learned Single Judge was right in holding Bharat guilty under section 12 of the Contempt of Courts Act. The Roznama of all these proceedings is very revealing and telling. It fully exposes Bharat as to how, different Benches of this Court have issued bailable warrants against Bharat Arora on number of occasions, and how incorrigible he has proved to be. Even this Bench by its order dated 19th January, 2001, during the Course of hearing, passed an order directing Bharat to bring with him a cash of Rs. 50,000/- or a demand draft of the said amount drawn in favour of Reeta on the next date of hearing. However, on the next date, neither Bharat was present, nor his Counsel was present. Taking serious view of the matter, this Court issued bailable warrant in the sum of Rs. 50,000/- against Bharat, to be executed through the Commissioner of Police, Bombay, returnable on 1st February, 2001. On 1st February, 2001, Bharat was produced before this Court, but he expressed his inability to pay any amount. We therefore struck-off the defence of Bharat and refused to hear Mr. S. G. Deshpande, learned Counsel, who was representing Bharat. Mr. Grover, the learned Counsel appearing for Reeta pointed out that a huge amount had accumulated as arrears of maintenance payable to Reeta and child Sbikha by Bharat. He also pointed out that similar order of striking of defence of Bharat had been passed by Family Court also, and that, Bharat was simply not paying the arrears of maintenance either to Reeta or to minor child Shikha. He also pointed out the order passed by this Court (Coram : B. N. Srikrishna and S. S. Nijjar, JJ.) observing that unless maintenance amount was paid, Bharat was not to be heard. Thus, there is a clear admission that the amount of maintenance has not been paid by Bharat to Reeta for the maintenance of herself and for the maintenance of Shikha. This failure to pay the amount has been sought to be justified, stating that Bharat has financial problems, but the non-compliance of the order of the Court with respect to maintenance, is very much admitted.

13. It is not that Advocate Mr. S. G. Deshpande appearing for Bharat was not heard at all. In fact, initially, when this Bench started hearing the matter, Mr. Deshpande also was heard for quite sometime. It was during the course of arguments, that Mr. Grover, appearing for Reeta, pointed out the order of maintenance passed by Family Court, so also various orders passed by this Court with respect to maintenance payable by Bharat to Reeta and child Shikha, and the arrears which Bharat has to pay towards the maintenance amount. Thereafter, this Court ordered Bharat to pay Rs. 50,000/- to Reeta and bring the amount on the next date. Bharat not only failed to pay the amount and comply with the order passed by this Court, but also did not remain present. Thereafter, bailable warrant in the sum of Rs. 50,000/- came to be issued by this Court against Bharat, which secured Bharat’s presence, but sans the amount. That is how the Court was constrained to pass an order of striking of the defence of Bharat for non-compliance of the order of maintenance. However, Mr. Angal, appearing for Indu, was heard at length, and during the course of hearing, it appeared as if he was appearing for Bharat also, and the Court had to remind him that he was representing only Indu and not Bharat. It therefore, cannot be said that the principles of natural justice have been violated. As such, Bharat has proved to be so incorrigible in not complying with any of the order, when it came to paying maintenance to his wife and the minor child, that striking of defence was only a natural corollary,

14. Mr. Grover also took us through the list of properties of Bharat, which is annexed to the proceedings. He also took us through the observations of the Family Court made in the Judgment and Order dated 31st December, 1999, while finally disposing of M. J. Petition No. B-52 of 1992 and M. J. Petition No. B-64 of 1992, so also, the observations made by the Single Judge in his Judgment and Order dated 1st March, 1994 while disposing of First Appeal No. 336 of 1990, Writ Petition No. 5884 of 1991 and Writ Petition No. 2289 of 1993. These observations are to the effect that Bharat is a wealthy businessman. In fact, while confirming the interlocutory order, whereby Family Court had ordered Bharat to pay Rs. 4,000/- per month to Reeta and Rs. 1,500/- per month to child Shikha by way of maintenance, there was a direction by this Court that the quantum of maintenance be re-examined deeply. Accordingly, the Family Court while disposing of M. J. Petitions, ordered Bharat to pay Rs. 6,000/- per month to Reeta for her own maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, as well as to pay Rs. 3,500/- per month for the maintenance of their daughter Shikha under Section 20 of the Hindu Adoptions and Maintenance Act, 1956, from the date of the order i.e. 31st December, 1999. There is no compliance of this order also. No doubt, Family Court Appeal No. 16 of 2000 filed by Bharat and Family Court Appeal No. 3 of 2000 filed by Reeta, so also, Family Court Appeal No. 15 of 2000 filed by Indu, are pending before this Court, and were heard by this Bench, but there is no stay of the order dated 31st December, 1999, passed by the Family Court and Bharat ought to have complied with the said order, whereby, he was ordered to pay maintenance of Rs. 6,000/- per month to Reeta and 3,500/- per month to Shikha. He has also not cleared the arrears of maintenance payable to them. This fact is admitted by Mr. S. G. Deshpande, learned counsel appearing for Bharat. The sole contention canvassed for the total non-compliance of the orders of maintenance was that his financial position was bad, and therefore, he was unable to comply with the said orders. Having heard Mr. Deshpande and Mr. Grover, and having gone through the entire proceedings, we are unable to agree with the submissions made by Mr. Deshpande. We have therefore struck off Bharat’s defence, as he has failed to pay maintenance to Reeta and Shikha as per the order passed by the Family Court. The Contempt Appeal No. 2 of 1999 also will have to be dismissed and the interim stay granted by the Division Bench of this Court at the time of admission will have to be vacated.

15. For the same reasons and in view of the discussion above, Family Court Appeal No. 16 of 2000 filed by Bharat against the Judgment and Order dated 31st December, 1999 also will have to be dismissed.

16. This leaves us to decide Family Court Appeal No. 3 of 2001 filed by Reeta, the two Letters Patent Appeal Nos. 86 of 1994 and 87 of 1994 again filed by Reeta, and Family Court Appeal No. 15 of 2000 filed by Indu.

17. By the impugned Judgment dated 31st December, 1999, Family Court had allowed Reeta’s M. J. Petition No. B-52 of 1992 with costs. It gave a declaration which was sought by Reeta that Reeta’s marriage with Bharat was valid. As prayed by Reeta, Bharat was also restrained from ousting Reeta from her matrimonial home i.e. 91-A, Grand Paradi Apartments, 9th floor, August Kranti Marg, Bombay. Bharat was also directed to pay maintenance amount of Rs. 6,000/- per month to Reeta for herself and Rs. 3,500/- per month for the maintenance of Shikha. Reeta also was held to be entitled for permanent custody of daughter Shikha. It also dismissed, by the impugned common Judgment and Order, Indu’s M. J. Petition No. B-64 of 1992, in which, Indu had sought a declaration that marriage of Bharat and Reeta be declared as illegal, bad-in-law, and void. Thus, though all these favourable orders were passed, granting Reeta’s prayers, still Reeta has preferred Family Court Appeal No. 3 of 2001. She is obviously unhappy with the quantum of maintenance, which is granted to her and to her child Shikha. According to her, considering the affluent financial position of Bharat, she should have been granted more amount. She had asked for security deposit in her name to the tune of Rs. 75,000/- for future maintenance and a car for her use. These prayers were turned down by the Family Court. It is also her grievance that there was no order expressing opinion on the validity of marriage of Indu with Bharat. She is also aggrieved by the fact that there was no order of permanent injunction restraining Bharat, his family members, servants, agents, etc. from transferring, disposing, selling of or creating third party right in the matrimonial house at Grand Paradi or order with respect to arrears of maintenance payable to her. This has led to the filing of Family Court Appeal No. 3 of 2001 by Reeta.

18. Indu is obviously aggrieved by the impugned Judgment and order dated 31st December, 1999 because the Family Court dismissed her M. J. Petition No. B-64 of 1992 with costs. All the orders came to be passed in favour of Reeta and her petition was allowed. Declaration, as sought by Reeta, was given that her marriage with Bharat was valid, and that, she was the lawful wife of Bharat. No finding was given by the Family Court on the issue whether Indu succeeded in proving that her marriage with Bharat solemnized on 26th January, 1981 was legally and validly subsisting. No such finding could be given by the Family Court, inasmuch as, Letters Patent Appeal on this very issue was pending before this Court.

19. Both the Letters Patent Appeals are filed by Reeta against the order passed by the learned Single Judge of this Court dated 1st March, 1994. The question involved in both these Letters Patent Appeals is with respect to legality of marriage of Reeta with Bharat, so also, marriage of Indu with Bharat.

20. Mr. Grover, appearing for Reeta forcefully submitted that as far as status of Reeta, as the wife of Bharat was concerned, the said declaration was rightly given by the Family Court, and that, it has to be upheld in view of the Supreme Court Judgment Smt. Lila Gupta v. Laxmi Narain. Mr. Grover drew our attention to section 15 of the Hindu Marriage Act, 1955 and submitted that Reeta’s marriage with Bharat was a legal and valid marriage, inasmuch as, it was solemnized after ex parts decree dissolving marriage of Bharat with Indu was passed on 12th September, 1989, and after the prescribed appeal period for challenging the said ex parte decree was over. He also submitted that the proviso to section 15 of the Act requiring the divorced parties to wait for one year from the date of decree dissolving the marriage, being deleted by the Marriage Amendment Act, 1976, there was no bar for Bharat to marry Reeta after the appeal period was over. He also submitted that the fact about the ex parte decree being passed by the City Civil Court Judge on 12th September, 1989, became known to Indu because Indu’s Advocate applied for certified copy of the same on 29th September, 1989, though application for setting aside the ex parte decree came to be filed in the Family Court much later. He argued that Bharat’s marriage with Reeta was solemnized 54 days after the ex parte decree dissolving Bharat’s marriage with Indu was passed. According to him, application for setting aside the ex parte decree was beyond the prescribed period of time and that, it was also improper for Indu to also file First Appeal in this Court against the said ex-parte decree passed against her. He also castigated Bharat’s conduct in not revealing the fact of his re-marriage with Reeta, while filing affidavit-in-reply to oppose Indu’s application for setting aside the ex parte decree dissolving Bharat’s marriage with Indu. He submitted that though his client had sort of accepted the fact that Bharat was no more with her, and that, he had reconciled and reunited with Indu, the amount of maintenance was a meagre amount, considering Bharat’s Financial position. Mr. Grover submitted that though Reeta had accepted the harsh reality of Bharat no more loving her, she had to maintain herself and the minor child Shikha, whose responsibility Bharat could not abdicate.

21. We have heard Mr. Grover’s submissions at length. Since section 15 of the Hindu Marriage Act, 1955 has much relevance and bearing in deciding this matter, it will be convenient to reproduce the same.

“15. Divorced persons when may marry again.– When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.”

22. In Lila Gupta’s case (supra), the effect of marriage contracted in contravention of proviso to section 15 of the Hindu Marriage Act, 1955 came for consideration. The said proviso which was subsequently deleted by section 9 of the Marriage Laws (Amendment) Act, 1976, read as follows :–

“Provided that it shall not be lawful for the respective parties to marry again unless at the date of such marriage, at least one year has elapsed from the date of the decree in the Court of the first instance.”

23. Thus, the substantive para of section 15 enables divorced persons to marry again and the proviso to section 15 (which is now deleted) prescribed a time limit, within which such divorced persons could not contract marriage, and the time prescribed was a period of one year from the date of the decree in the Court of the first instance.

24. In Lila Gupta’s case (supra), the facts were as follows :–

One Rajendra Kumar, whose widow appellant Lila Gupta claimed to be, had contracted marriage with one Sarla Gupta. Both Rajendra Kumar and Sarla Gupta filed suit against each other praying for a decree of divorce. These suits ended in a decree of divorce on April 8, 1963. Soon thereafter, on May 25, 1963, Rajendra Kumar contracted second marriage with appellant Lila Gupta. Unfortunately, Rajendra Kumar expired on May 7, 1965. Disputes then arose in consolidation proceedings between the appellant Lila Gupta, claiming as widow of deceased Rajendra Kumar and Respondents, who were brothers and brother’s sons of Rajendra Kumar, about succession to the Bhumidhari rights in respect of certain plots of land enjoyed by Rajendra Kumar in his lifetime, the latter challenging the status of the appellant Lila Gupta to be the widow of Rajendra Kumar, on the ground that her marriage with Rajendra Kumar was void, as it was contracted in violation of the provisions contained in the proviso to section 15 of the Hindu Marriage Act, 1955. The final authority i.e. Deputy Director of Consolidation upheld the claim of the appellant Lila Gupta. This decision was challenged by the respondents in six petitions filed under Article 227 of the Constitution in the High Court of Allahabad. The learned Single Judge before whom these petitions came up for hearing was of the opinion that the marriage of Rajendra Kumar with the appellant Lila Gupta on May 25, 1963, being in contravention of the proviso to section 15 was null and void. He accordingly allowed the writ petitions and quashed the orders of the Settlement Officer (Consolidation and of the Deputy Director of Consolidations) and restored the order of the Consolidation Officer. The appellant Lila Gupta then preferred six different appeals under the Letters Patent. The Division Bench dismissed these appeals and confirmed the order of the learned Single Judge. The Division Bench also granted certificate under Article 133(l)(c) to the appellant Lila Gupta and that is how the matters landed in the Supreme Court.

25. The short and narrow question going to the root of the matter which was before the Supreme Court in Lila Gupta’s case (supra) was, whether a marriage contracted in contravention of or violation of the proviso to section 15 of the Hindu Marriage Act, 1955 was void or merely invalid not affecting the core of marriage and the parties are subject to a binding tie of wedlock flowing from the marriage?

26. After discussing the Scheme of Hindu Marriage Act, 1955, and more particularly, sections 5 and 11 of the said Act, this is what the Supreme Court observed :–

“A comprehensive review of the relevant provisions of the Act unmistakably manifests the legislative thrust that every marriage solemnized in contravention of one or other condition prescribed for valid marriage is not void. Section 5 prescribes six conditions for valid marriage. Section 11 renders marriage solemnized in contravention of conditions (i), (iv) and (v) of section 5 only, void. Two incontrovertible propositions emerge from a combined reading of sections 5 and 11 and other provisions of the Act, that the Act specifies conditions for valid marriage and a marriage contracted in breach of some but not all of them renders the marriage void. The statute thus prescribes conditions for valid marriage and also does not leave it to inference that each one of such conditions is mandatory and a contravention, violation or breach of any one of them would be treated as a breach of a pre-requisite for a valid marriage rendering it void. The law while prescribing conditions for valid marriage simultaneously prescribes that breach of some of the conditions but not all would render the marriage void. Simultaneously, the Act is conspicuously silent on the effect on a marriage solemnized in contravention or breach of time bound prohibition enacted in section 15. A further aspect that stares into the face is that while a marriage solemnized in contravention of Clauses (iii), (iv), (v) and (vi) of section 5 is made penal, a marriage in contravention of the prohibition prescribed by the proviso does not attract any penalty. The Act is suggestively silent on the question as to what is the effect on the marriage contracted by two persons one or both of whom were incapacitated from contracting marriage at the time when it was contracted in view of the fact that a period of one year had not elapsed since the dissolution of their earlier marriage by a decree of divorce granted by the Court of first instance. Such a marriage is not expressly declared void nor made punishable though marriages in breach of conditions Nos. (i), (iv) and (v) are expressly declared void and marriages in breach of conditions Nos. (iii), (iv), (v) and (vi) of section 5 are specifically made punishable by Section 18. These express provisions would show that Parliament was aware about treating any specific marriage void and only specific marriages punishable. This express provision prima facie would go a long way to negative any suggestion of a marriage such as in breach of proviso to section 15 as being void by necessary implication. The net effect of it is that at any rate Parliament did not think fit to treat such marriage void or that it is so opposed to public policy as to make it punishable.”

The Supreme Court also expressed doubt as to whether the framers of the law intended that marriage contracted in violation of the provision contained in the proviso to section 15 to be void or not. It observed that:–

“In the Act under discussion there is a specific provision for treating certain marriages contracted in breach of certain conditions prescribed for valid marriage in the same Act as void and simultaneously no specific provision having been made for treating certain other marriages in breach of certain conditions as void. In this background even though the proviso is couched in prohibitory and negative language, in the absence of an express provision it is not possible to infer nullity in respect of a marriage contracted by a person under incapacity prescribed by the proviso.”

Supreme Court therefore expressed doubt when it said that even though the proviso opened with a prohibition, whether it was an absolute prohibition, violation of which would render the Act a nullity. According to the Supreme Court, a person whose marriage was dissolved by a decree of divorce, suffered an incapacity for a period of one year for contracting second marriage, and for such a person, it was not lawful to contract a second marriage within a period of one year from the date of the decree of the Court of first instance. It further observed that a decree of divorce breaks the marriage tie. Incapacity for marriage of such persons whose marriage is dissolved by a decree of divorce for a period of one year was presumably enacted to allay apprehension that divorce was sought only for contracting another marriage or to avoid dispute about the parentage of children because at the time of the divorce the wife may be pregnant. Supreme Court, therefore, again expressed a doubt as to whether this was based on the principle of public policy, and whether such public policy was of paramount consideration as to render the marriage in breach of it void, inasmuch as, it appeared to be purely a regulatory measure for avoiding a possible confusion.

Supreme Court in Lita Gupta’s case (supra), also took a note of the fact that by subsequent Marriage Laws (Amendment) Act, 1976, the said proviso to section 15 of the Act came to be deleted, It therefore observed that if the proviso was so sacrosanct that its violation would render the marriage void, then it was not possible to appreciate why the Parliament completely dropped it, and this position therefore reinforced the contention that such marriage was not void.

27. In Chandra Mohini v. Avinash Prasad, AIR 1967 SC 581, the decree of divorce was granted by the High Court reversing the dismissal of the petition of the husband by the Trial Court. Soon thereafter, the husband contracted second marriage. Sometime thereafter, the wife moved for obtaining special leave to appeal under Article 126 of the Constitution, which was granted. The husband thereafter moved for revoking the leave. While rejecting the petition for revocation of special leave granted to the wife, the Supreme Court observed that:–

“even though it may not have been unlawful for the husband to have married immediately after the High Court’s decree or no appeal as of right lies from the decree of the High Court to this Court, still it was for the respondent to make sure whether an application for special leave had been filed in this Court and he could not, by marrying immediately after the High Court’s decree, deprive the wife of the chance of presenting a special leave petition to this Court. If a person does so, he takes a risk and could not ask the Court to revoke the special leave on that ground.”

28. Thus, according to the Supreme Court, as observed in Lila Gupta’s case (supra), the fact that neither spouse after decree of divorce, could remarry until the time for appealing had expired, in no way affects the full operation of the decree. It was a Judgment in rem and unless and until a Court of appeal reversed it, the marriage for all purposes was at an end.

The reason for arriving at such a conclusion is given by the Supreme Court in Lila Gupta ‘s case (supra) as follows :–

“….. A decree of divorce breaks the marital tie and the parties forfeit the status of husband and wife in relation to each other. Each one becomes competent to contract another marriage as provided by section 15. Merely because each one of them is prohibited from contracting a second marriage for a certain period it could not be said that despite there being a decree of divorce for certain purposes the first marriage subsists or is presumed to subsist. Some incident of marriage does survive the decree of divorce, say, liability to pay permanent alimony but on that account it cannot be said that the marriage subsists beyond the date of decree of divorce….. The dissolution is complete once the decree is made, subject of course, to appeal….. No incident of such dissolved marriage can bridge and bind the parties whose marriage is dissolved by divorce at a time posterior to the date of decree. An incapacity for second marriage for a certain period does not have effect of treating the former marriage as subsisting. During the period of incapacity the parties cannot be said to be the spouses within the meaning of Cl. (i), sub-section (1) of section 5…..”.

The Supreme Court also examined section 57 of the Indian Divorce Act, 1869 which provides for divorce professing Christian religion, which has identical provision and which has been consistently interpreted to mean that a marriage contracted during the period prescribed in the fifth paragraph of section 57 after a decree dissolving the marriage would be void. While commenting on section 57 of the Indian Divorce Act, 1869, the Supreme Court stated as follows :

“….. But a mere glance at section 15 of the Act (Hindu Marriage Act, 1955) and section 57 of the Indian Divorce Act, would clearly show that the provisions are not in pari materia. Under the Indian Divorce Act a decree nisi has to be passed and unless confirmed by High Court it is not effective and in the proceedings for confirmation, the decree nisi can be questioned. No such requirement is to be found under the Act. Further, under section 15 the period of one year is to be computed from the date of decree of the Court of first instance which means that a decree of divorce is made by the Court of first instance while under section 57 of the Indian Divorce Act the period of six months is to be computed from the date of an order of the High Court confirming the decree for dissolution of a marriage made by a District Judge or when an appeal has been preferred in the appellate jurisdiction of the High Court when the appeal is dismissed and the parties even cannot marry if an appeal has been presented to the Supreme Court. Under section 15 if the decree of divorce is granted not by the Court of first instance but by the Appellate Court the proviso would not be attracted. There is thus a material difference in respect of the starting point of the period under section 57.”

29. Reference was also made by Supreme Court is Lila Gupta’s case (supra) to similar provisions under the Mohammedan Law. It observed that under the Mohammedan Law, after the divorce, the traditional law did not permit a divorced wife to contract second marriage during the period of Iddat and in the past such marriage was considered void. The marriage was treated void interpreting a certain text of the Hanafi law. Recent trend of decisions quoted in Mulla’s Principles of Mohammedan Law, 17th Edition, edited by M. Hidayatullah, former Chief Justice of India, clearly bears out the proposition that under the Mohammedan Law, a marriage of a woman undergoing iddat is not void but merely irregular. Supreme Court quoted the said passage from page No. 252, which is given below :

“A marriage with a woman before completion of her iddat is irregular, not void. The Lahore High Court at one time treated such marriages as void Jhandu v. Mst. Hasain Bibi, (1923) ILR 4 Lah. 192 = (AIR 1923 Lah, 499); but in a later decision held that such a marriage is irregular and the children legitimate [Muhammed Hayat v. Muhammed Nawaz, (1935) ILR 17 Lah. 48 = (AIR 1935 Lah. 622)].”

30. As a conclusion, the Supreme Court observed in Lila Gupta’s case (supra) that examining the matter from all possible angles and keeping in view the fact that the scheme of the Act provides for treating certain marriages void and simultaneously some marriages which are made punishable yet not void and no consequences having been provided for in respect of the marriage in contravention of the proviso to section 15, it cannot be said that such marriage would be void. Reaching this conclusion, Supreme Court then held that Lila Gupta was denied the status of the wife of Rajendra Kumar and, therefore, his widow, and an heir to him on his death on the only ground that her marriage with Rajendra Kumar was void, being in contravention of the proviso to section 15. It then concluded that, as her marriage, even though in contravention of the provisions of section 15, was not void, she could not be denied the status of wife, and therefore, the widow of deceased Rajendra Kumar, and in that capacity, as an heir to him, all the appeals filed by Lila Gupta were thus allowed, and the decision of the High Court in Special Appeals was quashed and set-aside.

31. In the concurring, but separate Judgment, R. S. Pathak, J. also observed in Lila Gupta’s case (supra) that:–

“….. a marriage, although in violation of the statute, is not void because the legislature has not expressly declared it to be so, and also because the legislature has made no provision for legitimating the offspring of such a marriage, need to be viewed with caution. These are tests which could equally be invoked to construction of the main provision of section 15.”

32. Mr. Grover, learned Counsel representing Reeta, heavily relying upon Lila Gupta’s case (supra), drew the analogy from the facts of that case and comparing them with the facts of the present case at hand, argued that the marriage of Reeta and Bharat took place 54 days after the appeal period was over, and that, during that period, there was no bar or impediment of any sort for Bharat and Reeta to get married. He submitted that the conclusion arrived at by the Family Court in the impugned Judgment dated 31st December, 1999, was therefore correct.

33. Mr. Angal, learned counsel representing Indu, on the other hand, submitted that it was improper for the Family Court to rely upon the case of Lila Gupta (supra). His argument was that since the First Appeal No. 336 of 1990 challenging the ex pane decree dated 12th September, 1989 passed by City Civil Court Judge was allowed, and since Writ Petition No. 5884 of 1991 filed by Bharat, challenging the setting-aside of the ex pane decree by Family Court in Miscellaneous Application No. 2 of 1990 was dismissed, and since M. J. Petition No. B-56 of 1984 filed by Bharat was dismissed as withdrawn, there was nothing before this Court to decide, more so, when Reeta was not a party or even an intervenor in the First Appeal.

34. This contention of Mr. Angal, however, was countered by Mr. Grover, submitting that Reeta was heard in First Appeal filed by Indu, and that, this was with the specific permission of the Court, and that, it was not that she was not allowed to intervene, He aruged that this was rightly done in view of the principles of natural justice since Reeta was the affected party, and no order could be passed without hearing her.

35. We are in agreement with the submissions of Mr. Grover. After perusing the Roznama, it is revealed that Reeta’s prayer for being heard was specifically granted by the Court. This was a question of status of a person, and judgment pronounced was a judgment in rem.

36. Mr. Angal also submitted that Indu, indeed had two concurrent remedies, one was to file application under Order IX, Rule 13 of the Civil Procedure Code to set-aside the ex parte decree, dissolving her marriage with Bharat, and that, she also had another concurrent remedy of approaching this Court by filing First Appeal, challenging the very same order of ex parte decree, dissolving her marriage with Bharat. Mr. Angal, relying upon LXXXVII BLR 670 Arun Pawar v. Laxmi, also submitted that not only provisions of Order IX Rule 13 of the Code of Civil Procedure were applicable to the proceedings under the Hindu Marriage Act, but that, by virtue of section 21 of the Hindu Marriage Act, Article 123 as well as section 5 of the Limitation Act, 1963 was applicable to the suits and other proceedings under the Hindu Marriage Act, 1955. Mr. Angal, therefore, submitted that there was nothing wrong when the Family Court condoned the delay in making an application for setting aside the ex pane order dissolving Indu’s marriage with Bharat, and entertaining the said application. He also relied upon 1989 Mh.LJ. (SC) 617, Lata v. Vilas to substantiate his argument that in an appeal under section 28 of the Hindu Marriage Act, section 12(2) of the Limitation Act is applicable and therefore, time required for obtaining copies of the Judgment, will have to be excluded for computing the period of limitation for appeal.

37. There is no quarrel with these propositions put forth by Mr. Angal, who is appearing for Indu. This indeed is the legal position. We therefore hold that there was nothing wrong in Indu taking recourse to both the remedies – one by way of making an application under Order IX, Rule 13 of the Civil Procedure Code, for setting aside the ex pane decree passed against her, and another remedy by way of filing First Appeal in the High Court against ex pane order passed by the City Civil Court, dissolving her marriage with Bharat.

38. Mr. Grover also made a reference to some other Judgments of the Supreme Court like , Tejendra Kaur v. Gurmit Singh, Vathsala v. Manoharan, etc., where the question of nullity of marriage under section 12 was under consideration. We are not referring to them, as in the present case at hand, we are concerned with the provisions of section 13, where the marriage is dissolved by a decree of divorce, and we are not concerned with the question of nullity of marriage.

39. Having heard both the Advocates at length and having gone through the entire proceedings and the various Judgments cited by both the sides, we are of the view that the Family Court was right in arriving at the finding that Reeta’s marriage with Bharat was a valid marriage. The situation in the present case is more or less similar to the situation in Lila Gupta’s case (supra), with the exception that in Lila Gupta’s case (supra), the question involved was with respect to rights of inheritance and rights, as a whole of the heir of the deceased Rajendra Kumar. In the present case, however, the question is not with respect to inheritance, as all the parties are very much alive. Since under the Hindu Marriage Act, 1955, monogamy is the rule, it cannot be said that Indu and Reeta both, at the same time, are Bharat’s legally wedded wives. It can only be said that keeping in view the provisions of the Hindu Marriage Act, and the peculiar facts and circumstances of the case that Bharat has reconciled with Indu, his first wife, and the relationship between Bharat and Reeta has hit a rock-bottom, and in fact, Reeta herself had prayed for injunction restraining Bharat from entering her bed room, which was granted, what is relevant and practical to consider is only the incidence of Bharat’s marriage with Reeta, and the aspect of maintenance to be paid to the wife Reeta and their minor child Shikha. Since Bharat has another wife namely, Indu living, Reeta is entitled under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 to live separately from Bharat, and claim maintenance, so also, Bharat is under obligation to maintain his child Shikha. He cannot escape from this liability. The proceedings reveal that he has flouted all the orders of the Court, which were passed from time to time, ordering him to pay maintenance to Reeta and Shikha. He has not complied with several such interlocutory orders, nor has he complied with the final order passed by the Family Court by its impugned judgment and Order dated 31st December, 1999. The learned Single Judge was right in holding Bharat guilty of contempt and sentencing him to suffer simple imprisonment for three months. We have already given our reasons for vacating the interim stay granted by the Division Bench of this Court, at the time of admission of the said Contempt Petition, upholding the order of the Single Judge. In view of the aforesaid discussion, we pass following order :–

Letters Patent Appeal No. 86 of 1994 and Letter’s Patent Appeal No. 87 of 1994 are hereby dismissed.

In view of the dismissal of Letters Patent Appeal No. 87 of 1994, Civil Application Nos. 5565 of 1997 and 5140 of 1998 in Letters Patent Appeal No. 87 of 1994 do not survive, and the same are accordingly disposed of.

Family Court Appeal No. 16 of 2000 and Family Court Appeal No. 15 of 2000 are hereby dismissed.

Civil Application No. 4277 of 2000 in Contempt Appeal No. 2 of 1999 is allowed in terms of prayer clauses (a) and (b).

Contempt Appeal No. 2 of 1999 is hereby dismissed. Stay granted by this Court stands vacated. Bharat to undergo imprisonment as per the order dated 28th January, 1999.

Family Court Appeal No. 3 of 2000 is allowed to the extent of the claim for maintenance made by Reeta from Bharat.

Bharat to pay the entire amount of arrears of maintenance payable to Reeta and Shikha within a period of six months from today. He will also continue to pay the maintenance amount of Rs. 6,000/- per month to Reeta and Rs. 3,500/- per month to Shikha, as directed by the Family Court, on or before 15th day of every calender month.

After pronouncement of the Judgment, Mr. S. G. Deshpande, learned counsel for Bharat Arora, sought stay of the Judgment for eight weeks. His application for stay is rejected.

Issuance of certified copy is expedited.

40. Order accordingly.

Categories: Judgement

AP HC: Family Court cannot initiate proceedings for criminal contempt

Equivalent citations: 1997 (6) ALT 420
Bench: S P Rao, R B Reddy

S. Suryaprakash Rao And Anr. vs Presiding Officer, Family Court And Ors. on 3/11/1997

JUDGMENT

S. Parvatha Rao, J.

1. The petitioners are Advocates. The 1st petitioner appeared for the 2nd respondent i.e., the petitioner in O.P.No.104 of 1996 on the file of the Family Court, Secunderabad preferred against the 3rd respondent i.e., the respondent therein (wife of the petitioner in the O.P.) for divorce; and the 2nd petitioner appeared for the respondent in the O.P. They questioned the validity and propriety of notice in Dis. No. 229/97, dated 26-7-1997, issued by the 1st respondent herein i.e., the Presiding Officer, Family Court, Secunderabad, directing them “to appear before the Court (Family Court, Secunderabad) on 4-8-97 at 10-30 a.m. without fail to show cause why Contempt of Court proceedings should not be initiated in view of the contents in joint memo dated 3-7-97″.

2. The joint memo referred to in the impugned notice was filed by the petitioner and respondent in the said O.P.No.104 of 1996. The contents of that memo speak by themselves and they are as follows:

“It is submitted that the above Divorce petition was coming up for Trial. Witnesses on behalf of petitioner were examined and it was posted for evidence of Respondent. The respondent was partly examined on 12-5-1997. At that stage the Presiding Officer of this Hon’ble Court suggested compromise and asked Advocates on both sides to persuade the parties. Both parties agreed to compromise and petitioner intended to withdraw the O.P.

The Presiding Officer was on leave on 19-6-1997, and it was posted on 3-7-1997. The parties requested the Presiding Officer to take up the case after lunch as both Advocates would come after lunch. It was also requested to the Hon’ble Court that the Advocates would report compromise.

In spite of this representation this Hon’ble Court posted the case for Orders on 10-7-1997.

Both the Advocates requested the Presiding Officer to meet in Chambers so that O.P. can be disposed of on the basis of compromise. However the presiding Officer refused to meet the Advocates, who are senior Advocates. The staff told the Advocates that if the parties want, they have to file reopening petition. She also seemed to have commented that let the Advocates represent before the Bench. But the Presiding Officer, did not sit on the bench after lunch on 3-7-97.

Hence under the circumstances the parties are filing joint memo informing this Hon’ble Court their intention to resume cohabitation with effect from 3-7-1997.

Both parties pray that this Hon’ble Court may be pleased to close the O.P.No.104 of 1996, by recording compromise. The parties also pray to dispense with the presence of Advocates, on 10-7-1997 as they declined to appear for discourtesy shown by Presiding Officer to them.”

The facts narrated in the joint memo are affirmed in the affidavit filed in support of the present writ petition by the first petitioner herein. He further states that on 3-7-1997 they all waited in the Family Court to make a mention after lunch, in view of the observation the Presiding Officer seems to have made that, if the advocates wanted to make representation, they should do so in the Court; but that the Presiding Officer did not sit after lunch on that day and remained in her chambers. The 1st petitioner states that it was under those circumstances the joint memo was filed. He further states that the O.P. was dismissed on 26-7-1997. The petitioners contend that the impugned notice is without any jurisdiction or authority and that the joint memo did not give rise to any contempt. They also contend that the Family Court has no inherent power to initiate contempt proceedings, except in case of civil contempt, and that the facts of the case did not give rise to any civil contempt as there was no order of the Court which was violated by the petitioners.

3. The writ petition was presented on 31-7-1997 and when it came up on 18-8-1997, notice before admission returnable in two weeks was ordered and the 1st respondent was directed to send a report on the matter by 1-9-1997 and, pending further consideration of the matter by this Court, she was directed not to proceed further on the impugned notice dated 26-7-1997 and not to require the petitioners herein to appear pursuant to the notice.

4. The first respondent sent the report dated 1-9-1997. The Registrar (Judicial) stated that there was no covering letter accompanying the report. We find that the report was not addressed to any one and that it starts abruptly with the sentence “I want to submit the following few facts….” As to what actually happened on 3-7-1997, the 1st respondent states as follows:

“……when the matter came up for hearing both the parties filed a joint memo to the effect that they are prepared to live together. Parties were heard on the memo filed by them to ascertain whether they had voluntarily and willingly signed and presented the memo. Thereafter the matter was posted for Judgment. As both the parties filed joint memo, agreeing to live together and seeking closure of the case, the same was posted for orders on 10-7-1997. There was nothing to be heard from the Counsels as the parties did not stipulate any terms or conditions in their joint memo. The joint memo was filed by the parties directly without their Counsels. At that juncture there was nothing remaining to be heard, and the Counsels had nothing to do further in the matter. It is incorrect to say that the Presiding Officer refused to give audience to the Advocates, because in that particular case the Advocates filed 13(2) Petition before the Family Court and it was allowed. In Family Court the presence of Advocate is only an amicus curiae. Further more any representation by Counsels regarding cases are not being entertained in the Chambers…… In fact I mooted the settlement and suggested the parties it is better for their future to live together instead of breaking their marital tie. One whole day I spent with the parties and reconciled the matter between them. The allegations made by the Advocates is that the Court staff advised if further hearing is required an application for reopening the case has to be filed. It is a procedure prescribed under the C.P.C., because in this matter I heard the parties who filed the joint memo and who agreed before me that they are going to live together, on that basis I closed the matter and posted the matter for Judgment to 10-7-1997. The Counsels find fault with the Presiding Officer as well as with the staff. On 3-7-1997 the work is over and after that I am attending to the work in my Chambers. The allegation that the Presiding Officer did not come on to the bench in the afternoon is also making a statement against the Officer because I am attending the work in my Chambers by dictating the steno the orders to be pronounced on that date. The Counsels cannot make irresponsible allegations, such as discourtesy by the Presiding Officer etc.

It may be a fact that Counsels represented that the matter may be taken up after lunch. However, parties themselves personally presented the memo in the morning session they were also heard, hence there was no point in keeping the matter aside for further hearing till the Counsels come in the afternoon. It is not correct that despite representation the matter was posted for orders to 10-7-1997. It was posted for orders only on account of the joint memo and representation that they want to join and live together made by the parties.”

She also states that it is her principle not to allow Advocates into chambers. She further states:

“Mere saying that I am not allowing the Advocates who are representing contesting matter before me into my Chambers amounts to discourtesy in the view of the Counsels I am helpless to say anything in the matter….

On the other hand, the Counsels themselves made allegations against the bench that I am showing discourtesy towards them…..

Chapter VI of the Law of Contempt of Court deals with Contempt against Judges, their Officers and Subordinates, redicule the Judge, or his subordinates in any manner while they act in the discharge of their duties is to belittle the seat of Justice and lower its esteem in the eyes of the General Public.

Protection to the Courts by the operation of the General and Statutory Law of Contempt is more in the interest of the General Public.

Protection to the Courts by the operation of General and Statutory Law of Contempt is more in the interest of the public in whose eyes the seat of justice is sacrosanct than in the interest of Judge. The Law of Contempt can be invoked by any Judicial Officer or any person with Judicial Power. It was held by the Supreme Court in (Asharfi Lal v. The State) = 1954 Cr.L.J. 621 in

which their Lordships held that “Pronouncement of Judgment is a state of Judicial proceedings.

……

xxxx xxxx xxxx

In the present case the petitioners represented that as their Counsel were not allowed they feel ashamed to be present in the Court this amounts to Contempt of Court.

…….In the memo they clearly stated that their Advocates did not wish to attend before the Court. This statement may create doubt in the minds of the litigant public about the Court itself….

Thus in the light of facts of the case and position of Law, I was justified in issuing the impugned notice. It is pertinent to mention that the parties have submitted letter of apology for what they wrote and what transpired in the matter.”

5. The Advocate General, like the Attorney General, being “a friend of the Court, and in some respects acts as the friend, philosopher and guide of the Court.” (P.N. Duda v. P. Shiv Shanker, , and in view of the fact that considerable statutory discretion vests in him under the Contempt of Courts Act, 1971, we requested him to assist the Court in the matter.

6. When in the course of arguments on 22-10-1997 we noticed divergence between the versions of the petitioners and the 1st respondent as regards the time of presentation of joint memo on 3-7-1997, we directed the entire records in O.P.No.104 of 1996 including docket notes and the final order passed to be produced in Court. Pursuant to that direction records in that O.P. were produced in the Court along with those in O.P.S.R. No. 1250 of 1997 being the contempt of Court proceedings arising in that O.P. The docket of the O.P. discloses that it was originally presented on 21-6-1994 and was numbered as O.P.No.241/94 on the file of the V Additional Judge, City Civil Court, Hyderabad. It was transferred to the Family Court, Hyderabad and was renumbered as O.P.No.1100/95. Thereafter, it was again transferred to Family Court, Secunderabad and once again renumbered as O.P. No. 104/96.

7. The 1st petitioner also filed an additional affidavit dated 23-10-1997. He clarified the position as follows:

“O.P. 104 of 96 was posted to 3-7-97. When the matter was called in the call work, the petitioner and the respondent in the O.P. were present and both of them jointly represented that their Advocates could not be present and that there was a compromise between the parties and the same would be reported by their Counsel and on that count the parties requested the Family Court to get the matter passed over to facilitate their Counsel to appear and report compromise. By that time, no compromise memo was prepared. Myself and the second petitioner arrived in the Court by about 1 p.m. on 3-7-97 and the parties were present and the Presiding Officer of the Family Court retired into the chambers by that time. We informed the Bench Clerk to keep the Presiding Officer of the Court informed that the parties desired to have their case closed on that day itself as they intend to resume cohabitation according to their compromise with effect from 3-7-1997. The Bench Clerk and the parties informed us that the matter was already adjourned to 10-7-97 and if necessary, for reporting the same, an appropriate application may be made and the Bench Clerk told us that the Presiding Officer was not willing to permit us to her chambers and at the same time, we were informed that if we want we have to make a representation in the open Court while the Presiding Officer of the Court comes to the Bench. It is for the purpose of making a representation, we have waited upto 4 p.m. in the evening and the Presiding Officer did not come to the Bench after Lunch though she was in the chamber. At about 4 p.m.. we have prepared a joint memo and we have given the same to the parties duly signed and the parties were requested to submit the same in the section or present the same on 10-7-97 whichever is convenient to them. Accordingly, we got the joint memo prepared and the parties have signed in our presence and thereafter we have also signed the joint memo and the same was handed over to our clients to present it in the section and the same was presented on the same day in the section.

In the report submitted by the Family Court, the Presiding Officer of the Family Court explained what had happened on 3-7-97 in para 2. According to the report, when the matter came up for hearing, both the parties filed a joint memo intimating that they were prepared to live together. Parties were stated to have been heard on the memo filed by them and the matter was thereafter posted for judgment to 10-7-97. In fact no such Memo was filed other than the one mentioned above and this is also evident from the reply given by them to the show-cause notice furnished to them. A copy of it is also enclosed to this additional affidavit for better appreciation.

After receipt of the impugned notice, we did not appear before the Family Court so far in view of the orders passed by this Hon’ble Court in the above matter, but the parties have appeared on 4-8-97 and also on 18-8-97 and the Presiding Officer appeared to have ascertained from the parties why their Counsel have not appeared and on 18-8-97 a memo was served through an Advocate by myself and the second petitioner a copy of which is also filed along with this affidavit.”

8. In the reply dated 18-8-1997 to the show cause notice dated 26-7-1997 issued by the 1st respondent, it was stated that when the O.P. was taken up on 3-7-1997 they submitted that they would be filing joint memo of compromise and requested the Family Court to pass over the matter as their Advocates were engaged in another Court and that they were coming shortly, and that the matter was then adjourned to 10-7-1997. It was further stated that their Advocates advised them to file the compromise memo in the office and accordingly they filed the joint memo in the office. They appeared on 10-7-1997 but the matter was not taken up till the evening and it was posted to 26-7-1997, and on that day it was dismissed. It was further stated in the reply that they appeared on 4-8-1997 pursuant to the show cause notice and that they were called in the evening, and that they were asked to appear on 18-8-1997. They submitted that their conduct did not interfere with the course of justice and did not have the effect of lowering the prestige of the Court and, if any such impression was created by the joint memo, they apologised and assured the Court that they had high regard for the Courts.

9. Thus it is clear from what the petitioners and respondents 2 and 3 state that the joint memo was not submitted in Court in the Forenoon of 3-7-1997 and that it was only filed in the office some time after 4 p.m. on that day. It is also clear that, according to respondents 2 and 3, when the O.P. was called in the Forenoon of 3-7-1997 during call work they represented that they had compromised the matter and that their Advocates would be filing a compromise memo, and on that basis they sought pass over of the matter. The Advocates in fact came at 1 p.m. on that day, but the first respondent already retired to her chambers as there was no work to be taken up. On the other hand, the report of the 1st respondent indicates that respondents 2 and 3 filed a joint memo into Court on 3-7-1997, and that they were heard “to ascertain whether they had voluntarily and willingly signed and presented the memo”, and thereafter the O.P. was closed and was posted for judgment or orders on 10-7-1997 as both the parties filed joint memo agreeing to live together and seeking closure of the case.

10. However, the docket of O.P.No.104 of 1996 does not disclose that on 3-7-1997 any joint memo was filed. It only shows that the matter was posted for orders on 10-7-1997. The docket also shows that on 10-7-1997 the O.P. was posted to 26-7-1997, on which date it shows that order was pronounced and the petition was dismissed, and that there should be no order as to costs. The record of the O.P. also contains memorandum filed by the respondent therein (3rd respondent herein) on 3-7-1997 bearing SR No. 1251 /97 stating as follows:

“In the interest of the future of both the parties, the respondent addressed a letter to the Inspector, Malkajgiri, requesting him to close the case in Cr. No. 181 /94, wherein the respondent herein is the defacto complainant and file a final report in the matter. The respondent herein also enclosed her notarised affidavit along with the said letter. Since the police refused to receive the same, the respondent herein sent the same by registered post acknowledgment due. The copies of the said letter, notarised affidavit and the postal receipt are filed herewith.

The respondent herein further undertakes that in the event of the police filing a charge-sheet in the matter, the respondent shall take all necessary steps to have the matter closed.”

The list of three documents filed on 3-7-1997 also bears SR. No. 1251/97. The documents are: a xerox copy of the letter dated 21-6-1997 addressed by the 3rd respondent herein to the Sub-Inspector (L & O-I) of Malkajgiri stating that she and her husband (2nd respondent herein) decided to live together and that there were no differences between them and that she was withdrawing her complaint No. 181/94, dated 24-10-1994 and requested the Sub-Inspector to close the case; the second document is a notarised affidavit given by the 3rd respondent herein to the same effect stating that Crime No. 181 /94 should be closed and final report filed accordingly; and the third document is letter dated 1-7-1997 of the 2nd petitioner herein i.e., the Counsel for the 3rd respondent herein, addressed to the Inspector, P.S. Malkajgiri to the same effect.

11. The order in the O.P. dated 26-7-1997 narrated the averments of the petition and of the counter and summarised the evidence of P.Ws.1 to 4 examined in the O.P. and in the end observed as follows:

“There is no evidence on behalf of the respondent that both parties filed a joint memo. They are going to compromise and live together. When examined both agreed to live together. Hence the petition dismissed. There shall be no order to costs.”

There is no mention of the memo filed by the respondent therein (3rd respondent herein) on 3-7-1997 (S.R.No.1250/97) in the order dated 26-7-1997 even though the record of the O.P. contains that memo along with the list of three documents referred to above filed along with that memo. On the other hand, there is an express mention in the order dated 26-7-1997 in the O.P. that there was “no evidence on behalf of the respondent that both parties filed a joint memo”.

12. In the record of O.P.S.R.No.l250/97, we find the joint memo filed by the petitioner and respondent dated 3-7-1997bearing SR No. 1250/97. On the docket of that joint memo there is an undated endorsement with the initials of the Presiding Officer as follows:

“Issue notice to both the parties and Advocates for contempt of Court. Call on 4-8-97.”

This joint memo is the original of the joint memo dated 3-7-1997 filed along with the present Writ Petition. The fact that the SR number of this joint memo is 1250/97 and bears the stamp of the Sheristadar with the date 3-74997 establishes that this was filed along with or earlier to memo filed by the 3rd respondent on 3-7-1997 which bears SR No. 1251/97 with the stamp of the Sheristadar noting the same date. As already stated by us earlier, no memo was mentioned in the docket of O.P. No. 104/96 under the date 3-7-1997, 10-7-1997 or 26-7-1997. It was also not noted that the petitioner and respondent in the O.P. were examined on any memo.

13. It is obvious that the joint memo signed by the petitioners as well as the respondents 2 and 3 herein could not have been before the 1st respondent when the O.P. was called on 3-7-1997 and adjourned to 10-7-1997 because it narrated the subsequent events. The only other memo found in the record is that of the respondent in the O.P. (3rd respondent herein) and that is not a joint memo. This establishes that the 1st respondent was not able to recapitulate correctly what happened on 3-7-1997, and that she did not refresh her memory from the record before sending the report to this Court. Otherwise she would not have expressly stated in her report as she did i.e., “Parties were heard on the memo filed by them to ascertain whether they had voluntarily and willingly signed and presented the memo”, and that “As both the parties filed joint memo, agreeing to live together and seeking closure of the case, the same was posted for orders on 10-7-1997″. She also went further and stated that “The joint memo was filed by the parties directly without their Counsels”, and that “At that juncture there was nothing remaining to be heard, and the Counsels had nothing to do further in the matter”. But, in any event, she will have to explain the observation in the order dated 26-7-1997 in O.P. No. 104/96 that “there was no evidence on behalf of the respondents that both parties filed a joint memo”. There can be no dispute that joint memo signed by the petitioners and respondents 2 and 3 herein was in fact filed on 3-7-1997 as it was given S.R.No.1250/97 earlier to S.R.No.1251/97 given to the memo filed by the 3rd respondent herein. Equally it cannot be disputed that this joint memo was filed in the office after the O.P. was already adjourned on 3-7-1997 to 10-7-1997. The joint memo was taken note of and O.P.SR No. 1250/97 was opened and notices were directed to be issued for contempt of Court to the petitioners herein – though this order is undated, notices in fact were issued on 26-7-1997 under Dis. No. 229/97. On the same day order in the O.P. was also pronounced. If the joint memo could be taken note of for the purpose of O.P.SR. No. 1250/97, it will be very difficult to find a convincing explanation for not taking note of and ignoring the joint memo dated 3-7-1997 altogether in making the order in the O.P.

14. We only venture to observe that the 1st respondent ought to have been very careful in sending the report pursuant to the directions of this Court considering the seriousness of the matter and the consequences flowing from making incorrect and unverified statements. It is not necessary for us to go further as it is not wholly relevant for the purposes of disposal of the present writ petition. We find it apt to observe here what the Supreme Court held in Afzal v. State of Haryana, that “a false or a misleading or a wrong statement deliberately and wilfully made by a party to the proceedings to obtain a favourable order would prejudice or interfere with the due course of judicial proceedings”: in other words, it would amount to contempt.

15. With that factual backdrop, we now come to the meat of the matter. The learned Counsel for the petitioners contends firstly that the mere mention in the joint memo that the petitioners “declined to appear for discourtesy shown by Presiding Officer to them” does not amount to contempt of Court, and secondly that the Family Court is not competent to initiate or take up contempt proceedings against the petitioners on the facts of the case. On the first question the learned Counsel for the petitioners contends that no disrespect was meant to the Presiding Officer of the Family Court, and that the manner in which the Presiding Officer of the Family Court treated them by making them wait from 1 p.m. on 3-7-1997 refusing to meet them and not coming on to the Bench upset them and they cannot be faulted for taking umbrage, and that they could express the same in polite language as they did. He points out that after all Advocates are Officers of Court. He also points out to Section 13 of the Family Courts Act, 1984 which provides as follows:

“13. Right to legal representation:- Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner:

Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae.”

Rule 9 of the Andhra Pradesh Family Courts Rules, 1995 also provides that proceedings before the Court shall be taken up in the presence of the parties, and a legal practitioner shall be allowed to appear only as amicus curiae, if the Court finds it necessary in the interests of Justice. The learned Counsel also points to Section 9 of that Act, sub-section (1) of which, provides that “in every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.” He submits that the Family Court is not hide-bound by any particular procedure, and that when the petitioners and respondents 2 and 3 represented that a compromise was being effected between the parties and that they agreed to live together and were desirous of having the O.P. closed, the Presiding Officer of the Family Court ought to have made herself available to dispose of the matter without making the parties come again to the Court when she was informed that the parties and their Counsel were waiting in the Court well within the Court hours. In fact Rule 3(d) of the Rules referred to above provides that “the Family Court may hold its sittings outside normal working hours and on holidays if the Judge of the said Court considers it necessary to do so in the circumstances of the case, with the prior notice to parties, and to such other person or persons as the Judge may consider it necessary.” The learned Counsel submits that all these provisions are to facilitate early disposal of matters; more so, when the parties have arrived at a settlement. On the second question, the learned Counsel submits that the contempt involved, even on the reckoning of the 1st respondent, was not civil contempt; if at all, it was a criminal contempt because what is alleged in the report of the 1st respondent is that the Counsel made allegations against the Bench that she was showing discourtesy towards them, and that “they (petitioners herein) feel ashamed to be present in the Court this amounts to Contempt of Court”. The learned Counsel submits that the stand taken by the Presiding Officer that “any person discharging judicial duties or any Tribunal which is entrusted with judicial functions having the power to initiate contempt of proceedings” is not sustainable in law.

16. The learned Advocate General supports the learned Counsel for the petitioners. He drew our attention to Section 2(c) of the Contempt of Courts Act, 1971 (‘the Act’ for short), which defines criminal contempt, and submits that the mere mention by the petitioners in the joint memo that “they declined to appear for discourtesy shown by Presiding Officer to them” did not amount to criminal contempt as defined under that provision. It did not scandalise or lower the authority of the Court or prejudice or interfere with the due course of any judicial proceeding or interfere or obstruct the administration of justice in any manner or tend to do any of those. He also drew our attention to Section 13 of the Act which is as follows:

“13. Contempts not punishable in certain cases:- Notwithstanding anything contained in any law for the time being in force, no Court shall impose a sentence under this Act for a contempt of Court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.”

17. It has been observed by the Supreme Court in Jasivant Singh v. Virender Singh, 1995 Supp. (1) SCC 384 that an Advocate has no wider protection than a layman when he commits an act which amounts to contempt of Court, and that Judges cannot be intimidated to seek favourable orders, and that an Advocate cannot use language, either in the pleadings or during arguments, which is either intemperate or unparliamentary, and that “these safeguards are not for the protection of any Judge individually but are essential for maintaining the dignity and decorum of the Courts and for upholding the majesty of law”. Having said so, the Supreme Court further observed as follows:

“Judges and Courts are not unduly sensitive or touchy to fair and reasonable criticism of their judgments. Fair comments, even if, outspoken, but made without any malice or attempting to impair the administration of justice and made in good faith, in proper language, do not attract any punishment for contempt of Court. However, when from the criticism a deliberate, motivated and calculated attempt is discernible to bring down the image of judiciary in the estimation of the public or to impair the administration of justice or tend to bring the administration of justice into disrepute the Courts must bestir themselves to uphold their dignity and the majesty of law.”

In K.A. Mohammed Ali v. C.N. Prasannan, 1994 Supp. (3) SCC 509 the facts were that the Advocate (appellant before the Supreme Court) “had at a certain juncture raised the pitch of his voice unusually high to the annoyance of the learned Magistrate, and besides, he had used derogatory language against him”, and that after the incident he got certain posters published and circulated and caused a demonstration staged which got reported to the High Court whereupon contempt proceedings were initiated against him. The Supreme Court observed:

“We are of the view that when the appellant was warned of his unruly behaviour, he should have stopped and gone in tune with the learned Magistrate and not retained a defiant and aggressive posture. It should be borne in mind by one and all that lawyers were created for the Courts, not Courts for the lawyers. The happy combination, whenever an aberration occurs, should in immediacy be restored and put to an even keel.”

Sawant, J., speaking for the three Judges Bench in Vinay Chandra Mishra’s case, observed:

“Normally, no Judge takes action for in facie curiae contempt against the lawyer unless he is impelled to do so. It is not the heat generated in the arguments but the language used, the tone and the manner in which it is expressed and the intention behind using it which determine whether it was calculated to insult, show disrespect, to overbear and overawe the Court and to threaten and obstruct the course of justice.”

The learned Judge further observed:

“When the Court exercises this power (of punishing for contempt), it does not do so to vindicate the dignity and honour of the individual Judge who is personally attacked or scandalised, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the Court by creating distrust in its working, the edifice of the judicial system gets eroded.”

18. In the light of these observations of the Supreme Court, we find that what was stated in the joint memo filed by the petitioner and respondent in the O.P. dated 3-7-1997, which was also signed by the petitioners herein, expressing that discourtesy was shown to the petitioners by the Presiding Officer, is not such a statement as would warrant initiation of contempt proceedings. There is no doubt that it could have been simply stated in the joint memo that as the parties were compromising and decided to live together it was no longer necessary for Advocates to appear. But considering that the Advocates appearing in a Family Court are to be treated as amicus curiae (Section 13), and that Advocates truly are also officers of Court, it would have been in the fitness of things if the 1st respondent herein i.e., the Presiding Officer of the Family Court, informed the petitioners that it was inconvenient or not possible for her to spare time as she was engaged in some pressing and urgent work, if it was so; if that was not so, she could have sat in the Court and disposed of the matter on the basis of the compromise or settlement arrived at – this would not have taken much time and this would have been in tune with the object and intendment of Section 9 of that Act. As observed by the Supreme Court in T.V. Choudary’s case, , “the majesty of law and the dignity of Courts cannot be maintained unless there is mutual respect between the Bench and the Bar……” The Bar plays a very important role in the justice delivery system. For the even functioning of the Court there should be harmony between the Bench and the Bar because both are partners in the quest for justice. For the maintenance of this harmony, Judges should nip in the bud avoidable discord between the Bench and the Bar. A pre-requisite for this is that the Bar also is required to conduct itself in a responsible manner. A member of the Bar must uphold the dignity and decorum of the Court and must not do anything to bring the Court itself into disrepute (Lalit Mohan Das v. Advocate General, Orissa, . In Vinay Chandra Mishra’s case (supra), Sawant, J., said:

“Brazenness is not outspokenness and arrogance is not fearlessness. Use of intemperate language is not assertion of right nor is a threat an argument. Humility is not servility and courtesy and politeness are not lack of dignity. Self-restraint and respectful attitude towards the Court, presentation of correct facts and law with a balanced mind and without overstatement, suppression, distortion or embellishment are requisites of good advocacy. A lawyer has to be a gentleman first. His most valuable asset is the respect and goodwill he enjoys among his colleagues and in the Court.”

We have also to note the caution expressed by Chief Justice Gajendragadkar, speaking for six (including himself) of the seven learned Judges, in Special Reference No. 1 of 1964 under Article 143, :

“Before we part with this topic, we would like to refer to one aspect of the question relating to the exercise of power to punish for contempt. So far as the Courts are concerned, Judges always keep in mind the warning addressed to them by Lord Atkin in Andre Paul v. Attorney-General of Trinidad, AIR 1936 PC 141. Said Lord Atkin, “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though out-spoken comments of ordinary men.” We ought never to forget that the power to punish for contempt large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the Court, but may sometimes affect it adversely. “Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct.”

The fifth normative guideline for the Judges to observe in this jurisdiction mentioned by Krishna Iyer, J., in S. Mirtgaokar’s case, AIR 1978 SC 727 at 737 (Para 32) “is not to be hypersensitive even where distortions and criticisms overstep the limits, but to deflate vulgar denunciation by dignified bearing, condescending indifference and repudiation by judicial rectitude.”

19. In the present case, we do not find that the mention in the joint memo of the discourtesy shown by the Presiding Officer to the petitioners is such a statement as should lead to initiation of contempt proceedings.

20. But the core question in the present Writ Petition is whether the 1st respondent can initiate contempt proceedings on her own. Section 15 of the Act is a clear answer in the negative. It deals with cognizance of criminal contempt in cases other than those covered by Section 14 i.e., in facie curiae contempt of the Supreme Court and a High Court. Sub-section (2) of Section 15 of the Act provides as follows:

“In the case of any criminal contempt of a Subordinate Court, the High Court may take action on a reference made to it by the Subordinate Court or on a motion made by the Advocate-General or, in relation to a Union Territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.”

Rule 5(d) of the Contempt of Court Rules, 1980 provides that the High Court may take cognizance of contempt and take action “on a reference made to it by a Court subordinate to it in the case of any contempt of such Subordinate Court or on a motion made by the Advocate General of the State of Andhra Pradesh in that behalf.” The High Court may also do so suo motn or on a petition made by the Advocate General of the State of Andhra Pradesh. The High Court may also do so on a petition made by any person subject to that, in the case of criminal contempt, it should be with the consent in writing of the Advocate General of the State of Andhra Pradesh. Rule 9 of these Rules is important and it provides as follows:

“9. (1) All references made by the Subordinate Courts under Rule 5(d) shall contain the particulars as mentioned in Rule 7(l)(a) and (b) so far applicable.

(2) The Subordinate Courts shall transmit all relevant documents or true copies thereof duly attested along with the letter of reference.

(3) All references made under Rule 5(d) by the Subordinate Courts other than the Courts of District and Sessions Judges shall be forwarded through the respective District and Sessions Judges for onward transmission of the same to the High Court expeditiously with their report.

(4) Before making reference, the Subordinate Courts shall hold a preliminary enquiry by issuing a show cause notice to the Contemner and after hearing him, the said Court shall write a concise reasoned order of reference about the alleged contempt.”

From these provisions it is clear that Subordinate Courts can only make a reference to the High Court in the case of criminal contempt after issuing a show cause notice to the contemner and after hearing him by holding a preliminary enquiry; after the enquiry, the Subordinate Court making the reference is required to make a reasoned order of reference about the alleged contempt. The question as to when contempt proceedings commence when a reference is made by a Subordinate Court is answered by the Supreme Court in Baradakanta v. Misra C.J., Orissa H.C., as follows:

“But what happens when a motion is made by the Advocate General or any other person with the consent in writing of the Advocate General or a reference is made by a Subordinate Court. Does the Court enter upon the jurisdiction to punish for contempt and act in exercise of it when it considers such motion or reference for the purpose of deciding whether it should initiate a proceeding for contempt? We do not think so. The motion or reference is only for the purpose of drawing the attention of the Court to the contempt alleged to have been committed and it is for the Court, on a consideration of such motion or reference, to decide, in exercise of its discretion, whether or not to initiate a proceeding for contempt. The Court may decline to take cognizance and to initiate a proceeding for contempt either because in its opinion no contempt prima facie appears to have been committed or because, even if there is prima facie contempt, it is not a fit case in which action should be taken against the alleged contemner. The exercise of contempt jurisdiction being a matter entirely between the Court and the alleged contemner, the Court, though moved by motion or reference, may in its discretion, decline to exercise its jurisdiction for contempt. It is only when the Court decides to take action and initiates a proceeding for contempt that it assumes jurisdiction to punish for contempt. The exercise of the jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt, whether suo motu or on a motion or a reference.”

21. We have, therefore, no doubt in our minds that the impugned notice issued to the petitioners is without jurisdiction because the Family Court cannot initiate proceedings for criminal contempt. It can only issue show cause notice under sub-rule (4) of Rule 9 referred to above for the purpose of holding a preliminary enquiry for making an order of reference under sub-section (2) of Section 15 of the Act. A Subordinate Court cannot by itself initiate contempt proceedings.

22. This should have sufficed for allowing the Writ Petition. We have also considered whether any contempt is made out on the facts of the present case because this Court has the power to initiate contempt proceedings suo motu in exercise of its inherent power by virtue of Article 215 of the Constitution of India (Delhi Judicial Service Association v. State of Gujarat, , and also on a

motion made by the Advocate General. We do not find any such.

The Writ Petition is, therefore, allowed. No costs.

Categories: Judgement

HC: Applicant wife in tears in Judges chanber and gets favorable order in CrPC 125 and Contempt

Bench: S Ambwani

Shail D/O Late Sone Lal vs Manoj Kumar Yadav, D.I.G. And The Family Court on 30/11/2005

JUDGMENT

Sunil Ambwani, J.

1. This contempt petition was filed on 18.11.2002, impleading Shri Manoj Kumar Yadav, a Head Constable in civil police posted at Jalaun (now under suspension), D.I.G., Head Quarter, Allahabad and Family Court Kanpur Nagar with the allegations that the Family Court has not complied with the order dated 4.9.2002, to decide her application under Section 125 Cr.P.C. for maintenance against her husband Shri Manoj Kumar Yadav By the order dated 4.9.2002 in Criminal Misc. Application No. 7688/2002, the Court directed the Family Judge, Kanpur Nagar to decide case No. 535/2002 under Section 125 Cr.P.C, within four month from the date of presentation of the certified copy of the order. On 3.12.2003 following orders were passed:

This contempt petition tells a pathetic story of the functioning of Family Courts in the State of uttar Pardesh. The facts giving rise to this contempt-petition demonstrate the manner in which Family Judges are, dealing with the sensitive issues arising before them. The object and purpose of the establishment of the family Courts was to promote conciliation in, and secure speedy settlement of disputes, relating to marriage and family affairs and for matters connected therewith. The law commission in its 59^th report (1994) stressed that in dealing with disputes concerning the family, the Count ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts of settlement before commencement of the trial. The 1976 amendment to civil procedure code providing for special procedure in such matters concerning the family, did not achieve the desired result. The Courts continued to deal with family disputes in the same manner as other civil matters and the same adverrsary approach prevailed.

The Family Court Act 1984 was, enacted to set up for speedy settlement of family disputes. The reliefs concerning properties, declaration as to legitimacy in person, guardianship of a person are custody of a manner and maintenance including proceedings under Chapter- IX of the code of criminal procedure are entrusted to these special Courts, It has been made obligatory under Section 9 on the Family Court to make efforts for settlement. Section 11 provides that proceedings may be held in camera fi the family Courts desires and shall be so held if either party so desires. The assistance of medical and family welfare experts can be taken under Section 12, or such persons (preferably a woman was available), including professional services for assisting the Family Court in discharging the functions imposed by the Act, The facts and circumstances in which this matter arose, giving rise to these contempt proceedings, and the manner the Family Court dealt with the matter completely frustrates, the object and purpose of the Act.

The Family Courts Act 1984 was enforced in Uttar Pradesh by notification No. 79/1/86-145 dated 4.9.1986 w.e.f. 2.10.1986. It is significant to note here that the High Court has not made the Family Courts Rules as provided under Section 21 of the Act so far, and that all the family Court in the State have devised procedures for its functioning, adapting almost the same old adversarial approach to the issues arising before these Courts.

The petitioner Shail appeared in person. In the entire proceedings, and even in this Court, she has not sought any professional help. The applicant belongs to a poor back ground, and is at present employed as. Class IV employee in a school. She is a weak, frail but persuasive and full of Courtesy to Court. She is not aware of technicalities of law but is quite confident pleading her matters. 1 did not find her absent on any dates fixed in the matter when the matter came up before me. A first information report under Section 328/376 IPC.-P.S. Naka Hindola, Lucknow, was lodged registering case crime No. 55/2002, by the applicant alleging that she was raped by Sri Manoj Kumar Yadav, Head Constable on 18. 1.2002 at Apsara Hotel, Police Station Naka Hindola Lucknow. The applicant alleges that accused Sri Manoj Kumar Yadav, thereafter to avoid his prosecution persuaded the applicant for solemnizing marriage with him. On. his persuasion and in order to save herself from social disgrace, and stigma on her character, she agreed to marry him. The marriage took place on 20.7.2002. After marriage, Sri Manoj Kumar Yadav deserted her. He was not prepared to fulfill the marital obligations and did not take care of the applicant. She was left is destitution without any help from him. She filed an application under Section 125 Cr.P.C. for maintenance from her husband Sri Manoj Kumar Yadav before the family Court Kanpur Nagar, The proceedings were pending. The applicant filed a Criminal Misc. Application No. 7688 of 2002, which was disposed of with the following order;

Supplementary affidavit is taken on record. Heard Smt. Shall, applicant appeared in person and learned AGA.

This application under Section 482 Cr.P.C. has been filed with a prayer to issue a direction to the judge family Court Kanpur Nagar to decide the case of the application No. 535 of 2002 of the applicant expeditiously. It is further prayed that the Judge, Family Court be directed to disposed of the application of the applicant for interim mandamus, It is stated by Smt. Shail that she is unable to maintain herself and her husband, opposite party No. 3 Sri Manoj Kumar Yadav is Head Constable in U.P. Police. As such, an interim mandamus be awarded to her.

After pursuing the entire material on record, this application is finally disposed of with a direction to the Judge, Family Court Kanpur Nagar to dispose of Case No. 535 of 2002 under Section 125 Cr.P.C. within a period of four months from the date of presentation of the certified copy of the order.

With the aforesaid direction this application is disposed of.

Dt. 4.9.2002

Sd/-

Hon. V.K. Chaturvedi, J.

She filed another criminal miscellaneous application No. 10073 of 2003 under Section 482 Cr.P.C. before this Court in which by an order dated 17.1.2003, this Court gave following direction;

This case was earlier listed on 16.1.2003 but the applicant appearing in person told that she has not the sufficient means to come on the next date from Kanpur. Request has therefore been made that here case be taken today and she be permitted to appear in person. She has also been provided assistance of Amicus Curie, On her request this application is taken up today.

This application under Section 482 of the Code of Criminal Procedure (which is hereinafter called as the I Code’) has been brought for issuing appropriate direction to this Court of IV Additional Chief Judicial Magistrate, Lucknow for expediting the disposal of the criminal case I crime No. 55 of 2002} under Sections 328, 376 I.P.C. police station Naka Hindola, Lucknow. It is said that the applicant was raped by Sri Manoj Kumar Yadav, Head Constable on 18.1.2002 at Apsara Hotel Police Station Naka, Lucknow. Report of this incident was lodged by the applicant at the police station which was registered at crime No. 55 of 2002 at that police station. Sri Manoj Kumar Yadav thereafter persuaded the applicant for solemnizing marriage so as to avoid his further prosecution. On his persuasion she agreed to m marry with the applicant on 20.7.2002. After marriage Sri. Manoj Kumar Yadav again deserted her. He was not prepared to fulfill his obligations as husband and was not, even taking care of the applicant. She was left as destitute without any money. Resultantly she has to bring the proceedings under Section 125 of the Code before the Family Court, Kanpur Nagar. Those, proceedings are still pending. She has not been paid any money by Sri Manoj Kumar Yadav. At this stage the prayer is confined that gher case which is pending before the Family Court, Kanpur Nagar, be expedited so that she may not suffer aqony any longer.

Looking to the facts and circumstances of the case, Principal Judge, Family Court, Kanpur Nagar is directed to expedite the disposal of the maintenance proceedings under station 125 of the Code, pending before him prefer4ably within a period of four months.

With these observations this application is finally disposed of.

Dt.17, January, 2003

Sd/-

Hon. S.S. Kulshrestha, J.

This contempt petition was filed by applicant under Section 12 of the Contempt Courts Act on 18.11.2002 against Manoj Kumar Yadav, D.I.G. Headquarters Allahabad, and Family Courts Kanpur Nagar alleging that she filed a certified copy of the order dated 4.9.2002 in Family Court, Kanpur Nagar, but the order was not complied with within time and that warrants be issued to the opposite parties. On 19.11.2002, this Court directed her to file a supplementary affidavit and that on 11:2.2003 following order was passed on the contempt petition;

Supplementa7 affidavit filed today is taken on record.

Non-compliance of the order dated 4.9.2002 passed in Crl. Misc. Application No. 7688 of 2002 is alleged in the contempt petition.

By the aforesaid order dated 4.9.2002 passed in Crl. Misc. Application No. 7688 of 2002 respondent No. 3 Judge Family Court Kanpur Nagar was directed to decide case No. 535 of 2002 under Section 125 Cr.P.C. within a period of four months from the date of representation of the certified copy of the order.

Respondent No. 3 Judicial Officer and is a part of the administration of justice. It is expected that every person will give due regard to the orders of the Court. If for some reason he was unable to decide the case within the time fixed by this Court he had to approach this Court and obtain further time. Every citizen of this country has a right to legal remedy for which he approaches Courts and if any direction is issued; by this Court the same must be complied with within time allowed by the Court. It does not depend on the sweet will of any person to ignore any part of the order. Non-compliance of the order is clear contempt. A division bench of this Court in case of P.N. Srivastava v. State reported in 199 (1) Local Bodies and Educational Service Reporter page 742 (Lucknow Bench) held that:

The direction issued by the High Court of Supreme Court in its decision carry equal importance as that of a statute or Rules and hence directions are required to be complied with and disobedience amounts to contempt as such the decision of Court partakes the position of statutory rule.

Relying on the case of All India Reporter Karamchari Sangh and Ors. v. All India Reporters Ltd. And Ors. AIR, 1988 Supplement SCC 472 the Court further held:

In view of the decision of this Court dated 27.8.1996 the opposite parties had no option but to complete the enquiry within four months (time allowed by the Court in that case). It further implies that in case opposite parties were unable to do so they could approach the Court and seek further extension of time. In M.L. Sacndev v. Union of India and Ors. the apex Court held that

Government under duty to comply with the other within time set by Court and in any case if it was not possible to comply with the order within the time for whatsoever reason then the only course open was to seek extension of time or further instructions (also see State of Bihar v. Subhash Singh 1997 (1) SC 430)

From the above decisions it in apparent that the directions of the Court are else as good as statutory rules. The parties to whom the direction is issued have no care to carry out the orders of the Court.

Whenever the Court uses the words “preferably’ as far as possible, expeditiously, at an early date” in its judgment and order, the direction is to he complied with within the time allowed by the Court, in the order s and judgment. Even Section 20 of the Contempt of Courts Act provides limitation for initiating contempt proceedings if the order is not obeyed by the contemnor, hence it is imperative that the order of the Court in which even no time is fixed are to be faithfully complied with in letter and spirit within a reasonable time, say four months from the date of the communication of the order. This would be in order to enable the parties to come before the Court within a reasonable time for initiation of contempt proceedings, if they choose to file the same. Sometimes plea of filing of appeals do not give any handle to the authorities/ officers for not complying with the orders of the Court in letter and spirit when no interim orders are granted by the appellate Court staying the order impugned.

The respondent (s) did not comply with the order within the time given by this Court nor applied far extension of time. The time has expired and the respondent has taken the order very lightly.

Issue notice to respondent No. 3 to show cause within one month why contempt proceedings may not be drawn against him for deliberate and willful disobedience of the orders of this Court dated 4.9.2002 passed in criminal Misc. Application No. 7688 of 2002.

However, in view of the guidelines given by the Hon’ble Supreme Court in case of Suresh Chandra Poddar 2007 (I) SC 766, I give one more opportunity to respondent No. 3 to comply with the order dated 4.9.2002 passed by this Court in Criminal Miscellaneous Application No. 7688 of 2002 within a period of one month. In case the said order is complied with he shall no he personally present. In case the said order is not complied with, he shall he personally present on the date fixed.

List after one month.

Dt 11.2.2003

Sd/-

Hon. Rakesh Tiwari, J.

That on 28.3.2003, the registry of ‘this Court received a letter from Sri Vishal Chandra Saxena, Principal Judge, Family Court Kanpur Nagar No. 40/03/ Family Court Kanpur Nagar dated 25.3.2003, The Family Court informed this Court that applicant filed a case under Section 125 Cr.P.C. on, 27.7.2002 alongwith a copy of the order dated 17.7.2002 in Civil Misc. Writ Petition No. 1O] 56 of 2002. By this order, the High Court found that it was not possible to give reliefs claimed in the writ Petition as the allegations made by her, required investigation from the competent authority, and in the absence of any evidence no conclusion can be drawn. The applicant was directed to make complaint to the appropriate authorities. The Munsarim raised objections on the application under Section 125 Cr.P.C. On 27. 7.2002 stating that she has not stated anywhere in the application and affidavit as to how (he marriage ‘was performed between her “and Manoj Kumar Yadav, and that the documents annexed with the application and the order dated 17.7.2003 does not establish that she is legally married, for which no proof was given alongwith her application. The case was not registered and since the Family Court was lying vacant the Civil Judge, Senior Division was looking after the work.. The matter was fixed on 12.8.2002 for hearing on 24.8.2003 and thereafter on 13.9.2002. On that date petitioner/applicant produced a Copy of the order of the High Court dated 4.9.2002 in which the case number in the Family Court was shown as case No. 535 of 2002, to be decided in four months. At that time both the Family Courts were lying vacant and thus the matter was fixed on 28.9.2002, The concerned clerk registered her application as Crl. Case No. is 108 of 2002 Thereafter the matter was fixed on 7.11.2002. From 28.9.2002 to 1.12.2002 the jurisdiction of Kanpurnagar was transferred to District Fatehpur. The Civil Judge, Senior Division Fatehpur/Incharge Officer found that the application under Section 125 has not been registered. On 7.’1.2002, he gave applicant an opportunity, to file objections and fixed the t matter on (0.12.2002. The applicant did not remove the defects; she filed two applications on’ 11.11.2003 and appeared in person before the District Judge Fatehpur. After hearing her, an order was passed by -District Judge, Fafehpur that until the defeats are removed, the hearing was not possible. Sri Vishal Chandra Saxena, further, reported to this Court that applicant resorted to incorrect facts before the High Court and gave a wrong case number. He took over charge as Principal Judge Family Court on 28.10.2002. On 10. 12.2002 when the matter was put up before him he found that case No. 535 of 2002 under Section 125 Cr.P.C. is between Smt. Akila Kanwar and Mohammad wasim Khan. The applicant did not appear on 10.12.2002, and did not file any objections to the office report. The case was thus fixed for 16.1.2003. On that date the applicant again did not appear and the matter was fixed on 26.4.2003. He informed this Court in his report that he has not committed any contempt and that in fact the applicant has not removed defects. She filed the application before the High Court, with wrong case number and that the contempt notice be discharged.

The applicant filed an application during summer vacations on which the matter was nominated by Hon’ble Senior location Judge on 2.6.2003 to be heard by me. I found that the simple matter of deciding application under Section 125 Cr.P.C. has been made complicated by Principal Judge Family Court Kanpur Nagar, The application was disposed of with following directions:

I further find that the Principal Judge, Family Court Kanpur Nagar instead of helping the petitioner and getting the defects in her petition cured has tried to put the blame upon her. A lady appearing to person and claiming maintenance for destitution under Section 125 of Cr.P.C. has to be given a helping hand, and a healing touch by the Court. Instead of providing necessary assistance, the Principal Judge, Family Court, Kanpur Nagar, acting against the object of establishment of family Courts ‘and has tried to put the blame upon her. He has also casted aspersions upon her for providing wrong case number to the Court It was apparently a, mistake and could have been easily ignored by the Family Court. This Court takes exception to the report of the Family Judge by which he has sent the matter back to the Court and is trying to unnecessary delay the proceeding and harasses the applicant.

In the aforesaid circumstances, 1 direct Special Judge. Family Court to provide all possible assistance to the applicant to cure the defects in her application, and to pass necessary orders as expeditiomly as possible and preferably within one month. He is reminded on the fact that he is impleaded as a contemnor, and has to purge the contempt instead of aggravating the contemptuous actions.

List on 22.7.2003

Dt. 3.6.2003

Sd/-

Hon. Sunil Ambwani, J.

On 12.9.2003, the matter again came up before me. The applicant informed the Court that in pursuance of the order dated 3,6.2003, the Family Court has issued summons, and assured her that in case her husband does not appear, the proceeding will be taken ex pane against him. She submitted that inspite affixing dates nothing has been does in the matter. On this mention, I directed the Family Court to conclude the matter as expeditiously as possible, within intimation to the Court and fixed the matter on 20.10.2003.

On 29.10.2003, the applicant filed an application complaining that inspite of aforesaid directions, the Principal Judge Family Court has not decided the matter so Jar. She filed a copy of the order dated 28.7.2003 passed by Family Judge in which it was staled that inspite of notices sent to Manoj Kumar Yadav and thereafter sending notices through the Director General of Police, he has not appeared and thus the matter was directed to proceed ex-parte against her husband. This Court took notice of the fact that inspite of repeated directions, the Family Judge is not deciding the matter. The applicant pleaded that she is on the verge of destitution, and that her husband who was earlier accused of rape has deserted her,” and is was not prepared to fulfill his obligations as husband and was not even taking care of the applicant. She was left as destitute without any money. She informed the Court that the Family Judge makes uncalled comments on her appearance, and takes pleasure on asking unnecessary questions. On these allegations Sri Vishal Chandra Saxena was required to appear before this Court on 1 7,11.2003. Following observations were made while summoning] him to this Court;

It is matter of serious concern that a Judicial Officer/ Subordinate to the Court, is taking the directions casually. This Court has repeatedly requested him and advised him to expedite the matter. Once the orders passed by this Court came to his knowledge, it was his duty to pass necessary orders expeditiously and in accordance with law.

On 17 11.2003 Sri Vishal Chandra Saxena, ‘ Principal Judge, Family Court Kanpur Nagar (now District Judge J.P. Nagar) appeared before this Court. Sri O.P. Singh, Principal Judge, Family Court, Kanpur Nagar was also present and had brought the records of case No. 708/2003, under Section 125 Cr.P.C. along with him. Sri Saxena informed the Court that the Application under Section 125 Cr.P.C. was finally decided by him on 5.8.2003. On the ‘request made by Sri S.K. Garg, learned standing Counsel, the matter was taken up in chamber at 1.30 PM.

I have heard applicant in person and the explanation given by Sri Vishal Chandra Saxena. The applicant was anguished, hurt and was in tears in explaining the conduct of the Family Judge. She stated that whenever dates were fixed, he called and heard only the clerks presenting the matter and went on fixing dates. She was taken by surprise and was not aware of order dated 5.8.2003 by which her application was dismissed. She questioned, the manner in which she has been dealt by the Family Court. Initially she was harassed for not giving correct details of her marriage and fixing dates after dates. She stated that in order to avoid compliance her application number wax changed without informing her The clerks in the office of Family Judge treated her shabbily, and told her that she will get nothing from the Court. She also questioned the authority of Family Court in disbelieving her marriage and rejecting tyer application for maintenance inspite of the fact that the matter was proceeding ex-parte against her husband. She submitted that if the Family Court was not satisfied with her affidavit, she should have been given a; chance to establish her marriage. She accused the Family Judge to have questioned her marriage and thereby putting her to disrepute in society. According to her no one disputed the marriage and in] the ex-parte proceedings, the Family Judge had no right and authority to disbelieve her marriage and to take away her rights against the person who had raped her and thereafter married her.

Sri Vishal Chandra Saxena explained that in proceedings under Section 125 Cr.P.C. the wife must” establish the marriage. Thee was no pleading of the date of marriage or the manner in which the marriage was performed. The applicant absented on 5.8.2003 and thus he had no option but to dismiss the application.

The order dated 5.8.2003 shows that the matter was proceeding ex-parte and that her husband had not appeared. The family Court proceeded, to examine’ the affidavit and found that whereas she had pleaded that on 18.1. 2003 after the incident she had accepted the opposite party as her husband and was discharging duties of wife and was given some amount towards maintenance, The Family Judge found that there was no pleading as to how her marriage was solemnized. Since she had not produced any documentary proof or evidence of her marriage, the Family Court found that she is not legally married wife of the opposite party. The Family Judge thereafter recorded the observations of this Court in Writ Petition which was decided on 17.7.2002, commented on her conduct of giving wrong Case number to the High Court and the fact that she made a mention to the Family Court on 10.7.2003 to adjourn the proceedings for one hour as she has to take leave from Juhari Devi College from where she is serving. The Family Court observed that the applicant is serving in Juhari Devi College and rejected the application.

This Court takes strong objection to the manner in which the Family Court decided the matter. The statement given by Sri Vishal Chandra Saxena that the applicant absented herself is doubtful. The applicant has been diligently pursuing the proceedings. She has appeared in High Court on several occasions and was always present in the Court. Her manners and demeanor in Court demonstrated her desperation and destitution. Almost all the orders passed by this Court were ignored by the Family Judge. He was aware of the direction of this Court to decide the matter within four months. Inspite of the fact that the applicant kept on appearing before him and sought compliance of the directions could not persuade the Family Judge to give her even a brief hearing. Inspite of the fact that the matter was proceeding ex parte, he chose to dismiss the application under Section 125 Cr.P.C. on the ground that she has no been able to establish her marriage. There was clear and specific averments in her application supported by her affidavit that Sri Manoj Kumar Yadav is her husband. The opposite party did not appear in the matter and that the matter proceeded, ex parte. Inspite of these glaring facts and the object and the purpose of maintenance under Section 125 Cr.P.C. as well as Family Court Act 1984, the District Judge chose to reject the application under Section 125 Cr.P.C. in her absence. This Court is deeply pained and anguished in the manner the applicant armed with four orders of this Court was dealt with by the Family Judge. Sri Vishal Chandra Saxena, the then Family Judge, Kanpur Nagar failed to discharge his duties as a Family Court Judge and appears to be prejudiced by the persistence of the applicant and the orders passed by this Court requesting him to expedite the matter. I find, that the explanation given by Sri Saxena for delay in deciding the matter, cannot be accepted and reprimanded him for his conduct.

After the order was reserved the applicant moved two applications dated 20.11.2003, to transfer the matter. Both the applications are rejected.

The order rejecting the application under Section 125 dated 5.8.2003, has concluded the proceedings. The Court, however, finds that Sri Vishal Chandra Saxena, District Judge, U.P. Nagar was negligent in discharge of his duties in deciding the matter within the time fixed by this Court, on 4.9.2002, which was filed on record by the applicant in Family Court on 13.9.2002. He took notice of the order on 10.12.2002 but did not care to decide the matter, within reasonable time. The two reminders given to him by this Court on 11.2.2003 and thereafter on 3.6.2003 were ignored by him. He fixed long dates (on 16.1.2003n he fixed the matter for 26.4.2003) and proceeded ex-parte by his order dated 10.7.2003 and thereafter decided the matter on 5.8.2003 in the absence of the applicant who was appearing in person, without giving her any opportunity to give any evidence of her marriage.

The Courts subordinate to the High Court must carry out the orders. It was the duty of the Family Judge, Family Court, Kanpur Nagar to decide the matter within the time fixed by this Court. If he found that there was some procedural delay or that the proceedings cannot be concluded for any reason, if he should have applied to this Court for extension of time or at. least sent his report. He was reminded time and again to conclude the proceedings. Repeated orders of this Court dated 4.9.2002, 17.1.2003, 11.2.2003 and thereafter a warning given to him by order dated 3.6.2003 were ignored. The Family Judge proceeded to decide the matter as a routine matter without caring for the repeated orders issued by this Court. In the meantime, the applicant suffered harassment and humiliation by the officials in his Court. He could not even find a few minutes of his precious time to hear the applicant.

Sri Vishal Chandra Saxena, Principal Judge, Family Court Kanpur Nagar, now posted as District Judge, J.P. Nagar has clearly disobeyed the orders of this Court. He was heard in person on 17.1.2003. He did not choose to file any explanation in writing nor sought any time to give a reply. His submission in defence is not satisfactory. He had full knowledge of the directions of this Court dated 4.9.2002 and 17.1.2003. He submitted a report to the Court on 25.3.2003, making allegations against the applicant but did not decide the matter. He did not submit any further report, nor sought extension of time to decide the matter. Having proceeded ex parte, he chose to decide the matter in petitioner’s absence. He ahs willfully and deliberately avoided the timely compliance of the orders. He has not only disobeyed the orders of this Court but has also acted in breach of the object and purpose of the Family Court’s Act 1984. The registry shall place this order before the Registrar General for information to the Court, to take appropriate action against Sri Vishal Chandra Saxena now District Judge, J.P. Nagar. The Contempt Petition is disposed off accordingly.

The petitioner filed SLP (Crl.) No. 585/2004 in the Supreme Court. The Supreme Court after hearing her in person passed an order on 29.3.2004, which is quoted as below:

The petitioner, appearing in-person, is heard on the question of grant of leave to appeal.

The facts of this case disclose an uncommon story. The petitioner was victim of an offence under Section 376 and 328 of Indian Penal Code at the hands of the respondent Manoj Kumar. To save himself from the peril of conviction, the respondent agreed to enter into a marriage with the petitioner and the petitioner too agreed to do so. The dream of happy married life soon turned out to be a nightmare as the petitioner was deserted by the respondent. On these averments the petitioner filed an application under Section 125 Cr.P.C. seeking maintenance before the Principal Judge, Family Court, Kanpur Nagar. The delay in disposal of the application persuaded the petitioner to knock the doors of the High Court. The High Court showed indulgence to the petitioner by directing the Family Court to expeditiously conclude the proceedings. As no substantial relief was forthcoming, the petitioner this time invoked the contempt jurisdiction of the High Court complaining of non-compliance with the orders of the High Court by the Presiding Judge, Family Court. By order dated 29.10.2003, the learned Judge of the High Court has expressed his anguish having found a prima facie case of non-compliance with the orders of the High Court having been made out. The High Court has directed summoning of the Presiding Judge of the Family Court to appear before the High Court in-person for the purpose of framing charges for willfully disobeying the orders of the High Court. The petitioner seeks leave to file appeal against the order of the High Court. Her grievance is that the initiation of the proceedings in contempt is alright but then she has been left still high and dry as no relief has been allowed to her. Appearing in-person, she submits that the High Court ought to have directed award of maintenance to her and ought to have seen to some relief being granted to her so as to save her from destitution.

In Surya Dev Raj v. Ram Chander Rai and Ors. , this Court has held that in exercise of power of superintendence conferred under Article 227 of the Constitution of India on the High Court, the High Court does have power to make such directions as the facts and circumstances of the case may warrant, may be, by way of guiding the inferior Court or Tribunal as to the manner in which it would proceed hence and the High Court has the jurisdiction also to pass itself such a decision or direction as the inferior Court or Tribunal should have made. The jurisdiction under Article 227 of the Constitution is to be exercised sparingly and with care and caution, but is certainly one vesting in the High Court and meant to be exercised in appropriate cases. Iv convinced of the genuineness of the averments made by the petitioner and if convinced that a deserted woman, repeatedly knocking at its doors, is on the verge of destitution the High Court itself has jurisdiction to direct suitable amount of maintenance being awarded and to secure compliance with its directions, if the same relief the subordinate Court has failed to grant or to enforce. May be that the High Court could have passed such order on the next date of hearing. But the petitioner has approached this Court probably impelled by impatience.

It is not necessary to grant leave to appeal against the order dated 29.10.2003 of the High Court. There is nothing in the impugned order by which the petitioner may feel aggrieved. Let the petitioner appear before the High Court on the next date of hearing and seek appropriate interim and urgent relief from the High Court which if deserving, we have no reason to assume why the High Court shall not grant to the petitioner.

The special leave petition be treated as disposed of.

Let a copy of this order be communicated to the High Court forthwith.

Sd/-

(R.C. Lahoti, J.)

Sd/-

(Ashok Bhan, J.)

Sd/-

(Arun Kumar, J.)

New Delhi;

March 29, 2004.

The applicant moved an application along with the order of the Supreme Court and requested that the matter be heard for grant of maintenance. On this application the following order was passed:

Having regard to the entire facts and circumstances of the case and the order of Hon’ble Supreme Court dated 29.3.2004 the order of this Court dated 3.12.2002 to the extent that the Contempt application was disposed off is recalled and for reasons given in my order dated 3.12.2003, the operation of order of the Family Judge, Kanpur Nagar dated 5.8.2003 deciding and dismissing Criminal Case No. 108/2003 under Section 125 Cr. P.C. is stayed. Issue notice to Sri Manoj Kumar Yadav, Head Constable posted in district Jalaun at Urai through Senior Superintendent of Police, District Jalaun. Notices shall also be issued to Deputy Inspector General of Police, Headquarters, Allahabad. Both the notices shall enclose a copy of this order.

During the pendency of this proceeding, Sri Manoj Kumar Yadav is directed to pay a sum of Rs. 3000/- per month as interim maintenance to the applicant Smt. Shail and Rs. 25,0007- towards interim cost of these proceedings which have been drawn upto the Supreme Court. This amount shall be deducted by S.S.P. Jalaun from the salary of Sri Manoj Kumar Yadav to the extent that the deductions are not made beyond half of the amount of salary including allowances drawn by him, per month and shall be paid and remitted by S.S.P., Jalaun every month to Smt. Shail C/0 PPN Girls Inter College Compound Pared, Kanpur Nagar (UP) by Bank Draft prepared in her favour. Copy of the order may be given to the petitioner appearing in person on payment of usual charges within 24 hours.

2. The SSP Jalaun complied with the order and started remitting the amount of maintenance deduced out of the salary of Shri Manoj Kumar Yadav, to the applicant. There were some defaults on which it was reported by the SSP Jalaun that Shri Manoj Kumar Yadav has been suspended for his unauthorised absence from duties and that the applicant was being paid from making deductions from his suspension allowance.

3. Shri Manoj Kumar Yadav did not put in appearance in these proceedings. He absented from duties and was suspended. Inspite of deductions made from his suspension allowance, and having full knowledge of these proceedings, for the reasons best known to him he avoided to appear in the matter. It was found that the entire proceedings were taken ex-parte against Manoj Kumar Yadav and that it was not possible to decide the matter in his absence. In the circumstances firstly bailable warrants were issued against him, which could not be served and thus non-bailable warrants were issued on 24.5.2005 to procure his attendance. Shri Amitabh Yash, Superintendent of Police, Jalaun at Orai filed his affidavit through the Chief Standing Counsel II on 12.7.2005 stating that in compliance of the Court’s order Manoj Kumar Yadav was arrested by the police and produced before the Chief Judicial Magistrate, Jalaun, Urai, who had issued direction for sending him Jail and keeping him in police custody. He was detained in the District Jail on 24.6.2005 and shall be produced before the Court on 12.7.2005.

4. Shri Manoj Kumar Yadav entered appearance and applied for bail. He was granted bail after giving undertaking that he will appear in the proceedings on all subsequent dates. On the request of Shri Prem Prakash Yadav, learned Counsel for Shri Manoj Kumar Yadav the original record of the maintenance matter was summoned from the Family Court, Kanpur Nagar. In the supplementary affidavit of Shri Ram Niwas Yadav, the maternal uncle of Manoj Kumar Yadav and the rejoinder affidavit of Shri Manoj Kumar Yadav filed on 12.7.2005 and 19.9.2005, he has denied the allegations of rape, sexual harassment and the fact that any marriage was solemnized between him and the applicant. In para 9 of his rejoinder affidavit he states that he is married to Smt. Pushpa Devi in 1996, who is his legally wedded wife and also has a daughter aged about eight years from the wedlock, and has relied upon a copy of the Parivar Register of House No. 213 of Village Shobhavpur, Tehsil Dalmau, District Rai Bareily. He further states that in the application dated 27.7.2002 filed by Shail in the Court of the Family Judge, Kanpur it was pleaded that the deponent should marry him otherwise the deponent should pay half his salary to her. He has also relied upon his Counter Affidavit filed in Civil Misc. Writ Petition No. 10156/2002 in which he has stated in paragraph 6 that Shri Sone Lal father of the applicant Shail was a Class IV employee in a college at Kanpur and had died in harness. Her mother is also a Class IV employee in P.P.N. Girls Enter College, Kanpur. The applicant Shail was appointed as Peon on compassionate ground in Zuhari Devi Girls Post Graduate College, Canal Road, Kanpur and used to live in the compound of P.P.N. Girls Enter College in Kanpur with her mother and brother. She used to behave in an abnormal manner on which the residents of the compound made a representation to the Superintendent of Police, Kanpur Nagar, Nagar.

5. The Principal of Zuhari Devi Girls Post Graduate College, Canal Road, Kanpur also wrote a letter on 11.11.97 to S.S.P. Kanpur Nagar about her abnormal behaviour. The college issued charge sheet against the petitioner with several allegations and terminated her services on 30.4.98, after which she was appointed as Home Guard in Zila Commandant, Kanpur Nagar. There too her conduct was not found proper and her appointment was cancelled by Zila Commandant, Home Guard, Kanpur Nagar vide order dated 18.1.2000. The District Commandant, Home Guard, on her application for re-enlisting sent his comments to the Regional Commandant, Home Guard, Region Kanpur on 18.8.2000 stating that the petitioner is undisciplined lady and is habitual of making false complaints.

6. With regard to the incident of sexual harassment of rape dated 18.1.2002 at Lucknow it is stated by him in his affidavit in writ petition No. 10156/02 and annexed to the Supplementary Affidavit of Shri Ram Niwas Yadav, the maternal uncle of Shri Manoj Kumar Yadav that he never misbehaved with the petitioner nor reside in Apsara Hotel with her on 18.1.2002. He has relied upon the affidavit of Shri Rakesh Kumar, the Manager of the hotel and Shri Ravi Sharma in which it was clearly stated that there was no lady accompanying him on 18.1.2002, when he stayed in the hotel. The FIR lodged by the applicant Shail was investigated and it was found that the allegations leveled against the accused were false and bogus. It was also reported that the applicant is habitual in making false complaints. The final report dated 2.3.2002 in FIR No. 11/2002 in Crime No. 86/2002 under Section 376/328 IPC P.S. Naka, Lucknow is annexed with the copy of the counter affidavit.

7. Shri P.P. Yadav, the learned Counsel for Shri Manoj Kumar Yadav alleges that the applicant Shail has a doubtful character. She made false complaints and accusations against the respondent Shri Manoj Kumar Yadav in which a Final Report was submitted and was accepted by the Magistrate. She is still employed in Zuhari Devi Girls Post Graduate College, Canal Road, Kanpur. The entire proceedings taken by her are the figment of her imagination. It is contended by him that she had earlier filed a writ petition No. 10156/2002 with the prayer to issue a writ, order or direction in the nature of mandamus directing the respondent No. 3 (Manoj Kumar Yadav) to marry her and to maintain her as his wife. The Division Bench on 17.7.2002 after taking into account the Counter Affidavit, filed by Shri Manoj Kumar Yadav found that the writ petition is not the appropriate remedy as the allegations require a thorough investigation by the competent authority, and for the absence of the evidence and inquiry no conclusion could be drawn. The writ petition was disposed of with liberty to the petitioner to avail such remedies as are available to her under law.

8. It is contended by Shri Yadav that thereafter, the applicant filed case No. 108/02 for maintenance under Section 125 Cr.P.C. alleging in paragraph 1 and 2, that after the incident dated 181.2002 the applicant has accepted the opposite party as her husband and has been performing her duties as his wife. In the short application she alleged that the opposite party has stopped paying her maintenance and has made her destitute along with her mother. He is a Police Hawaldar drawing Rs. 8000/-, and that she is entitled to half his salary as maintenance. The contempt proceedings were dragged for a long period on account of absence of Shri Manoj Kumar Yadav. If he had put in appearance after receiving summons, this mater could have been disposed of long ago. This Court spent almost one year to secure his attendance for which bailable and non-bailable warrants were issued and that he was ultimately apprehended, arrested and produced before the Court. Shri Manoj Kumar Yadav abandoned his job as a Policemen, to avoid these proceedings. The Court draws adverse inference from his conduct and find that there is much to hide, and that that Shri Manoj Kumar Yadav absented, both from service and from appearing in this Court, for some oblique purposes.

9. Shri P.P. Yadav has relied upon Savita Ben Somabhai Bhatiya v. State of Gujarat and Ors. 1 (2005) DMC 503 SC) in which it was held that the expression ‘wife’ as per Code of Criminal Procedure refers only the legally married wife. In Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr. it was held that expression ‘wife’ used in Section 125 of the Code should be interpreted to mean only a legally wedded wife. The word “wife’ is not defined in the Code except indicating in the Explanation to Section 125 its inclusive character so as to cover a divorcee. The expression must be given the meaning in which it is understood in law applicable to the parties. The marriage of a woman in accordance with the Hindu rites with a man having living spouse in a complete nullity in the eye of law and she is therefore not entitled to the benefit of Section 125 of the Code or the Hindu Marriage Act. The fact that the husband was treating the applicant as his wife is inconsequential and there is no scope for enlarging its scope by introducing any artificial definition to include woman not lawfully married in the expression “wife’.

10. I have already found in the order dated 3.12.2003 that the Family Court committed gross illegality in refusing maintenance in his order dated 5.8.2003. The husband had not put in appearance in the proceedings. The findings of the Family Judge that there was no pleading as to how the marriage was solemnized and there is no documentary proof of her marriage, were not called for in exparte proceedings and that the Family Judge, held without any material on record that she was employed and thus she was not entitled to maintenance. Further the Family Judge was fully aware of the direction of this Court dated 4.9.2002 and 17.1.2003, and still did not decide the matter for a long period of time. It was only when he received the summons in this contempt petition that he decided the matter exparte but recorded findings against the applicant. The powers under Article 227 of the Constitution of India, on the legal position explained by the Supreme Court in these very proceedings, are invoked to grant relief to the petitioner. The order of the Family Judge, as such, cannot be sustained and must be set aside.

11. I have examined the Final Report submitted by the Investigating Officer in Crime No. 86/2002 under Section 376/328 IPC P.S. Naka, Lucknow with regard to the allegation of rape by the complainant Shail against Manoj Kumar Yadav, a serving Policemen at Kanpur. She made a complaint, registered at Police Station Naka, Sadar, District Lucknow on 10.3.2002 that while she was going for some personal work to railway station at Kanpur, Shri Manoj Kumar Yadav met her and persuaded her to go to Lucknow where he made her stay at Apsara Hotel. He offered cold drink to her in which he had put some intoxicating material and raped her while she was unconscious. Instead of investigating the incident, it was reported by the Investigating Officer that the complainant is a woman of doubtful character. He stated in his final report that the complainant was removed from service of Zuhari Devi Girls Post Graduate College, Canal Road, Kanpur, and the Department of Home Guard. Her stay in Apsara Hotel is not proved and that she has lodged the FIR as she had treated the accused as her husband in her dreams.

12. The Final Report of the investigation carried out by SSI, shows that instead of investigating the incident he led more emphasis, on the character of the applicant and the fact that she was terminated from service and was also removed as a Home Guard. The Investigating Officer did not try to verify the incident in which a Police Officer was involved, and tried to close the matter by making insinuations against the applicant. The investigation as such was incomplete and was wholly illegal. In the allegation of rape, the character of woman is hardly material. It is unfortunate that the police in the State considers a woman of doubtful character, to be an object of ridicule and draws adverse inferences against her while investigating the complaint of rape. The entire approach, puts a question mark on the competence and mentality of the Police Officers. It is apparent that in order to save a fellow Policeman, the Sub-Inspector of Police, tried to close the matter by making allegations against the complainant. The Final Report and the order accepting the Final Report also as such deserve to be set aside by this Court.

13. In the facts and the circumstances the contempt petition is disposed of, confirming the observation made in the order dated 3.12.2003, setting aside the order of the Family Court, Kanpur Nagar dated 5.8.2003 in case No. 108/02, and the Final Report dated 2.3.2002 in Crime No. 86/02 under Section 376/328 IPC Thana Naka, Lucknow and the order accepting the Final Report.

14. The record of the Family Court shall be sent back without any delay. The Family Court shall issue fresh notice to both the parties and decide the matter in accordance with law. The Police is also directed to complete the investigation of the case against Shri Manoj Kumar Yadav, as expeditiously as possible. The investigation shall be carried out by the officer not below the rank of Superintendent of Police.

15. Shri Manoj Kumar Yadav is discharged from this contempt proceedings. His bail bonds are also discharged. It will, however, be open to the Police Department to keep him under suspension. The applicant Shall will continue to draw interim maintenance as directed earlier till the conclusion of the proceedings under Section 125 Cr.P.C.

Categories: Judgement, Judgement

HC: Contempt cannot be initiated when recovery proceedings can be started in family court

CR.MA/5081/2011 1/1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 5081 of 2011 In

CRIMINAL MISC.APPLICATION No. 12747 of 2010 In SPECIAL CRIMINAL APPLICATION No. 2469 of 2009 ========================================================= HANSABEN MAHENDRA SHAH – Applicant(s) Versus

MAHENDRA SOMABHAI SHAH – Respondent(s) ========================================================= Appearance :

MR KL DAVE for Applicant(s) : 1, None for Respondent(s) : 1, ========================================================= CORAM :

HONOURABLE MR.JUSTICE JAYANT PATEL and

HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 03/05/2011

ORAL ORDER

(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) It is an admitted position that the petitioner has the remedy of taking out appropriate proceedings before the Family Court, for recovery of the amount. Under the circumstances, we are not inclined to initiate action under the Contempt of Court Act, hence, dismissed. (JAYANT PATEL, J.)

(J.C.UPADHYAYA, J.)

(binoy)

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Categories: Judgement, Judgement

Second Appeal Template under RTI 2005

SECOND APPEAL UNDER RIGHT TO INFORMATION ACT 2005

SCOND APPEAL BEFORE

Address of information commission 

Appeal No. ________dated__________

[For office use only]

 

As I am aggrieved by decision of Central Public Information Officer and First Appellate Authority, I hereby file this appeal for your kind decision.

1.     Details of appellant:

  1. Full Name:                   
  2. Full Address:               

 

  1. Phone/Cell No.:            
  2. Email ID:                      

2.     Details of CPIO:

  1. Name/Designation:       
  2. Full Address:               

 

3.     Details of First Appellate Authority [FAA]:

  1. Name/Designation:       
  2. Full Address:               

 

4.     Dates of RTI application/first appeal:

  1. To CPIO: 01-03-2008 & mailed on:
  2. To FAA:  07-11-2008 & mailed on:

 

5.     Particulars of Decisions:

  1. Reference No & Date of CPIO’s Decision:
  2. Reference No & Date of FAA’s Decision:
  3. Date/s of personal hearing by FAA:

6.     Dates of receipt of replies by appellant from:

  1. CPIO:                          
  2. FAA:                            

7.     Details of information sought: 

8.     Brief facts of the case:             

9.     Reasons/grounds for this appeal:

10.  Any other information in support of appeal:

11.  Prayer/relief sought for:                      

12.  Grounds for prayer/relief sought for:

13.  Personal Presence at hearing:

14.  Declaration:

I hereby state that the information and particulars given above are true to the best of my knowledge and belief. I also declare that this matter is not previously filed with this commission nor is pending with any Court or tribunal or authority.

Place:

Date:

 

Signature of appellant

INDEX OF APPEAL

of Shri              dated   2011 with SIC

 

Particulars Page No from/to
  1. Original second appeal
 
  1. Chronology chart of RTI application
 
  1. Copy of RTI application dated       with its enclosures
 
  1. Copy of proof of mailing RTI application
 
  1. IPO receipt for filing fees and other charges
 
  1. Copy of first appeal dated         with its enclosures
 
  1. Copy of proof of mailing first appeal
 
  1. Acknowledgement received from CPIO & FAA
 
  1. Copy of decision of CPIO dated
 
  1. Copy of decision of FAA dated
 
  1. Proof of mailing second appeal to CPIO and FAA
 
  1. Other documents in support of second appeal
 

 

Place:

Date:

 

Signature of appellant


 

CHRONOLOGICAL CHART OF RTI APPLICATION

of Shri  dated

 

ACTION

DATE

  1. Application mailed to CPIO on
 
  1. Application received by CPIO on
 
  1. Date of receipt of letter for paying charges
 
  1. Date of remitting charges to CPIO
 
  1. Date of decision of CPIO
 
  1. Date of receipt of decision of CPIO by appellant
 
  1. First appeal mailed to FAA on
 
  1. Date of receipt of appeal by FAA
 
  1. Date/s of personal hearing by FAA
 
  1. Date of decision of FAA
 
  1. Date of receipt of decision of FAA by appellant
 
  1. Date of Second Appeal
 
  1. Date of mailing copy of second appeal to CPIO & FAA
 
  1. Date of mailing Second Appeal to SIC
 

 

Place:

Date:

 

Signature of appellant

 

HC: Additional sections added by trial court requires fresh bail

HIGH COURT OF UTTARAKHAND AT NAINITAL ORIGINAL JURISDICTION

Dated Nainital the 29th April, 2011 1st Bail Application No. 284 of 2011 Order on the bail application of the accused.

Ram Singh Rana S/o Devendra Singh . Applicant Versus

State of Uttarakhand .. Opposite Party

In Case Crime No. 21 of 2010

U/S 302 I.P.C.

Police Station Dwarahat

Tehsil Dwarahat

District Almora

Hon’ble Tarun Agarwala, J.

Heard Mr. Rajendra Kotiyal, the learned counsel for the applicant and Shri S.S. Adhikari, the learned A.G.A. for the State. Counter affidavit filed is taken on record. The court had granted bail to the applicant by an order dated 29 March, 2011 in 1st th

Bail Application No. 68 of 2011 u/S 498-A and 304-B I.P.C. Before the applicant could be released, the trial court framed additional charge u/S 302 I.P.C. in addition to the Sections 498-A and 304-B I.P.C. due to which the bail could not be executed. Consequently, a fresh bail application has been filed. Counter affidavit has been filed. The bail granted earlier by the Court is admitted by the learned A.G.A. A perusal of the chargesheet indicates general allegations for demand of dowry not only against the applicant who is the husband of the deceased but also against the entire members of the family. The evidence which has come on record so far indicates that there was no demand of dowry. In the light of the aforesaid, without commenting anything further on the merit of the case, this Court is of the opinion that the applicant is entitled to be enlarged on bail. Let the applicant be enlarged on bail in Case Crime No. 21 of 2010, U/S 302 I.P.C., on his executing a personal bond and furnishing two sureties each of the like amount to the satisfaction of Magistrate concerned.

(Tarun Agarwala, J.)

Dated 29.04.2011

Shiv

Categories: Bail Judgement

HC: Transfer petition of the wife rejected

Crl. Misc. No. 34603 of 2010 – 1- In the High Court of Punjab and Haryana at Chandigarh Crl. Misc. No. 34603 of 2010 (O&M)

Date of Decision: March 30, 2011

Raj Kumari

—Petitioner

versus

State of Punjab and others

—Respondents

Coram: HONBLE MR. JUSTICE GURDEV SINGH

***

Present: Mr.G.S.Verma, Advocate,

for the petitioner

Mr. P.S.Bajwa, Deputy Advocate General, Punjab for respondent No. 1

Mr.V.K.Sandhir, Advocate,

for respondents No. 2 and 3

***

GURDEV SINGH, J.

The petitioner, Raj Kumari, who is the complainant in the case titled “State vs. Prem Pal and others” arising out of FIR No. 454 dated 28.12.2006 registered under Sections 304-B, 498-A and 120-B IPC, has filed the present petition under Section 407 read with Section 482 of the Code of Criminal Procedure for the transfer of that case from District Amritsar to District Ludhiana.

According to her, her daughter, Anju @ Sakshi, who was married Crl. Misc. No. 34603 of 2010 – 2- to Rakesh Kumar-respondent No. 2, died on 20.4.2005 and before her death, she was being subjected to cruelty and harassment on the ground of demand of dowry by the said respondent and respondents No. 3 and 4, who are related to that respondent. The police failed to take any action against those respondents and as such, she approached this Court and it was only after order dated 28.3.2009 was passed in Criminal Misc. No. 13986-M of 2006, that the police registered the above said FIR in Police Station, Civil Lines, Amritsar, against the said respondents. Even after the registration of the FIR, the police was reluctant to take any action against them. So, she filed another petition before this Court in which a direction was issued for concluding the investigation within two months. It was only thereafter that the charge sheet was submitted against them in the Court of Additional Sessions Judge, Amritsar, and they were charged for the offences under Sections 304B/498-A IPC. As a counter blast thereto, respondent No. 2 filed petition under Section 25 of the Guardians and Wards Act, 1890, for the custody of the minor child; named, Chahat @ Nannu. The said Court failed to speed up the trial and the respondents are pressurizing her to compromise the matter and to make a statement before the court for the quashing of the FIR. When she went to Amritsar to attend the Court the respondents threatened her to kill her, in case, she did not compromise the matter with them. They can go to any extent to coerce her and to pressurize her for entering into such a compromise, as the local police of Amritsar is in hand and glove with those respondents. While issuing notice of motion on 25.11.2010, it was observed that the petitioner was seeking transfer of the trial from Amritsar to Ludhiana on the ground of inconvenience, which was on account of non-recording of her statement by the trial court. The Presiding Officer was directed to submit the report regarding the status of the trial. The report was submitted accordingly Crl. Misc. No. 34603 of 2010 – 3- and it was found that it was the petitioner herself, who had been obtaining the adjournments to make her statement as a witness. Faced with that situation, it was submitted by her counsel that after 10.8.2009, she had appeared before the trial court a number of times and there was an opportunity with the Presiding Officer to record her statement and still the same was not recorded nor any sufficient reasons were recorded for grant of adjournments. As the report of the Presiding Officer was silent regarding those facts, so the petitioner was directed to place on record the proceeding orders passed during the period from 10.8.2009 to 16.12.2010. The copies of the proceeding orders from 10.8.2009 to 16.12.2010 were placed on the record. A perusal thereof shows that the petitioner appeared before the Court only once during that period on 22.4.2010. She could not be examined on account of the request made by the proxy counsel for the accused for adjournment. Thereafter, she never appeared before that court. It is very much clear from the report of the presiding Officer and the proceeding orders passed in the case, that she herself is to be blamed, in case her statement has not been recorded. She had been getting one adjournment or the other on flimsy grounds for not making her statement. When such is the position, there is no ground to transfer the case. The petition is dismissed accordingly.

(GURDEV SINGH)

JUDGE

March 30, 2011

PARAMJIT

Categories: Judgement

HC dismisses DIL petition under 482 CrPC for registering FIR

Crl. Misc. No.M-12191 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH.

Crl. Misc. No.M-12191 of 2011

Date of Decision: 04.05.2011

Kiranjit Kaur

….Petitioner

Versus

State of Punjab and others

…Respondents

CORAM : Hon’ble Ms. Justice Nirmaljit Kaur

Present:- Ms. Harpreet Kaur, Advocate

for the petitioner.

*****

1. Whether Reporters of Local Newspapers may be allowed to see the judgment ?

2. To be referred to the Reporters or not ?

3. Whether the judgment should be reported in the Digest ?

**

NIRMALJIT KAUR, J. (ORAL)

This is a petition under Section 482 Cr.P.C for issuance of directions to respondent No.2 to get the investigation conducted from the crime branch or a higher rank officer of another district against respondents No.4 to 10 after registering the FIR against the accused on the complaint filed by the petitioner regarding the unnatural death of the father-in-law, namely Charan Singh r/o Village Bodal Keeri, Tehsil Khadoor Sahib, District Tarn Taran and regarding the harassment to the petitioner on account of dowry by the private respondents. The petitioner is the daughter-in-law of the deceased. The story put forward by the petitioner is that the deceased has been murdered by his own family i.e his wife, daughters and the son as he used to help the petitioner i.e his daughter-in-law.

It is admitted that the petitioner filed applications/complaint to the said effect and the enquiry was duly conducted by the Deputy Crl. Misc. No.M-12191 of 2011 2 Superintendent of Police, Bhikhiwind in the said complaint. As per the said enquiry, the present petitioner was found to be submitting applications one after the other levelling allegations against her husband Gurdev Singh, mother-in-law Joginder Kaur and sister-in-laws for implicating them in one or the other case. While the demand of the maruti zen car in dowry and giving beatings were not proved, the allegations against the in-laws for the death of her father-in-law too were held to be false. As per the said enquiry, Charan Singh died when he stepped down in the well through the wooden ladder for putting belt on the motor of the tubewell. However, the steps of the ladder broke and he fell down in the well. He died on the spot. Since, Kiranjit Kaur was not getting on well with her in-laws, she used the opportunity to file a complaint against her in-laws, alleging therein, that her father-in-law was murdered by his own wife, daughters and son. While filing the said complaint, she did not disclose that she had earlier also filed applications regarding the demand of dowry and harassment against her husband Gurdev Singh, mother-in-law-Joginder Kaur and sister-in-laws. After enquiry, her complaint was found to be false. The said application/complaint was recommended to be consigned in the office. The petitioner insisted on her complaint and accordingly, the second enquiry was held by the Superintendent of Police (HQ) Tarn Taran. The Superintendent of Police (HQ) Tarn Taran, too, found the allegations to be incorrect.

Thus, the petitioner, in spite of the said finding of the enquiry has moved the present petition under Section 482 of the Cr.P.C for issuance of directions to respondent No.2 to get the investigation from the crime branch or a higher rank officer of another district against respondents No.4 to 10 after registering the FIR against the accused on the complaint (Annexure P-5) filed by her regarding the unnatural death of the father-in-law, namely Charan Singh. The allegations made Crl. Misc. No.M-12191 of 2011 3 by the present petitioner are highly improbable. The petitioner is the daughter-in-law who is not having good relations with the family of her in-laws, which is evident from the various applications/complaints filed by her. Thus, the reason for making bald and vague allegation that her father- in-law was killed by his wife and daughters and son is obvious. As per the enquiry conducted, the father-in-law died on account of having fallen into the Well while working on the spot. The post mortem was conducted. No poison was found. He died on account of fall in the well while he was putting belt on the motor of the tubewell installed in the well. The enquiry was conducted by the Senior Officers. Learned counsel for the petitioner is not able to point out as to how the enquiry was not fair and proper and as to why the same should be handed over to Crime Branch.

In view of the above, the same is dismissed being devoid of merit with liberty to file a criminal complaint qua the allegation of harassment and demand of dowry, if so advised. (NIRMALJIT KAUR)

04.05.2011 JUDGE gurpreet

Crl. Misc. No.M-12191 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH.

Crl. Misc. No.M-12191 of 2011

Date of Decision: 04.05.2011

Kiranjit Kaur

….Petitioner

Versus

State of Punjab and others

…Respondents

CORAM : Hon’ble Ms. Justice Nirmaljit Kaur

Present:- Ms. Harpreet Kaur, Advocate

for the petitioner.

*****

1. Whether Reporters of Local Newspapers may be allowed to see the judgment ?

2. To be referred to the Reporters or not ?

3. Whether the judgment should be reported in the Digest ?

**

NIRMALJIT KAUR, J. (ORAL)

This is a petition under Section 482 Cr.P.C for issuance of directions to respondent No.2 to get the investigation conducted from the crime branch or a higher rank officer of another district against respondents No.4 to 10 after registering the FIR against the accused on the complaint filed by the petitioner regarding the unnatural death of the father-in-law, namely Charan Singh r/o Village Bodal Keeri, Tehsil Khadoor Sahib, District Tarn Taran and regarding the harassment to the petitioner on account of dowry by the private respondents. The petitioner is the daughter-in-law of the deceased. The story put forward by the petitioner is that the deceased has been murdered by his own family i.e his wife, daughters and the son as he used to help the petitioner i.e his daughter-in-law.

It is admitted that the petitioner filed applications/complaint to the said effect and the enquiry was duly conducted by the Deputy Crl. Misc. No.M-12191 of 2011 2 Superintendent of Police, Bhikhiwind in the said complaint. As per the said enquiry, the present petitioner was found to be submitting applications one after the other levelling allegations against her husband Gurdev Singh, mother-in-law Joginder Kaur and sister-in-laws for implicating them in one or the other case. While the demand of the maruti zen car in dowry and giving beatings were not proved, the allegations against the in-laws for the death of her father-in-law too were held to be false. As per the said enquiry, Charan Singh died when he stepped down in the well through the wooden ladder for putting belt on the motor of the tubewell. However, the steps of the ladder broke and he fell down in the well. He died on the spot. Since, Kiranjit Kaur was not getting on well with her in-laws, she used the opportunity to file a complaint against her in-laws, alleging therein, that her father-in-law was murdered by his own wife, daughters and son. While filing the said complaint, she did not disclose that she had earlier also filed applications regarding the demand of dowry and harassment against her husband Gurdev Singh, mother-in-law-Joginder Kaur and sister-in-laws. After enquiry, her complaint was found to be false. The said application/complaint was recommended to be consigned in the office. The petitioner insisted on her complaint and accordingly, the second enquiry was held by the Superintendent of Police (HQ) Tarn Taran. The Superintendent of Police (HQ) Tarn Taran, too, found the allegations to be incorrect.

Thus, the petitioner, in spite of the said finding of the enquiry has moved the present petition under Section 482 of the Cr.P.C for issuance of directions to respondent No.2 to get the investigation from the crime branch or a higher rank officer of another district against respondents No.4 to 10 after registering the FIR against the accused on the complaint (Annexure P-5) filed by her regarding the unnatural death of the father-in-law, namely Charan Singh. The allegations made Crl. Misc. No.M-12191 of 2011 3 by the present petitioner are highly improbable. The petitioner is the daughter-in-law who is not having good relations with the family of her in-laws, which is evident from the various applications/complaints filed by her. Thus, the reason for making bald and vague allegation that her father- in-law was killed by his wife and daughters and son is obvious. As per the enquiry conducted, the father-in-law died on account of having fallen into the Well while working on the spot. The post mortem was conducted. No poison was found. He died on account of fall in the well while he was putting belt on the motor of the tubewell installed in the well. The enquiry was conducted by the Senior Officers. Learned counsel for the petitioner is not able to point out as to how the enquiry was not fair and proper and as to why the same should be handed over to Crime Branch.

In view of the above, the same is dismissed being devoid of merit with liberty to file a criminal complaint qua the allegation of harassment and demand of dowry, if so advised. (NIRMALJIT KAUR)

04.05.2011 JUDGE gurpreet

Categories: Judgement

SC: Honor killing deserves death penalty

Bench: M Katju, G S Misra

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1117 OF 2011

@ SPECIAL LEAVE PETITION (CRL.) NO.1208 OF 2011 Bhagwan Dass .. Appellant -versus-

State (NCT) of Delhi .. Respondent(s) J U D G M E N T

Markandey Katju, J.

“Hai maujazan ek kulzum-e-khoon kaash yahi ho Aataa hai abhi dekhiye kya kya mere aage” — Mirza Ghalib

2

1. This is yet another case of gruesome honour killing, this time by the accused-appellant of his own daughter.

2. Leave granted.

3. Heard learned counsels for the parties and perused the record.

4. The prosecution case is that the appellant was very annoyed with his daughter, who had left her husband Raju and was living in an incestuous relationship with her uncle, Sriniwas. This infuriated the appellant as he thought this conduct of his daughter Seema had dishonoured his family, and hence he strangulated her with an electric wire. The trial court convicted the appellant and this judgment was upheld by the High Court. Hence this appeal.

5. This is a case of circumstantial evidence, but it is settled law that a person can be convicted on circumstantial evidence 3

provided the links in the chain of circumstances connects the accused with the crime beyond reasonable doubt vide Vijay Kumar Arora vs. State (NCT of Delhi), (2010) 2 SCC 353 (para 16.5), Aftab Ahmad Ansari vs. State of Uttaranchal, (2010) 2 SCC 583 (vide paragraphs 13 and 14), etc. In this case, we are satisfied that the prosecution has been able to prove its case beyond reasonable doubt by establishing all the links in the chain of circumstances.

6. In cases of circumstantial evidence motive is very important, unlike cases of direct evidence where it is not so important vide Wakkar and Anr. vs. State of Uttar Pradesh (2011) 3 SCC 306 (para 14). In the present case, the prosecution case was that the motive of the appellant in murdering his daughter was that she was living in adultery with one Sriniwas, who was the son of the maternal aunt of the appellant. The appellant felt humiliated by this, and to avenge the family honour he murdered his own daughter.

4

7. We have carefully gone through the judgment of the trial court as well as the High Court and we are of the opinion that the said judgments are correct.

8. The circumstances which connect the accused to the crime are:

i) The motive of the crime which has already been mentioned above. In our country unfortunately `honour killing’ has become common place, as has been referred to in our judgment in Arumugam Servai vs. State of Tamil Nadu Criminal Appeal No.958 of 2011 (@SLP(Crl) No.8084 of 2009) pronounced on 19.4.2011.

Many people feel that they are dishonoured by the behaviour of the young man/woman, who is related to them or belonging to their caste because he/she is marrying against their wish or having an affair with someone, and hence they take the law into their own hands and kill or physically assault such person or commit some other atrocities on them. We have held in Lata 5

Singh vs. State of U.P. & Anr. (2006) 5 SCC 475, that this is wholly illegal. If someone is not happy with the behaviour of his daughter or other person, who is his relation or of his caste, the maximum he can do is to cut off social relations with her/him, but he cannot take the law into his own hands by committing violence or giving threats of violence.

ii) As per the post mortem report which was conducted at 11.45 am on 16.5.2006 the likely time of death of Seema was 32 hours prior to the post mortem. Giving a margin of two hours, plus or minus, it would be safe to conclude that Seema died sometime between 2.00 am to 6.00 am on 15.5.2006. However, the appellant, in whose house Seema was staying, did not inform the police or anybody else for a long time. It was only some unknown person who telephonically informed the police at 2.00 pm on 15.5.2006 that the appellant had murdered his own daughter. This omission by the appellant in not informing the police about the death of his daughter for about 10 hours was a 6

totally unnatural conduct on his part.

iii) The appellant had admitted that the deceased Seema had stayed in his house on the night of 14.5.2006/15.5.2006. The appellant’s mother was too old to commit the crime, and there is not even a suggestion by the defence that his brother may have committed it. Hence we can safely rule out the possibility that someone else, other than the appellant, committed the crime. Seema had left her husband sometime back and was said to be living in an adulterous and incestuous relationship with her uncle (her father’s cousin), and this obviously made the appellant very hostile to her.

On receiving the telephonic information at about 2.00 pm from some unknown person, the police reached the house of the accused and found the dead body of Seema on the floor in the back side room of the house. The accused and his family members and some neighbours were there at that time. The accused admitted that although Seema had been married about 7

three years ago, she had left her husband and was living in her father’s house for about one month. Thus there was both motive and opportunity for the appellant to commit the murder. iv) It has come in evidence that the accused appellant with his family members were making preparation for her last rites when the police arrived. Had the police not arrived they would probably have gone ahead and cremated Seema even without a post mortem so as to destroy the evidence of strangulation. v) The mother of the accused, Smt. Dhillo Devi stated before the police that her son (the accused) had told her that he had killed Seema. No doubt a statement to the police is ordinarily not admissible in evidence in view of Section 162(1) Cr.PC, but as mentioned in the proviso to Section 162(1) Cr.PC it can be used to contradict the testimony of a witness. Smt. Dhillo Devi also appeared as a witness before the trial court, and in her cross examination, she was confronted with her statement to the police to whom she had stated that her son (the accused) had told her 8

that he had killed Seema. On being so confronted with her statement to the police she denied that she had made such statement.

We are of the opinion that the statement of Smt. Dhillo Devi to the police can be taken into consideration in view of the proviso to Section 162(1) Cr.PC, and her subsequent denial in court is not believable because she obviously had afterthoughts and wanted to save her son (the accused) from punishment. In fact in her statement to the police she had stated that the dead body of Seema was removed from the bed and placed on the floor. When she was confronted with this statement in the court she denied that she had made such statement before the police. We are of the opinion that her statement to the police can be taken into consideration in view of the proviso of Section 162(1) Cr.PC.

In our opinion the statement of the accused to his mother Smt. Dhillo Devi is an extra judicial confession. In a very recent 9

case this Court in Kulvinder Singh & Anr. vs. State of Haryana Criminal Appeal No.916 of 2005 decided on 11.4.2011 referred to the earlier decision of this Court in State of Rajasthan vs. Raja Ram (2003) 8 SCC 180, where it was held (vide para 10) :

“An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the relia- bility of the witness who gives the evidence. It is not open to any court to start with a presumption that ex- tra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of at- tributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpe- trator of the crime and nothing is omitted by the wit- ness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touch- stone of credibility, the extra-judicial confession can be 10

accepted and can be the basis of a conviction if it pass- es the test of credibility.”

In the above decision it was also held that a conviction can be based on circumstantial evidence.

Similarly, in B.A. Umesh vs. Registrar General, High Court of Karnataka, (2011) 3 SCC 85 the Court relied on the extra judicial confession of the accused.

No doubt Smt. Dhillo Devi was declared hostile by the prosecution as she resiled from her earlier statement to the police. However, as observed in State vs. Ram Prasad Mishra &amp; Anr. :

“The evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but can be subjected to close scrutiny and the portion of the evidence which is consistent with the case of the prosecution or defence may be accepted.” Similarly in Sheikh Zakir vs. State of Bihar AIR 1983 SC 911 this Court held :

“It is not quite strange that some witnesses do turn hostile but that by itself would not prevent a court from finding an accused guilty if there is otherwise acceptable evidence in support of the conviction.” 11

In Himanshu alias Chintu vs. State (NCT of Delhi), (2011) 2 SCC 36 this Court held that the dependable part of the evidence of a hostile witness can be relied on. Thus it is the duty of the Court to separate the grain from the chaff, and the maxim “falsus in uno falsus in omnibus” has no application in India vide Nisar Alli vs. The State of Uttar Pradesh AIR 1957 SC 366. In the present case we are of the opinion that Smt. Dhillo Devi denied her earlier statement from the police because she wanted to save her son. Hence we accept her statement to the police and reject her statement in court. The defence has not shown that the police had any enmity with the accused, or had some other reason to falsely implicate him. We are of the opinion that this was a clear case of murder and the entire circumstances point to the guilt of the accused. vi) The cause of death was opined by Dr. Pravindra Singh-PW1 12

in his post mortem report as death “due to asphyxia as a result of ante-mortem strangulation by ligature.” It is evident that this is a case of murder, and not suicide. The body was not found hanging but lying on the ground.

vii) The accused made a statement to the SDM, Shri S.S. Parihar-PW8, immediately after the incident and has signed the same. No doubt he claimed in his statement under Section 313 Cr.PC that nothing was asked by the SDM but he did not clarify how his signature appeared on the statement, nor did he say that he was forced to sign his statement nor was the statement challenged in the cross examination of the SDM. The SDM appeared as a witness before the trial court and he has proved the statement in his evidence. There was no cross examination by the accused although opportunity was given. In his statement under Section 313 Cr.PC the accused was asked :

“Q.8 It is in evidence against you that you were interrogated and arrested vide memo Ex PW11/C and your personal search was conducted vide memo Ex 13

PW11/D and you made disclosure statement EXPW7/A and in pursuance thereto you pointed out the site plan of incident and got recovered an electric wire Ex P1 which was seized by IO after sealing the same vide memo ExPW7/B. What do you have to say?

The reply he gave was as follows :

“Ans. I was wrongly arrested and falsely implicated in this case. I never made any disclosure statement. I did not get any wire recovered nor I was ever taken again to my house.”

We see no reason to disbelieve the SDM as there is nothing to show that he had any enmity against the accused or had any other reason for making a false statement in Court. viii) The accused had given a statement (Ex. PW7/A) to the SDM in the presence of PW11 Inspector Nand Kumar which led to discovery of the electric wire by which the crime was committed. We are of the opinion that this disclosure was admissible as evidence under Section 27 of the Evidence Act vide Aftab Ahmad Ansari vs. State, (2010) 2 SCC 583 (para 40), Manu Sharma vs. State, (2010) 6 SCC 1 (paragraphs 234 to 238). In his evidence the police Inspector Nand Kumar stated that at the 14

pointing out of the accused the electric wire with which the accused is alleged to have strangulated his daughter ws recovered from under a bed in a room.

It has been contended by the learned counsel for the appellant that there was no independent witness in the case. However, as held by this Court in State of Rajasthan vs. Teja Ram and Ors. AIR 1999 SC 1776 :

“The over-insistence on witnesses having no relation with the victims often results in criminal justice going awry. When any incident happens in a dwelling house, the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against non-examination of such a person as a prosecution wit- ness. Otherwise, merely on surmises the court should not castigate the prosecution for not examining other persons of the locality as prosecution witnesses. The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also.”

Similarly, in Trimukh Maroti Kirkan vs. State of 15

Maharashtra (2006)1 SCC 681 this Court observed: “These crimes are generally committed in complete se- crecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assis- tance, are generally reluctant to depose in court as they want to keep aloof and do not want to antagonize a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harass- ment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished.”

(emphasis supplied)

In our opinion both the trial court and High Court have given very cogent reasons for convicting the appellant, and we see no reason to disagree with their verdicts. There is overwhelming circumstantial evidence to show that the accused committed the crime as he felt that he was dishonoured by his daughter. For the reason given above we find no force in this appeal and it is dismissed.

Before parting with this case we would like to state that 16

`honour’ killings have become commonplace in many parts of the country, particularly in Haryana, western U.P., and Rajasthan. Often young couples who fall in love have to seek shelter in the police lines or protection homes, to avoid the wrath of kangaroo courts. We have held in Lata Singh’s case (supra) that there is nothing `honourable’ in `honour’ killings, and they are nothing but barbaric and brutal murders by bigoted, persons with feudal minds.

In our opinion honour killings, for whatever reason, come within the category of rarest of rare cases deserving death punishment. It is time to stamp out these barbaric, feudal practices which are a slur on our nation. This is necessary as a deterrent for such outrageous, uncivilized behaviour. All persons who are planning to perpetrate `honour’ killings should know that the gallows await them.

Let a copy of this judgment be sent to the Registrar Generals/Registrars of all the High Courts who shall circulate the same to all Judges of the Courts. The Registrar 17

General/Registrars of the High Courts will also circulate copies of the same to all the Sessions Judges/Additional Sessions Judges in the State/Union Territories. Copies of the judgment shall also be sent to all the Chief Secretaries/Home Secretaries/Director Generals of Police of all States/Union Territories in the country. The Home Secretaries and Director Generals of Police will circulate the same to all S.S.Ps/S.Ps in the States/Union Territories for information.

……………………………..J.

(Markandey Katju)`

…………………………….J.

(Gyan Sudha Misra)

New Delhi;

May 09 , 2011

Categories: Judgement

HC: Man calls wife unfaithful, faces jail or Rs 1 L fine

MUMBAI: Levelling baseless allegations of adulteryagainst one’s wife amounted to mental cruelty, said the Bombay high court while pronouncing a city resident guilty of the charge.Justice A R Joshi offered the husband, Nilesh Chauhan, two options: pay Rs 1 lakh as compensation or go to jail.
“Going through the evidence presented by the prosecution witnesses and the allegations made against (the wife), it is definitely a case of mental cruelty on (her),” said the judge. “Needless to say, the conduct of the applicant comes within the purview of Section 498A of Indian Penal Code, so far as mental cruelty is concerned.”

Chauhan’s plea to suspend his conviction and release him on a bond of good conduct was rejected by the court, saying doing so would be “misplaced sympathy” . The judge said considering Chauhan’s conduct “in imputing wild allegations to his wife of having illicit relations with her brother-in-law (of her father’s age)”, it would not be fit to release him on a bond of good conduct.

Bench: A R Joshi

1

REVN.81-11

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

CRIMINAL REVISION APPLICATION NO.81 OF 2011

Rupam Pralhad Bhartiya. ..Applicant Versus

The State of Maharashtra

and another. ..Respondents.

….

Mr.Niteen V . Pradhan a/w. Ms.S.D. Khot & Ms.Ameeta Kuttikrishnan, Advocates for the Applicant.

Mr.Aabad H. Ponda, Advocate appointed as amicus curiae. Mr.J.P. Kharge, A.P . for the State.

.P

….

CORAM : A. R. JOSHI, J.

DATE OF RESERVING

THE ORDER: 26th APRIL, 2011

DATE OF PRONOUNCING

THE ORDER: 06th MAY, 2011

P.C.:

1. Heard rival submissions at length. Also heard learned

Advocate Shri Aabad Ponda who was appointed as an amicus curiae

to assist the Court considering the technicalities in the matter.

Perused the various documents annexed to the present Revision

Application including the notes of evidence as to the substantive

evidence of of nine prosecution witnesses examined before the

J.M.F.C. Thane.

2

REVN.81-11

2. Vide order dt. 10.4.2008 the J.M.F.C. at Thane convicted the

present applicanthusband for the offences punishable under

Sections 498A and 323 of Indian Penal Code and was sentenced to

suffer RI for one year and to pay fine of Rs.10,000/, in default, to

undergo SI for three months for the offence punishable under

Section 498A IPC. The applicant/accused was sentenced to suffer

RI for three months for the offence punishable under Section 323 of

IPC. He was acquitted of the offence punishable under Section 504

of IPC. The said judgment and order of conviction dated 10th April,

2008 passed by the J.M.F.C., Thane was challenged by the accused/

husband before the Sessions Court, Thane vide Criminal Appeal

No.82 of 2008. Said appeal was finally heard and disposed of by

order dated 14.1.2011 by the Additional Sessions Judge, Thane.

The appeal was partly allowed. Conviction under Section 323 of

IPC was quashed and set aside, however, the conviction and

sentence for the offence punishable under Section 498A was

maintained. Being aggrieved by the said judgment and order in

Criminal Appeal No.82 of 2008, present Criminal Revision

Application was preferred before this Court. 3

REVN.81-11

3. The case of original complainant, as transpired from her FIR

and as per the substantive evidence before the trial Court, can be

narrated in nutshell as under :

Present applicant/accused got married with one Saloni,

present respondent No.2, sometime in July, 2002. After marriage

the couple started residing with the parents of the present

applicant, where sisterinlaw of the applicant was also staying. In

the year 2003, one female child was born out of the wedlock.

Initially, respondent No.2/wife was treated well. However,

subsequently present applicant/accused started illtreating her on

account of no proper gift articles were given to him at the time of

marriage. Allegedly, the applicant stopped sending his

wife/respondent No.2 to her parent’s house for stay. A meeting was

called at the residence of the fatherinlaw of the applicant and

Stridhan ornaments and cash of Rs.60,000/ belonging to the

complainant/wife were kept in the bank locker in the name of the

respondent/complainant as there was a demand from the present

applicant and his father for taking back said Stridhan. Quarrel

between the couple continued mainly on the cause that the 4

REVN.81-11

applicant/husband was doubting the character of the

respondent/his wife, and in fact was not allowing her to meet her

relatives or to go out. Specifically the applicant was alleging that

respondent No.2/his wife had illicit relations with the husband of

sister of respondent No.2 i.e. her brotherinlaw. In between, there

was some amicable settlement talk and the couple was residing

separately at Vijay Nagari in a rented premises. However, still the

applicant was asking for the ornaments and cash and was abusing

respondent No.2 and again doubting her character. About two

months prior to lodging the complaint, the applicant was not

bringing the usual household articles and was giving very meager

amount to meet the household expenses and as such respondent

No.2/wife had taken some job. When respondent No.2 used to

attend her job, there also the applicant used to make her telephone

calls and used to abuse her. Sometime in July, 2005 father of

respondent No.2 had been to her house. However, the applicant

behaved with him rudely and as such he had to stay in the house of

his another daughter. Thereafter in July, 2005 the complainant

went to the house of her sister for stay as it was impossible for her

to reside in the matrimonial house due to mental torture as to 5

REVN.81-11

petitioner suspecting her character. Somewhere on 18.7.2005 she

lodged a complaint with Kapurbawadi police station, Thane for

taking action against the applicant for the offences punishable

under Sections 498A, 323, 504 of IPC. Present applicant came to

be arrested and was subsequently released on bail. After filing of

the chargesheet, the matter was taken before the concerned

J.M.F.C. Court and an order was passed by J.M.F.C., 2nd Court,

Thane dated 10th April, 2008 which was subsequently taken before

the Additional Sessions Judge in Criminal Appeal No.82 of 2008

and ultimately the impugned order dated 14.1.2011 was passed.

Said order is mentioned in detail earlier, as to acquittal of the

applicant for the offence punishable under Section 323 of IPC,

however, his conviction maintained for the offence punishable

under Section 498A of IPC.

4. This Court has carefully gone through the reasoning given

by both the trial Court and the first Appellate Court. During the

arguments, learned Counsel Shri Nitin Pradhan raised the main

contention that whether the conviction of the present applicant for

the offence punishable under Section 498A of IPC can sustain in 6

REVN.81-11

view of his acquittal under Section 323 of IPC. For this purpose,

attention of this Court is drawn towards Section 498A of IPC which

reads as under :

“498A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

ExplanationFor the purpose of this section, “cruelty” means

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her meet such demand.”

5. It is submitted on behalf of the applicant that definitely the

material available on record by way of substantive evidence of

prosecution witnesses and mainly the evidence of respondent No.2

and her other relatives i.e. her father (PW5), her sister (PW3),

husband of her sister (PW2), it is apparent that there was no 7

REVN.81-11

cruelty practiced by way of demand of any dowry. It is further

submitted on behalf of the applicant that if this position is accepted

then in the absence of conviction for the offence punishable under

Section 323 of IPC, the provisions of Section 498A so far as cruelty

practiced against the wife, cannot be attracted. In other words, it is

submitted that there was no cruelty as contemplated by Section

498A on the wife and as such there cannot be any conviction for

the offence punishable under Section 498A of IPC.

6. It must be stated that the aspect as to mental cruelty as

contemplated by Section 498A of IPC has been overlooked while

arguing the above points on behalf of the applicant. On this aspect,

able assistance is given by the learned Counsel appointed as amicus

curiae and it is submitted that even though there is acquittal for the

offence punishable under Section 323 of IPC, still the aspect of

mental cruelty remains to be appreciated and in the given facts of

the present case, considering the substantive evidence of

complainant/wife (PW1), evidence of PW2 husband of sister of

the complainant, and in fact the answers given by the applicant

during recording of his statement under Section 313 of Cr.P.C., it is 8

REVN.81-11

amply established position that the applicanthusband was

entertaining suspicion that his wife / respondent No.2 had illicit

relations with PW2 (her brotherinlaw). This aspect has been dealt

with appropriately by the trial Court and it is found that there was

no any palpable evidence even by way of preponderance of

probabilities given by the applicant for entertaining such suspicion

on the character of his wife. This second aspect is required to be

considered while deciding the present Revision Application, more

so when from the substantive evidence of PW2 brotherinlaw of

the complainant/respondent No.2 which establishes the factual

position that said PW2 was maintaining relations with respondent

No.2 as father and daughter inasmuch as at the time of his

marriage the complainant was only 6 years old. Moreover, such

relations were categorically denied by PW3 sister of respondent

No.2. In fact, during cross examination of these witnesses, there

was such blatant suggestion given that respondent No.2 had illicit

relations with PW2 her brotherinlaw. At the cost of repetition, it

must be mentioned that there was no any basis for imputing such

reckless allegations against his own wife by the applicant. 9

REVN.81-11

7. In view of such evidence by the prosecution witnesses and

the allegations made against the character of respondent No.2,

definitely it is a case in which there was a mental cruelty practiced

on respondent No.2 by the applicant and in that view of the matter,

needless to mention that the conduct of the applicant comes within

the mischief of Section 498A of IPC so far as the mental cruelty

practiced.

8. In view of the above, in the opinion of this Court, there is

nothing to entertain the arguments advanced on behalf of the

applicant as to nonapplication of provisions of Section 498A of

IPC. Now this leads to discussing the other arguments advanced on

behalf of the applicant. Such another argument is admittedly taken

at very belated stage, in the midst of the argument by way of filing

additional grounds for taking recourse to the provisions of Section

360 of Cr.P.C.. It is vehemently submitted on behalf of the applicant

that recourse to Sections 360 & 361 of Cr.P.C. was must to be taken

by the trial Court and if at all the benefit under Section 360 of

Cr.P.C. was not to be given to the applicant/accused, it was must for

the trial Court to give reasoning to that effect. 10

REVN.81-11

9. When the factual position is clear as to no such reasoning is

given by the trial Court while convicting the applicant for the

offences charged and while not taking recourse to Section 360 of

Cr.P.C.. Even no such reasonings are given by the Sessions Court

while partly allowing the appeal of the applicant. In support of this

submission, various authorities are cited before this Court as

under :

1. (1997) 3 SCC 287

Mohammed Giasuddin

Vs.

State of Andhra Pradesh.

2. (1979) 3 SCC 714

Bishnu Deo Shaw

Vs.

State of West Bengal

3. 1992 Mh.L.J. 1425

Rajesh Anantram Thakur

Vs.

State of Maharashtra

4. 1993 Cr.L.J. 119 (M.P.)

Prakash

Vs.

State of Madhya Pradesh

5. (2000) 9 SCC 245

Chandreshwar Sharma

Vs.

State of Bihar

11

REVN.81-11

6. JT. 2009 (2) SC 358

Eliamma & Anr.

Vs.

State of Karnataka.

10. The observations of the Apex Court in Bishnu Deo Shaw

Vs. State of West Bengal (supra) can be reproduced with advantage,

which are taken shelter of on behalf of the applicant. Said

observations as contained in para26 in the said authority are as

under :

“26. Apart from Section 354(3), there is another provision in the Code which also uses the significant expression ‘special reasons’. It is Section 361. Section 360 of the 1973 Code reenacts, in substance, Section 562 of the 1898 Code and provides for the release on probation of good conduct or after admonition any person not under twentyone years of age who is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or any person under twentyone years of age or any woman who is convicted of an offence not punishable with death or imprisonment for life, if no previous offence is proved against the offender, and if it appears to the Court, having regard to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct or after admonition. If the Court refrains from dealing with an offender under Section 360 or under the provisions of the Probation of Offenders Act or any 12

REVN.81-11

other law for the treatment, training or rehabilitation of youthful offenders, where the Court could have done so, Section 361, which is a new provision in the 1973 Code makes it mandatory for the Court to record in its judgment the ‘special reasons’ for not doing so. Section 361 thus casts a duty upon the Court to apply the provisions of Section 360 wherever it is possible to do so and to state “special reasons” if it does not do so. In the context of Section 360, the “special reasons” contemplated by Section 361 must be such as to compel the Court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed This is some indication by the Legislature that reformation and rehabilitation of offenders, and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354(3) have both entered the Statute Book at the same time and they are part of the emerging picture of acceptance by the Indian Parliament of the new trends in criminology. We will not, therefore, be wrong in assuming that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors.”

11. Needless to mention that whether or not recourse to

Section 360 of Cr.P.C. is to be taken by the trial Court depends on

the particular facts and circumstances of the case. Again on this 13

REVN.81-11

aspect, the learned Advocate appointed as amicus curiae has

assisted the Court on the legal proposition as to whether non

compliance of Sections 360 & 361 of Cr.P.C. would be so fatal to

throw away the entire conviction. On this aspect, provisions of

Section 465 of Cr.P.C. are taken shelter of by learned Advocate Shri

Aabad Ponda appointed as amicus curiae. Said provision is as

under:

“465. Finding or sentence when reversible by reason of error, omission or irregularity. (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error; or irregularity in any sanction for the prosecution, unless in the opinion of that court, a failure of justice has in fact been occasioned thereby.

(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.”

14

REVN.81-11

12. It is canvassed by learned Advocate Shri Ponda that

nowhere it is agitated by the applicant as to taking recourse to

Section 360 of Cr.P and even such plea was not taken in the .C.

present criminal revision application before this Court and only at

the fag end of the arguments, such additional ground is raised by

way of supplementary pleading. In that view of the matter, further

argued that though it may amount to an irregularity, it cannot be

treated as such a defect so as to nullify the conviction of the

applicant for the offence punishable under Section 498A of IPC.

13. Considering the rival submissions and considering that

such additional ground is raised at very belated stage, of taking

recourse to Section 360 of Cr.P in the opinion of this Court, .C.,

considering the conduct of the applicant in imputing wild

allegations against his wife of having illicit relations with her own

brotherinlaw, and admittedly such brotherinlaw of the age of

father of such woman, it would not be in the fitness of the situation

to suspend the conviction as contemplated by Section 360 of Cr.P.C.

and to release him on the bond of good conduct. In the opinion of

this Court, such relief, if given in favour of the present applicant, it 15

REVN.81-11

would be rather misplaced sympathy. In that view of the matter,

even at this stage of revision, this Court is not inclined to give such

benefit of taking recourse to Section 360 of Cr.P.C. in favour of the

applicant.

14. Now, coming to the last argument which was alternatively

canvassed on behalf of the applicant, it is to be seen whether under

the given circumstances of the case whether the applicant is

required to be sent behind the bars for one year for the mental

cruelty practiced on his wife by way of imputing wild allegations of

inchastity or whether the substantive sentence can be reduced by

enhancing the fine amount to such an extent so as to compensate

the aggrieved woman (his wife) by way of directions to pay certain

amount as compensation out of the enhanced fine amount to be

inflicted upon the applicant.

15. On careful consideration of this last argument, in the

opinion of this Court sending the applicant behind the bars for one

year to serve the sentence as inflicted by the trial Court and

confirmed by the first Appellate Court, would not subserve the

purpose considering the sentencing policy. On the contrary, 16

REVN.81-11

inflicting more fine on the applicant and giving adequate

compensation to his wife / respondent No.2 would at least give

some monetary solace to her. On this aspect, it is not lost sight of

the fact that the mental torture which is caused by the applicant by

imputing wild allegations against his own wife without any basis as

to her inchastity, may not be adequately compensated in terms of

money, but, still otherwise whether it may be so compensated by

sending the present applicant behind the bars for one year, would

also be a question to ponder.

16. On the above aspect reference can be made with advantage

to the observations of the Law Commission of India (in its 47th

Report). Said observations are taken from the decision of the Apex

Court in Mohammed Giasuddin Vs. State of Andhra Pradesh

(supra), as under :

“A proper sentence is a composite of many factors, including the nature of the offence, the circumstances extenuating or aggravating of the offence, the prior criminal record, if any, of the offender, the age of the offender, the professional and social record of the offender, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition 17

REVN.81-11

of the offender, the prospect for the rehabilitation of the offender, the possibility of a return of the offender to normal life in the community, the possibility of treatment or of training of the offender, the possibility that the sentence may serve as a deterrent to crime by this offender, or by others, and the present community need, if any, for such a deterrent in respect to the particular type of offence involved.”

17. Again the following observations can be mentioned with

advantage which are appearing in the same decision of the Apex

Court mentioned above. In fact, these observations were taken help

of in the said decision. However, they were discussed by the Apex

Court in another matter of Santa Singh Vs. State of Punjab,

(1976) 4 SCC 190. Said observations are as under :

“A proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances extenuating or aggravating of the offence, the prior criminal record, if any, of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental conditions of the offender, the prospects for the rehabilitation of the offender, the possibility of return of the offender to normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, 18

REVN.81-11

for such a deterrent in respect to the particular type of offence. These factors have to be taken into account by the Court in deciding upon the appropriate sentence.”

18. Considering the above observations and bearing in mind

the offence proved against the present applicant, in the opinion of

this Court, sentence of imprisonment of one year for the offence

punishable under Section 498A of IPC under the peculiar facts and

circumstances of the present case would be too harsh, instead

reducing the said sentence suitably by enhancing the quantum of

the fine would subserve the purpose and by that way the

respondent / wife can be compensated in terms of money.

19. In that view of the matter, considering the overall

circumstances, in the opinion of this Court, following order would

meet the ends of justice and hence present Criminal Revision

Application is accordingly disposed of with following order :

:: O R D E R ::

[i] The conviction of the applicant/accused for the offence

punishable under Section 498A of IPC is maintained. However, the

sentence part is altered to the following effect. Instead of 19

REVN.81-11

sentencing the applicant for one year, he is now sentenced for

imprisonment of one day till rising of the Court and the quantum of

fine is increased from Rs.10,000/ to Rs.1,00,000/ (Rs.One Lakh

Only). In default of payment of said entire fine, the applicant shall

undergo an imprisonment for a period of six months. If entire fine

amount is recovered, an amount of Rs.90,000/ (Rs.Ninty

Thousand Only) would be given to the present respondent

No.2/wife by way of compensation.

[ii] Criminal Revision Application is accordingly disposed of.

[iii] The Court expresses a word of gratitude for the able

assistance of Mr.Aabad H. Ponda, as amicus curiae.

(A. R. JOSHI, J.)

PPD

Categories: Other news

SC: In DV Act women can be made respondents

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.271 OF 2011
(Arising out of SLP (Crl.) No.2854 of 2010)

Sou. Sandhya Manoj Wankhade … Appellant
Vs.
Manoj Bhimrao Wankhade & Ors. … Respondents

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. This Appeal is directed against the judgment and order dated 5th March, 2010, passed by the Nagpur Bench of the Bombay High Court in Crl. W.P.
No.588 of 2009, inter alia, directing the Appellant to vacate her matrimonial house and confirming the order of the Sessions Judge deleting the names of
the other Respondents from the proceedings.

3. The Appellant herein was married to the Respondent No.1 on 20th January, 2005, and the marriage was registered under the provisions of the Special Marriage Act, 1954. After her marriage, the Appellant began to reside with the Respondent No.1 at Khorej Colony, Amravati, where her widowed mother-in-law and sister-in-law, the Respondent Nos.2 and 3 respectively, were residing. According to the Appellant, the marriage began to turn sour after about one year of the marriage and she was even assaulted by her husband and by the other
respondents. It is her specific case that on 16th June, 2007, she was mercilessly beaten by the Respondent No.1, which incident was reported to the police and a case under Section 498-A I.P.C. came to be registered against him.

4. In addition to the above, the Appellant appears to have filed a complaint, being Misc. Crl. Application No.203 of 2007, on 16th July, 2007, against all the Respondents under Sections 12, 18, 19, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005, hereinafter referred to as “the Domestic Violence Act, 2005”. An application filed by the Appellant before the Judicial Magistrate, First Class, Amravati, under Section 23 of the above Act was allowed by the learned Magistrate, who by his order dated 16th August, 2007, directed the Respondent No.1 husband to pay interim maintenance to the Appellant at the rate of 1,500/- per month from the date of the application till the final disposal of the main application and also restrained all the Respondents from dispossessing the Appellant from her matrimonial home at Khorej Colony, Amravati, till the final disposal of the main application.

5. It further appears that the said order of the learned Magistrate dated 16th August, 2007, was challenged by Respondent No.1 in Crl. Appeal No.115 of 2007 before the learned Sessions Judge, Amravati, who by his order dated 2nd May, 2008, dismissed the said appeal. Aggrieved by the orders passed by the learned Sessions Judge, the Respondent No.1 filed Criminal Application No.3034 of 2008 in the High Court under Section 482 Cr.P.C. challenging the order dated 16th August, 2007 of the Judicial Magistrate, First Class, Amravati and the order dated 2nd May, 2008 of the Sessions Judge, Amravati. The said application was dismissed by the High Court on 4th September, 2009.

6. In the meanwhile, the Respondent No.2 filed an application in Misc. Crl. Application No.203 of 2007 in the Court of the Judicial Magistrate, First Class, Amravati, praying for modification of its order dated 16th August, 2007 and a direction to the Appellant to leave the house of Respondent No.2. The said application for modification was dismissed by the learned Magistrate on 14th July, 2008 holding that it was not maintainable. Thereupon, the Respondent Nos.2 and 3 filed Crl. Appeal No.159 of 2008 on 11th August, 2008, under Section 29 of the Domestic Violence Act, 2005, questioning the orders passed by the learned Magistrate on 16th August, 2007 and 14th July, 2008, on the ground that being women they could not be made Respondents in the proceedings filed by the Appellant under the provisions of the Domestic Violence Act, 2005, and
that the matrimonial house of the Appellant at Khorej Colony, Amravati, belonged exclusively to Ramabai, the Respondent No.2 and mother-in-law of
the Appellant and did not, therefore, come within the definition of “shared house”. The said Criminal Appeal No.159 of 2008 was allowed by the learned
Sessions Judge vide his judgment dated 15th July, 2009. The learned Sessions Judge allowed Criminal Appeal No.159 of 2008 and set aside the judgment
and order dated 14th July, 2008 and also modified the order dated 16th August, 2007, to the extent of setting aside the injunction restraining the Respondents from dispossessing or evicting the Appellant from her matrimonial house at Khorej Colony, Amravati. The Respondent No.1 husband was directed to provide separate accommodation for the residence of the Appellant or to pay a sum of
1,000/- per month to the Appellant from the date of filing of the application till its final decision, in lieu of providing accommodation.

7. In Criminal Writ Petition No.588 of 2009, the Appellant herein challenged the judgment and order dated 15th July, 2009, passed by the learned Sessions Judge, Amravati, in Crl. Appeal No.159 of 2008, claiming that she had a right to stay in her matrimonial house. Although, the question as to whether a female member of the husband’s family could be made a party to the proceedings under the Domestic Violence Act, 2005, had been raised in Crl. Appeal No.159 of 2008, the learned Sessions Judge in his order dated 15th July, 2009, did not decide the said question and did not absolve the Respondent Nos.2 and 3 herein in his order, but only observed that female members cannot be made parties in proceedings under the Domestic Violence Act, 2005, as “females” are not included in the definition of “respondent” in Section 2(q) of the said Act.

8. The learned Single Judge of the High Court disposed of the writ petition by his judgment and order dated 5th March, 2010, with a direction to the Appellant to vacate her matrimonial house, which was in the name of the Respondent No.2, with a further direction to the Trial Court to expedite the hearing of the Misc. Crl. Application No.203 of 2007 filed by the Appellant herein and to decide the same within a period of six months. A further direction was given confirming the order relating to deletion of the names of the ‘other members’.

9. Questioning the said judgment and order of the Nagpur Bench of the Bombay High Court, Mr. Garvesh Kabra, learned Advocate appearing for the Appellant, submitted that the High Court had erred in confirming the order of the learned Sessions Judge in regard to deletion of names of the Respondent Nos.2 and 3 from the proceedings, upon confirmation of the finding of the Sessions Judge
that no female could be made a party to a petition under the Domestic Violence Act, 2005, since the expression “female” had not been included in the definition of “respondent” in the said Act. Mr. Kabra submitted that it would be evident from a plain reading of the proviso to Section 2(q) of the Domestic Violence Act, 2005, that a wife or a female living in a relationship in the nature of marriage can, not only file a complaint against her husband or male partner but also against relatives of the husband or male partner. The term “relative” not having been defined in the Act, it could not be said that it excluded females from its operation.

10. Mr. Satyajit A. Desai, learned Advocate appearing for the Respondents, on the other hand, defended the orders passed by the Sessions Judge and the High Court and urged that the term “relative” must be deemed to include within its
ambit only male members of the husband’s family or the family of the male partner. Learned counsel submitted that when the expression “female” had not
been specifically included within the definition of “respondent” in Section 2(q) of the Domestic Violence Act, 2005, it has to be held that it was the intention of the legislature to exclude female members from the ambit thereof.

11. Having carefully considered the submissions made on behalf of the respective parties, we are unable to sustain the decisions, both of the learned Sessions Judge as also the High Court, in relation to the interpretation of the expression “respondent” in Section 2(q) of the Domestic Violence Act, 2005. For the sake of reference, Section 2(q) of the above-said Act is extracted herein below :-
“2(q). “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship in the
nature of a marriage may also file a complaint against a relative of the
husband or the male partner.”

12. From the above definition it would be apparent that although Section 2(q) defines a respondent to mean any adult male person, who is or has been in a
domestic relationship with the aggrieved person, the proviso widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint, which may be filed by an aggrieved wife or a female living in a relationship in the nature of a marriage.

13. It is true that the expression “female” has not been used in the proviso to Section 2(q) also, but, on the other hand, if the Legislature intended to
exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of
it being provided in the proviso that a complaint could also be filed against a relative of the husband or the male partner. No restrictive meaning has been given to the expression “relative”, nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only.

14. In such circumstances, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005.

15. In our view, both the Sessions Judge and the High Court went wrong in holding otherwise, possibly being influenced by the definition of the expression “respondent” in the main body of Section 2(q) of the aforesaid Act.

16. The Appeal, therefore, succeeds. The judgments and orders, both of the learned Sessions Judge, Amravati, dated 15th July, 2009 and the Nagpur
Bench of the Bombay High Court dated 5th March, 2010, in Crl. Writ Petition No.588 of 2009 are set aside. Consequently, the trial Court shall also proceed against the said Respondent Nos.2 and 3 on the complaint filed by the Appellant.

17. The appeal is allowed accordingly.
…………………………………………J.
(ALTAMAS KABIR)
…………………………………………J.
(CYRIAC JOSEPH)

New Delhi
Dated:31.01.2011

Categories: DV fight resource

Heavy misuse of 498A..Love marriage…Left house on own and then filed Rape, 498A, 324 etc

HC: Application under section 12 of the DV Act cannot be filed in family court

Equivalent citations: AIR 2008 Chh 1
Bench: L Bhadoo, S K Sinha

Smt. Neetu Singh vs Sunil Singh on 28/9/2007

JUDGMENT

L.C. Bhadoo, J.

1. By this appeal under Section 19(1) of the Family Courts Act, 1984, appellant Smt. Neetu Singh has questioned legality and correctness of the order dated 15-6-2006 passed by the Judge, Family Court, Bilaspur on an application filed by the appellant under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ‘the Act, 2005′) whereby learned Judge, Family Court held that since application has been filed under Section 12 of the Act, 2005, which ought to have been filed before the Magistrate and the relief sought for falls under the jurisdiction of the Civil Court, therefore, it be returned to the appellant for filing the same before the competent Court having jurisdiction.

2. Brief facts necessary for the disposal of this appeal are that the appellant herein filed an application under Section 12 of the Act, 2005 read with Section 7 of the Family Courts Act, 1984, in the Court of Judge, Family Court, Bilaspur on 13-6-2006 with the averments that the appellant was married to respondent on 28-4-2003 as per the Hindu custom. Just after the marriage, her in-laws started treating her with inhuman, cruel and neglect behaviour. In connection with demand of money in-laws started beating the appellant and she was thrown out of the matrimonial house, against which reports were lodged in the Police Station on 7-8-2003 and 16-9-2004. On 9-11-2004, the appellant sent a notice to the respondent reminding him about his matrimonial duties, thereafter the appellant filed an application under Section 125 of the Cr. P.C. in the Court of Chief Judicial Magistrate, Bilaspur, from where same has been transferred to the Family Court, Bilaspur. The Family Court vide its order dated 20th April, 2005 passed an order for interim maintenance to the tune of Rs. 1500/- per month. Her husband is earning about Rs. 20,000/-per month. The in-laws have refused to return her articles which were given to her by her parents in her marriage. On the contrary, they have levelled false allegation of character assassination against the appellant, complaint of which was made by her in the Police Station. Ultimately, the appellant demanded Rs. 2 lakhs which were spent by her parents on arrangement of the marriage i.e. on tent, shamiyana & food, an amount of Rs. 1,56,792, value of articles, which were given to her in the dowry and Rs. 1 lakh for subjecting her to cruelty and character assassination. On 15-6-2006, the learned Judge, Family Court, in the presence of the appellant, passed the impugned order.

3. We have heard Shri Rahul Birtharey and Shri Sachin Singh Rajput, counsel for the appellant and Shri Anurag Dayal Shrivastava, counsel for the respondent.

Learned Counsel for the appellant in-viting attention of the Court towards the provisions of Section 26 of the Act, 2005, argued that the Family Court is competent to entertain the said application as per the provisions of Section 26 of the Act, 2005, there-fore order impugned suffers from illegality.

4. In order to appreciate the controversy, in our opinion, it would be beneficial to have a glance on the relevant provisions of the Act, 2005. Section 12 of the Act, 2005, envisages that:

12. Application to Magistrate.- (1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:

Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

(2) The relief sought for under Sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:

Provided that where a decree for any amount as compensation or damages has been passed by any Court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.

(3) Every application under Sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.

(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the Court.

(5) The Magistrate shall endeavour to dispose of every application made under Sub-section (1) within a period of sixty days from the date of its first hearing.

26. Relief in other suits and legal proceedings.- (1) Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil Court, family Court or a criminal Court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.

(2) Any relief referred to in Sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal Court.

(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.

5. In order to appreciate issue involved in this matter, it will be profitable to have a glance on the scheme of the Act, 2005. The Act, 2005 has been enacted, as the United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women in its General Recommendations recommended that State parties should act to protect women against violence of any kind, especially that occurring within the family. The civil law does not address this problem in its entirety. Even though where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498A of the IPC. Therefore, in order to provide a remedy in the civil law for the protection of women from being victim of domestic violence and to prevent the occurrence of domestic violence in the society for the protection of women from domestic violence, the Act, 2005 has been enacted by the Parliament. Considering the fact that domestic violence is undoubtedly a human right issue and serious deterrent to development, this law has been enacted keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. Therefore, in order to grant minimum relief to the aggrieved person who is subjected to domestic violence, the above Act, 2005 has been enacted. Aggrieved person as defined in Section 2(a) of the Act, 2005 is subject of domestic violence as defined in Section 3 of the Act, 2005, she is entitled to move an application before a Magistrate under Section 12 of the Act, 2005 for seeking relief for issuance of the order for payment of compensation or damages without prejudice to right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent.

6. Sub-section (4) of Section 12 contemplates that ‘the Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond 3 days from the date of receipt of the application by the Court. Sub-section (5) further cast duty on the Magistrate to dispose of every application made under Sub-section (1) within a period of 60 days from the date of its first hearing. Section 17 envisages that every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. It further envisages that the aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent. Section 18 contemplates that after hearing aggrieved person and the respondent, on being satisfied that domestic violence has taken place or is likely to take place, the Magistrate has to pass a protection order in favour of the aggrieved person and prohibit the respondent under situations enumerated in Clauses (a)

7. Section 19 envisages that the Magistrate on being satisfied that domestic violence has taken place, pass order in respect of residence of aggrieved person in the situations mentioned in Clauses (a) to (f) of Sub-Section (1) of Section 19 and also pass order as contemplated in Sub-section (2) to (8) of Section 19. As per Section 20, the Magistrate can grant monetary reliefs in respect of and in situations enumerated in Section 20. Section 21 authorizes the Magistrate to pass orders in respect of the custody of the child or children to the aggrieved person. Section 22 authorizes the Magistrate to pass compensation orders on an application being made by the aggrieved person directing the respondent to pay compensation or damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by the respondent.

8. Section 26 of the Act has been inserted with an objective that in addition to the provisions of Section 12 the aggrieved person is entitled to any relief available under Sections 18, 19, 20, 21 and 22 in any legal proceeding, before a civil Court, family Court or a criminal Court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of the Act. Sub-section (2) of Section 26 further envisages that any relief referred to in Sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal Court. Sub-section (3) cast duty on the aggrieved person that in case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under Section 12 of this Act, she shall be bound to inform the Magistrate of the grant of such relief. Therefore, as per Section 26 of the Act, the aggrieved person is also entitled to seek relief as provided under Sections 18, 19, 20, 21 and 22 in any legal proceeding, before a civil Court, family Court, or a criminal Court in which the aggrieved person and respondent are party & that relief is in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding. Therefore, an option has been given to the aggrieved person to avail reliefs available to her under Sections 18, 19, 20, 21 and 22 in a legal proceeding pending in a civil Court, criminal Court or family Court in addition to filing of the application under Section 12.

9. In view of the above scheme of the Act, specially as per the provisions of Section 26 of the Act, the appellant herein is entitled to seek relief available to her under Sections 18, 19, 20, 21 and 22 of the Act, 2005 in the maintenance proceeding pending in the Family Court, Bilaspur. But the appellant is required to move an application under Section 26 read with Section in which she is seeking relief. However, instead of doing that, the appellant moved an independent fresh application under Section 12 of the Act, 2005 which can be entertained only by the Magistrate having jurisdiction. An application under Section 12 cannot be filed before Family Court because proceeding under Section 12 of the Act, 2005, as per the scheme of the Act, has to be filed before the Magistrate competent to entertain the application.

10. In the circumstances, we do not find any illegality or infirmity in the order impugned passed by the learned Judge, Family Court. The appeal is, therefore, liable to be dismissed and it is hereby dismissed. Still the appellant is entitled to move an application under Section 12 of the Act, 2005 before the Family Court in the maintenance proceeding said to be pending before that Court.

Categories: DV Judgements

SC: Contempt of court cannot be used unless the Court is satisfied beyond doubt that the person has deliberately and intentionally violated the order of the Court

Bench: U Banerjee, Y Sabharwal

CASE NO.:

Contempt Petition (civil) 260-261 of 2001

Appeal (civil) 2906-2907 of 2001

PETITIONER:

ANIL RATAN SARKAR & ORS.

Vs.

RESPONDENT:

HIRAK GHOSH & ORS.

DATE OF JUDGMENT: 08/03/2002

BENCH:

U.C. Banerjee & Y.K. Sabharwal

JUDGMENT:

Banerjee, J.

The most accepted methodology of governmental working ought always to be fairness and in the event of its absence, law Courts would be within its jurisdiction to deal with the matter appropriately. This proposition is so well settled that we need not dilate further on to this. It is this concept of fairness which Mr.Ganguli, appearing in support of the Petition for contempt very strongly contended, is totally absent in spite of three final rounds of litigation upto this Court between the parties. Mr. Bhaskar Gupta, learned senior advocate appearing for the alleged contemnors, however, contended that the conduct of the respondents can neither be termed to be unfair or in disregard to the orders of the Court on a true reading of the order this stand of the respondents, however, stands negated by Mr.Ganguli. The conduct, Mr.Ganguli, contended, is not only deliberate but utterly perverse and in grossest violation of the orders of this Court and by reason therefor the fruit of the litigation has not yet been made available and being decried to the petitioner for one reason or the other for the last about 15 years. Incidentally, it would be convenient to note that the principal issue involved in the matter pertains to the entitlement of the petitioners to the scale equivalent to that of Physical Instructors in the scale of Rs.700-1600 as on 2nd July, 1984 and Rs.2200-4000 w.e.f. 1986.

Turning, however, on to the factual score, it appears that the petitioners are Science Graduates of different universities in the country and have been appointed as Laboratory Assistants in colleges and in addition to their normal duties, the petitioners were supposed to assist the teachers and help the students in practical classes, impart instructions to the students in practical classes and to perform demonstration work including preparation of the lesson units in the practical classes. According to the petitioners these Laboratory Assistants were all along being treated as teaching staff and pay and allowances including the Government share of Dearness Allowances were paid to them until the issuance of the Government Order No.288 Education (CS) dated 21st March, 1969 wherein Laboratory Assistants of non-government affiliated colleges were treated as members of the non-teaching staff. The effect of such re-designation had a direct impact as regards the payment of Dearness Allowances and obviously the same being prejudicial to the interest of the petitioners, representations followed against the Government Order, but, however, to no effect. Representations were also made by reason of the withdrawal of teaching status as the Graduate Laboratory Assistants had to discharge teaching function as well, apart from the normal conduct of the Laboratory work.

The factual score depict that subsequently in August, 1983 the State Government redesignated the Laboratory Assistants as Laboratory Instructors it is on this score that Mr. Ganguli, learned senior counsel appearing in support of the petition very strongly criticised. The change of nomenclature according to him was otherwise meaningless as there was neither any conferment of status of teachers or the grant of any pay scale consistent with the teaching status. The Government notification was attributed to be a mischievous deception and a “hoax” a rather strong criticism : the question, therefore, arises whether there was any justification of such an attribute to the Government notification dated 10th August, 1983 : a short question consequently, thus what was the necessity for issuance of such an order would the change of nomenclature assist in any way the Graduate Laboratory Assistants? A bare perusal of the notification does not howsoever give any reason whatsoever as to the necessity of its issuance the notification on the contrary makes it clear that there would be no enhancement of pay as also the status as non-teaching staff would remain unchanged : It is only the word “Assistant” was replaced by the word “Instructors” but does that confer any material benefit to the persons concerned? The answer cannot in the factual context but be in the negative. It is on this background and upon perusal of the notification, Mr. Ganguli’s criticism seems to be rather apposite though couched in a very strong language but by reason of the fact situation of the matter in issue and if we may say so, probably justifiably so.

Be it noted that Graduate Laboratory Assistants working in government colleges have been given the status and designations of Demonstrators and have been accepted as members of teaching staff. According to the petitioners they possess similar qualifications, experience etc. but even though being similarly circumstanced, the Graduate Laboratory Assistants of sponsored and non-government private colleges of West Bengal stand discriminated against the Graduate Laboratory Assistants of Government colleges in West Bengal. The earlier writ petition which stand concluded by this court’s order dated 26th July, 1994 contained detailed list of University Acts and Statutes wherein “teachers” have been defined to “include the Instructors”. Needless to place on record that by reason of the act of discrimination and having failed to obtain any redress from the State-respondents the petitioners moved the learned Single Judge of the Calcutta High Court in the earlier Writ Petition for issuance of a writ of Mandamus to treat the Graduate Laboratory Assistants as teaching staff as per the definition contained in different University Act and also to give them a scale of pay equivalent to that of Physical Instructors. By a judgment and order dated 29th July, 1987 the learned Single Judge issued a writ of Mandamus upon a detailed judgment the operative portion whereof is set out herein below :-

“..The Rule accordingly is made absolute and the State Respondents are hereby commanded by the issuance of a Writ in the nature of Mandamus to treat the Graduate Laboratory Assistants who have already been redesignated as “Laboratory Instructors” as teaching staff and to pay them in accordance with the existing scale of pay

prescribed for the Physical Instructors with effect from 10th August, 1983 with all arrears.”

The appeal taken therefrom by the State Government resulted in confirmation of the order by the judgment of the Appellate Bench dated May 15, 1992. The State of West Bengal, however, being aggrieved and dissatisfied with the judgment and order of the Appellate Bench of the High Court moved a Special Leave Petition under Article 136 of the Constitution before this Court and this Court finally on 26th July, 1994 refused to interfere with the order and disposed of the matter with a speaking order. Relevant extracts of the same however are set out herein below :-

“.. the Division Bench of the High Court upheld the findings of the learned Single Judge.

We have heard learned counsel for the

parties. We see no ground to interfere with the reasoning and the conclusions reached by the learned Single Judge as upheld by the Division Bench of the High Court. We are, however, of the view that the respondents-petitioners be paid the revised scale of pay, as directed by the High Court, with effect from August 1, 1987 instead of August 10, 1983.

The arrears shall be paid to the respondents in two installments, first by the end of February 1995 and the second installment by August 31, 1995. The appeal is dismissed with the above modifications. No costs.”

A bare perusal of the order of this Court dated 26th July, 1994 categorically depicts that apart from the change of date of entitlement from August 10, 1983 to 1st August, 1987, this Court in fact did in unequivocal language record its concurrence with the reasonings and conclusions of the learned Single Judge as affirmed by the Division Bench.

In the order dated 26th July, 1994, as passed, this Court also was pleased to record certain statements of Mr. Ganguli which reads as below:

“Mr. A.K. Ganguli, learned counsel appearing for the respondents has very fairly stated that his clients are not asking for the pay-scale of

Lecturer. According to him, the pay scale of Physical Instructors is equivalent to that of Demonstrators i.e. pay scale to which his clients are entitled to in terms of the judgment of the Hon’ble High Court.”

It is however in terms of the order of this Court as noticed herein above, the State Government on 26th December, 1994 has issued a circular in purported compliance with the order of this Court. Let us however examine the circular and assess the situation ourselves as to the compliance of the earlier order of this Court. The circular reads as below :-

“In the circumstances, the Governor is pleased to order that the scale of pay in respect of all Graduate Laboratory Instructors of non-

Government colleges may be revised to Rs.1390- 45-1615-55-2055-65-2445-75-2970 with effect

from 1st August, 1987 and the arrears involved on account of revision of their scale of pay paid in the manner as indicated above.

The Governor is further pleased to order that the Graduate Laboratory Instructors of Non-

Government Colleges shall continue to enjoy

teaching status as given to them in GO No.1039- Edn. CS dated 27.7.1988.”

The circular, however, not been able to put an end to the petitioners’ grievance by reason wherefor, the same was further challenged by way of a writ petition under Article 226 before the learned Single Judge who, however, was pleased to quash the same upon recording concurrence to the contentions as raised by the petitioners. The learned Single Judge categorically recorded that the petitioners being Graduate Laboratory Instructors, question of further classifying them does not and cannot arise and upon reliance of the annual report as noticed above quashed and set aside the circular. The State Government however being aggrieved went before the Appellate Court and the Appellate Bench however allowed the appeal and opined that the Government Order dated 26th December, 1994 cannot be said to be arbitrary or contrary to the decision of this Court.

The further factual score depicts that as against the decision of the Hon’ble High Court pertaining to the Government order dated 26th December, 1994, the petitioners herein moved this Court under Article 136 and this Court upon a detailed judgment dealt with the issue and came to a conclusion to the following effect :

“This Court at an earlier occasion

unequivocally upheld the reasonings of the

learned Single Judge in the earlier writ petition as accepted by the Appellate Bench and on the wake of such a finding of this Court question of

decrying a pay scale which is otherwise available to another teacher (in this case the Physical Instructor) does not and cannot arise more so by reason of the earlier order of this Court.

Administrative ipse dixit cannot infiltrate on to an arena which stands covered by judicial orders.”

It is on the basis of the aforesaid, the appeals were allowed and the order of the Appellate Bench of the High Court of Calcutta stood set aside and quashed and that of the learned Single Judge stood restored. This Court, however, further directed that the entitlement by reason of the revision should be made available from 1st August, 1987 as directed by this Court in its earlier judgment dated 26th July, 1994. The petitioners, however, consequent upon the said judgment and order called upon the State officials being the alleged contemnor No.1 to comply with the directions of this Court and subsequently, the contemnor No.2 issued a notice requiring the petitioners to attend the hearing before the Principal Secretary, Department of Higher Education on 18th May, 2001. Some correspondence exchanged between the parties whereas the petitioners contended immediate compliance with the order of this Court, the alleged contemnors tried to feign ignorance about the earlier litigation and requested for supply of all copies of the relevant documents which, as the record depicts, stand supplied immediately thereafter. There has however been a total silence thereafter and the petitioners felt it incumbent upon themselves to bring it to the notice of this Court by way of a petition under the Contempt of Courts Act.

Before proceeding with the matter further, certain basic statutory features ought to be noticed at this juncture. The Contempt of Courts Act, 1971 has been introduced in the Statute Book for the purposes of securing a feeling of confidence of the people in general and for due and proper administration of justice in the country undoubtedly a powerful weapon in the hands of the law Courts but that by itself operates as a string of caution and unless thus otherwise satisfied beyond doubt, it would neither be fair nor reasonable for the law courts to exercise jurisdiction under the Statute. The observation as above finds support from a decision of this Court in Chhotu Ram v. Urvashi Gulati & Anr. (2001 (7) SCC 530), wherein one of us (Banerjee, J.) stated as below :-

“As regards the burden and standard of

proof, the common legal phraseology “he who

asserts must prove” has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the “standard of proof”, be it noted that a proceeding under the extraordinary jurisdiction of the court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond all reasonable doubt.”

Similar is the situation in Mrityunjoy Das & Anr. v. Sayed Hasibur Rahaman & Ors. (2001 (3) SCC 739) and as such we need not dilate thereon further as to the burden and standard of proof vis- a-vis the Contempt of Courts Act – Suffice it to record that powers under the Act should be exercised with utmost care and caution and that too rather sparingly and in the larger interest of the society and for proper administration of the justice delivery system in the country. Exercise of power within the meaning of the Act of 1971 shall thus be a rarity and that too in a matter on which there exists no doubt as regards the initiation of the action being bona fide. It may also be noticed at this juncture that mere disobedience of an order may not be sufficient to amount to a “civil contempt” within the meaning of Section 2(b) of the Act of 1971 the element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act and lastly, in the event two interpretations are possible and the action of the alleged contemnor pertains to one such interpretation the act or acts cannot be ascribed to be otherwise contumacious in nature. A doubt in the matter as regards the wilful nature of the conduct if raised, question of success in a contempt petition would not arise.

It is on these broad features however let us analyse the action of the respondents for the purposes of ascribing it to be willful and contumacious : whereas Mr. Ganguli answered by reference to the contextual facts as a deliberate and willful act, both Mr. Altaf Ahmad, the learned Additional Solicitor General and Mr. Bhaskar Gupta, learned senior advocate appearing for the alleged contemnors, rather strongly ventilated their negation to the accusations of Mr. Ganguli.

It is at this stage that the earlier order passed by this Court may be of some relevance and the same reads as below: “A teacher cannot possibly be allowed a pay

scale of a non-teaching post. The same is a

contradiction in terms and we need not dilate thereon. The criterion of fixation of pay scale is dependent upon the placement of the person

concerned in the event the placement is in a teaching post obviously one expects to get a pay scale fixed for a teacher and not for a non- teaching member of the staff. Apparently the High Court has not dealt with the issue in this perspective and thus clearly fell into an error in categorising a teacher with a non-teaching pay scale. The circular clearly authorises the

Graduate Laboratory Instructors of non-

government colleges to continue to have the

teaching status but decries the financial benefits therefor! Would the same be not an arbitrary exercise of powers or can it by any stretch be suggested to be otherwise rational and

indiscriminatory. This Court at an earlier occasion unequivocally upheld the reasoning of the learned Single Judge in the earlier writ petition as accepted by the Appellate Bench and in the wake of such a finding of this Court

question of decrying a pay scale which is

otherwise available to another teacher (in this case the Physical Instructor) does not and cannot arise more so by reason of the earlier order of this Court.”

Significantly, the Secretary, Department of Finance, Government of West Bengal, has with meticulous care recorded the statements as in the earlier affidavit filed before this Court though, however, with a preface that the statements in the counter affidavit stand out to be the outcome of his understanding of the order of this Court dated 20th April, 2001 and it is on the basis of the said understanding, the proposal for grant of scale of pay of Rs.1420 to Rs. 3130 stands concurred by him. Obviously, the notification dated 2nd July, 1984 issued by the Government of West Bengal as regards the revision of scale of pay of the Physical Instructors was also the resultant effect of such an understanding. It is in this context, the Finance Secretary of the State Government has stated as below :-

“Subsequently by a Notification dated 2nd

July, 1984 issued by the Government of West

Bengal, the State Government on the

recommendation of the University Grants

Commission and Government of India revised the scale of pay of the Physical Instructors to Rs.700/- – Rs.1600/- which was equal to the scale of pay of the lecturer. At that point of time also the scale of pay of Demonstrators continued to be Rs.500/- to Rs.900/-.”

In the earlier judgment, this Court while noting down certain record of proceedings observed as below :-

“On this score, a chart has been produced in the Court on 20.3.2001 which however cannot by any stretch be said to be in support of the

contentions of the State that there were existing two different grades and scales of pay amongst Physical Instructors, one being qualified Physical Instructors and the other being unqualified

Physical Instructors.

Significantly the annual report as published by the Education Department of the State

Government unmistakably records the existence of one grade of Physical Instructors under para 8.16. The annual report details out teachers of government colleges in the manner as below:

“8.16. Teachers of government colleges

Sl. Category of teachers Pay Scale

No. (Basic) w.e.f.1.1.1986

5. Demonstrator Rs.1740-3000

4. Physical Instructor Rs.2200-4000

3. Lecturer Rs.2200-4000

2. Professor/Vice-Principal Rs.3700-5700

(Grade II)

1. Principal Rs.4500-7300″

Para 8.2.1 also records the details of the

administration of non-government colleges as below:

The teachers of non-government colleges

are of the following categories (basic):

1. Laboratory Instructors Rs.1390-2970

2. Demonstrators

3. Physical Instructor as in government

4. Lecturer colleges.

5. Principal

This itself however negates the contentions

as raised by the State. Laboratory Instructors in non-government colleges are termed as teachers with scale of pay Rs.1390-2970 whereas Physical Instructors were also termed as teachers and scale of pay appears to be similar “as in government colleges” i.e. Rs.2200-4000. Secondly, in para 8.2.4 revised pay scale of the non-teaching posts (Group B pay scale) has been noted to be

Rs.1390-2970. It thus leaves no manner of doubt that whereas the petitioners were shown as

teachers of non-government colleges they were in fact granted the scale of pay applicable only to Group B employees belonging to non-teaching

staff and thus granted a non-teaching scale.”

Similar is the situation in the counter-affidavit filed presently in this matter as well : Is this fair ? The answer having regard to the factual backdrop cannot but be in the negative. It is neither fair nor reasonable on the part of a senior Civil Service Personnel to feign ignorance or plead understanding when the direction of this Court stands crystal clear in the judgment. Government employees ought to be treated at par with another set of employees and this Court on an earlier occasion lent concurrence to the view of the learned Single Judge that the Circulars issued by the State Government cannot but be ascribed to be arbitrary : Government is not a machinery for oppression and ours being a welfare State as a matter of fact be opposed thereto. It is the people’s welfare that the State is primarily concerned with and avoidance of compliance with a specific order of the Court cannot be termed to be a proper working of a State body in terms of the wishes and aspirations of the founding fathers of our Constitution. Classless, non- discriminate and egalitarian society are not meaningless jargons so that they only remain as the basic factors of our socialistic state on principles only and not to have any application in the realities of every-day life : one section of the employees would stand benefited but a similarly placed employee would not be so favoured why this attitude ? Obviously there is no answer. Surprisingly, this attitude persists even after six rounds of litigation travelling from Calcutta to Delhi more than once the answer as appears in the counter-affidavit is an expression of sorrow by reason of the understanding cannot be countenanced in the facts presently under consideration. A plain reading of the order negates the understanding of the State Respondents and the conduct in no uncertain terms be ascribed to be the manifestation of an intent to deprive one section of the employees being equally circumstanced come what may and this state of mind is clearly expressed in the counter-affidavit though however in temperate language. The question of bona fide understanding thus does not and cannot arise in the facts presently. Is it a believable state of affairs that the order of the learned Single Judge as early as the first writ petition, has not been properly understood by the senior most bureaucrat of the State Government : the same misunderstanding continues in terms of the appellate Court’s order and the third in the line of order is that of the apex Court. The understanding again continues even after the second writ petition was filed before the learned Single Judge at the High Court and the similar understanding continues even after the so to say clarificatory order by this Court, as appears from the order dated 20th April, 2001. Even in the counter-affidavit, filed in Contempt Petition, the understanding still continues we are at a loss as to what is this understanding about : the defence of ‘understanding’ undoubtedly is an ingenious effort to avoid the rigours of an order of Court but cannot obliterate the action the attempted avoidance through the introduction of the so-called concept of lack of understanding cannot, however, be a permanent avoidance, though there may be temporary and short-lived gains. The order of this Court cannot possibly be interpreted as per the understanding of the Respondents, but as appears from the plain language used therein. Neither the order is capable of two several interpretations nor there is any ambiguity and the same does not require further clarity. The order is categorical and clear in its context and meaning. The Court’s orders are to be observed in its observance, rather than in its breach.

This matter is pending in Courts since more than last 15 years, but unfortunately the litigatious spirit of the State-respondent have not minimised even to the slightest extent – the spirit continues and so is the deprivation. The defence of understanding is not only moonshine but a deliberate attempt to over-reach this Court’s order and as such willfulness in the matter of disregard of this Court’s order is apparent on the face of it and we are not prepared to accept the same as a defence of an action for deliberate and willful disregard of an order of Court. We find that the actions on the part of the respondent-authorities are not only unreasonable but deliberate and spiteful and that too in spite of a specific direction in all the five judgments so far obtained by the petitioners in their favour. Avoidance is written large and it would be difficult for us to consume the same without any particular rhyme or reason. In the contextual facts there cannot be any laxity as otherwise the Law Courts would render itself useless and its order to utter mockery. Feeling of confidence and proper administration of justice cannot but the hall-mark of Indian Jurisprudence and contra action by Courts will lose its efficacy. Tolerance of Law Courts there is, but not without limits and only upto a certain point and not beyond the same.

On the wake of the aforesaid, we do find that the respondents have willfully and deliberately violated the orders of this Court in the guise of a totally non-acceptable and sham defence of understanding and thus rendered themselves punishable under the provisions of Article 142 of the Constitution and also under the Act of 1971.

Be it placed on record that by the order dated 1st February, 2002, this Court directed the presence of all the alleged contemnors on the next date, i.e. on 8th March, 2002 since the order was to be pronounced in the presence of the respondents. The Office-Report, however, depicts that one of the respondents has filed an application for exemption from appearance. We do feel it expedient to allow the application for exemption, though by reason therefor the consequence of the findings as above cannot be pronounced as of date. In that view of the matter, let this matter appear two weeks hence in the list (22nd March, 2002) for further orders. The respondents are directed to be present in Court on the next date of hearing. No further notice need be served to the respondents excepting the applicant in I.A. No2 of 2002.

..J.

(Umesh C. Banerjee)

..J.

(Y.K. Sabharwal)

March 8, 2002.

1

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Categories: Judgement

SC: Issuance of notice for contempt of Court are having far reaching consequences

Bench: D.P.Wadhwa, S Ahmad.

PETITIONER:

KAPILDEO PRASAD SAH & ORS.

Vs.

RESPONDENT:

STATE OF BIHAR & ORS.

DATE OF JUDGMENT: 25/08/1999

BENCH:

D.P.Wadhwa, S.Saghir Ahmad.

JUDGMENT:

D.P. Wadhwa, J.

Leave granted.

On refusal of the Patna High Court to initiate proceedings for contempt against the respondents, the appellants have come to this court.

The appellants were working as Assistant Teachers in different elementary schools in Godda district in the State of Bihar. They are in the category of untrained teachers. Their services were terminated. Some of the teachers similarly placed filed writ petitions in the High Court against their termination and the matter ultimately reached this Court. It is not necessary to go into the various stages of the litigation except to note that this Court by order dated November 30, 1992 in Birendra Kumar & Ors. vs. State of Bihar (CA 1 of 1992) directed as under :

“We, therefore, direct once again that if there are vacancies and if there are not trained teachers available the untrained teachers who were employed prior to the new rule came into operation, would be reinstated in service if after subjecting them to the selection process they are found suitable. If there are no vacancies, they would be empanelled according to their seniority and would be appointed according to their seniority in the vacancies arising in future. Unless this panel is exhausted, no new appointment of untrained teachers will be made from outside. It is understood that those eligible for being so appointed will be the ones who were appointed before the new rule came into operation.

While making the appointments of those who were so in service prior to the date of appointment, the State Government will relax the age limit, if necessary.

We are informed that the appellants involved in the present case were paid salaries till 30th June, 1991. We also understand from Mr. B.B. Singh, learned advocate appearing for the State that all the vacancies have been filled in till 1.1.1992. If there were vacancies and yet the appellants were not appointed in the said vacancies such of the appellants who were eligible to be appointed and yet were not appointed in spite of the vacancies, would be entitled to the salaries from 1st July, 1992 till their appointment. However, if there were no vacancies and all the appellants or some of them have to be appointed in the new vacancies which may be available hereafter, they will not be entitled to the salaries from 1st July, 1992, till the date of their appointment. However, when they are appointed the period of break in service not exceeding one year will be taken into consideration for benefits other than salary.

The appeal is disposed of accordingly with no order as to costs.”

Appellants and some other teachers like them got similar orders from the High Court in their respective writ petitions. The main order passed by the High Court is dated January 20, 1993 in CWJC No.7000/92. In this judgment the High Court noticed the appointments made in some districts and the number of existing vacancies. State had contended that only one regular vacancy existed when according to the petitioners, there were not less than 2,000 vacancies. Counter affidavit filed by the State did not indicate if all the 2,000 vacancies had been filled up. With the consent of the counsel for the petitioners and the Advocate General that these petitions may also be disposed of in the light of the aforementioned direction of the Supreme Court the High Court directed it accordingly. High Court said : “We may however, direct the State to fill up posts in terms of the aforementioned direction of the Supreme Court with utmost expedition and preferably within two months from the date of receipt of a copy of this order.” Similar orders were passed in other writ petitions filed by untrained teachers as well.

Under the orders of the Supreme Court and those of the High Court which followed, the State Government was to fill up the existing vacancies, if any, by appointing the appellants and other untrained teachers who were eligible to be appointed against those vacancies and in case vacancies did exist as on January 1, 1992 the teachers so appointed against those vacancies would be entitled to salary from July 1, 1992 till their appointment. This was so as salaries had been disbursed up to June 30, 1991. If there were no vacancies, these untrained teachers had to be appointed in the new vacancies which might be available thereafter and in that case they were not be entitled to the salary from 1st July 1992 till the date of their appointment.

Appellants were appointed on October 4, 1994 pursuance to the directions of the High Court on October 4, 1994 by an order issued by the District Superintendent of Education, Godda. Appellants are receiving their salaries w.e.f. October 4, 1994. They claimed that it was case of reappointment under the orders of the Court and that since they were appointed against vacancies existing prior to January 1, 1992, they were entitled to salary from July 1, 1992 till October 3, 1994. They made their claim for the arrears of salary and since there was no response from the State Government, they filed petition for initiation of contempt proceedings against the State as well as its functionaries being the Director, Primary Education; Deputy Commissioner-cum-Chairman of the District Establishment Committee, Godda; and District Superintendent of Education, Godda district. Since it was the case of the respondents that no vacancy existed in the Godda District as on January 1, 1992, High Court by the impugned order dated July 8, 1998 dismissed the contempt proceedings. High Court said that there was no violation of the order passed by the High Court and if the appellants alleged that any direction of the Supreme Court had been violated, then it was not for the High Court to initiate any contempt proceedings. Aggrieved, appellants have come to this Court.

Here again the stand of the respondent has been that there has not been any violation of any order either of this Court or of the High Court. They are specific in their stand that no available vacancy existed before January 1, 1992 and as such the appellants were not entitled to the arrears of salary. Respondents have also contended that the orders appointing the appellants did not show that they were appointed against any vacancy existed before January 1, 1992. Appellants have also not stated before us as to how they claim that any vacancy existed as on January 1, 1992. Yet they state that there has been deliberate inaction on the part of the respondents which showed that they had no regard and respect for Court’s orders and that the respondents were wilfully and deliberately flouting the orders and direction of the courts.

Once the respondents take the stand that there was no vacancy existing as on January 1, 1992 in the Godda District and in the absence of any evidence to the contrary, it cannot be said that the orders of the courts have been contravened.

For holding the respondents to have committed contempt, civil contempt at that, it has to be shown that there has been wilful disobedience of the judgment or order of the court. Power to punish for contempt is to be resorted to when there is clear violation of the court’s order. Since notice of contempt and punishment for contempt is of far reaching consequence, these powers should be invoked only when a clear case of wilful disobedience of the court’s order has been made out. Whether disobedience is wilful in a particular case depends on the facts and circumstances of that case. Judicial orders are to be properly understood and complied. Even negligence and carelessness can amount to disobedience particularly when attention of the person is drawn to the court’s orders and its implication. Disobedience of court’s order strikes at the very root of rule of law on which our system of governance is based. Power to punish for contempt is necessary for the maintenance of effective legal system. It is exercised to prevent perversion of the course of justice.

In his famous passage, Lord Diplock in Attorney General vs. Times Newspapers Ltd. [(1973) 3 All.E.R. 54] said that there is also “an element of public policy in punishing civil contempt, since administration of justice would be undermined if the order of any court of law could be disregarded with impunity”. Jurisdiction to punish for contempt exists to provide ultimate sanction against the person who refuses to comply with the order of the court or disregards the order continuously. Initiation of contempt proceedings is not a substitute for execution proceedings though at times that purpose may also be achieved.

No person can defy court’s order. Wilful would exclude casual, accidental bonafide or unintentional acts or genuine inability to comply with the terms of the order. A petitioner who complains breach of court’s order must allege deliberate or contumacious disobedience of the court’s order.

Nothing has been shown that the claim of the respondents that appellants have not been appointed against any vacancy existing on January 1, 1992 is not true or that the respondents are intentionally or deliberately advancing this plea to deprive the appellants of their right to the arrears of the salary for some ulterior motive. That being so, it was not a case where proceedings for contempt could have been initiated against the respondents. High Court is right in dismissing the contempt petition. However, since there is a serious dispute whether any vacancy existed or not as on January 1, 1992 against which appellants or anyone of them could have been appointed the matter certainly needs examination but perhaps only by way of an interlocutory application in the writ petition and not by way of contempt. Thus, though upholding the order of the High Court, we send the matter back to the High Court to go into the question if any vacancy existed as on January 1, 1992 and, if so, pass appropriate orders.

With these observations, this appeal stands disposed of.

Categories: Judgement

SC: punishing a person for contempt of Court is indeed a drastic step and normally such action should not be taken

Bench: A Lakshmanan, A Kabir

CASE NO.:

Appeal (civil) 1246 of 2007

PETITIONER:

All Bengal Excise Licensees Association

RESPONDENT:

Raghabendra Singh & Ors

DATE OF JUDGMENT: 09/03/2007

BENCH:

Dr. AR. Lakshmanan & Altamas Kabir

JUDGMENT:

J U D G M E N T

(Arising Out of SLP (C) NO. 15224 OF 2006)

Dr. AR. Lakshmanan, J.

Leave granted.

The above appeal was filed by All Bengal Licensees Association, Kolkata against 1) Raghabendra Singh, Principal Secretary, Excise Department, Govt. of West Bengal 2) Tallen Kumar, Excise Commissioner, Excise Department, 3) Manoj Kumar Panth, District Magistrate and Collector, 24-Parganas 4) Parvez Siddique, Addl. District Magistrate, 24-Parganas as contesting respondents and 5) Pradyut Kumar Saha, General Secretary of All Bengal Excise Licensees Association, Kolkata as proforma respondent.

The above appeal is directed against the final judgment and order dated 29.08.2006 of the Calcutta High Court passed in CC No. 62 of 2005 arising out of Writ Petition No. 2248 of 2004 whereby a learned Single Judge of the said High Court has dismissed the application for contempt filed by the appellant herein. According to the appellant, the contesting respondents have deliberately and willfully violated and were in utter disregard of the solemn order dated 04.01.2005, 19.01.2005 and 20.01.2005 passed by Hon’ble Mr. Justice Pranab Kumar Chattopadhyay in Writ Petition No. 2248 of 2004 filed by All Bengal Excise Licensees Assn. & Anr. Vs. State of West Bengal & Ors. The background facts are as under:

By an order dated 04.01.2005, a learned Single Judge passed an interim order to the effect that the respondent-authorities will be at liberty to process the applications in respect of grant of licenses for excise shops but no final selection in respect of such shops shall be made without obtaining specific leave of the Court. The High Court made it clear that the respondent-authorities will not hold any lottery for the purpose of final selection of the excise shops in question without obtaining further orders from the High Court. The said order dated 04.01.2005 was passed after hearing and in the presence of the learned advocate for the respondents.

The said interim order dated 04.01.2005 was extended by the order dated 19.01.2005 until further orders by the High Court.

Thereafter, on 28.01.2005 a learned Single Judge gave direction for filing the affidavit and the said interim order was further extended until further orders and the said interim order is still continuing.

The said orders dated 04.01.2005, 19.01.2005 and 20.01.2005 were communicated by the appellant’s advocate’s letter dated 15.03.2005 enclosing therewith the Xerox copies of the signed copies of the said dictated order. In spite of full knowledge about the said order each of the respondents, in deliberate and wilful disregard of the orders, caused an advertisement to be published in the newspapers for holding lottery for final selection of excise shops to be held on 20.03.2005, 21.03.2005 and 22.03.2005.

Pursuant to the said advertisement, a lottery has been held on 20.03.2005 for the purpose of final selection of the excise shops. It was submitted by the appellants that from the act and conduct of the respondents, it is evident that each of them have no regard for the orders dated 04.01.2005, 19.01.2005 and 20.01.2005 passed by this Court and are deliberately violating the said orders passed by the High Court and are thus guilty of contempt of Court. With these allegations, the appellants filed CC No. 62 of 2005 in the High Court.

The appellant is an Association of Excise Licensees including the country spirit shop owners. Challenging the policy decisions for issuance of thousands of excise licenses for opening of new foreign liquor off shop and country spirit shops in the State of West Bengal in violation of the provisions of the Bengal Excise Act, 1909 and the rules framed thereunder, the appellant, amongst others, moved a writ petition being No. 1982 of 2004 in the High Court upon notice to the respondents. A copy of the writ petition was also filed and marked as annexures in this civil appeal. The High Court (Hon’ble Mr. Justice Pinaki Chander Ghosh), after hearing the advocates for the parties on 24.11.2004 passed an order, inter alia as follows:

“that the respondent authorities will process the matter but will not finalise and issue the licence without the leave of the court.

The matter will appear on 9th December, 2004.

Thereafter, the above-mentioned matter appeared in the list on 09.12.2004 before the very same Judge. The learned Judge, after hearing the advocates for the parties, gave a direction to file affidavit and the matter was directed to appear 4 weeks after vacation and also further directed that the interim order already passed in the matter will continue.

Although there was no direction for making any further advertisement by the respondent-authorities inviting any application for obtaining excise licenses for the new excise shops proposed to be give on or about 20.12.2004, some of the members of the appellant came to know that an advertisement was published on 30.11.2004 in the Bengali Daily newspaper Janashakti by the Excise Department, Government of West Bengal, whereby applications had been invited for giving new licenses for excise including country spirit shops within the Districts of Coochbehar, Jalpaiguri, North 24 Parganas and Hooghly. The members also came to know that the Excise Authorities have issued a memo No. 23- 5(XX)/2003-04 3268 (21E) dated 07.12.2004 and rest to the District Magistrates and Collectors that there has been a proposal for granting supplementary country spirit license to the existing tari shop owners. The appellants made representations before the Excise Authorities and contended that since the matter is sub- judice, the respondent authorities cannot publish the said advertisement on 30.11.2005 and cannot issue the said memo. However, the Excise Authorities have further decided to hold lottery on 05.01.2005 for allotment of excise shops including the country spirit and foreign liquor shops. Immediately after coming to know about the above-mentioned fact, the North 24 Parganas Excise Licenses Assn. have moved a writ petition on 30.12.2004 before the vacation Judge of the High Court. In the said writ petition, the appellant No.1 herein was made a party respondent. The vacation Judge did not pass any interim order on the said writ petition against the said order dated 30.12.2004. The North 24 Parganas Excise Licencees Assn. preferred an appeal on 30.12.2004 and the Division Bench of the High Court passed an interim order on 30.12.2004 to the effect that the processing in respect of grant of issuance of country spirit license will continue but finalization and selection will not be made till 3 weeks after the vacation. However, they made it clear that finalisation include holding of lottery. The said order was restricted to only in the case of District North 24 Parganas. It was submitted that the subject-matter of writ petition No. 2248 of 2004 is that during the pendency of earlier writ petition, the respondent- authorities cannot issue any advertisement for inviting applications for obtaining new excise license including the country spirit shops and foreign liquor shops and cannot hold any lottery and further they cannot give the effect to the proposal for giving supplementary excise licensees to the tari shops. It was submitted that in order to frustrate the order dated 24.11.2004, the respondent authorities have made an advertisement dated 30.11.2004 and thereby invited applications from intending candidates from obtaining new licenses in respect of 4 Districts and further making attempt to hold lottery in respect of applications already received. In spite of repeated requests, the respondents have pre- determined to hold the lottery on 05.01.2005 which amounts to finalization of the applications for granting of licenses and they are also trying to issue supplementary licenses to the existing shop owners.

On 04.01.2005, the Court passed the following order:-

“Let this matter be listed before the regular bench one week after the Christmas vacation.

In the meantime, let there be an interim order only to the effect that the respondent authorities herein will be at liberty to process the applications in respect of grant of licence for excise shops but no final selection in respect of such shops shall be made without obtaining specific leave of this court.

I also make it clear that the respondent authorities will also not hold any lottery for the purpose of final selection of the aforesaid excise shops in question without obtaining further orders from this court. All parties are to act on a Xerox signed copy of this dictated order on the usual undertaking.” Again, the interim order was directed to continue until further orders on 28.01.2005. As already stated, the counsel for the appellant communicated the said orders and served upon the respondents the Xerox copies of the signed copies of the order dated 04.01.2005, 19.01.2005 and 20.01.2005. Although the said interim order dated 04.01.2005 which has been extended from time to time and is still continuing the respondents in utter disregard caused publication of the advertisement of the newspapers for holding lottery for the purpose of final selection of excise shops in question. It is also pertinent to mention here that both the Division Bench of the High Court order dated 15.03.2005 in APOT No. 770/2004 vacated the interim order passed in the appeal preferred by the North 24 Parganas Excise Licensees Assn. but the interim order passed in the writ petition being No. 2248 of 2004 is relating to any proposed new excise licenses through out the State of West Bengal is still continuing. However, in pursuance to the advertisement, the respondent authorities on 20th March held lottery for final selection of the aforesaid excise shops and shall hold further lottery on 22nd and 23rd March, 2005. It was, therefore, submitted that each of the respondents deliberately and willfully and in utter disregard to the orders dated 04.01.2005 held lottery for final selection of excise shops. It is further submitted that the respondents are guilty of deliberate and willful violation of the 3 orders passed by this Court and committed contumacious act and in spite of full knowledge about the orders. It was further submitted that the respondents have scant respect for the orders passed on all the 3 days in January, 2005 and are deliberately ignoring the said orders and are thus guilty of contempt of court. According to the appellant, by the above-mentioned act and conduct of the

contemnors/respondents the majesty and dignity of the High Court have been lowered down and, therefore, the respondents should be suitably dealt with and punished. It was also further submitted that having regard to the facts and circumstances of the case, the respondents should be restrained from holding any further lottery and/or from giving any effect and/or further effect of the lottery already held and/or from taking any further steps for issuance of any excise license to any person so that the majesty and dignity of the High Court is not lowered down. In the circumstances, they requested the High Court to issue rule nisi calling upon the respondents and each of them to show cause as to why the respondents and each of them should not be committed to prison or otherwise be suitably dealt with and/or punished for deliberate and willful violation and utter disregard of the solemn orders dated 04/19 and 20.01.2005 passed in writ petition No. 2248 of 2004.

In the contempt petition, rule was issued on 23.03.2005. The respondents filed an application praying for discharge of the rule issued in the contempt proceedings on 02.05.2005 North 24 Parganas Excise Licensees Assn. filed SLP (C) No. 10820 of 2005 against the order dated 15.03.2005 passed by the Division Bench of the High Court. The State of West Bengal filed an application for vacating the interim order dated 04.01.2005 passed in writ petition No. 2248 of 2004. On 26.07.2005, a learned Single Judge allowed the application and vacated the interim order but, however, directed the Government that they would be free to take steps in issuing license in terms of the policy but it will be mentioned in the license that it is subject to the result of the writ petition and further directed that all steps taken for issuing excise license would abide by the result of the writ petition.

Being aggrieved by the order of the learned Single Judge dated 26.07.2005, the appellant preferred an appeal being APOT No. 494 of 2005 on 10.08.2005. A Division Bench of the High Court dismissed the said appeal and confirmed the order of the single judge dated 26.07.2005. The Appellant’s Assn. preferred SLP No. 17371 of 2005 against the said judgment. This Court on 29.08.2005 issued notice with an interim direction to the effect that no license be issued in terms of the circular dated 20.01.2004 and the matter was directed to be listed along with SLP No. 10820 of 2005. Both the SLPs were dismissed by this Court on 07.11.2005. In the contempt application filed by the appellants, the learned Advocate General appearing for the contemnors submitted that there is a violation of the order passed earlier on 04.01.2005 but the said violation is not willful as the contemnor wrongly understood the implications of the orders passed by the High Court on 04.01.2005 and extended subsequently on 19th and 20th January, 2005 and also by the Division Bench on 15.03.2005, 18.03.2005 in two other different proceedings. It was further submitted that in order to hold a person guilty of contempt of court two things have to be proved. Firstly, disobedience of the order passed by the court and secondly such disobedience must be willful. The Advocate-General submitted that in the instant case there is no willful violation and, therefore, the contempt application should be dismissed. Some rulings were relied on by the learned Advocate General in support of his aforesaid contention.

A learned Single Judge of the High Court was of the opinion that the contemnors did not understand the implications and consequences of a prohibitory order passed in an independent proceedings and by sheer mis- conception thought that there is no bar to issue excise license in view of the orders dated 15.03.2005 and 18.05.2005 and that failure to understand the implications and/or consequences of the order passed by the High Court cannot be construed as an act of contempt.

In the light of the decisions cited, the High Court examined whether the alleged contemnors have committed any contempt of the High Court. While examining so, the High Court has observed as follows:- “Undisputedly this Bench on 4th January, 2005 passed an interim order restraining the alleged contemnors from holding any lottery for the purpose of final selection of the excise shops in question without obtaining further order from this court but the alleged contemnors published an advertisement in the daily newspaper for holding lottery for the purpose of final selection of excise shops in question. Therefore, there is no doubt that the alleged contemnors have disobeyed the specific direction passed earlier by this Bench.

The Division Bench of this Hon’ble court in two different proceedings passed two separate orders on 15th March, 2005 and 18th March, 2005 respectively whereby and whereunder the alleged contemnors herein were permitted to grant excise licenses. The alleged contemnors herein reasonably understood that the orders passed by the Division Bench will have overriding effect on the order passed by the learned Single Judge of this Hon’ble court and thus committed mistake by not realising the implication of the order passed by this Bench which remained operative at the relevant time.

If there is any doubt regarding interpretation and/or understanding of the orders passed by the courts of law, the alleged contemnors are entitled to have the benefit or advantage of such a doubt, as the act of contempt must be established beyond all reasonable doubt.

In the aforesaid circumstances, it cannot be said that the alleged contemnors herein willfully and deliberately violated the solemn order passed by this Bench on 4th January, 2005. Mere disobedience of an order is not sufficient to hold any one guilty under the Contempt of Courts Act unless such obedience is deliberate and willful.”

The High Court also observed as under:

“Although the alleged contemnors in their respective affidavits have tendered unqualified apology after categorically stating therein that they had no intention to willfully or deliberately violate the order passed earlier by this Bench but in view of the observations made hereinbefore, I am not inclined to go into the question of apology.”

For the aforementioned reasons, the contempt petition was dismissed by the High Court. Aggrieved by the dismissal of the contempt petition, the appellant preferred the above appeal arising out of SLP No. 15224 of 2006. This Court on 18.09.2006 issued notice and in the meanwhile directed that no license shall be granted on the basis of the lottery and pursuant to the circular dated 20.01.2004.

We heard Mr. K.K.Venugopal, Mr. L.N. Rao, Mr. Pradip Ghosh, Mr. Joydip Gupta, learned senior counsel for the appellant and Mr. Gopal Subramanium, learned Addl. Solicitor General and Mr. Bhaskar P. Gupta, learned senior counsel for R1-R4 and Mr. Aman Vachher for R5 and Mr. P.N. Misra and Mr. M.N. Krishnamani, learned senior counsel in I.A. 3 and I.A.4. We dismissed all applications for

impleadments/intervention on 21.02.2007 and heard the arguments of the appellants on merits. Elaborate and lengthy submissions were made by the respective parties with reference to the entire pleadings and various orders passed by the High Court and of this Court and also other annexures and case laws. Learned senior counsel appeared for the appellant submitted that in view of the finding of the learned Judge “that there is no doubt that alleged contemnor have disobeyed the specific direction passed earlier by this Bench”, the learned Judge of the High Court was not justified in holding that the alleged contemnor committed mistake by not realising the implication of the order passed by the High Court which remain operative at the relevant time and on that basis dismissing the application for contempt without making any order for restoration of the status quo ante to undo the mischief caused by such violation of the interim order. According to the learned senior counsel for the appellant, the impugned order is not sustainable in law and should not be allowed to operate as a precedent and the wrong perpetrated by the respondent/contemnors in contumacious disregard of the orders of the High Court should not be permitted to hold. Likewise, the High Court also committed a grievous error of law in holding that the alleged contemnors did not understand the implication and consequences of a prohibitory order passed in an independent proceedings and by sheer mis- conception thought that there is no bar to issue excise licenses in view of the order dated 15.03.2005 and 18.03.2005 by two different Division Benches of the High Court. In support of their contention, they cited the following rulings:

1. Kapildeo Prasad Sah and Ors. Vs. State of Bihar & Ors., (1999) 7 SCC 569

2) Tayabbhai M. Bagasarwalla and Anr. Vs. Hind Rubber Industries Pvt. Ltd. & Ors., (1997) 3 SCC 443

3) Eastern Trust Company vs. MaKenzie Mann & Co., Ltd., AIR 1915 Privy Council 106

4) Anil Ratan Sarkar and Ors. Vs. Hirak Ghosh & Ors., (2002) 4 SCC 21

5) All India Regional Rural Bank Officers Federation & Ors. Vs. Govt. of India and Ors. (2002) 3 SCC 554

6) Ravi S. Naik vs. Union of India & Ors. 1994 Supp (2) SCC 641

7) Surjit Singh and Ors. Vs. Harbans Singh and Ors. (1995) 6 SCC 50

8) T.M.A. Pai Foundation and Ors. Vs. State of Karnataka & Ors. (1995) 4 SCC 1

9) Vidya Charan Shukla vs. Tamil Nadu Olympic Assn. & Anr. AIR 1991 Madras 323

10) Century Flour Mills Ltd. vs. S. Suppiah and Ors. AIR 1975 Madras 270

Mr. Gopal Subramanium and Mr. Bhaskar P. Gupta appearing for the contesting respondent Nos. 1-4 reiterated the same contentions which have been urged before the High Court and since the learned single Judge clearly found that there was no willful and deliberate violation of the order of the learned Single Judge pursuing the same in the further appeal does not arise and inasmuch as it was held that there was no deliberate and willful violation as such, this Court may not issue direction of setting aside the lottery already held. It was also denied that lottery was held in breach of the interim orders passed as alleged or at all. On the contrary, the learned single Judge held that there was no willful and deliberate violation of the order. It was further submitted that the entire judgment of the single Judge is required to be read and not in bits and pieces and that it would appear from the judgment that the single Judge has unequivocally held that there was no deliberate and willful violation of the order and thus has rightly dismissed the contempt application.

We have carefully considered the rival submissions made by learned senior counsel appearing for the respective parties. It is not in dispute that an injunction order was passed on 04.01.2005 and on subsequent extension is still subsisting. Respondent Nos.1-4 admittedly are highly qualified and highly placed government officials. Admittedly, by advocate’s letter dated 15.03.2005, it was pointed out to them that the injunction order dated 04.01.2005 and its subsequent extensions are still subsisting. They have also acknowledged the receipt of the communication dated 15.03.2005. Under such circumstances, the High Court is not justified in holding that the highly qualified and well placed government officials did not understand the implication and/or consequence of prohibitory order in an independent proceedings and by sheer mis-conception though that there is no bar to issue excise licenses as was held by the learned Judge in the impugned order. This Court can only say it is rather unfortunate that such officers who are not capable of or not able to understand the implication of the prohibitory orders passed by the High Court should be allowed to hold such high offices. During the course of the hearing of the contempt application, the matter was adjourned by the High Court to enable the respondent to consider whether the contemnors was prepared to cancel the lottery held on 20, 21 and 22.03.2005 in violation of the Court’s orders and on such adjourned date, the contemnors did not agree to cancel the lottery. Under such circumstances, the plea of mistake of understanding the order cannot at all be accepted. Likewise, the High Court also was not justified in not directing the contemnors to cancel the lottery held on 20, 21 and 22.03.2005 in violation of the solemn orders passed by the very same Judge and in view of the clear finding of the Court that they had acted in clear violation of the said interim order made by the High Court.

Even assuming that there was any scope for bona fide misunderstanding on the part of the respondents, once it was found that the respondent had disobeyed the specific order passed earlier by the Court, the High Court should have directed the contemnors to undo the wrong committed by them which was done in clear breach of the order of the Court by restoring the status quo ante by canceling the lottery wrongfully held by them. The learned Judge found that the respondent-contemnors had held the lottery in violation of the Court’s order and the results of the said lottery should not be permitted to take effect and should be treated as unlawful and invalid for the purpose of grant of license. The learned Single Judge for the purpose of upholding the majesty of law and the sanctity of the solemn order of the court of law which cannot be violated by the executive authority either deliberately or unwittingly should have set aside the lottery held and should not have allowed the respondents to gain a wrongful advantage thereby. In our opinion, a party to the litigation cannot be allowed to take an unfair advantage by committing breach of an interim order and escape the consequences thereof. By pleading misunderstanding and thereafter retaining the said advantage gained in breach of the order of the Court and the wrong perpetrated by the respondent-contemnors in contumacious disregard of the order of the High Court should not be permitted to hold good. In our opinion, the impugned order passed by the High court is not sustainable in law and should not be allowed to operate as a precedent and the wrong perpetrated by the respondent-contemnors in utter disregard of the order of the High Court should not be permitted to hold good. The High Court has committed a grievous error of law in holding that failure to understand the implication and consequences of the order passed by the High Court by highly placed government officers cannot be construed as an act of contempt. The High Court has failed to understand that the highly educated and highly placed government officials have competent legal advisors and it was not open to them to allege and contend that the respondent-contemnors did not understand the implication of the order dated 04.01.2005. In our opinion, such officers are required to be dealt with effectively to uphold the dignity of the High Court and the efficiency of the system itself. The High Court committed a grave error of law by not taking into consideration the most important fact that in the course of the hearing of the contempt application the matter was adjourned in order to enable the contemnor to consider whether they were prepared to cancel the lottery held on 20, 21 and 22.03.2005 and on the adjourned date, the respondents did not agree to cancel the lottery. In such view of the matter, the significant stand being the plea of mistake of understanding cannot, in our opinion, prevail. The High Court in that view of the matter committed a grave mis-carriage of justice by not taking into consideration another most important fact that if actually the lottery was held by mistake or by misunderstanding of the orders, then the respondent would have immediately rectified it and would have cancelled the lottery but in the instant case, instead of canceling the lottery, the respondents have justified their conduct from which the determined declination of obeying the order is clearly proved. In other words, if there was a doubt about the implication of the order of the Court, the respondents should have approached the Court and should have clarified their alleged confusion. But in the instant case, the respondents have not only violated the order but when the contempt application was moved and opportunity was given by the Court to cancel the lottery they refused to cancel the said lottery from which it is proved that they deliberately held the lottery in clear violation of the order dated 04.01.2005 having regard to the admissions made on behalf of the contemnors that there is violation of the order dated 04.01.2005 and also having regard to the learned Single Judge’s own finding that “there is no doubt that the alleged contemnor disobeyed the specific directions passed earlier by this Bench”. The High Court should have directed the contemnor to cancel the lottery held on these 3 dates. The High Court also failed to consider the effect of the appellant’s learned advocate’s letter dated 15.03.2005 whereby it was clearly pointed out about the subsistence of the order dated 04.01.2005 and its subsequent extension. By the said letter, the appellant’s advocate categorically pointed out further that in spite of the above if the lottery is held or further action is taken for issue of excise license, the appellant shall be compelled to take legal action.

In our opinion, the judgment and order passed by the High court are bad in law and is liable to be set aside. LAW ON THE SUBJECT:

1. Kapildeo Prasad Sah and Ors. Vs. State of Bihar & Ors., (1999) 7 SCC 569

“For holding the respondents to have committed contempt, civil contempt at that, it has to be shown that there has been willful disobedience of the judgment or order of the court. Power to punish for contempt is to be resorted to when there is clear violation of the court’s order. Since notice of contempt and punishment for contempt is of far-reaching consequence, these powers should be invoked only when a clear case of willful disobedience of the court’s order has been made out. Whether disobedience is willful in a particular case depends on the facts and circumstances of that case. Judicial orders are to be properly understood and complied with. Even negligence and carelessness can amount to disobedience particularly when the attention of the person is drawn to the court’s orders and its implications. Disobedience of the court’s order strikes at the very root of the rule of law on which Indian system of governance is based. Power to punish for contempt is for the maintenance of effective legal system. It is exercised to prevent perversion of the course of justice. Jurisdiction to punish for contempt exists to provide ultimate sanction against the person who refuses to comply with court’s order or disregards the order continuously. No person can defy court’s order. Wilful would exclude casual, accidental, bona fide or unintentional acts or genuine inability to comply with the terms of the order. A petitioner who complains breach of the court’s order must allege deliberate or contumacious disobedience of the court’s order.”

2) Tayabbhai M. Bagasarwalla and Anr. Vs. Hind Rubber Industries Pvt. Ltd. & Ors., (1997) 3 SCC 443 “16. According to this section, if an objection is raised to the jurisdiction of the court at the hearing of an application for grant of, or for vacating, interim relief, the court should determine that issue in the first instance as a preliminary issue before granting or setting aside the relief already granted. An application raising objection to the jurisdiction to the court is directed to be heard with all expedition. Sub-rule (2), however, says that the command in Sub-rule (1) does not preclude the court from granting such interim relief as it may consider necessary pending the decision on the question of jurisdiction. In our opinion, the provision merely states the obvious. It makes explicit what is implicit in law. Just because an objection to the jurisdiction is raised, the court does not become helpless forthwith – nor does it become incompetent to grant the interim relief. It can. At the same time, it should also decide the objection to jurisdiction at the earlier possible moment. This is the general principle and this is what Section 9-A reiterates. Take this very case. The plaintiff asked for temporary injunction. An ad-interim injunction was granted. Then the defendant came forward objecting to the grant of injunction and also raising an objection to the jurisdiction of the court. The court over-ruled the objection as to jurisdiction and made the interim injunction absolute. The defendants filed an appeal against the decision on the question of jurisdiction. While that appeal was pending, several other interim order were passed both by the Civil Court as well as by the High Court. Ultimately, no doubt, High Court has found that the Civil Court had no jurisdiction to entertain the suit but all this took about six years. Can it be said that orders passed by the Civil Court and the High Court during this period of six years were all non-est and that it is open to the defendants to flout them merrily, without fear of any consequence. Admittedly, this could not be done until the High Court’s decision on the question of jurisdiction. The question is whether the said decision of the High Court means that no person can be punished for flouting or disobeying the interim/interlocutory orders while they were in force, i.e., for violations and disobedience committed prior to the decision of the High Court on the question of jurisdiction Holding that by virtue of the said decision of the High Court (on the question of jurisdiction, no one can be punished thereafter for disobedience or violation of the interim orders committed prior to the said decision of the High Court, would indeed be subversive of rule of law and would seriously erode the dignity and the authority of the courts. We must repeat that this is not even a case where a suit was filed in wrong court knowingly or only with a view to snatch an interim order. As pointed out hereinabove, the suit was filed in the Civil Court bonafide. We are of the opinion that in such a case the defendants cannot escape the consequences of their disobedience and violation of the interim injunction committed by them prior to the High Court’s decision on the question of jurisdiction.”

3) Eastern Trust Company vs. MaKenzie Mann & Co., Ltd., AIR 1915 Privy Council 106

“There is a well-established practice in England in certain cases where no petition of right will lie, under which the Crown can be sued by the Attorney -General, and a declaratory order obtained, as has been recently explained by the Court of Appeal in England in Dyson v. Attorney-General, 1911 (1) KB 410 and in Burghes v. Attorney-General 1912 (1) Ch. 173 . It is the duty of the Crown and of every branch of the Executive to abide by and obey the law. If there is any difficulty in ascertaining it, the courts are open to the Crown to sue, and it is the duty of the Executive in cases of doubt to ascertain the law, in order to obey it, not to dis-regard it. The proper course in the present case would have been either to apply to the Court to determine the question of construction of the contract, and to pay accordingly, or to pay the whole amount over to the Receiver and to obtain from the Court an order on the Receiver to pay the sums properly payable for labour and supplies, as to the construction of which their Lordships agree with Supreme Court of Nova Scotia.

The duty of the Crown in such a case is well stated by Lord Abhinger Chief Barren in Deare v. Attorney General 1835 (1) y. & C.197. After pointing out that the Crown always appears (in England) by the Attorney- General in a Court of Justice-especially in a Court of Equity- where the interest of the Crown is concerned, even perhaps in a bill for discovery, he goes on to say:

“It has been the practice, which I hope never will be discontinued, for the officers of the Crown to throw no difficulty in the way of any proceeding for the purpose of bringing matters before a court of Justice where any real point of difficulty that requires judicial decision has occurred.”

4) Anil Ratan Sarkar and Ors. Vs. Hirak Ghosh & Ors., (2002) 4 SCC 21

“20. Similar is the situation in the counter-affidavit filed presently in this matter as well : Is this fair ? The answer having regard to the factual backdrop cannot but be in the negative. It is neither fair nor reasonable on the part of a senior Civil Service Personnel to feign ignorance or plead understanding when the direction of this Court stands crystal clear in the judgment. Government employees ought to be treated on a par with another set of employees and this Court on an earlier occasion lent concurrence to the view of the learned Single Judge that the Circulars issued by the State Government cannot but be ascribed to be arbitrary : Government is not a machinery for oppression and ours being a welfare State as a matter of fact be opposed thereto. It is the people’s welfare that the State is primarily concerned with and avoidance of compliance with a specific order of the Court cannot be termed to be a proper working of a State body in terms of the wishes and aspirations of the founding fathers of our Constitution. Classless, non- discriminate and egalitarian society are not meaningless jargons so that they only remain as the basic factors of our socialistic state on principles only and not to have any application in the realities of every-day life : one section of the employees would stand benefited but a similarly placed employee would not be so favoured why this attitude ? Obviously there is no answer. Surprisingly, this attitude persists even after six rounds of litigation travelling from Calcutta to Delhi more than once the answer as appears in the counter-affidavit is an expression of sorrow by reason of the understanding cannot be countenanced in the facts presently under consideration. A plain reading of the order negates the understanding of the Respondent State and the conduct in no uncertain terms can be ascribed to be the manifestation of an intent to deprive one section of the employees being equally circumstanced come what may and this state of mind is clearly expressed in the counter-affidavit though however in temperate language. The question of bona fide understanding thus does not and cannot arise in the facts presently. Is it a believable state of affairs that the order of the learned Single Judge as early as the first writ petition, has not been properly understood by the senior most bureaucrat of the State Government : the same misunderstanding continues in terms of the appellate Court’s order and the third in the line of order is that of the apex Court. The understanding again continues even after the second writ petition was filed before the learned Single Judge in the High Court and the similar understanding continues even after the so to say clarificatory order by this Court, as appears from the order dated 20th April, 2001. Even in the counter- affidavit, filed in Contempt Petition, the understanding still continues we are at a loss as to what is this understanding about : the defence of ‘understanding’ undoubtedly is an ingenious effort to avoid the rigours of an order of Court but cannot obliterate the action the attempted avoidance through the introduction of the so- called concept of lack of understanding cannot, however, be a permanent avoidance, though there may be temporary and short-lived gains. The order of this Court cannot possibly be interpreted as per the understanding of the Respondents, but as appears from the plain language used therein. Neither the order is capable of two several interpretations nor there is any ambiguity and the same does not require further clarity. The order is categorical and clear in its context and meaning. The Court’s orders are to be observed in its observance, rather than in its breach.”

5) All India Regional Rural Bank Officers Federation & Ors. Vs. Govt. of India and Ors. (2002) 3 SCC 554 “4. Mr. Mukul Rohtagi, the learned Additional Solicitor General, however tried to impress upon us the circumstances under which the notification had been issued, the same being severe financial crisis and the learned Additional Solicitor General further urged that the monetary benefits of the employees of the banks will have to be so modulated so that the banks should be ultimately be closed down by merely paying the salary of the employees. Even though the financial position of the banks may not be disputed, but having regard to the directions issued by this Court, while disposing of the civil appeal and having regard to the circumstances under which such directions had been given, it would be difficult for us to sustain the plea of the union Government that the Notification is in compliance with the judgment and directions of this Court. The financial capacity of the Government cannot be pleaded as a ground for non-implementation of the directions of the Court inasmuch as even in the matter of determination of the pay-scale of the employees of the Regional Rural Banks and maintenance of parity with their counterparts, serving under the sponsorer commercial banks, Justice Obul Reddi had not accepted the said plea and that award reached its finality. Since the financial capacity of the employer cannot be held to be a germane consideration for determination of the wage structure of the employees and the Parliament enacted the Act for bringing into existence these regional rural banks with the idea of helping the rural mass of the country, the employees of such rural banks cannot suffer on account of financial incapacity of the employer. We have no hesitation in coming to the conclusion that the issuance of notification dated 1.4.2001, by the Government of India cannot be held to be in compliance with the judgment and directions of this Court in S.M.G. Bank. But at the same time, we are of the opinion that the appropriate authority need not be punished under the provisions of the Contempt of Courts Act, even if the notification is in direct contravention of the judgment of this Court, as we do not find a case of deliberate violation. While, therefore, we do not propose to take any action against the alleged contemnors, we direct that the employees of the Regional Rural Banks should be paid their current salaries on the basis of determination made under the notification dated 11.4.2001, the new basic pay having arrived at, as on 1.4.2000 forthwith Paragraph (i) of the aforesaid notification dated 11.4.2001 should be immediately implemented and the employees should be paid accordingly. Paragraphs (ii) and (iii) of the notification are quashed and the Central Government is directed to issue a fresh notification for proper implementation of the Judgment of this Court. We make it clear that the period of moratorium with regard to the payment of arrears, since is going to be over on 31.3.2002, the arrear salary accruing to the employees be paid to them in three equal annual installments, the first being on 30th of April, 2002, the second on 30th of April, 2003 and the third on 30th April, 2004. This payment has to be made as aforesaid without being any way dependant upon any other considerations and there cannot be any distinction between the regional rural banks incurring loss and the regional rural banks, making profit. Further, the question of anticipated cash out-flow on account of increase in salary if exceeds 50% of the operating profit, then the current payment would be restricted only upto 50% is absolutely of no relevance, which was indicated in the impugned notification dated 11.4.2001. Having regard to the financial condition of the Government as well as these banks, the installment to be paid on 30.4.2002, pursuant to this order of ours, the same may be deposited in the employees’ provident fund account. But all other installments will have to be paid in cash.” 6) Ravi S. Naik vs. Union of India & Ors. 1994 Supp (2) SCC 641

“40. We will first examine whether Bandekar and Chopdekar could be excluded from the group on the basis of order dated December 13, 1990 holding that they stood disqualified as members of the Goa Legislative Assembly. The said two members had filed Writ Petition No. 321 of 1990 in the Bombay High Court wherein they challenged the validity of the said order of disqualification and by order dated December 14, 1990 passed in the said writ petition the High Court had stayed the operation of the said order of disqualification dated December 13, 1990 passed by the Speaker. The effect of the stay of the operation of the order of disqualification dated December 13, 1990 was that with effect from December 14, 1990 the Declaration that Bandekar and Chopdekar were disqualified from being members of Goa Legislative Assembly under order dated December 13, 1991 was not operative and on December 24, 1990, the date of the alleged split, it could not be said that they were not members of Goa Legislative Assembly. One of the reasons given by the Speaker for not giving effect to the stay order passed by the High Court on December 14, 1990, was that the said order came after the order of disqualification was issued by him. We are unable to appreciate this reason. Since the said order was passed in a writ petition challenging the validity of the order dated December 13, 1990 passed by the Speaker it, obviouly, had to come after the order of disqualification was issued by the Speaker. The other reason given by the Speaker was that Parliament had held that the Speaker’s order cannot be a subject- matter of court proceedings and his decision is final as far as Tenth Schedule of the Constitution is concerned. The said reason is also unsustainable in law. As to whether the order of the Speaker could be a subject matter of court proceedings and whether his decision was final were questions involving the interpretation of the provisions contained in Tenth Schedule to the Constitution. On the date of the passing of the stay order dated December 14, 1990, the said questions were pending consideration before this Court. In the absence of an authoritative pronouncement by this Court the stay order passed by the High Court could not be ignored by the Speaker on the view that his order could not be a subject-matter of court proceedings and his decision was final. It is settled law that an order, even though interim in nature, is binding till it is set aside by a competent could and it cannot be ignored on the ground that the Court which passed the order had no jurisdiction to pass the same. Moreover the stay order was passed by the High Court which is a Superior Court of Record and “in the case of a superior Court of Record, it is for the court to consider whether any matter falls within its jurisdiction or not. Unlike a court of limited jurisdiction, the superior Court is entitled to determine for itself questions about its own jurisdiction.” (See: Special Reference No. 1 of 1964, [1965] 1 S.C.R. 413 at p. 499).

42. In Mulraj v. Murti Raghonathji Maharaj, this Court has dealt with effect of a stay order passed by a court and has laid down:

In effect therefore a stay order is more or less in the same position as an order of injunction with one difference. An order of injunction is generally issued to a party and it is forbidden from doing certain acts. It is well settled that in such a case the party must have knowledge of the injunction order before it could be penalised for before disobeying it. Further it is equally well-settled that the injunction order not being addressed to the court, if the court proceeds in contravention of the injunction order, the proceedings are not a nullity. In the case of a stay order, as it is addressed to the court and prohibits it from proceeding further, as soon as the court has knowledge of the order it is bound to obey it and if it does not, it acts illegally, and all proceedings taken after the knowledge of the order would be a nullity. That in our opinion is the only difference between an order of injunction to a party and an order of stay to a court.

This would mean that the Speaker was bound by the stay order passed by the High Court on December 14, 1990 and any action taken by him in disregard of the said stay order was a nullity. In the instant case the Speaker, in passing the order dated February 15, 1991 relating to disqualification, treated Bandekar and Chopdekar as disqualified members. This action of the Speaker was in disregard of the stay order dated December 14, 1990 passed by the Bombay High Court.” 7) Surjit Singh and Ors. Vs. Harbans Singh and Ors. (1995) 6 SCC 50

“4. As said before, the assignment is by means of a registered deed. ‘The assignment had taken place after the passing of the preliminary decree in which Pritam singh has been allotted 1/3rd share. His right to property to that extent stood established. A decree relating to immovable property worth more than hundred rupees, if being assigned, was required to be registered, that has instantly been done. It is per se property, for it relates to the immovable property involved in the suit. It clearly and squarely fell within the ambit of the restraint order. In sum, it did not make any appreciable-difference whether property per se had been alienated or a decree pertaining to that property. In defiance of the restraint order, the

alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prelavent public policy, When the court intends a particular state of affairs to exist while it is in seizin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes. Once that is so, Pritam singh and his assignees, respondents herein, cannot claim to be impleaded as parties on the basis of assignment. Therefore, the assignees-respondents could not have been impleaded by the trial court as parties to the suit, in disobedience of its orders. The principles of lis pendens are altogether on a different footing. We do not propose to examine their involvement presently. All what is emphasised is that the assignees in the present facts and circumstances had no cause to be impleaded as parties to the suit. On that basis, there was no cause for going into the question of interpretation of paragraphs 13 and 14 of the settlement deed. The path treated by the courts below was, in our view, out of their bounds. Unhesitatingly, we upset all the three orders of the courts below and reject the application of the assignees for impleadment under Order 22 Rule 10 C.P.C.}

8) Delhi Development Authority vs. Skipper Construction Co. (P) Ltd. and Anr. (1996) 4 SCC 622 “17. The principle that a contemnor ought not to be permitted to enjoy and/or keep the fruits of his contempt is well-settled. In Mohd. Idris v. R.J. Babuji, this Court held clearly that undergoing the punishment for contempt does not mean that the Court is not entitled to give appropriate directions for remedying and rectifying the things done in violation of its Orders. The petitioners therein had given an undertaking to the Bombay High Court. They acted in breach of it. A learned Single Judge held them guilty of contempt and imposed a sentence of one month’s imprisonment. In addition thereto, the learned Single Judge made appropriate directions to remedy the breach of undertaking. It was contended before this Court that the learned Judge was not justified in giving the aforesaid directions in addition to punishing the petitioners for contempt of court. The argument was rejected holding that “the Single Judge was quite right in giving appropriate directions to close the breach (of undertaking)”.

18. The above principle has been applied even in the case of violation of orders of injunction issued by Civil Courts. In Clarke v. Chadbum [1985] 1 All. E.R. 211, Sir Robert Megarry V-C observed :

I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Willful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, 1 cannot see why it should be said that although they are liable to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach in law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them.”

9) Vidya Charan Shukla vs. Tamil Nadu Olympic Assn. & Anr. AIR 1991 Madras 323 (FB)

“56-57. Adverting to the facts of this case, we knew that the main relief in the suit to declare that the notice dated 26-5-1990 issued by the first and second defendants on the basis of the requisition notices convening a Special General Meeting of the Association on 15-6-1990 is illegal, null and void cannot be said to have become infructuous merely because the Court instead of granting an injunction to hold the meeting on 15-6-1990, gave a direction to consider an agenda of no-confidence against the Executive Council and election of new President and members of the Council in a particular manner. It can still be found in the suit that the notice was illegal, null and void and as a consequence, the Court may suitably modulate the relief or permit the plaintiffs to amend the relief. Besides this the trial Court will have jurisdiction to consider the grant of a mandatory injunction even in a suit which stood disposed of if its decree is found to have been violated or frustrated. The trial Court being a Court of Record will have special jurisdiction/inherent power to pass such orders as are deemed necessary to meet the ends of justice since this power is saved for it under Sections 4 and 151 of the Code of Civil Procedure and Articles 215 and 225 of the Constitution. The instant suit which is still pending, shall give to the Court power to consider the desirability to grant a mandatory injunction, for the reason of its interim injunction having been violated, to remove the violation and until the suit is finally decided to preserve the property in dispute in Status Quo.”

10) Century Flour Mills Ltd. vs. S. Suppiah and Ors. AIR 1975 Madras 270 (FB)

“9. In our opinion, the inherent powers of this court under Section 151 C.P.C. are wide and are not subject to any limitation. Where in violation of a stay order or injunction against a party, something has been done in disobedience, it will be the duty of the court as a policy to set the wrong right and not allow the perpetuation of the wrong doing. In our view, the inherent power will not only be available in such a case, but it is bound to be exercised in that manner in the interests of justice. Even apart from Section 151, we should observe that as a matter of judicial policy, the court should guard against itself being stultified in circumstances like this by holding that it is powerless to undo a wrong done in disobedience of the court’s orders. But in this case it is not necessary to so to that extent as we hold that the power is available under Section 151. C.P.C.” 11) T.M.A. Pai Foundation and Ors. Vs. State of Karnataka & Ors. (1995) 4 SCC 1

In this case, suo motu contempt proceedings was initiated by the Court against Secretary, Deputy Secretary and Under Secretary to Medical Education Department and few other officers of the State. Explanation was given by these officers admitting bona fide error made in interpreting this Court’s order. This Court having regard to the sequence of events, extraordinary speed in processing the representation of the Association and conduct of the officers, held, explanation not acceptable. Since the order of this Court was explicit and clear but it was subverted on an ex facie faulty and deliberately distorted interpretation at the instance of the Association. Hence, this Court felt that to accept their unconditional apology would be travesty of justice and officers were thus held guilty of contempt of Court and their conduct censured by the Court. This Court also held that unconditional apology is not a complete answer to violations and infractions of the orders of this Court.

12) Satyabrata Biswas and Ors. Vs. Kalyan Kumar Kisku and Ors. (1994) 2 SCC 266 This Court held thus: 4.From the above it is seen that in relation to the properties an order of status quo as of today, that is, 15th September, 1988, had been passed by the court. It is complained that there is a violation of these three orders by the six respondents, Satyabrata Biswas, Rev. Bilash Chandra Das, Salil Biswas, Sushil Sharma, Rt. Rev. Dinesh Chandra Gorai and Rt. Rev. John E. Ghosh. The contempt was for: (1) putting a padlock to the main entrance of the premises on 3.7.1993; (2) disconnecting water supply, (3) obstructing sewerage line; and (4) preventing the appellants from getting the rooms repaired.

10. Under these circumstances the present civil appeal by special leave has come to be preferred. It is urged on behalf of the appellants that in view of status quo order dated 15th September, 1982 regarding the fixed property in possession of the Durgapur Diocese no tenancy or sub-tenancy rights could be created. It was also urged that the said Somani Builders became sub-tenant under an agreement dated 10th May, 1993. Such a sub-tenancy cannot be valid in view of the status quo order. It is somewhat strange that Somani Builders should made an oral application before the learned Single Judge. On the basis of the oral application, the order came to be passed in favour of the Somani Builders directing the Special Officer to remove the padlock. As to what was the nature of the prayer, that too by a person who was not a party to any one of these proceedings, is not known. Therefore, the removal of padlock on its instance, as directed by the learned Single Judge, was not warranted. As though to add insult to injury when the appellant was complaining about this order, the Division Bench goes one step further and directs possession be given to Somani Builders. This direction would amount to putting a premium on the illegality committed by the former alleged tenant A.K. Ghosh.

23. Apart from the fact whether A.K. Ghosh had a legal authority to sub-lease or not it was not open to him to grant a sub-lease in violation of the order. It is no use contending as Mr. Chidambaram, learned Counsel for the respondents does, that there was a bar to such a sub-lease under the terms of the status quo order. It has the effect of violating the preservation of status of the property. This will all the more be so when this is done without the leave of the court to disturb the state of things as they then stood. It would amount to violation of the order. The principle contained in the maxim: ‘Actus Curiae Neminem Gravabit’ has no application at all to the facts of this case when in violation of status quo order a sub-tenancy has been created. Equally, the contention that even a trespasser cannot be evicted without recourse to law is without merit, because the state of affairs in relation to property as on 15.9.1988 is what the Court is concerned with. Such an order cannot be circumvented by parties with impunity and expect the court to confer its blessings. It does not matter that to the contempt proceedings Somani Builders was not a party. It cannot gain an advantage in derogation of the rights of the parties, who were litigating originally. If the right of sub- tenancy is recognised, how is status quo as of 15.9.1988 maintained? Hence, the grant of sub-lease is contrary to the order of status quo. Any act done in the teeth of the order of status quo is clearly illegal. All actions including the grant of sub-lease are clearly illegal.

In our opinion, the respondent Nos.1-4 had deliberately and with mala fide motive have committed contempt of the High Court in conducting the lottery quite contrary to the order of injunction passed by the High Court on 04.01.2005 and its subsequent extensions. When the auction was held, the order passed by the High Court remain operative at the relevant time. The High Court has miserably failed in not issuing direction to the contemnors to cancel the lottery held on 20, 21 and 22.03.2005 in violation of the solemn order passed by the High Court. In view of the clear finding of the Court that the respondent had acted in clear violation of the order made by the High Court. It is settled law that a party to the litigation cannot be allowed to take an unfair advantage by committing breach of an interim order and escape the consequences thereof by pleading misunderstanding and thereafter retain the said advantage gained in breach of the order of the Court. Such violations should be put an end with an iron hand. We are unable to accept the argument advanced by learned Addl. Solicitor General that the respondents did not understand the implication and consequences of a prohibitory order passed by the High Court. We have already explained their conduct and the refusal to cancel the order when they were advised to do so by the High Court during the pendency of the contempt proceedings. The act of the respondent is not only willful but also deliberate and contumacious. The High Court committed a grave error of law by not holding that if there was a doubt about the implication of the order of the Court, the alleged contemnors should have approached the Court and have clarified their alleged confusion. Likewise, this Court while ordering notice in the present appeal @ SLP No. 15224 of 2006 have clearly directed on 18.09.2006 that no license shall be granted on the basis of the lottery and pursuant to the circular dated 20.01.2004. Even after the receipt of the order, the respondents have not cancelled the license, but allowed them to continue the business. The reason is obvious. The respondents though tendered unqualified apology before the High Court, the High Court was not inclined to go into the question of apology in view of the observations made by it in the order impugned in this civil appeal. Even before us no apology whatsoever was tendered by respondent Nos.1-4. We, therefore, hold them guilty of willful and deliberate act of contempt. As it is evident that respondent Nos.1-4 have no regard for the orders passed by this Court on 4, 19 and 20.01.2005 and have scant respect for the Court’s orders and have deliberately and willfully and with utter disregard violated all the 3 orders and are thus guilty of contempt of Court. However, taking a lenient view and taking into consideration of the future prospects of the officers, respondent Nos. 1-4 we are not imposing any punishment for their willful violation of the order of the High Court and accept the unqualified apology filed before the High Court. Respondent Nos. 1-4 are severely warned that they shall not involve themselves or violate the order passed by any Court of law and will not resort to the unacceptable plea that the said highly placed and highly qualified government officials did not understand the implication and/or consequences of a prohibitory order passed by the Courts of law. They shall not hereafter also take the plea of inventing an innovative defence that they did not realise the implications of the order passed by the High Court which remained operative at the relevant time. In the instant case, the respondents have conducted the auction quite contrary to and in violation of an injunction order passed by the High Court. Courts have held in a catena of decisions that where in violation of a restraint order or an injunction order against a party, something has been done in disobedience, it will be the duty of the Court as a policy to set the wrong right and not allow the perpetuation of the wrong doing. In our opinion, the inherent power will not only be available under Section 151 CPC as available to us in such a case but it is bound to be exercised in that manner in the interest of justice and public interest. As rightly observed by the Full Bench of the Madras High Court in AIR 1975 Madras 270, that as a matter of judicial policy the Court should guard against itself being stultified in circumstances like this by holding that it is powerless to undo a wrong done in disobedience of the Court’s orders. We, therefore, cancel all the auctions held on 20, 21 and 22.03.2005 and direct the respondent Nos.1-4 not to allow the successful bidders to continue the business and shall stop them forthwith and submit a report to this Court of strict compliance. We make it clear that we are not expressing any opinion on the merits of the claim made by the appellant Association in the writ petition filed by them before the High Court which is pending. All the respondent Nos.1-4 are senior and experienced officers and must be presumed to know that under the constitutional scheme of this country orders of the High Court have to be obeyed implicitly and that orders of this Court  for that matter any Court should not be trifled with. We have already found hereinabove that they have acted deliberately to subvert the orders of the High Court evidently. It is equally necessary to erase an impression which appears to be gaining ground that the mantra of unconditional apology is a complete answer to violations and infractions of the orders of the High Court or of this Court. We, therefore hold them guilty of contempt of Court and do hereby censure their conduct. Though a copy of this order could be sent which shall form part of the annual confidential record of service of each of the said officers, we refrain from doing so by taking a lenient view of the matter considering the future prospects of the officers. As already stated, the officers shall not indulge in any adventurous act and strictly obey the orders passed by the Courts of law. The civil appeal stands allowed. Though this is a fit case for awarding exemplary costs, again taking a lenient view, we say no costs.

Categories: Judgement

SC: mere disobedience of an order may not be sufficient to amount to a “civil contempt”

Bench: U Banerjee, Y Sabharwal

CASE NO.:

Contempt Petition (civil) 260-261 of 2001

Appeal (civil) 2906-2907 of 2001

PETITIONER:

ANIL RATAN SARKAR & ORS.

Vs.

RESPONDENT:

HIRAK GHOSH & ORS.

DATE OF JUDGMENT: 08/03/2002

BENCH:

U.C. Banerjee & Y.K. Sabharwal

JUDGMENT:

Banerjee, J.

The most accepted methodology of governmental working ought always to be fairness and in the event of its absence, law Courts would be within its jurisdiction to deal with the matter appropriately. This proposition is so well settled that we need not dilate further on to this. It is this concept of fairness which Mr.Ganguli, appearing in support of the Petition for contempt very strongly contended, is totally absent in spite of three final rounds of litigation upto this Court between the parties. Mr. Bhaskar Gupta, learned senior advocate appearing for the alleged contemnors, however, contended that the conduct of the respondents can neither be termed to be unfair or in disregard to the orders of the Court on a true reading of the order this stand of the respondents, however, stands negated by Mr.Ganguli. The conduct, Mr.Ganguli, contended, is not only deliberate but utterly perverse and in grossest violation of the orders of this Court and by reason therefor the fruit of the litigation has not yet been made available and being decried to the petitioner for one reason or the other for the last about 15 years. Incidentally, it would be convenient to note that the principal issue involved in the matter pertains to the entitlement of the petitioners to the scale equivalent to that of Physical Instructors in the scale of Rs.700-1600 as on 2nd July, 1984 and Rs.2200-4000 w.e.f. 1986.

Turning, however, on to the factual score, it appears that the petitioners are Science Graduates of different universities in the country and have been appointed as Laboratory Assistants in colleges and in addition to their normal duties, the petitioners were supposed to assist the teachers and help the students in practical classes, impart instructions to the students in practical classes and to perform demonstration work including preparation of the lesson units in the practical classes. According to the petitioners these Laboratory Assistants were all along being treated as teaching staff and pay and allowances including the Government share of Dearness Allowances were paid to them until the issuance of the Government Order No.288 Education (CS) dated 21st March, 1969 wherein Laboratory Assistants of non-government affiliated colleges were treated as members of the non-teaching staff. The effect of such re-designation had a direct impact as regards the payment of Dearness Allowances and obviously the same being prejudicial to the interest of the petitioners, representations followed against the Government Order, but, however, to no effect. Representations were also made by reason of the withdrawal of teaching status as the Graduate Laboratory Assistants had to discharge teaching function as well, apart from the normal conduct of the Laboratory work.

The factual score depict that subsequently in August, 1983 the State Government redesignated the Laboratory Assistants as Laboratory Instructors it is on this score that Mr. Ganguli, learned senior counsel appearing in support of the petition very strongly criticised. The change of nomenclature according to him was otherwise meaningless as there was neither any conferment of status of teachers or the grant of any pay scale consistent with the teaching status. The Government notification was attributed to be a mischievous deception and a “hoax” a rather strong criticism : the question, therefore, arises whether there was any justification of such an attribute to the Government notification dated 10th August, 1983 : a short question consequently, thus what was the necessity for issuance of such an order would the change of nomenclature assist in any way the Graduate Laboratory Assistants? A bare perusal of the notification does not howsoever give any reason whatsoever as to the necessity of its issuance the notification on the contrary makes it clear that there would be no enhancement of pay as also the status as non-teaching staff would remain unchanged : It is only the word “Assistant” was replaced by the word “Instructors” but does that confer any material benefit to the persons concerned? The answer cannot in the factual context but be in the negative. It is on this background and upon perusal of the notification, Mr. Ganguli’s criticism seems to be rather apposite though couched in a very strong language but by reason of the fact situation of the matter in issue and if we may say so, probably justifiably so.

Be it noted that Graduate Laboratory Assistants working in government colleges have been given the status and designations of Demonstrators and have been accepted as members of teaching staff. According to the petitioners they possess similar qualifications, experience etc. but even though being similarly circumstanced, the Graduate Laboratory Assistants of sponsored and non-government private colleges of West Bengal stand discriminated against the Graduate Laboratory Assistants of Government colleges in West Bengal. The earlier writ petition which stand concluded by this court’s order dated 26th July, 1994 contained detailed list of University Acts and Statutes wherein “teachers” have been defined to “include the Instructors”. Needless to place on record that by reason of the act of discrimination and having failed to obtain any redress from the State-respondents the petitioners moved the learned Single Judge of the Calcutta High Court in the earlier Writ Petition for issuance of a writ of Mandamus to treat the Graduate Laboratory Assistants as teaching staff as per the definition contained in different University Act and also to give them a scale of pay equivalent to that of Physical Instructors. By a judgment and order dated 29th July, 1987 the learned Single Judge issued a writ of Mandamus upon a detailed judgment the operative portion whereof is set out herein below :-

“..The Rule accordingly is made absolute and the State Respondents are hereby commanded by the issuance of a Writ in the nature of Mandamus to treat the Graduate Laboratory Assistants who have already been redesignated as “Laboratory Instructors” as teaching staff and to pay them in accordance with the existing scale of pay

prescribed for the Physical Instructors with effect from 10th August, 1983 with all arrears.”

The appeal taken therefrom by the State Government resulted in confirmation of the order by the judgment of the Appellate Bench dated May 15, 1992. The State of West Bengal, however, being aggrieved and dissatisfied with the judgment and order of the Appellate Bench of the High Court moved a Special Leave Petition under Article 136 of the Constitution before this Court and this Court finally on 26th July, 1994 refused to interfere with the order and disposed of the matter with a speaking order. Relevant extracts of the same however are set out herein below :-

“.. the Division Bench of the High Court upheld the findings of the learned Single Judge.

We have heard learned counsel for the

parties. We see no ground to interfere with the reasoning and the conclusions reached by the learned Single Judge as upheld by the Division Bench of the High Court. We are, however, of the view that the respondents-petitioners be paid the revised scale of pay, as directed by the High Court, with effect from August 1, 1987 instead of August 10, 1983.

The arrears shall be paid to the respondents in two installments, first by the end of February 1995 and the second installment by August 31, 1995. The appeal is dismissed with the above modifications. No costs.”

A bare perusal of the order of this Court dated 26th July, 1994 categorically depicts that apart from the change of date of entitlement from August 10, 1983 to 1st August, 1987, this Court in fact did in unequivocal language record its concurrence with the reasonings and conclusions of the learned Single Judge as affirmed by the Division Bench.

In the order dated 26th July, 1994, as passed, this Court also was pleased to record certain statements of Mr. Ganguli which reads as below:

“Mr. A.K. Ganguli, learned counsel appearing for the respondents has very fairly stated that his clients are not asking for the pay-scale of

Lecturer. According to him, the pay scale of Physical Instructors is equivalent to that of Demonstrators i.e. pay scale to which his clients are entitled to in terms of the judgment of the Hon’ble High Court.”

It is however in terms of the order of this Court as noticed herein above, the State Government on 26th December, 1994 has issued a circular in purported compliance with the order of this Court. Let us however examine the circular and assess the situation ourselves as to the compliance of the earlier order of this Court. The circular reads as below :-

“In the circumstances, the Governor is pleased to order that the scale of pay in respect of all Graduate Laboratory Instructors of non-

Government colleges may be revised to Rs.1390- 45-1615-55-2055-65-2445-75-2970 with effect

from 1st August, 1987 and the arrears involved on account of revision of their scale of pay paid in the manner as indicated above.

The Governor is further pleased to order that the Graduate Laboratory Instructors of Non-

Government Colleges shall continue to enjoy

teaching status as given to them in GO No.1039- Edn. CS dated 27.7.1988.”

The circular, however, not been able to put an end to the petitioners’ grievance by reason wherefor, the same was further challenged by way of a writ petition under Article 226 before the learned Single Judge who, however, was pleased to quash the same upon recording concurrence to the contentions as raised by the petitioners. The learned Single Judge categorically recorded that the petitioners being Graduate Laboratory Instructors, question of further classifying them does not and cannot arise and upon reliance of the annual report as noticed above quashed and set aside the circular. The State Government however being aggrieved went before the Appellate Court and the Appellate Bench however allowed the appeal and opined that the Government Order dated 26th December, 1994 cannot be said to be arbitrary or contrary to the decision of this Court.

The further factual score depicts that as against the decision of the Hon’ble High Court pertaining to the Government order dated 26th December, 1994, the petitioners herein moved this Court under Article 136 and this Court upon a detailed judgment dealt with the issue and came to a conclusion to the following effect :

“This Court at an earlier occasion

unequivocally upheld the reasonings of the

learned Single Judge in the earlier writ petition as accepted by the Appellate Bench and on the wake of such a finding of this Court question of

decrying a pay scale which is otherwise available to another teacher (in this case the Physical Instructor) does not and cannot arise more so by reason of the earlier order of this Court.

Administrative ipse dixit cannot infiltrate on to an arena which stands covered by judicial orders.”

It is on the basis of the aforesaid, the appeals were allowed and the order of the Appellate Bench of the High Court of Calcutta stood set aside and quashed and that of the learned Single Judge stood restored. This Court, however, further directed that the entitlement by reason of the revision should be made available from 1st August, 1987 as directed by this Court in its earlier judgment dated 26th July, 1994. The petitioners, however, consequent upon the said judgment and order called upon the State officials being the alleged contemnor No.1 to comply with the directions of this Court and subsequently, the contemnor No.2 issued a notice requiring the petitioners to attend the hearing before the Principal Secretary, Department of Higher Education on 18th May, 2001. Some correspondence exchanged between the parties whereas the petitioners contended immediate compliance with the order of this Court, the alleged contemnors tried to feign ignorance about the earlier litigation and requested for supply of all copies of the relevant documents which, as the record depicts, stand supplied immediately thereafter. There has however been a total silence thereafter and the petitioners felt it incumbent upon themselves to bring it to the notice of this Court by way of a petition under the Contempt of Courts Act.

Before proceeding with the matter further, certain basic statutory features ought to be noticed at this juncture. The Contempt of Courts Act, 1971 has been introduced in the Statute Book for the purposes of securing a feeling of confidence of the people in general and for due and proper administration of justice in the country undoubtedly a powerful weapon in the hands of the law Courts but that by itself operates as a string of caution and unless thus otherwise satisfied beyond doubt, it would neither be fair nor reasonable for the law courts to exercise jurisdiction under the Statute. The observation as above finds support from a decision of this Court in Chhotu Ram v. Urvashi Gulati & Anr. (2001 (7) SCC 530), wherein one of us (Banerjee, J.) stated as below :-

“As regards the burden and standard of

proof, the common legal phraseology “he who

asserts must prove” has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the “standard of proof”, be it noted that a proceeding under the extraordinary jurisdiction of the court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond all reasonable doubt.”

Similar is the situation in Mrityunjoy Das & Anr. v. Sayed Hasibur Rahaman & Ors. (2001 (3) SCC 739) and as such we need not dilate thereon further as to the burden and standard of proof vis- a-vis the Contempt of Courts Act – Suffice it to record that powers under the Act should be exercised with utmost care and caution and that too rather sparingly and in the larger interest of the society and for proper administration of the justice delivery system in the country. Exercise of power within the meaning of the Act of 1971 shall thus be a rarity and that too in a matter on which there exists no doubt as regards the initiation of the action being bona fide. It may also be noticed at this juncture that mere disobedience of an order may not be sufficient to amount to a “civil contempt” within the meaning of Section 2(b) of the Act of 1971 the element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act and lastly, in the event two interpretations are possible and the action of the alleged contemnor pertains to one such interpretation the act or acts cannot be ascribed to be otherwise contumacious in nature. A doubt in the matter as regards the wilful nature of the conduct if raised, question of success in a contempt petition would not arise.

It is on these broad features however let us analyse the action of the respondents for the purposes of ascribing it to be willful and contumacious : whereas Mr. Ganguli answered by reference to the contextual facts as a deliberate and willful act, both Mr. Altaf Ahmad, the learned Additional Solicitor General and Mr. Bhaskar Gupta, learned senior advocate appearing for the alleged contemnors, rather strongly ventilated their negation to the accusations of Mr. Ganguli.

It is at this stage that the earlier order passed by this Court may be of some relevance and the same reads as below: “A teacher cannot possibly be allowed a pay

scale of a non-teaching post. The same is a

contradiction in terms and we need not dilate thereon. The criterion of fixation of pay scale is dependent upon the placement of the person

concerned in the event the placement is in a teaching post obviously one expects to get a pay scale fixed for a teacher and not for a non- teaching member of the staff. Apparently the High Court has not dealt with the issue in this perspective and thus clearly fell into an error in categorising a teacher with a non-teaching pay scale. The circular clearly authorises the

Graduate Laboratory Instructors of non-

government colleges to continue to have the

teaching status but decries the financial benefits therefor! Would the same be not an arbitrary exercise of powers or can it by any stretch be suggested to be otherwise rational and

indiscriminatory. This Court at an earlier occasion unequivocally upheld the reasoning of the learned Single Judge in the earlier writ petition as accepted by the Appellate Bench and in the wake of such a finding of this Court

question of decrying a pay scale which is

otherwise available to another teacher (in this case the Physical Instructor) does not and cannot arise more so by reason of the earlier order of this Court.”

Significantly, the Secretary, Department of Finance, Government of West Bengal, has with meticulous care recorded the statements as in the earlier affidavit filed before this Court though, however, with a preface that the statements in the counter affidavit stand out to be the outcome of his understanding of the order of this Court dated 20th April, 2001 and it is on the basis of the said understanding, the proposal for grant of scale of pay of Rs.1420 to Rs. 3130 stands concurred by him. Obviously, the notification dated 2nd July, 1984 issued by the Government of West Bengal as regards the revision of scale of pay of the Physical Instructors was also the resultant effect of such an understanding. It is in this context, the Finance Secretary of the State Government has stated as below :-

“Subsequently by a Notification dated 2nd

July, 1984 issued by the Government of West

Bengal, the State Government on the

recommendation of the University Grants

Commission and Government of India revised the scale of pay of the Physical Instructors to Rs.700/- – Rs.1600/- which was equal to the scale of pay of the lecturer. At that point of time also the scale of pay of Demonstrators continued to be Rs.500/- to Rs.900/-.”

In the earlier judgment, this Court while noting down certain record of proceedings observed as below :-

“On this score, a chart has been produced in the Court on 20.3.2001 which however cannot by any stretch be said to be in support of the

contentions of the State that there were existing two different grades and scales of pay amongst Physical Instructors, one being qualified Physical Instructors and the other being unqualified

Physical Instructors.

Significantly the annual report as published by the Education Department of the State

Government unmistakably records the existence of one grade of Physical Instructors under para 8.16. The annual report details out teachers of government colleges in the manner as below:

“8.16. Teachers of government colleges

Sl. Category of teachers Pay Scale

No. (Basic) w.e.f.1.1.1986

5. Demonstrator Rs.1740-3000

4. Physical Instructor Rs.2200-4000

3. Lecturer Rs.2200-4000

2. Professor/Vice-Principal Rs.3700-5700

(Grade II)

1. Principal Rs.4500-7300″

Para 8.2.1 also records the details of the

administration of non-government colleges as below:

The teachers of non-government colleges

are of the following categories (basic):

1. Laboratory Instructors Rs.1390-2970

2. Demonstrators

3. Physical Instructor as in government

4. Lecturer colleges.

5. Principal

This itself however negates the contentions

as raised by the State. Laboratory Instructors in non-government colleges are termed as teachers with scale of pay Rs.1390-2970 whereas Physical Instructors were also termed as teachers and scale of pay appears to be similar “as in government colleges” i.e. Rs.2200-4000. Secondly, in para 8.2.4 revised pay scale of the non-teaching posts (Group B pay scale) has been noted to be

Rs.1390-2970. It thus leaves no manner of doubt that whereas the petitioners were shown as

teachers of non-government colleges they were in fact granted the scale of pay applicable only to Group B employees belonging to non-teaching

staff and thus granted a non-teaching scale.”

Similar is the situation in the counter-affidavit filed presently in this matter as well : Is this fair ? The answer having regard to the factual backdrop cannot but be in the negative. It is neither fair nor reasonable on the part of a senior Civil Service Personnel to feign ignorance or plead understanding when the direction of this Court stands crystal clear in the judgment. Government employees ought to be treated at par with another set of employees and this Court on an earlier occasion lent concurrence to the view of the learned Single Judge that the Circulars issued by the State Government cannot but be ascribed to be arbitrary : Government is not a machinery for oppression and ours being a welfare State as a matter of fact be opposed thereto. It is the people’s welfare that the State is primarily concerned with and avoidance of compliance with a specific order of the Court cannot be termed to be a proper working of a State body in terms of the wishes and aspirations of the founding fathers of our Constitution. Classless, non- discriminate and egalitarian society are not meaningless jargons so that they only remain as the basic factors of our socialistic state on principles only and not to have any application in the realities of every-day life : one section of the employees would stand benefited but a similarly placed employee would not be so favoured why this attitude ? Obviously there is no answer. Surprisingly, this attitude persists even after six rounds of litigation travelling from Calcutta to Delhi more than once the answer as appears in the counter-affidavit is an expression of sorrow by reason of the understanding cannot be countenanced in the facts presently under consideration. A plain reading of the order negates the understanding of the State Respondents and the conduct in no uncertain terms be ascribed to be the manifestation of an intent to deprive one section of the employees being equally circumstanced come what may and this state of mind is clearly expressed in the counter-affidavit though however in temperate language. The question of bona fide understanding thus does not and cannot arise in the facts presently. Is it a believable state of affairs that the order of the learned Single Judge as early as the first writ petition, has not been properly understood by the senior most bureaucrat of the State Government : the same misunderstanding continues in terms of the appellate Court’s order and the third in the line of order is that of the apex Court. The understanding again continues even after the second writ petition was filed before the learned Single Judge at the High Court and the similar understanding continues even after the so to say clarificatory order by this Court, as appears from the order dated 20th April, 2001. Even in the counter-affidavit, filed in Contempt Petition, the understanding still continues we are at a loss as to what is this understanding about : the defence of ‘understanding’ undoubtedly is an ingenious effort to avoid the rigours of an order of Court but cannot obliterate the action the attempted avoidance through the introduction of the so-called concept of lack of understanding cannot, however, be a permanent avoidance, though there may be temporary and short-lived gains. The order of this Court cannot possibly be interpreted as per the understanding of the Respondents, but as appears from the plain language used therein. Neither the order is capable of two several interpretations nor there is any ambiguity and the same does not require further clarity. The order is categorical and clear in its context and meaning. The Court’s orders are to be observed in its observance, rather than in its breach.

This matter is pending in Courts since more than last 15 years, but unfortunately the litigatious spirit of the State-respondent have not minimised even to the slightest extent – the spirit continues and so is the deprivation. The defence of understanding is not only moonshine but a deliberate attempt to over-reach this Court’s order and as such willfulness in the matter of disregard of this Court’s order is apparent on the face of it and we are not prepared to accept the same as a defence of an action for deliberate and willful disregard of an order of Court. We find that the actions on the part of the respondent-authorities are not only unreasonable but deliberate and spiteful and that too in spite of a specific direction in all the five judgments so far obtained by the petitioners in their favour. Avoidance is written large and it would be difficult for us to consume the same without any particular rhyme or reason. In the contextual facts there cannot be any laxity as otherwise the Law Courts would render itself useless and its order to utter mockery. Feeling of confidence and proper administration of justice cannot but the hall-mark of Indian Jurisprudence and contra action by Courts will lose its efficacy. Tolerance of Law Courts there is, but not without limits and only upto a certain point and not beyond the same.

On the wake of the aforesaid, we do find that the respondents have willfully and deliberately violated the orders of this Court in the guise of a totally non-acceptable and sham defence of understanding and thus rendered themselves punishable under the provisions of Article 142 of the Constitution and also under the Act of 1971.

Be it placed on record that by the order dated 1st February, 2002, this Court directed the presence of all the alleged contemnors on the next date, i.e. on 8th March, 2002 since the order was to be pronounced in the presence of the respondents. The Office-Report, however, depicts that one of the respondents has filed an application for exemption from appearance. We do feel it expedient to allow the application for exemption, though by reason therefor the consequence of the findings as above cannot be pronounced as of date. In that view of the matter, let this matter appear two weeks hence in the list (22nd March, 2002) for further orders. The respondents are directed to be present in Court on the next date of hearing. No further notice need be served to the respondents excepting the applicant in I.A. No2 of 2002.

..J.

(Umesh C. Banerjee)

..J.

(Y.K. Sabharwal)

March 8, 2002.

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Categories: Judgement

SC examines what is wilful disobedience in civil contempt

Bench: B Agrawal, G Singhvi

CIVIL ORIGINAL JURISDICTION

CONTEMPT PETITION (C) NO.262 OF 2007

IN S.L.P. (C) NO.18879 OF 2007

All India Anna Dravida Munnetra Kazhagam … Petitioner Versus

L.K. Tripathi and others … Respondents WITH

CONTEMPT PETITION (C) NO.327 OF 2007

IN S.L.P. (C) NO.18879 OF 2007

JUDGMENT

G.S. Singhvi, J.

1. Whether respondent Nos.1 to 5 have willfully disobeyed order dated 30.9.2007 passed by this Court in Special Leave Petition (Civil) No.18879 of 2007 and thereby made themselves liable to be proceeded against under the Contempt of Courts Act, 1971 (for short `the 1971 Act’) read with Article 129 of the Constitution of India and whether respondent No.6 is guilty of criminal contempt within the meaning of Section 2(c) of the 1971 Act are the questions which arise for determination in this petition filed by All India Anna Dravida Munnetra Kazhagam through its Presidium Chairman Shri E. Madhusudhanan.

2. Background facts:

2.1 In an apparent bid to pressurize the Central Government to expedite implementation of Sethu Samudram Project, Democratic Progressive Alliance comprising Dravida Munnetra Kazhagam, Indian National Congress, Communist Party of India (Marxist), Communist Party of India and Pattali Makkal Katchi, passed a resolution on 24.9.2007 to resort to total cessation of work and closure of shops on 1.10.2007 and to conduct a general meeting of the leaders of all parties on 30.9.2007 at Chennai. The relevant portions of the resolution are extracted below: “… in order to make understand the fact that the support of the people is only to implement the Sethu Samudram Project

expeditiously to the Central Government, it is resolved to conduct total cessation of work and closure of shops on the 1st of October, and to conduct a general meeting of the leaders of all parties on the 30th day of September, at Chennai.”

2.2 The petitioner challenged the afore-mentioned resolution in Writ Petition No.31435 of 2007 filed before Madras High Court and prayed that the call given by the political parties for organizing bandh in the State of Tamil Nadu either on 1.10.2007 or any other day may be declared as violative of Articles 19 and 21 and the Directive Principles of the State Policy and fundamental duties embodied and enumerated in the Constitution of India. Shri Subramania Swamy of Janta Party, Shri K.R. Ramaswamy @ Traffic Ramaswamy (founder Chairman of the Tamil Nadu Social Workers Association, Chennai) and Shri R. Balasubramanian also filed Writ Petition Nos.31478, 31462 and 31631 of 2007 with similar prayers. 2.3 Along with the writ petition, the petitioner filed two miscellaneous petitions with the prayer that a direction be issued to Dravida Munnetra Kazhagam represented by its President M. Karunanidhi (Respondent No.4 in the contempt petition) to deposit a sum of Rs.100 crore with the Chief Secretary, Government of Tamil Nadu on or before 28.9.2007 which could be utilized to compensate the damage caused to the general public and the five political parties be restrained from proceeding with the call for bandh in the State in terms of resolution dated 24.9.2007. 2.4 After hearing counsel for the parties, the High Court admitted the writ petitions and issued the following directions to the Chief Secretary, Director General of Police, District Collectors and other officers of the State: “(i) To ensure that no political party, organization, association, group or individual can, by organizing `bandh/ hartal’ or by force or intimidate, stop or interfere with the road and rail traffic or free movement of the citizens in the State of Tamil Nadu on the day of `Bandh’ i.e. 01.10.2007.

(ii) To ensure that the public transport in the State including the Civil Aviation run smoothly on the

day of the `Bandh’ i.e. 1.10.2007.

(iii) To take appropriate action against the person(s) indulging in stoppage or interference with the road

and rail traffic or free movement of the citizens in

the State of Tamil Nadu.

(iv) Chief Secretary to the Government shall issue a Press Note to the Print Media and also the

Electronic Media on 29/30.9.2007 informing about

the preparation made by the Police to deal with the

`Bandh’ and to make people secured.”

2.5 Feeling dissatisfied with the High Court’s order, the petitioner filed S.L.P. (C) No.18879 of 2007 in this Court. The same was heard on 30.9.2007. The counsel representing respondent nos.1 to 3, who volunteered to appear, also made their submissions. After considering the respective submissions, this Court passed a detailed order, the relevant portions of which are reproduced below: “From a bare perusal of the aforesaid decision, it would be clear that neither anybody can give a call for Bandh nor the same can be enforced. The High Court, in the present case, has recorded a, prima facie, finding that, in the present case, the call was given for Bandh and not strike/hartal.

Ordinarily, High Court as well as this Court refrains from passing an interim order the effect of which would be granting the main relief. But in cases where a party approaches court without loss of time, there are no laches on its part, it is not possible to give notices to all the necessary parties and hear them because of paucity of time and in case interim order is not passed in a case like the present one, which, prima facie, in the opinion of court is concluded by judgment of this court, the main case would become infructuous, different considerations would arise and appropriate interim order should be passed. In the present case, apart from the State of Tamil Nadu, out of the political parties, namely, Dravida Munnetra Kazhagam, Indian National Congress, Communist Party of India (Marxist), Communist Party of India and Pattali Makkal Katchi, only Dravida Munnetra Kazhagam has appeared before us, whom we have heard at length.

After taking into consideration the entire matter, prima facie, we are also of the view that the call given by the aforesaid political parties is a call for Bandh and not strike/Hartal. Accordingly, we have no option but to issue notices to the non-appearing respondents and pass interim order.

Issue notice.

Until further orders, Respondent Nos.3 to 7 are restrained from proceeding with the call for Bandh in the State of Tamil Nadu on 1st October, 2007 pursuant to resolution dated 24th September, 2007 or any other day.”

2.6 Even before filing of writ petition by the petitioner, the then Chief Secretary of the State – Shri L.K. Tripathi (respondent no.1 herein) directed that the concerned officers be asked to take steps necessary for maintaining essential services and for providing protection to important offices and establishments apart from markets and business places. The instructions given by the Chief Secretary were circulated vide telefax No.SR.II/50641/2007 dated 27.9.2007, the relevant portions of which are extracted below:-

“1. Essential services like Telephone and Telecommunication, water supply, milk distribution, power supply, fire services, newspapers, hospitals, shall be ensured to function and protection given.

2. Provide adequate protection to vital installations such as power stations/grids, sub-stations, important

Government buildings, telecommunication and bridges,

oil installations, railway bridges, etc.

3. Arrange open line patrol with immediate effect.

4. Arrange for regular supply of milk and other essentials.

5. Provide adequate protection to the High Court and other Courts.

6. Action to be taken against anti-social elements and persons indulging in acts of violence and vandalism.

7. A visible police presence shall be maintained throughout the city.

8. A visible bandobast outside railway stations, bus depots, main roads, main junctions, hospitals, courts, schools and colleges will be maintained.

9. Necessary protection to market and business places shall be given.

10. All police control rooms will be fully activated to follow up incident to take proper stern and timely action.

11. Ensure that the `Hartal’ passes off peacefully.

12. Collectors may requisition and spare other department vehicles if required by the District Superintendent of Police. Any incident of law and order and other matters of significance should be informed to Chief Secretary’s Control Room Telephone Nos.26571388 and 26570372, followed by FAX-25677128. Bi- hourly report commencing from 0600 hours on 01.10.2007 about the `Hartal’ should be given to Chief Secretary’s Control Room even if there is no incident. First Report should commence from 0600 hours on 01.10.2007.”

2.7 On coming to know of this Court’s order through electronic media, respondent No.1 directed that telephonic instructions be given to all the Collectors to convene meetings with the respective Superintendents of Police for ensuring that law and order and public tranquility are maintained.

2.8 The Court’s order was officially communicated to respondent no.1 on the same day i.e., 30.9.2007 at about 10.30 p.m. by fax. The latter immediately forwarded the same to respondent no.2 for taking necessary action. In turn, respondent No.2 directed the concerned police officers that steps should be taken for facilitating unobstructed movement of public transport and maintenance of essential services like water and electricity supply, milk distribution, telephone and telecommunication service, fire service, hospitals and protection be given to Central Government offices, courts, bus stands, railway stations, banks, market places, shops, industrial establishments, etc. These directions were conveyed to Zonal Inspector Generals of Police and Commissioners of Police by Additional Director General of Police (Law and Order) vide fax dated 1.10.2007 which was sent between 11.28 p.m. on 30.9.2007 and 6.30 a.m. on 1.10.2007. The contents of that fax are reproduced below:- Date 30.09.2007

“From

ADGP (L&O)

Chennai – 4.

To

All Zonal IGPs

and COPs

All unit officers are instructed to strictly follow the following instructions,

1. The Depots Managers of the State Transport

Corporation will decide about running the buses

subject to availability of crew. Sufficient Bandobust

must be provided to all Bus Depots under their

jurisdiction.

2. Anyone who obstructs the movement of Public

transport should be picked up.

3. Bandobust should be provided to all essential

services like Hospital, Electricity, Offices, Bus

stands and railway stations etc.

4. Bandobust must be provided to all Central

Government offices, Courts and Banks.

5. Beats and Patrol should be provided to all market places, shops and industrial establishments.

6. All anti-social elements should be picked up.

7. Sufficient Bandobust arrangements should be

provided at the places where Hunger strike is

scheduled to be held.

Sd/- D.S.P.C.O.S.R.

For ADGP (L&O)

Chennai-4

30.9.2007

C.No.D1/17566/IGP/NZ/2007 DATED 1.10.2007

COPY COMMUNICATED TO ALL SsP. AND DIsG. IN NORTH

ZONE AND ARE REQUESTED TO TAKE NECESSARY

ACTION AND REPORT COMPLIANCE.

Sd/- 1.10.2007

For IGP/NZ/CNI-16″

2.9 The Secretary to Government, Public (SC) Department also sent fax No.SR.II/5064-5/2007 dated 1.10.2007 to all the District Collectors at 11.25 a.m. requiring them to send hourly reports to the Chief Secretary’s Control Room regarding the law and order situation, movement, transport, functioning of essential services, functioning of schools and colleges, opening of shops, hotels and other public utilities, attendance in Government offices etc.

3. On 3.10.2007, the petitioner filed this petition under Article 129 of the Constitution of India read with the 1971 Act and prayed that the respondents be punished for violation and disobedience of the Court’s order dated 30.9.2007. The gravamen of the petitioner’s allegation is that in complete disregard of the restraint order passed by this Court, the concerned political parties including Dravida Munnetra Kazhagam enforced the bandh in the entire State by ensuring that buses owned by the State Transport Corporation are kept off the road and shops and other business establishments remain closed; that 45,000 private buses were also not allowed to ply on that day; that shops and other business establishments were forcibly closed by the cadres of Dravida Munnetra Kazhagam party and that the State machinery did not take any action to ensure functioning of public transport system and opening of the shops etc. It is also the petitioner’s case that even though 50,000 employees of the State Transport Corporation came forward to carry out their duties but they were prevented from entering the bus depots by the Depot Managers, Supervisor, etc. on the instructions of higher authorities and even the main gates of many bus terminals were closed and locked. To substantiate these allegations, the petitioner has placed on record the photographs collectively marked as Annexure P-5 and the telegrams which are said to have been sent by Shri K.K. Madeswaran, C. Sengottaiyan and M.A. Paneerselvam to Tamil Nadu State Road Transport Corporation, representation made by A.J. Selvaraj, Anna Trade Union Secretary, Radhapuram Taluk. In paragraph 14 of the Contempt Petition, it has been averred that several workers of Dravida Munnetra Kazhagam party moved in various vantage areas of the State with deadly and lethal weapons to ensure that no business or commercial activity was done on 1.10.2007 and whoever opened the shop was forced to down the shutters. It has been further averred that in Chennai, a restaurant at Arterial Mount Road was attacked and looted and many other shops and restaurants were ransacked and eatables were thrown out and bottles were broken, but the police remained mute spectators. In support of these averments, the petitioner placed on record copies of various newspapers. In paragraph 23, a reference has been made to the speech allegedly made by respondent No.6, Shri T.R. Balu, Union Minister for Shipping and Surface Transport, at the venue of the hunger strike on 1.10.2007 and it has been averred that the same was calculated to scandalize judiciary in general and order dated 30.9.2007 in particular. The relevant portions of the speech allegedly made by respondent no.6, which is said to have been published in the newspapers and also telecast on the television channels are extracted below:- “If we want to conduct a Bandh in a democratic manner to ensure speedy implementation of this Project, the Supreme Court is injuncting the same. Are judgments being delivered correctly in the Courts? If that is so, why are higher courts granting stay of orders of lower Courts?

If judges are not making mistakes why are there conflicting judgments? Today there are many complaints against many judges. Corruption charges are appearing everyday. What does that mean? If they were upright yesterday, does it mean that they are not upright now? When was a sitting ever held on a Sunday? Unprecedented things are taking place.

We are expressing our feelings. How many complaints are received against judges? There is provision in law for impeachment of sitting judges. The MPs’ sitting here should also think about it. Nothing wrong about it. Our MPs, including the ministers should know about it. Everyone including the ministers can sign it.”

4. In paragraph 7 of the reply affidavit filed by him, respondent no.1 has averred that after telecast of the news about the restraint order passed by the Court, telephonic instructions were issued to the District Collectors to maintain law and order and public peace. In para 8 of the affidavit, respondent no.1 has averred that immediately on receipt of the Court’s order, a copy thereof was sent to respondent no.2 with suitable instructions to take necessary action and within the available time the police force was mobilized and bandobust was provided to all vital installations, State and Central Government offices, educational institutions, Tamil Nadu State Transport Corporation depots, bus stands, railway stations, airports, markets, places of worship, hospitals, important junctions, business areas and other places where people used to congregate and bandobust was also provided to the industrial establishments for their smooth functioning and pickets were posted at all sensitive places to avert law and order problems. According to respondent No.1, effective patrols and mobiles were organized for ensuring free flow of traffic in the State and open line patrols were deputed for keeping watch on the railway tracks; all the courts including the Madras High Court were given sufficient protection; vehicle checks were organized to prevent the movement of anti-social elements and trouble mongers and rowdy elements were detained under preventive measures. Respondent No.1 has claimed that on 1.10.2007 all the Courts functioned normally and movement of trains and other essential services were maintained without any obstruction. As regards transport services, respondent no.1 has averred that less number of Government transport services operated in the early morning but with the passage of time around 2749 routes were made operational.

5. In his affidavit, respondent no.2, Shri P. Rajendran, has detailed the steps taken for ensuring presence of police at various important places for maintaining law and order and movement of transport services. He has denied that workers of Dravida Munnetra Kazhagam party had forcibly closed business establishments and shops by wielding lethal and deadly weapons for the purpose of conveying threats to the public.

6. In his affidavit, respondent no.3 – Shri Debendranath Sarangi has given an account of the steps taken for ensuring normal operation of State Transport Services. In paragraphs 11 of the affidavit, respondent no.3 has averred that senior officers, i.e., Branch Managers and Divisional Managers of various State Transport Undertakings were instructed to ensure normal operation of buses on 1.10.2007. Respondent No.3 has then averred that the officers were on duty on 1.10.2007 and adequate police bandobust was provided at the Depots, but most of the crew did not turn up in the morning on 1.10.2007 and even those who came did not enter the Depot premises, did not sign the duty chart and dispersed after holding demonstration in front of the Depots; that the Branch Managers and Divisional Managers made efforts to operate the bus services with the help of available crew and with the passage of time the number of services substantially increased. Respondent No.3 has denied that the Drivers and Conductors were prevented from carrying out their duties or that the conductors did not issue tickets or that the main gates of bus terminals were closed and locked. He has also denied receipt of any representation or telegram. In para 15 of the affidavit, respondent No.3 has referred to the call given by the trade unions to abstain from work in the wake of decision taken by the political parties and averred that even though the latter withdrew the call for cessation of work, there was no corresponding response from the trade unions due to paucity of time and also due to the fact that most of the workers had left for outside places taking advantage of the impending strike and two days’ holidays. Respondent No.3 has also stated that the crew members who did not attend the duty on 01.10.2007 have not been paid the wages as per the policy “no work no pay”. Respondent No.3 has controverted the petitioner’s assertion that daily collection of the Transport Corporations is over Rs.10 crores. According to him, the average collection of the Transport Corporations is Rs.7.5 crores per day, which is reduced to half on any holiday and less than half in the event of continuous holidays for 3-4 days. According to respondent No.3, total collection on 1.10.2007 was Rs.483 lakhs. Lastly, respondent no.3 has averred that in observance of the order of this Court necessary instructions were given to Managing Directors of all the State Transport Corporations to ply buses and send reply by Fax.

7. Respondent No.4, Shri M. Karunanidhi, has come up with the plea that initially he was advised to adopt the counter affidavits of respondent nos.1 and 2 and a statement to that effect was made before the Court on 4.8.2008 by the advocate representing the State of Tamil Nadu but, later on, he decided to file a separate counter affidavit. In paragraph 3 of the affidavit, respondent no.4 has given the background in which decision was taken by Democratic Progressive Alliance comprising major political parties in Tamil Nadu to demonstrate their concern on the delay in implementation of Sethu Samudram Project by observing cessation of work between 6 a.m. to 6 p.m. on 1.10.2007. Respondent No.4 has then averred that on the basis of reports appearing in the TV news channels and after verifying the facts from counsel appearing on behalf of respondent no.3 in the special leave petition, he gave a call at about 1.30 p.m. for withdrawal of resolution dated 24.9.2007 and this was conveyed to the concerned political parties. According to respondent no.3, instructions were given to the government officials to carry out the Court’s order and ensure that the bandh did not take place on 1.10.2007 and the fast undertaken by political parties should not, in any way, affect the general public or hinder their routine life. For the sake of convenience, paragraph 7 of the affidavit of respondent no.4 is reproduced below:-

“7. The order passed by this Hon’ble Court was communicated to the Chief Secretary to Government of Tamil Nadu by FAX at 10.30 PM by the Registrar of this Court on 30.09.2007. Even before the order was officially communicated, it was flashed in the TV News channels. After verifying with counsel at New Delhi and without waiting for any formal communication from this Hon’ble Court, at about 1.30 PM I immediately called for the withdrawal of the resolution dated 24.09.2007 passed by the Democratic Progressive Alliance for cessation of work. This was also conveyed to all political parties, which were party to the said Resolution. However, Democratic Progressive Alliance decided to hold a day long fast on 1st October, 2007 to draw attention to the importance of the Sethu

Samuthiram Project and for early implementation of the same. I made it clear at that time that the fast was not against the order of this Hon’ble Court. I annex an extract from the Hindu newspaper 1st October, 2007 reporting this (Annexure -R1). I also gave instructions to Government officials to carry out the order of this Hon’ble Court and to ensure that the Bandh did not take place on 1st October, 2007, and that the day long fast undertaken by political parties should not in any way affect the general public or hinder their routine life.”

8. Respondent No.5 has taken the stand that at the time of passing of order by this Court, he was in his constituency (Trichy) and on receipt of information about the Court’s order, he instructed respondent no.3 to take steps to maintain normalcy in transport services on 1.10.2007. Respondent No.5 has also stated that he had been continuously monitoring the operation of transport services from Trichy and also made efforts to contact the trade unions and instructed them to direct the workers to report for duty in view of withdrawal of call for cessation of work given by Democratic Progressive Alliance.

9. In paragraphs 4 and 5 of affidavit dated 26th August, 2008 filed by him, respondent no.6 – Shri T.R. Baalu has resorted to the rhetoric that he has highest respect for the judiciary and he is a strong believer in the independence of the judiciary. In paragraph 7 of the affidavit, respondent no.6 has made a mention of his electoral achievements and averred that the contempt petition has been filed with the sole object of tarnishing his political image in the State and position as Minister in the Central Government. In paragraph 8, respondent no.6 has alleged that by filing petition before this Court, the petitioner which is the main opposition party in the State is trying to indirectly achieve which it could not achieve in the political arena. Respondent No.6 has then given his own interpretation of the term bandh and averred that he did not participate in any activity which can be described as a bandh. In paragraph 11 of the affidavit, respondent no.6 has averred that nothing in the quoted speech constitutes participation in bandh or instigating others to do so and whatever he said was legitimate exercise of freedom of speech. In paragraph 12, respondent no.6 has claimed that the newspaper report regarding his speech is not accurate and words have been put in his mouth which were not uttered by him.

10. Arguments in the case were heard on 11.11.2008 and concluded on 12.11.2008 qua the alleged contemnor nos.1 to 5. However, the case was adjourned to 10.12.2008 to enable the petitioner to file additional affidavit in relation to respondent no.6 with liberty to the latter to file reply within two weeks. On the next date, i.e., 10.12.2008, the Court considered an application made on behalf of the petitioner for summoning the tapes of the speech allegedly made by respondent no.6 on 1.10.2007 at Chennai and ordered issue of notice to the Resident Managers of Times Now Channel and Jaya T.V. requiring them to produce the tapes and original chips of the speech. Notices were also issued to Dhanya Rajendran and M. Ramasubramanian (reporters) and Manish Dhanani, Y. Jayaprakash and S. Ravikumar (camera persons of Times Now Channel and Jaya T.V. respectively).

11. In response to the Court’s notice, Shri M. Vasudev Rao, authorised signatory of Times Global Broadcasting Company Limited, which is running Times Now Channel, sent letter dated 16th January, 2009 stating therein that the company is unable to provide the original tapes and news clips of the speech delivered by respondent no.6 because in terms of the Uplinking and Downlinking Guidelines issued by the Ministry of Information & Broadcasting, Government of India, the company maintains a record of the contents uplinked and downlinked by its channel for a period of 90 days from the date of its telecast. After taking note of that letter, the Court allowed further time to the parties to file affidavits.

12. In furtherance of the liberty given by the Court, the petitioner filed affidavits of S/Shri M. Ramasubramanian, S. Ravikumar and R. Thillai, who were working as Reporter, Assistant Camera Person and Senior Sub-Editor respectively with Jaya T.V. on 1.10.2007. In his affidavit, Shri M. Ramasubramanian has claimed that he was deputed to cover the hunger strike organized by DMK and other allied parties on 1.10.2007 in front of the State Guest House, Chepauk, Chennai. He has then averred that he along with Shri Ravikumar (camera person) and Shri Satish (camera assistant) went to cover the events and that he was present at the venue where respondent no.6 made speech and Ravikumar recorded the speech which was in Tamil with sentences/phrases in English. According to Ramasubramanian, speeches of respondent no.6, Shri D. Raja of C.P.I. and Shri K. Veeramani of Dravida Kazhagam only were recorded and the original tapes were handed over to Shri R. Thillai. According to Shri S. Ravikumar, he accompanied by Shri Satish went to the venue of the hunger strike and recorded the speeches made by three persons and, thereafter, original tapes were handed over to Shri R. Thillai. In his affidavit, Shri R. Thillai has stated that Jaya T.V. shoots visuals on cameras using DV tapes and so far the channel has not shifted to the digital format and whenever visuals are brought by the reporting team, the same are ingested into the visual editing system called Avid and, thereafter, the tapes are reused for recording other events. Paragraphs (d), (e) and (f) of the affidavit of Shri R. Thillai, contain the following statements:

“d. It may be noted that the original tapes on which the visuals are recorded upon being ingested into the avid system as aforesaid and after the necessary visuals are taken, are re-used for recording other subsequent events. In the process, the left out visuals of a previous recording are erased since new recordings are made over the same. The tapes are re-cycled in this manner and not retained in view of commercial and operational

compulsions.

e. Some of the original recordings are transferred on to separate DV tapes or DVDs for archival purposes as for example, file shots of certain important events so that they could be used for future purposes. The news bulletins, as telecast over the channel, are stored in the DVD format in the library.

f. That the protests organized by the DMK and its allies on 1.10.2007 by way of the hunger strike at Chennai was covered by the reporting team of Mr. Ramasubramanian and Mr. S. Ravikumar and Camera assistant Satish. They had handed over to me the original tapes containing the events recorded including the speech made by Mr. T.R. Baalu, Union Minister for Shipping and of certain other speakers during the afternoon on 1.10.2007. On my instructions, the news branch technicians ingested the contents of the original tapes containing the events covered including the speech of Mr. T.R. Baalu, into the Avid system. From this, I selected the portions in the speech of Mr. Baalu which were most objectionable and found appropriate to be telecast. Accordingly, the portions were selected and telecast in the news bulletin carried by the channel on 1.10.2007 at 7.30 PM and on 2.10.2007 at 7.30 PM. The portions of the speech as telecast on the news bulletins clearly show the speech made by Mr. T.R. Baalu and the objectionable statements made by him, the translations of which read as follows:

“A Judge is a judge till yesterday. Today there are allegations against him. Every day a list of corruption charges are coming out from Delhi. What does that mean? Is a person who was honest till yesterday dishonest today? The nation has not forgotten the fact that such people are also judges. When has there been [hearing] on a Sunday? Something unprecedented is happening. Why is there a provision for impeachment in the Constitution? Our M.Ps are all sitting here. We should also think about it. There is nothing wrong about it. Our MPs must know about it. Including Ministers. Everybody can sign it.”

The news bulletins as telecast is submitted before this Hon’ble Court in the form of a DVD which is filed as Annexure A/1 to this affidavit.”

In the last paragraph of his affidavit which is again marked as (f), Shri R. Thillai has stated as under:

“f. That I submit therefore that the original tape containing the speech of Mr. T.R. Baalu is not available. Nevertheless, the news bulletins telecast by the channel containing the objectionable portions of his speech are presented before this Hon’ble Court.”

13. To the above noted 3 affidavits, respondent no.6 has filed a reply on 21.3.2009. The thrust of his reply is that Jaya T.V. is controlled by AIADMK party on whose behalf the contempt petition has been filed and, therefore, it cannot be treated as an independent media and that failure of the management of Jaya T.V. to produce tapes and original chip of the speech allegedly made by respondent no.6 should be treated as sufficient for rejecting the affidavits. In paragraphs 7 to 12 of the reply, it has been averred that the petitioner has produced before the Court a truncated, edited and doctored version of the telecast made by Jaya T.V. channel, and the same is liable to be discarded because the full and correct version of the speech made by respondent no.6 has been erased and the original tape containing the speech has not been produced.

14. In the light of 3 affidavits filed on behalf of the petitioner and counter filed by respondent no.6, further arguments were heard on 25.3.2009 and judgment was reserved.

15. Shri S. Guru Krishna Kumar, learned counsel for the petitioner in S.L.P. (C) No.18879 of 2007 representing the petitioner in Contempt Petition (C) No.262 of 2007 argued that in view of the orders passed by the Division Bench of the Madras High Court and this Court, the call given by Democratic Progressive Alliance for cessation of work must be treated as call for bandh in the State and even though respondent no.4 is said to have made a statement on 30.9.2007 at 1.30 p.m. giving an impression that resolution dated 24.9.2007 was withdrawn, no direction was given by the political establishment to the concerned officers to ensure that the administration moves on and respondent Nos.1 to 3 did not take steps to prevent disruption of normal life in the State. He further argued that the so called withdrawal of the call given by the political parties for cessation of work must be treated as sham because the workers of the party headed by respondent No.4 indulged in physical violence and ensured that bandh is observed throughout the State by forcing closure of shops and commercial/ industrial establishments. Learned counsel relied on the newspaper reports to buttress his submission that the workers of Dravida Munnetra Kazhagam party had, by wielding deadly weapons compelled the shop keepers to down the shutters and general public to remain away from the streets and argued that this should be treated as sufficient for drawing an inference that respondent no.4 had deliberately manipulated violation of the Court’s order. Shri Guru Krishna Kumar emphasized that the business, commercial/industrial establishments could not have remained closed without intimidation and use of force by the outfits of the political parties and argued that respondent no.4 should be held responsible for the acts of his party workers. Learned counsel then argued that by sitting on hunger strike, respondent No.4 and other political parties deliberately violated the Court’s order restraining them to organize bandh because out of fear the schools, colleges, business, commercial and industrial establishments were closed and people refrained from carrying out their normal activities. Learned counsel submitted that if respondent no.4 genuinely wanted to abide by this Court’s order then after making a statement in the afternoon of 30.9.2007 that there will be no cessation of work, he would have given written instructions to respondent nos.1 to 3 to ensure that the public life is not disturbed but instead of doing so respondent no.4 indirectly encouraged the officers to enforce the bandh else there was no reason why majority of buses belonging to seven State Transport Corporations did not ply on 1.10.2007 putting the general public to great inconvenience and acute hardship. Learned counsel referred to the averments contained in paragraphs 10 to 12 of the contempt petition, to show that even as per the statement made by respondent no.1 in an interview given to a television channel during the mid day on 1.10.2007, only 61 of the 18641 buses could be operated on the date of bandh and argued that this should be treated as a clear proof of abject failure of respondent nos.1 to 3 to ensure that the normal life is not affected and the public is not inconvenienced. Learned counsel pointed out that due to the bandh organized by Democratic Progressive Alliance, which was indirectly supported by respondent nos.1 to 3, State Transport Corporations suffered loss to the tune of Rs.10 crores and submitted that all the respondents should be made to compensate the State Transport Corporations. Learned counsel submitted that in a cabinet form of government, the political party in power is responsible for the action and omissions of the administrative officers and, therefore, respondent no.4 should be held guilty of committing contempt of Court. As regards respondent no.6, Shri Guru Krishna Kumar strongly relied on the speech made by the said respondent on 1.10.2007 and argued that he should be held guilty of committing criminal contempt within the meaning of Section 2(c) of the 1971 Act and adequately punished. In support of his arguments, Shri Guru Krishna Kumar relied upon the judgments of this Court in Mohd. Aslam v. Union of India [(1994) 6 SCC 442], M. v. Home Officer [(1993) 3 All ER 537], A. Sanjeevi Naidu v. State of Madras [(1970) 1 SCC 443], Azhar Ali Khan v. Commissioner, Municipal Corporation of Delhi [(1984) 3 SCC 549], Hoshiar Singh v. Gurbachan Singh [1962 (Supp) 3 SCR 127], T.N. Godavarman Thirumulpad v. Ashok Khot [(2006) 5 SCC 1], Aswini Kumar Ghose v. Arabinda Bose [1953 SCR 215] and E.M. Sankaran Namboodripad v. T. Narayanan Nambiar [(1970) 2 SCC 325].

16. Shri R. Venkataraman, learned counsel appearing on behalf of the petitioner in Contempt Petition No.262 of 2007 argued that respondent nos.1 to 5 are guilty of civil contempt inasmuch as they willfully disobeyed the directions contained in order dated 30.9.2007 passed in Special Leave Petition (Civil) No.18879 of 2007 and ensured that total bandh is organized in the State. Learned counsel further argued that respondent no.6 is guilty of criminal contempt because he scandalized the Court’s order dated 30.9.2007 by making unwarranted remarks against the judiciary in general and particularly against the Bench which passed the restraint order.

17. Shri Ashok Desai, learned senior counsel appearing for respondent nos.1 and 2 argued that his clients cannot be held guilty of contempt of court because even before formal receipt of the Court’s order at 10.30 p.m. on 30.9.2007, respondent no.1 had issued detailed instructions to all the officers to ensure that general public is not inconvenienced and normal life is not disrupted on account of the call given by the political parties for hartal. Learned senior counsel referred to the instructions contained in telefax issued as per the directions of respondent No.1 and fax sent by Additional Director General of Police (Law & Order) to show that respondent nos.1 and 2 had taken all measures for protection of hospitals, courts, railways, airports, banks, schools, telecom installations, transport services, shops and markets, industrial establishments and for ensuring that essential services like supply of milk and water and movement of trains are maintained without any obstruction and the police force was mobilized to protect the lives and property of the people in addition to Government and private establishments. Shri Desai emphasized that proceedings under the 1971 Act are quasi criminal and argued that respondent nos.1 and 2 cannot be accused of committing contempt within the meaning of Section 2(b) of the 1971 Act because the petitioner has not produced any evidence to show that they willfully disobeyed order dated 30.9.2007. Learned senior counsel submitted that respondent nos.1 and 2 cannot be held guilty of contempt merely because leaders of political parties sat on hunger strike on 1.10.2007 and the business community did not open the shops in view of resolution dated 24.9.2007 passed by Democratic Progressive Alliance for cessation of work. He submitted that the buses of the State Transport Corporations could not be operated in the early part of the day on 1.10.2007 because trade unions affiliated to political parties had decided to abstain from work and large number of employees might have left their stations in view of the call for cessation of work on 1.10.2007 given by the Democratic Progressive Alliance and the coming holidays on 29th and 30th September, 2007 and again on 2nd October, 2007.

18. Shri T.R. Andhyarujina, learned senior counsel appearing for respondent no.4, extensively referred to affidavit dated 22.8.2008 of his client to show that even before receipt of the Court’s order, he had made a statement for withdrawal of resolution dated 24.9.2007 and argued that in the absence of any evidence to show that respondent no.4 had instigated anyone to disrupt the essential services or cause inconvenience to the general public, he cannot be proceeded against under the 1971 Act. Learned counsel submitted that telefax dated 30.9.2007 sent at the instance of respondent no.1 also shows that the administration had taken positive steps to ensure that essential services are not disturbed due to call given by the political parties for cessation of work etc. on 1.10.2007 and the police bandobust was provided for all public and private establishments and effective steps were taken for maintaining transport services.

19. Dr. A.M. Singhvi, learned senior counsel appearing for respondent nos.3 and 5, argued that the concerned Minister and Secretary had made genuine efforts to ensure that operation of buses by the State Transport Corporations is not jeopardized due to the call given by the Democratic Progressive Alliance for cessation of work or for hunger strike on 1.10.2007 and, therefore, they cannot be held guilty of contempt under Section 2(b) of the 1971 Act. Dr. Singhvi placed before the Court a compilation of fax messages and circulars issued by respondent no.3 and statements containing the details of buses operated by seven State Transport Corporations on 1.10.2007 and collection of revenue to the tune of Rs.4.83 crores and argued that in the absence of any evidence or contemporaneous record to show that respondent nos.3 and 5 were directly responsible for non-operation of bus services for some time, they cannot be hauled up on the allegation of committing contempt of Court. Shri Singhvi emphasized that unless intentional circumspection of the Court’s order or positive attempt to frustrate implementation thereof is proved, the respondents cannot be proceeded under the 1971 Act.

20. Shri M.N. Rao, senior advocate argued that newspaper reports of the alleged speech made by respondent no.6 on 1.10.2007 at Chennai cannot be relied upon for holding him guilty of contempt of court because the petitioner has not produced primary evidence of the so-called speech. Shri Rao emphasized that newspaper reports merely represent the version given by the correspondent on the basis of his understanding/impression of the speech made by respondent no.6 and the same do not constitute primary evidence of what was actually stated by respondent no.6 warranting initiation of action for criminal contempt. Shri Rao further argued that the tape/CD of the telecast of the speech of respondent no.6 does not represent the true and correct version of what was said and as the original version has been erased and tape has been reused, the allegation made against respondent no.6 is liable to be discarded.

21. In his rejoinder arguments, Shri S. Guru Krishna Kumar highlighted discrepancies in the fax messages sent by respondent no.3 as also the statement of income produced by Dr. A.M. Singhvi and submitted that these documents appear to have been fabricated after issue of notice by this Court. He then argued that these documents cannot be relied for exonerating respondent nos.1 to 3 of the charge of highly contumacious conduct which resulted in violation of the Court’s order.

22. We have considered the submissions/arguments of learned counsel for the parties. Section 2(b) and (c) of the 1971 Act which define civil and criminal contempt read as under:

2(b) “civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;

2(c) “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible

representations, or otherwise) of any matter or the doing of any other act whatsoever which-

(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court ; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in

any other manner.”

An analysis of Section 2(b) shows that willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court constitutes civil contempt. If this definition is read with Article 129 of the Constitution of India, it becomes clear that being a Court of record, this Court can punish a person for civil contempt if it is found that he has willfully disobeyed any judgment etc. or violated undertaking given to the Court.

23. The term “wilful” (willfull) has not been defined in the 1971 Act. Therefore, it will be useful to notice dictionary meaning of the said term. As per The New Oxford Illustrated Dictionary (1980 Edition), the term “willful” means “asserting or disposed to assert one’s own will against instruction, persuasion, etc. obstinately self-willed; deliberate, intentional, showing perversity or self-will”. According to Black’s Law Dictionary, Vol.II (8th Edition) – Willful means “voluntary and intentional, but not necessarily malicious” and willfulness means “the fact or quality of acting purposely or by design; deliberateness; intention; willfulness does not necessarily imply malice, but it involves more than just knowledge; the voluntary, intentional violation or disregard of a known legal duty.” As per the Stroud’s Judicial Dictionary, Vol.5 (4th Edition), wilful disobedience means “the willful disobedience of a SEAMAN or apprentice is `wilfully disobeying any lawful command DURING the engagement’: `There may be many cases in which desertion or absence without leave, would not amount to willful disobedience, and in these cases the seaman would only be liable to the lesser penalty. Where, however, the seaman deserts or is intentionally absent without leave after the time at which he has been lawfully ordered to be on board, his desertion or absence may amount to `wilful disobedience’, and, consequently, that he would be liable to imprisonment. The words `during the engagement’ seem to suggest that the contract between the employer and the employed should be taken into account, and that if, having regard to that contract, the order was one which the employed was bound to obey, his disobedience might be dealt with under clause (d)” In Shorter Oxford English Dictionary, the term “willful” has been defined as, “asserting or disposed to assert one’s own will against persuasion, instruction, or command; governed by will without regard to reason; obstinately self-willed or perverse; 2. Willing; consenting; ready to comply with a request, desire, or requirement – 1598. 3. proceeding from the will; done or suffered of one’s own free will or choice; voluntary – 1687. 4. Done on purpose or wittingly; purposed, deliberate, intentional. (Chiefly, now always, in bad sense of a blameworthy action; freq. implying `perverse, obstinate’.)

24. In Ashok Paper Kamgar Union v. Dharam Godha and others [(2003) 11 SCC 1], this Court was called upon to decide whether the respondents, i.e., Shri Dharam Godha, Chairman, Nouveau Capital & Finance Ltd., Shri S. Jagadeesan, Joint Secretary, Ministry of Industry, Department of Industrial Policy and Promotion, Government of India, Shri G.S. Kang, Secretary, Department of Industries, Government of Bihar, Shri S.N. Khan, Chairman and Managing Director and Shri R.P. Chabra, Chief General Manager, Rehabilitation Finance Department, Industrial Development Bank of India were guilty of contempt. The facts of the case were that by an order dated 8.7.1996, this Court approved the proposal made by the Government of India for take over of M/s. Ashok Paper Mills by M/s. Nouveau Capital and Finance Ltd. and disposed of the writ petition filed by Ashok Paper Kamgar Union. Later on, by an order dated 1.5.1997, all concerned were directed to participate in implementation of the scheme and the Finance Secretary, Ministry of Finance, Government of India was directed to ensure that the legal requirements are fulfilled and the mill is rehabilitated and both Phases I and II of the Scheme are given effect to. Two more orders were passed by the court in the matter on 31.7.2000 and 1.9.2000. The petitioner alleged that the respondents have failed to comply with the directions given by the Court for implementation of the Scheme and, therefore, they are liable for contempt of court. This court took cognizance of the fact that M/s. Nouveau Capital & Finance Ltd. had failed to pay the consideration of Rs.6 crores; that IDBI had disbursed term loan of Rs.15 crores towards Phase I of revival Scheme; that the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India in cooperation with the Department of Banking obtained sanction for additional term loan of Rs.11 crores from IDBI and a working capital of Rs.9.25 crores from United Bank of India; that NCFL had invested Rs.20 crores towards promotion contribution which was much more than amount contemplated in Phase I of the Scheme and held that respondents cannot be held guilty of contempt. Para 17 of the judgment which contains discussion on the subject reads as under:

“Section 2(b) of the Contempt of Courts Act defines “civil contempt” and it means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of undertaking given to a court. “Wilful” means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extraordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case. The facts mentioned above show that none of the respondents to the petition can be held to be directly responsible if the Scheme which had been formulated by the Government of India on 28-6-1996 and had been approved by this Court by the order dated 8-7-1996 could not be implemented in letter and spirit as many factors have contributed to the same. The reasons given for non-inclusion of Shri Umadhar Prasad Singh in signing of the agreement appear to be quite plausible. NCFL has undoubtedly not discharged its liability of making payment of its entire liability of Rs.6 crores. However, it has come out with a case that some additional expenditure has been incurred in running the unit. It is not possible to get the complete financial picture only on the basis of the affidavits filed in the present petition. On the material on record, therefore, it is not possible to hold that the charge of having committed contempt of court on account of alleged non- compliance with the orders passed by this Court on 8-7-1996, 1-5- 1997 and 31-7-2000 has been established against any one of the respondents.”

[Emphasis added]

25. In Delhi Development Authority v. Skipper Construction [(1995) 3 SCC 507], this Court highlighted distinction between the civil and criminal contempt in the following words:-

“Civil contempt is defined under Section 2(b) of the Act. Thus, any wilful disobedience to the order of the court to do or abstain from doing any act is prima facie a civil contempt. Civil contempt arises where the power of the court is invoked and exercised to enforce obedience to orders of the court.

On the contrary, criminal contempts are criminal in nature. It may include outrages on the Judges in open court, defiant disobedience to the Judges in court, libels on Judges or courts or interfering with the courts of justice or any act which tends to prejudice the courts of justice.”

26. In Kapildeo Prasad Sah and others v. State of Bihar and others [(1999) 7 SCC 569], the Court outlined the object of its contempt jurisdiction in the following words:-

“For holding the respondents to have committed contempt, civil contempt at that, it has to be shown that there has been wilful disobedience of the judgment or order of the court. Power to punish for contempt is to be resorted to when there is clear violation of the court’s order. Since notice of contempt and punishment for contempt is of far-reaching consequence, these powers should be invoked only when a clear case of wilful disobedience of the court’s order has been made out. Whether disobedience is wilful in a particular case depends on the facts and circumstances of that case. Judicial orders are to be properly understood and complied with. Even negligence and carelessness can amount to disobedience particularly when the attention of the person is drawn to the court’s orders and its implications. Disobedience of the court’s order strikes at the very root of the rule of law on which our system of governance is based. Power to punish for contempt is necessary for the maintenance of effective legal system. It is exercised to prevent perversion of the course of justice.

No person can defy the court’s order. Wilful would exclude casual, accidental, bona fide or unintentional acts or genuine inability to comply with the terms of the order. A petitioner who complains breach of the court’s order must allege deliberate or contumacious disobedience of the court’s order.”

[Emphasis added]

27. In the light of the above, we shall now consider whether respondent nos.1 to 5 can be said to have willfully disobeyed order dated 30.9.2007. At the cost of repetition, we consider it necessary to point out that while issuing notice in Special Leave Petition (Civil) No.18879 of 2007, this Court restrained the political parties from proceeding with the call for bandh in the State of Tamil Nadu on 1.10.2007 pursuant to resolution dated 24.9.2007 or any other day. The language of the restraint order is unambiguous. The prohibitive injunction contained therein was explicitly directed against the political parties and not against respondent nos. 1 to 3. The Court did not direct respondent nos. 1 to 3 to act in any particular manner or take certain specific steps to meet the challenge likely to be posed by implementation of the call given by Democratic Progressive Alliance. This was so because the Court could not have presumed that the restraint order passed by it will be disregarded or flouted by the political parties. Therefore, respondent nos.1 to 3 cannot, per se, be held guilty of disobeying or violating the Court’s order dated 30th September, 2007 and punished for committing contempt of court as defined in Section 2(b) of the 1971 Act.

28. No doubt, the petitioners have repeatedly asserted that the buses of State Transport Corporations and 45000 private buses remained off the road on 1.10.2007 causing serious inconvenience to the general public and loss of revenue to the tune of Rs.10 crores, but their assertion is partly belied by the counter affidavits of respondent nos.1 to 3, wherein all the officers have detailed the reasons for operation of less number of buses in the initial hours on 1.10.2007 and the fact that revenue collection of the day was to the tune of Rs.4.83 crores. In his affidavit, respondent no.1 has categorically averred that during the course of the day 2749 routes were made operational. The affidavits of the official respondents also reveal that despite instructions issued to various functionaries, normal transport services could not be made available on account of the support extended to resolution dated 24.9.2007 by the trade unions affiliated to the political parties and the fact that large number of employees had gone on leave thinking that the services may not operate in the wake of the call given by the political parties and three holidays. This has not been controverted by the petitioners. The photographs produced by petitioner – All India Anna Dravida Munnetra Kazhagam do show empty streets, but the same cannot be made basis for recording a finding of guilt against respondent nos. 1 to 3, more so because the petitioners have not produced any evidence to prima facie establish that the transport services did not at all operate in the State on 1.10.2007 and that too on account of any action or omission on the part of respondent nos. 1 to 3. This being the position, it is not possible to record a finding that respondent nos. 1 to 3 or for that reason respondent no.5 deliberately disobeyed or violated the direction given by this Court.

29. The petitioners have also not placed on record any evidence to show that despite restraint order passed by the Court on 30.9.2007, the political parties constituting Democratic Progressive Alliance resorted to strike or bandh. They have not even disputed that after coming to know about the Court’s order, respondent no.4 made a statement at 1.30 p.m. withdrawing resolution dated 24.9.2007 which contained a call for cessation of work on 1.10.2007. If, despite statement of respondent no.4, which was made known to the public, the shops and business establishments remained closed and the private transport operators did not consider it proper to operate their services on 1.10.2007, respondent nos.1 to 3 cannot be held to have deliberately disobeyed the Court’s order.

30. The argument of Shri S. Guru Krishna Kumar that respondent no.4 should be held guilty of contempt because the Government did not issue written instructions to the officers to take steps for maintaining the essential services and to ensure that public life is not disrupted on account of the call for bandh and the workers of his party coerced the people to close the commercial and business establishments is being mentioned only to be rejected. The bald statement contained in the contempt petitions that violence and coercion was resorted to by members of the party headed by respondent no.4 has remained unsubstantiated because except the newspaper reports no material has been produced before the Court giving the names and other relevant particulars of the persons who are said to have indulged in forced closure of shops and business establishments on 1.10.2007 and no other evidence has been produced to show that respondent no.4 had, directly or indirectly, encouraged the members of his party to enforce the call for cessation of work which has been prima facie treated by the Courts as call for bandh. Therefore, respondent no.4 cannot be accused of having engineered violation of the Court’s order.

31. Insofar as respondent no.6 is concerned, we find that the only material produced by the petitioner in Contempt Petition No. 262 of 2007 is in the form of zerox copies of newspapers and tape of the edited version of speech which is said to have been telecast on Jaya T.V. on 1.10.2007 and 2.10.2007. The petitioner in Contempt Petition No. 327 of 2007 has also produced zerox copies of some newspapers. In his first affidavit, respondent no.6 has claimed that the newspapers have reported something by putting in his mouth which he did not speak. In his second affidavit filed in the form of reply to the affidavits of S/Shri M. Ramasubramanian, S. Ravikumar and R. Thillai, respondent no.6 has alleged that what was telecast on Jaya T.V. was the doctored version of his speech. This being the position, the petitioners were duty bound to produce some primary evidence to prove the contents of the speech made by respondent no.6 scandalizing judiciary in general and this Court’s order dated 30th September, 2007 in particular. The zerox copies of the newspapers in which the contents of speech made by respondent no.6 have been published cannot be relied upon because the petitioners have not filed affidavits of those who covered the meeting held by the political parties in front of Chepauk Guest House on 1.10.2007 and heard the speech made by respondent no.6. If such affidavits had been filed, respondent no.6 could have been called upon to explain his position. Likewise, the original tape containing telecast of the speech made by respondent no.6 has not been made available to the Court.

32. The law on the admissibility of tape recorded versions is well settled. In Ram Singh and others v. Col. Ram Singh [1985 (Supp) SCC 611] Fazal Ali, J with whom Sabyasachi Mukharji, J. agreed, laid down the following tests for determining the admissibility of tape recorded version:

1. The voice of the speaker must be identified by the maker of the record or other persons recognizing his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.

2. The accuracy of the tape-recorded statement must be proved by the maker of the record by satisfactory evidence: direct or circumstantial.

3. Possibility of tampering with, or erasure of any part of, the tape-recorded statement must be totally excluded.

4. The tape-recorded statement must be relevant.

5. The recorded cassette must be sealed and must be kept in safe or official custody.

6. The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances.

33. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and others [(1976) 2 SCC 17], a three-Judge Bench while considering the question whether the appellant was guilty of promoting feeling of enmity between two sections of the society, examined the question of admissibility of tape recorded speech, referred to the judgment in R. v. Maqsud Ali [(1965) 2 All ER 464] and observed : “We think that the High Court was quite right in holding that the tape-records of speeches were “documents”, as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions:

(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by

others who know it.

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory

evidence, direct or circumstantial, had to be there so

as to rule out possibilities of tampering with the

record.

(c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the

Evidence Act.”

34. We may now notice some judgments in which the Courts have considered the question relating to burden of proof in contempt cases. In Re, Bramblevale Ltd. [(1969) 3 All ER 1062], Lord Denning observed:

“A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond

reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence. …. Where there are two equally consistent possibilities open to the court, it is not right to hold that the offence is proved beyond reasonable doubt.”

35. In Mrityunjoy Das and another v. Sayed Hasibur Rahman and others [(2001) 3 SCC 739], the Court referred to a number of judicial precedents including the observations made by Lord Denning in Re, Bramblevale Ltd. and held: “The common English phrase “he who asserts must prove” has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the “standard of proof”, be it noted that a proceeding under the extraordinary jurisdiction of the court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond reasonable doubt.”

36. In Chhotu Ram v. Urvashi Gulati and another [(2001) 7 SCC 530], a two- Judge Bench observed :

“As regards the burden and standard of proof, the common legal phraseology “he who asserts must prove” has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the “standard of proof”, be it noted that a proceeding under the extraordinary jurisdiction of the court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond all reasonable doubt.”

37. In Anil Ratan Sarkar and others v. Hirak Ghosh and others [(2002) 4 SCC 21], the Court referred to the judgment in Chhotu Ram v. Urvashi Gulati and another (supra) and observed:

“The Contempt of Courts Act, 1971 has been introduced in the statute-book for the purposes of securing a feeling of confidence of the people in general and for due and proper administration of justice in the country – undoubtedly a powerful weapon in the hands of the law courts but that by itself operates as a string of caution and unless thus otherwise satisfied beyond doubt, it would neither be fair nor reasonable for the law courts to exercise jurisdiction under the statute.”

38. The judgments on which reliance has been placed by Shri S. Guru Krishna Kumar do not have any direct bearing on this case. In A. Sanjeevi Naidu’s case, the Court interpreted the provisions of Section 68C of the Motor Vehicles Act, 1939 and held that when a civil servant takes a decision, he does not do it as a delegate of his Minister but on behalf of the Government, though it is always open to a Minister to call for any file in his office and pass order or issue directions to the officers in his Ministry regarding the disposal of Government business generally or as regards any specified case. In Azhar Ali Khan’s case, the Court held that compliance of orders or directions given by Court to Government or its instrumentalities cannot be avoided merely on ground of inability to comply with its own resolution passed in the face of those clear orders or directions. In T.N. Godavarman Thirumulpad’s case it was found that the Minister and Principal Secretary, Department of Forests, Government of Maharashtra have brazenly and willfully flouted the Court’s directions and granted permission to certain sawmills to recommence their operations and, therefore, they were punished under the 1971 Act. In Mohd. Aslam’s case, this Court considered the question whether the State and its ministers can be proceeded against in contempt for failure to obey the judicial pronouncements. The facts of the case were that during the month of July, 1992, land measuring 2.77 acres situated in Ayodhya was acquired by the State Government under Land Acquisition Act, 1894, for developing an amenity for pilgrims at Ayodhya. Writ Petition No.1000 of 1991 was filed under Article 32 of the Constitution before this Court questioning the acquisition proceedings. On 15.11.1991, the Court noted that the Chief Minister of the State has made statements in the meeting of the National Integration Council held on 2.11.1991 against the making of construction at the site and accordingly, resolution was passed by the National Integration Council and directed that no construction be made at the site. However, despite the Court’s order, construction activities were allowed to be undertaken at the site by Sadhus. It was urged on behalf of the respondents that any coercive/preventive action in the matter of construction of the platform would have triggered an adverse reaction endangering the safety of disputed `Ram Janma Bhoomi-Babri Masjid’ structure which was situated in immediate vicinity and for whose protection Government stood committed and, therefore, the respondent who was holding the office of the Chief Minister, cannot be held guilty of contempt. While rejecting the plea, this Court relied upon the observations contained in William G. Cooper, Members of the Board of Directors of the Little Rock v. John Aaron [358 US1 : 3 L Ed 2d 5 : 78 S Ct 1401 (1958)] and observed:- “The use of force to further obedience to law is in any event a last resort and one not congenial to the spirit of our Nation. … Violent resistance to law cannot be made a legal reason for its suspension without loosening the fabric of our society. What could this mean but to acknowledge that disorder under the aegis of a State has moral superiority over the law of the Constitution?

The historic phrase `a Government of laws and not of men’ epitomizes the distinguishing character of our political society. When John Adams put that phrase into the Massachusetts

Declaration of Rights he was not indulging in a rhetorical flourish. He was expressing the aim of those who, with him, framed the Declaration of Independence and founded the

Republic.

Compliance with decisions of this Court, as the constitutional organ of the supreme law of the land, has often, throughout our history, depended on active support by State and local authorities. It presupposes such support. To withhold it, and indeed to use political power to try to paralyse the supreme law, precludes the maintenance of our federal system as we have known and

cherished it for one hundred and seventy years.

Lincoln’s appeal to `the better angels of our nature’ failed to avert a fratricidal war. But the compassionate wisdom of Lincoln’s First and Second Inaugurals bequeathed to the Union, cemented with blood, a moral heritage which, when drawn upon in times of stress and strife, is sure to find specific ways and means to surmount difficulties that may appear to be insurmountable.” Dicey, in his Law of the Constitution, (10th Edn., pp.193-94) said: When we speak of the `rule of law’ as a characteristic of our country, (we mean) not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary courts, has been pushed to its utmost limit. With us every official, from Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of State, a military officer, and all subordinates though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person.”

39. The Court then referred to the reports of Chief Engineer, District Magistrate and Senior Superintendent of Police and proceeded to observe:- “The next question is whether these activities were carried on by a congregation of Sadhus at the site and not by the State Government and despite Government’s efforts. Apart from a glib suggestion that any attempt to prevent the work would have created a violent situation endangering the safety of the “Ram Janma Bhoomi-Babri Masjid structure” itself, nothing is indicated as to what was sought to be done at all to prevent constructional material coming in. There is no mention in any of the affidavits of any of the officers as to what reasonable measures the

Government took to prevent the inflow of constructional material such as large quantities of cement, mortar, sand, constructional equipment, water-tankers etc. that were necessary for the work. The report of the Expert Committee has indicated that

constructional machinery was indispensable having regard to the nature and magnitude of the work carried out. While it is understandable that the prevention of the gathering of Sadhus might have created some resentment, it is un-understandable why large quantities of building materials were allowed to be brought on the land unless it be — and that must be the reasonable presumption — that the Government itself was not too anxious to prevent it. It is not merely positive acts of violation but also surreptitious and indirect aids to circumvention and violation of the orders that are equally impermissible. If reasonable steps are not taken to prevent the violation of the orders of the Court, Government cannot be heard to say that violation of the orders were at the instance of others. The presumption is that the Government intended not to take such preventive steps. In the facts and circumstances of the case, we are unable to persuade ourselves to the view that the Government was helpless and the situation that had developed was in spite of all reasonable steps taken by the Government. Indeed there is no indication that the Government bestirred itself to take any steps, reasonable or otherwise, to prevent large-scale building material getting into the site. The Chief Minister having given a solemn assurance to the National Integration Council and permitted the terms of that assurance to be incorporated as his own undertaking to this Court and allowed an order to be passed in those terms cannot absolve himself of the responsibility unless he placed before the Court sufficient material which would justify that he had taken all reasonable steps and precautions to prevent the occurrence. Indeed, if such reasonable steps had been taken he could not be faulted merely because he did not do the best by the standards of others. In this case, we find no explanation at all apart from the fact that the Sadhus had congregated in that place in large number, as to what steps the Government took to prevent the constructional equipment from getting into site. If any reasonable effort had been made and evidence of that placed before Court, it might have been possible for the Court to assess the situation in the light of that explanation to find out whether such steps had been taken. In the absence, we are constrained to hold that the Government failed to take steps to prevent the grossest violation of the order of this Court. We record a finding accordingly.”

40. On the question whether the undertaking furnished by the Chief Minister was a personal undertaking or was on behalf of the State of U.P., the Court held: “The last question is whether the undertaking furnished by the Chief Minister was a personal undertaking or was on behalf of the State of U.P. It was both.

There is no immunity for any authority of Government, if a personal element is shown in the act of disobedience of the order of the Court, from the consequence of an order of the Court. Even in England where the maxim “Crown can do no wrong” has had its influence, a distinction is made between the Crown as such and the Executive.

In a recent pronouncement of far-reaching impact, the House of Lords in M. v. Home Office observed (as per Lord Templeman): “My Lords, Parliament makes the law, the executive carry the law into effect and judiciary enforce the law. The expression `the Crown’ has two meanings; namely the monarch and the executive. In the seventeenth century Parliament established its supremacy over the Crown as monarch, over the executive and over the judiciary. Parliamentary supremacy over the Crown as monarch stems from the fact that the monarch must accept the advice of a Prime Minister who is supported by a majority of Parliament. Parliamentary supremacy over the Crown as executive stems from the fact that Parliament maintains in office the Prime Minister who appoints the ministers in charge of the executive.

Parliamentary supremacy over the judiciary is only exercisable by statute. The judiciary enforce the law against individuals, against institutions and against the executive. The judges cannot enforce the law against the Crown as monarch because the Crown as monarch can do no wrong but judges enforce the law against the Crown as executive and against the individuals who from time to time represent the Crown. A litigant complaining of a breach of the law by the executive can sue the Crown as executive bringing his action against the minister who is responsible for the department of State involved, in the present case the Secretary of State for Home Affairs. To enforce the law the courts have power to grant remedies including injunctions against a minister in his official capacity. If the minister has personally broken the law, the litigant can sue the minister, in this case Mr. Kenneth Baker, in his personal capacity. For the purpose of enforcing the law against all persons and institutions, including ministers in their official capacity and in their personal capacity, the courts are armed with coercive powers exercisable in proceedings for contempt of court. * * *

My Lords, the argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War. For the reasons given by my noble and learned friend Lord Woolf and on principle, I am satisfied that injunctions and contempt proceedings may be brought against the minister in his official capacity and that in the present case the Home Office for which the Secretary of State was responsible was in contempt.” In the State of Bihar v. Rani Sonabati Kumari this Court approved the following view of Chakravartti, C.J., in Tarafatullah Mandal v. S.N. Maitra:

“I do not say that in fit cases a writ for contempt may not be asked for against a corporation itself, or against a Government. In what form, in such a case, any penal order, if considered necessary, is to be passed and how it is to be enforced are different matters which do not call for decision in this case. In England, there is a specific rule providing for sequestration of the corporate property of the party concerned, where such party is a corporation. I am not aware of any similar rule obtaining in this country, but I do not consider it impossible that in a fit case a fine may be imposed and it may be realised by methods analogous to sequestration which would be a distress warrant directed against the properties of the Government or the Corporation.”

(emphasis supplied)

The State Government is, therefore, liable in contempt. A Minister or Officer of Government is also either in his official capacity or if there is a personal element contributing to contempt, in his personal capacity, liable in contempt.”

41. In the case before us fact situation is entirely different. As mentioned above, on coming to know of the restraint order passed by this Court, respondent no.4 made a statement for withdrawal of resolution dated 24.9.2007 vide which call was given by five political parties for cessation of work. It is also borne out from the affidavit of respondent no.1 that on 24.9.2007 itself the said respondent had issued instructions to all the officers to ensure that law and order and essential services are maintained and the general public is not inconvenienced due to the call given by political parties for cessation of work. On 30.9.2007, respondent nos.1 to 3 gave detailed instructions to all the officers to ensure that the public is not put to harassment, the government and private properties are not damaged, supplies of essential services like water, electricity, telecom, railways etc. are not disrupted, supply of milk etc. is maintained and business and other commercial establishments are provided protection. Efforts were also made to ensure that operation of transport services is not affected. Respondent no.5 had monitored operation undertaken by the departmental authorities for restoring normal operation by the State Transport Corporation. It is, thus, evident that respondent nos. 1 to 5 did not disobey the restraint order passed by this Court and respondent nos. 1 to 3 took all the steps necessary for preventing any disruption of public services and inconvenience to the general public. It is a different thing that in the wake of hunger strike by leaders of political parties, the business community did not consider it proper to open shops etc. Therefore, the ratio of Mohd. Aslam’s case and other precedents referred to in that judgment cannot be applied to this case for framing charges against respondent nos.1 to 5 on the premise that they have committed contempt within the meaning of Section 2(b) of the 1971 Act.

42. Insofar as respondent no.6 is concerned, charge cannot be framed against him with reference to Section 2(c) of 1971 Act because the petitioners have not produced any legally admissible evidence to prove the contents of the speech allegedly made by the said respondent. The judgments in Aswini Kumar Ghose v. Arabinda Bose (supra) and E.M. Sankaran Namboodripad v. T. Narayanan Nambiar (supra) do not have any bearing on this case and, therefore, we do not consider it necessary to deal with the same.

43. In the result, the contempt petitions are dismissed. However, the parties are left to bear their own costs.

………………….J.

[B.N. AGRAWAL]

………………….J.

[G.S. SINGHVI]

New Delhi,

April 01, 2009.

Categories: Judgement

Chief Judicial Magistrate–Assaulted, arrested on flimsy grounds, handcuffed, tied with rope, photographs taken and published by Police Officers

Equivalent citations: 1991 AIR 2176, 1991 SCR (3) 936
Bench: Singh, K.N.

PETITIONER:

DELHI JUDICIAL SERVICE ASSOCIATION TIS HAZARICOURT, DELHI ET

Vs.

RESPONDENT:

STATE OF GUJARAT AND ORS. ETC-ETC.

DATE OF JUDGMENT11/09/1991

BENCH:

SINGH, K.N. (J)

BENCH:

SINGH, K.N. (J)

KULDIP SINGH (J)

KASLIWAL, N.M. (J)

CITATION:

1991 AIR 2176 1991 SCR (3) 936

1991 SCC (4) 406 JT 1991 (3) 617

1991 SCALE (2)501

ACT:

Constitution of India; 1950: Articles 32, 129, 136, 141, 142, 246,374(2) and Schedule VII List 1, Entry 77. Contempt of Court–Punishment of–Power and jurisdiction of the Supreme Court–Held Court has inherent power and jurisdiction to take action for contempt of subordinate or inferior courts also-Power to be exercised sparingly–Only when contempt is likely to have repercussions throughout the country.

Contempt of Court–High Courts as Courts of Record have inherent power and jurisdiction to take action for contempt of subordinate or inferior courts–Supreme Court having judicial. superintendence over all courts in the country has same jurisdiction.

Contempt of Court–Civil and criminal contempt–Criminal contempt–Wide enough to include any act which would tend to interfere with administration of justice or which would lower the dignity and authority of court.

Chief Judicial Magistrate–Assaulted, arrested on flimsy grounds, handcuffed, tied with rope, photographs taken and published by Police Officers–Held constituted clear case of criminal contempt–Contemners-punishment–Quantum of punish- ment determined according to degree and extent of part played by each contemner–Guidelines laid down by Supreme Court in case of arrest and detention of a Judicial Officer–To be followed by State Governments as well as High Courts–Judicial Officer not to visit Police Station–Except in connection with official and judicial duties and with prior intimation to District and Sessions Judge. Contempt proceedings in Supreme Court–Dispute regarding facts–High Court Judge appointed as Commissioner–Inquiry made, evidence recorded and report submitted–Held contem- ners not persons accused of an offence.

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Supreme Court–Supervisory and appellate jurisdiction of-Plenary jurisdiction unaffected by self imposed restric- tions of the Court–From plenary jurisdiction flows supervi- sory jurisdiction over all courts and Tribunals in India. Supreme Court’s jurisdiction and power not limited–Can determine its own jurisdiction and it will De final. Supreme Court taking cognizance of contempt matter arising out of an 2incident subject matter of trial before a criminal court–Has ample power to do complete justice and prevent abuse of process of court–’Cause’ or ‘matter’ includes proceeding pending in Civil or criminal matter-Need to do ‘complete justice’ would depend on facts and circumstances of case.

precedents–Decisions of Federal Court–Not binding but entitled to great weight–Changes brought about by Constitu- tion to be kept in mind while considering Federal Court, Privy Council decisions.

Contempt of Courts Act, 1971—Sections 2(c), 12 and 15. Criminal contempt–Object of punishing contemner–To protect administration of public justice–Not to protect Judges personally.

Police Officers assaulting, arresting and handcuffing Chief Judicial Magistrate–Publishing photographs in news- papers–Held constituted criminal contempt–Punishment to contemners determined having regard to degree and extent of part played by each contemner-Guidelines laid down by Su- preme Court to be followed by State Governments and High Courts while arresting Judicial Officers.

Criminal contempt proceedings different from ordinary crimi- nal proceedings.

“Courts of Record’–Have power to summarily punish for contempt of court–Contempt of Courts Act 1971 does not curtail inherent power of Supreme Court to punish for con- tempt.

Statutory Interpretation.

Constitution–Interpretation of. Not.permissible to adopt a construction which would render any expression super-fluous or redundant-Regard to be had to the social, economic and political changes, need of the Community and the independence of the judiciary–

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Supreme Court cannot be a helpless spectator bound by prece- dents of colonial days which have least relevance. Criminal Procedure Code, 1973. Section 6 and Chapter XII. Chief Judicial Magistrate–Position and role of–Coordi- nation, Cooperation of police necessity for –Police to be scrupulously fair to offender–Magistrate to ensure fair investigation and }air trial of offender–Magistracy and police–Purpose and object–Complementary to each other–Judicial officer not to visit police station except in connection with official and judicial duties and with prior intimation to District and Sessions Judge. Words and Phrases–Meaning

‘Contempt’–Contempt of Courts Act 1971: Section 2(c).. ‘Court of record’–Constitution of India—-Article 129. ‘Persons accused o fan offence’—constitution of India, Article 20(3).

Including the power to punish for contempt of itself–Constitution of India, Article 129.

‘Complete Justice’–Constitution of India, Article 142 (1).

HEADNOTE:

Mr. N.L. Patel was posted as Chief Judicial Magistrate at Nadiad in October, 1988. He soon found that the local Police was not cooperating with the courts in efficting service of summons, warrants and notices on accused persons, as a result of which the trials of cases were delayed. He made complaint against the local police to the District Superintendent of Police and forwarded a copy of the same to the Director General of Police but nothing concrete hap- pened. On account of these complaints, Mr. S.R. Sharma, Police Inspector, Nadiad was annoyed with the Chief Judicial Magistrate and he withdrew constables posted in the CJM Court. In April 1989, the CJM filed two complaints with the Police against the Police Inspector and other Police Offi- cials, Nadiad for delaying the process of the Court. On 25th July, 1989, the CJM directed the police to register a crimi- nal case against 14 persons who had caused obstruction in judicial proceedings but subsequently since unqualified apology was tendered, the CJM directed the Police Inspector to drop the cases. The Police Inspector reacted strongly to the CJM’s direction and he made complaint against the CJM to the Registrar of the High Court through the District Super- intendent of Police. On account of the aforesaid facts there was hostility between the Police of Nadiad and the CJM. 939

On 25th September 1989, the Police Inspector met the CJM in his chambers to discuss a case where the Police had failed to submit the charge-sheet within 90 days. During discussion the Police Inspector invited the CJM to visit the police station to see the papers and assured him that he would mollify the sentiments of the police officials. At 8.35 p.m. on the said date, the Police Inspector sent a Police Jeep to the CJM’s residence and he went to the Police Station.

According to the CJM when he arrived in the Police Station he was forced to consume liquor and on his refusal he was assulted, handcuffed and tied with rope by Police Inspector, Sub-Inspector, Head Constable, and Constable and that he was sent to Hospital for Medical Examination under handcuffs. A photographer was arranged to take his photo- graph which was published in the newspapers. The Police Inspector disputed these allegations and according to him the CJM entered his chamber at the Police Station in a drunken state, shouting and abusing him and since he was violent, he was arrested, handcuffed and sent to Hospital for Medical Examination. He himself wanted to be photo- graphed and that is why the photographs were taken by the press photographer.

As the incident undermined the dignity of courts in the country, Judicial Officers, Judges and Magistrates all over the country were in a state of shock, they felt insecure and humiliated. A number of Bar Associations passed Resolutions and went on strike. The Delhi Judicial Service Association, the All India Judges Association, Bar Council of Uttar Pradesh and many others approached this Court by means of telegrams and petitions under Article 32 for saving the dignity and honour of the judiciary. The CJM also filed an application for quashing the two FIRs lodged against him and for directing the trial of his complaint as State case an award of compensation. On 29.9.1989 this Court took cogni- zance of the matter by issuing notices to the State of Gujarat and other Police Officers.

Since there was serious dispute between the parties with regard to the entire incident, the Court appointed the senior puisne Judge of the Allahabad High Court to inquire into the incident and to submit a report to the Court. The inquiry was held on behalf of the Court and not under the provisions of the Commission of Inquiry Act. A detailed report was submitted to this Court and the Court directed copies to be delivered to the concerned parties and permit- ted the parties and the contemners to file their objections before this Court.

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The Learned Commissioner’s Report establised the follow- ing facts and circumstances: that the CJM found that the Police of Nadiad was not effective in service of summons and had adopted an attitude of indifference to the court’s orders, and as complaints were forwarded to the authorities by the CJM there was confrontation between the local police and the magistracy. When the CJM visited the police station pursuant to the Police Inspector’s request to discuss the matter, he was forced to consume liquor and on his refusal he was assaulted. He was tied up with a rope by the Police personnel and handcuffed deliberately in defiance of the state’s Police Regulations and Circulars and the decision of this Court in Prem Shankar Shukla v. Delhi Administration., A panchnama showing the drunken state of the CJM was pre- pared by the Police Inspector and signed by two panchas–a Mamlatdar and a Fire Brigade Officer. A press photographer was brought on the scene, the police personnel posed with the CJM for the press photographer and the same was pub- lished in newspapers. A request made by the CJM to the Civil Hospital doctors to contact and inform the District Judge about the incident was not allowed. On examination at the hospital, the body of the CJM was found to have a number of injuries. His blood was taken and chemical examination conducted. The Chemical Examiner submitted a report holding that the blood sample contained alcohol. At the initial stage only one case was registered against the CJM by the Police under the Bombay Prohibition Act, but when lawyers met the Police Inspector for securing release of the CJM on bail, the offence being bailable, the Police Inspector, registered another case under Sections 332 and 506 IPC in order to frustrate the attempt. The District Superintendent of Police did not take immediate action in the matter but created an alibi that he had gone elsewhere and stayed in the government Rest House there, the register of the Rest House however indicating that the entry regarding the stay was manipulated subsequently by making an interpolation. On behalf of the contemners-Police Officers it was contended that: (1) this Court had no jurisdiction or power to indict the Police Officers even if they are found to be guilty, as their conduct does not amount to contempt of this Court. Articles 129 and 215 demarcate the respective areas of jurisdiction of the Supreme Court and the High Courts respectively, and this Court’s jurisdiction under Article 129 is confined to the contempt of itself only, and it has no jurisdiction to indict a person for contempt of an infe- rior court subordinate to the. High Court. (2) Even if the Supreme Court is a court of record, it has no power to take action for the contempt of a Chief Judicial Magistrate’s court as neither the constitution nor any statutory provi- sion confer any

941

such jurisdiction-or power on this Court. So far as the High Court is concerned, it has power of judicial and administra- tive superintendence over the subordinate courts and Section 15 of the Contempts of Courts Act, 1971 expressly confers power on the High Court to take action for the contempt of subordinate courts. (3) Under Entry 77 of List I of the Seventh Schedule, Parliament has legislative competence to make a law curtailing the jurisdiction of the Supreme Court and Section 15 of the Contempts of Courts Act 1971 curtails the inherent power of this Court with regard to contempt of subordinate courts. Inherent powers are always preserved but they do not authorise a court to invest itself with juris- diction when that jurisdiction is not conferred by law. (4) Assumption of contempt jurisdiction with regard to contempt of subordinate and inferior courts on the interpretation of Article 129 of the Constitution is foreclosed by the deci- sions of the Federal Court in K.L. Gauba v. The Honable the Chief Justice and Judges of the High Court o]’ judicature at Lahore & Anr., AIR 1942 FC 1. This Court being the successor to the Federal Court was bound by the decisions of the Federal Court under Article 374(2) of the Constitution. (5) In our country there is no court of universal jurisdiction, as the jurisdiction of all courts including the Supreme Court is limited. (6) Article 142(1) does not contemplate any order contrary to statutory provisions. (7) The findings recorded by the Commission cannot be taken into account as those findings are hit by Article 20(3) of the Constitution. The Attorney-General urged that the power to punish contempt is a special jurisdiction which is inherent in a Court of record, that a superior court of record has inher- ent power to punish for contempt of itself and it necessari- ly includes and carries with it the power to punish for contempt committed in respect of subordinate or inferior courts, that a superior court of record having power to correct the order of an inferior court has power to protect that court by punishing those who interfere with the due administration of justice of that court. It was further urged that the Contempt of Courts Act 1971 recognises and preserves the existing contempt jurisdiction and power of the court of record for punishing for contempt of subordi- nate or inferior courts, that the Act has not affected or restricted the suo motu inherent power of the Supreme Court being a court of record which has received constitutional sanction under Article 129, that since this Court has taken cognizance of the contempt matter arising out of the inci- dent which is the subject matter of trial before the crimi- nal court, this Court has ample power under Article 142 of the Constitution to pass any order necessary to do justice and prevent abuse of process of the court and that there is no limitation on the power of this Court under Article 142 942

in quashing a criminal proceeding pending before a subordi- nate court.

The basic questions that arose for consideration of the Court were: (a) whether the Supreme Court has inherent jurisdiction or power to punish for contempt of subordinate or inferior courts under Article 129 of the Constitution, (b) whether the inherent jurisdiction and power of the Supreme Court is restricted by the Contempt of Courts Act, 1971, (c) whether the incident interfered with the due administration of justice and constituted contempt of court, and (d) what punishment should be awarded to the contemners found guilty of contempt.

Disposing of the writ petitions, Criminal Miscellaneous Petitions, and contempt petitions, this Court. HELD: 1.1 Contempt of court is an act or commission calculated to interfere with the due administration of justice. It includes civil and criminal contempt. [991D] Bowen L.J. in Helmore v. Smith, [1886] 35 Ch.D. 436 at 455, referred to.

1.2 The definition of criminal contempt is wide enough to include any act by a person which would tend to interfere with the administration of justice or which would lower the authority of court. The public have a vital stake in effec- tive and orderly administration of justice. The Court has the duty of protecting the interest of the community in the due administration of justice and, so, it is entrusted with the power to commit for contempt of court, not to protect the dignity of the Court against insult or injury, but, to protect and vindicate the right of the public so that the administration of justice is not perverted, prejudiced, obstructed or interfered with Offutt v.U.S., [1954] 348 US 11, referred to. [991F]

1.3 The power to punish contempt is vested in the Judges not for their personal protecting only, but for the protec- tion of public justice, whose interest, requires that decen- cy and decorum is preserved in Courts of Justice. Those who have to discharge duty in a Court of Justice are protected by the law, and shielded in the discharge of their duties. Any deliberate interference with the discharge of such duties either in court or outside the court by attacking the presiding officers of the court, would amount to criminal contempt and the courts must take serious cognizance of such conduct. [993B]

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The object and purpose of punishing contempt for interference with the administration of justice is not to safeguard or protect the dignity of the Judge or the Magis- trate, but the purpose is to preserve the authority of the courts to ensure an ordered life in society. [991H] Attorney-General v. Times Newspapers, (1974] A.C. 273 at p. 302, referred to.

1.5 The Chief Judicial Magistrate is head of the Magis- tracy in the District who administers justice to ensure, protect and safaguard the rights of citizens. The subordi- nate courts at the district level cater to the need of the masses in administering justice at the base level. By and large the majority of the people get their disputes adjudi- cated in subordinate courts. It is, in the general interest of the community that the authority of subordinate courts is protected. If the CJM is led into a trap by unscrupulous Police Officers, and if he is assaulted, handcuffed and roped, the public is bound to lose faith in Courts, which would be destructive of the basic structure of an ordered society. If this is permitted Rule of Law shall be supplant- ed by Police Raj. [992D-E]

1.6 The conduct of Police Officers in the instant case, in assaulting and humiliating the CJM brought the authority and administration of justice into disrespect, affecting the public confidence in the institution of justice. [992G] 1.7 The incident is a clear interference with the admin- istration of justice, lowering its judicial authority. Its effect was not confined to one District or State, it had a tendency to affect the entire judiciary in the country. The incident high-lights a dangerous trend that if the Police is annoyed with the orders of a presiding officer of a court, he would be arrested on flimsy manufactured charges, to humiliate him publicly as has been done in the instant case. [992F]

1.8 The facts of the instant case, demonstrate that a presiding officer of a court may be arrested and humiliated on flimsy and manufactured charges which could affect the administration of justice. In order to avoid any such situa- tion in future, it is necessary to lay down guidelines which should be followed in the case of arrest and detention of a Judicial Officer. [1000F]

1.9 In view of’ the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are’ properly investigated the following guidelines are to be

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followed: (a) If a judicial officer is to be arrested for some offence, it should be done under intimation to the District Judge or the High Court as the case may be. (b) If facts and circumstances necessitate the immediate arrest of a judicial officer of the subordinate judiciary, a technical or formal arrest may be effected. (c) The fact of such arrest should be immediately communicated.to the District and Sessions Judge of the concerned District and the Chief Justice of the High Court. (d) The Judicial Officer so arrested shall not be taken to a police station, without the prior order or directions of the District & Sessions Judge of the concerned District, if available. (e) Immediate facilities shall be provided to the Judicial Officer for communication with his family members, legal advisors and Judicial Officers, including the District & Sessions Judge. (f) No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be drawn up nor any medical test be conducted except in the presence of the Legal Advi- sor of the Judicial Officer concerned or another Judicial Officer of equal or higher rank, if available. (g) There should be no handcuffing of a Judicial Officer. If, however, violent resistance to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting arrest may be over- powered and handcuffed. In such case, immediate report shall be made to the District & Sessions Judge concerned and also to the Chief Justice of the High Court. But the burden would be on the Police to establish the necessity for effecting physical arrest and handcuffing the Judicial Officer and if it be established that the physical arrest and hand-cuffing of the Judicial Officer was unjustified, the Police Officers causing or responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally liable for compensation and/or damages as may be summarily deter- mined by the High Court. [1000G-1001F]

1.10 These guidelines are not exhaustive but are the minimum safeguards to be observed in case of arrest of a Judicial Officer. These should be implemented by the State Governments as well as by the High Courts. [1001G]

1. 11 No judicial officer should visit a Police Sta- tion on his own except in connection with his official and judicial duties and functions, and this also with prior intimation to the District and Sessions Judge. [1002B] 2.1 The Supreme Court as the Apex Court is the protec- tor and guardian of justice throughout the land, therefore, it has a right and also a duty to protect the courts whose orders and judgments are amenable to correction, from com- mission of contempt against them. This

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right and duty of the Apex Court is not abrogated merely because the High Court also has this right and duty of protection of the subordinate courts. The jurisdictions are concurrent and not exclusive or antagonistic. [967G-H] 2.2 Article 136 vests the Supreme Court with wide powers to grant special leave to appeal from any judgment, decree determination sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India except a court or tribunal constituted by or under any law relating to the Armed Forces. The Court’s appellate power under Article 136 is plenary, it may entertain any appeal by granting special leave against any order made by any Magistrate, Tribunal or any other subordinate court. The width and amplitude of the power is not affected by the practice and prcedure followed in insisting that before invoking the jurisdiction under Article 136 the aggrieved party must exhaust remedy available under the law before the appellate authority of the High Court. Self imposed restric- tions do not divest it of its wide powers to entertain any appeal against any order or judgment passed by any court or tribunal in the country without exhausting alternative remedy before the appellate authority or the High Court. The power of the Court under Article 136 is unaffected by Arti- cles 132. 133 and 134(A) in view of the expression “notwith- standing anything in this Chapter” occurring in Article 136. [968E-969A]

Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors., [1955] 1 SCR 267 and Arunachalam v. P.S.R. Sadhananthm & Anr., [1979] 2 SCC 297, referred to.

2.3 In addition to the appellate power, the Supreme Court has special residuary power to entertain appeal against any order of any court in the country. The plenary jurisdiction of the Court to grant leave and hear appeals against any order of a court or Tribunal, confers power of judicial superintendence over all the courts and Tribunals in the territory of India including subordinate courts of Magistrate and District Judge. The Court has, therefore, supervisory jurisdiction over all courts in India. [970F] 2.4 Article 129 provides that the Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Article 215 contains similar provision in respect of High Court. Both the Supreme Court as well as High Courts are courts of record having powers to punish for contempt in- cluding the power to punish for contempt of itself..[970G] 946

2.5 The Constitution does not define “Court Of Record”. A “Court of Record” is a court where acts and judicial proceedings are enrolled in parchment for a perpetual memo- rial and testimony, which rolls are called the ‘record’ of the court and.are conclusive evidence of that which is recorded therein. [970H -971 E] ‘

Wharton’s Law Lexicon: Words & Phrases (Permanent Edi- tion) vol. 10 p. 429: Halsbury’s Laws of England Vol. 10 p. 319.

2.6 In India prior to the enactment of the Contempt of Courts Act, 1926, High Court’s jurisdiction in respect of contempt of subordinate and inferior courts was regulated by the principles of Common Law of England. The High Courts in the absence of statutory provision exercised power of con- tempt to protect the subordinate courts on the premise of inherent power of a Court of Record. [974F-G] Rex v. Aimon, 97 ER 94; Rainy v. The Justices of Seirra Leone, 8 Moors PC 47 at 54; Surendra Nath Banerjee v. The Chief Justice and Judges of the High Court at Fort William in Bengal, ILR to Calcutta 109; Rex v. Parke, [1903] 2 K.B. 432 at 442; King v. Davies, [1906] 1 K.B. 32; King v. Editor of the Daily Mail, [1921] 2 K.B. 733; Attorney General v. B.B.C., [1980] 3 ALR 161; Venkat Rao 21 Madras Law Journal 832; Mohandas Karam Chand Gandhi [1920] 22 Bombay Law Re- porter 368; Abdul Hassan Jauhar’s AIR 1926 Allahabad 623; Shantha Nand Gir v. Basudevanand, AIR 1930 Allahabad 225 FB; Mr. Hirabai v. Mangal Chand, AIR 1935 Nagpur 46; Harkishan Lal v. Emperor, AIR 1937 Lahore 497; Mohammad Yusuf v. Imtiaz Ahmad Khan, AIR 1939 Oudh, 131 and Legal Remembrancer v. Motilal Ghosh, ILR 41 Cal. 173, referred to. 2.7 The Kings Bench in England and High Courts in India being superior Court of Record and having judicial power to correct orders of subordinate courts enjoyed the inherent power of Contempt to protect the subordinate courts. The Supreme Court being a Court of Record under Article 129 and having wide power of judicial supervision over all the courts in the country, must possess and exercise similar jurisdiction and power as the High Courts had prior to Contempt Legislation in 1926. Inherent powers of a superior Court of Record have remained unaffected even after Codifi- cation of Contempt Law. [976G-977A]

Sukhdev Singh Sodhi v. The Chief Justice and Judges of the PEPSU High Court, [1954] SCR 454 and R.L. Kapur v. State of Tamil Nadu, AIR 1972 SC 858, referred to. 947

2.8 The Contempt of Courts Act 1971 was enacted to define and limit the powers of Courts in punishing contempts of courts and to regulate their procedure in relation there- to. There is no provision therein curtailing the Supreme Court’s power with regard to contempt of subordinate courts, Section 15 expressly refers to this Court’s power for taking action for contempt of subordinate courts. The section prescribes modes for taking cognizance of criminal contempt by the High Court and Supreme Court. It is not a substantive provision conferring power or jurisdiction on the High Court or on the Supreme Court for taking action for the contempt of its subordinate courts. The whole object of prescribing procedural modes of taking cognizance in Section 15 is to safeguard to valuable time of the High Court and the Supreme Court being wasted by frivolous complaints of contempt of court. Section 15(2) does not restrict the power of the High Court to the cognizance of the contempt of itself or of a subordinate court on its own motion although apparently the Section does not say so. [977A-C, 978G-979A] S.K. Sarkar, Member, Board of Revenue, U.P. Lucknow v. Vinay Chandra Misra, [1981] 2 SCR 331, referred to. 3.1 Under Entry 77 of List I of the Seventh Schedule read with Article 246, Parliament is competent to enact a law relating to the powers of the Supreme Court with regard to ‘contempt of itself’. Such a law may prescribe procedure to be followed and it may also prescribe the maximum punish- ment which could be awarded and it may provide for appeal and for other matters. But the Central Legislature has no legislative competence to abridge or extinguish the juris- diction or power conferred on the Supreme Court under Arti- cle 129. The Parliament’s power to legislate in relation to the law of contempt relating to the Supreme Court is limit- ed, therefore the Contempt of Courts Act does not impinge upon the Supreme Court’s power with regard to the contempt of subordinate courts under Article 129. [979C-F] 3.2 Article 129 declares the Supreme Court a court of record and it further provides that the Supreme Court shall have all the powers of such a court including the power to punish for contempt of itself The expression used in Article 129 is not restrictive, instead it is extensive in nature. If the Framers of the Constitution intended that the Supreme Court shall have power to punish for contempt of itself only, there was no necessity for inserting the expression “including the power to punish for contempt of itself.” [979G]

3.3 Article 129 confers power on the Supreme Court to punish for

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contempt of itself and in addition, it confers some addi- tional power relating to contempt as would appear from the expression “including”. The expression “including” has been interpreted by courts, to extend and widen the scope of power. The plain language of the Article clearly indicates that the Supreme Court as a Court of record has power to punish for contempt of itself and also something else which could fall within the inherent jurisdiction of a court of record. [979H-980A]

3.4 In interpreting the Constitution, it is not permis- sible to adopt a construction which would render any expres- sion superfluous or redundant. [980B]

3.5 While construing Article 129, it is not permissible to ignore the significance and impact of the inclusive power conferred on the Supreme Court. [980B]

3.6 The conferment of appellate power on the Court by a statute section 19 of the Contempt of Courts Act 1971 does not and cannot affect the width and amplitude of inherent powers of this Court under Article 129 of the Constitution. [981E]

K.L. Gauba v. The Honable the Chief Justice and Judges of the High Court of Judicature at Lahore & Anr AIR 1942 FC 1, distinguished.

4.1 Article 374(2) is in the nature of a transitory provision to meet the exigency of the situation on the abolition of the Federal Court and setting up of the Supreme Court. There is no provision in the said Article to the effect that the decisions of the Federal Court shall be binding on the Supreme Court. The decisions of the Federal Court and the Privy Council made before the commencement of the Constitution are entitled to great respect but these decisions are not binding on the Supreme Court and it is always open to this Court to take a different view. [983F-G] Om Prakash Gupta v. The United Provinces, AIR 1951 Allahabad 205 and State of Bombay v. Gajanan Mahadev Badley, AIR 1954 Bombay 352, approved.

The State of Bihar v. Abdul Majid, [1954] SCR 786 and Shrinivas Krishnarao Kango v. Narayan Devji Kango & Ors., [1955] 1 SCR 1, referred to.

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K.L. Gauba v. The Hon’ble the Chief Justice and Judges or the High Court of Judicature at Lahore & Anr., AIR 1942 FC 1 and Purshottam Lal Jaitly v. The King Emperor, [1944] FCR 364, explained and distinguished.

The Federal Court exercised limited jurisdiction as conferred on it by the Government of India Act 1935. The question regarding the inherent power of the Supreme Court as a Court of Record in respect of the contempt of subordi- nate Courts was neither raised nor discussed in its deci- sions. The Federal Court observed that if the High Court and the Federal Court both have concurrent jurisdiction in contempt matters, it could lead to conflicting judgments and anamolous consequences. That may be so under the Government of India Act as the High Court and the Federal Court did not have concurrent jurisdiction, but under the Constitution, High Court and the Supreme Court both have concurrent juris- diction in several matters, yet no anamolous consequences follow. [985H-986B]

4.2 The Federal Court did not possess the wide powers as the Supreme Court has under the Constitution. There are marked difference in the constitution and jurisdiction and the amplitude of powers exercised by the two courts. In addition to civil and criminal appellate jurisdiction, the Supreme Court has wide powers under Article 136 over all the courts and Tribunals in the country. The Federal Court had no such power, instead it had appellate power but that too could be exercised only on a certificate issued by the High Court. The Federal Court was a court of record under Section 203 but it did not possess any plenary or residuary appel- late power over all the courts functioning in the territory of India like the power conferred on the Supreme Court under Article 136 of the Constitution. Therefore, the Federal Court had no judicial control or superintendence over subor- dinate courts. [986C-E]

4.3 Advent of freedom, and promulgation of the Constitu- tion have made drastic changes in the administration of justice necessitating new judicial approach. The Constitu- tion has assigned a new role to the Constitutional Courts to ensure rule of law in the country. These changes have brought new perceptions. In interpreting the Constitution, regard must be had to the social, economic and political changes, need of the community and the independence of the judiciary. The Court cannot be a helpless spectator, bound by precedents of colonial days which have lost relevance. Time has come to have a fresh look to tile old precedents and to lay down law with the changed perceptions keeping in view the provisions of the Constitution. [986F-G] 950

5.1 Courts constituted under a law enacted by the Par- liament or the State Legislature have limited jurisdiction and they cannot assume jurisdiction in a matter, not ex- pressly assigned to them, but that is not so, in the case of a superior court of record constituted by the Constitution such a court does not have a limited jurisdiction, instead it has power to determine its own jurisdiction. No matter is beyond the jurisdiction of a superior court of record unless it is expressly shown to be so, under the provisions of the Constitution. In the absence of any express provision in the Constitution, the Apex Court being a Court of record has jurisdiction in every matter and if there be any doubt, the Court has power to determine its jurisdiction. If such determination is made by the High Court, the same would be subject to appeal to this Court, but if the jurisdiction is determined by this Court it would be final. [988C-E] Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra JUDGMENT:

[1965] 1 SCR 413 and Ganga Bishan v. Jai Narain, [1986] 1 SCC 75, referred to.

5.2 Since the Supreme Court has power of judicial super- intendence and control over all the courts and Tribunals functioning in the entire territory of the country, it has a corresponding duty to protect and safeguard the interest of inferior courts to ensure the flow of the stream of justice in the courts without any interference or attack from any quarter. The subordinate and inferior courts do not have adequate power under the law to protect themselves, there- fore, it is necessary that this Court should protect them. Under the constitutional scheme it has a special role in the administration of justice and the powers conferred on it under Article 32, 136, 141 and 142 form part of the basic structure of the Constitution. The amplitude of the power of the court under these Articles of the Constitution cannot be curtailed by law made by Central or State Legislature. [987A-C]

5.3 The Supreme Court and the High Court both exercise concurrent jurisdiction under the constitutional scheme in matters relating to fundamental rights under Articles 32 and 226 of the Constitution. Therefore, this Court’s jurisdic- tion and power to take action for contempt of subordinate courts would not be inconsistent to any constitutional scheme. [987D]

5.4 The Apex Court is duty bound to take effective steps within the constitutional provisions to ensure a free and fair administration of justice through out the country. For that purpose it must wield the

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requisite power to take action for contempt of subordinate courts. Ordinarily, the High Court would protect the subor- dinate courts from any onslaught on their independence, but in exceptional cases, extraordinary situation may prevail affecting the administration of public justice or where the entire judiciary is affected, this Court may directly take cognizance of contempt of subordinate courts. [987F] 5.5 The Supreme Court will sparingly exercise its inher- ent power in taking cognizance of the contempt of subordi- nate courts, as ordinarily matters relating to contempt of subordinate courts must be dealt with by the High Courts. The instant case is of exceptional nature as the incident created a situation where functioning of the subordinate courts all over the country was adversely affected and the administration of justice was paralysed, therefore, this Court took cognizance of the matter. [987G-988A] 6.1 Though there is no provision like section 482 of the Criminal Procedure Code conferring express power on the Supreme Court to quash or set aside any criminal proceeding pending before a criminal court to prevent abuse of process of the court, but the Court has power to quash any such proceeding in exercise of its plenary and residuary powers under Article 136 of the Constitution, if on the admitted facts no change is made out against the accused or if the proceedings are initiated on concocted facts, or if the proceedings are initiated for oblique purposes. [996E] Once the Supreme Court is satisfied that the criminal proceedings amount to abuse of process of court it would quash such proceedings to ensure justice. [996G] State of West Bengal & Ors. v. Swapan Kumar Guha & Ors., [1982] 3 SCR 121 and Madhavrao Jivajirao Scindia & Ors. v. Sambhajirao Chandrojirao Angre & Ors., [1988] 1 SCC 692, referred to.

6.2 The inherent power of the Supreme Court under Arti- cle 142 coupled with the plenary and residuary powers under Articles 32 and 136 embraces power to quash criminal pro- ceedings pending before any court to do complete justice in the matter before this Court. If the court is satisfied that the proceedings in a criminal case are being utilised for oblique purposes or if the same are continued on manufac- tured and false evidence or if no case is made out on the admitted facts, it would be in the ends of justice to set aside or quash the criminal proceeding. It is idle to sug- gest that in such a situation this Court should be a help- less spectator. [997B-C]

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6.3 The Court’s power under Article 142(1) to do “complete justice” is entirely of different level and of a different quality. Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitu- tional power of this Court. Once this Court has seisin of a cause or matter before it has power to issue any order or direction to do “complete justice” in the matter. This constitutional power of the Apex Court cannot be limited or restricted by provisions contained in statutory law. [997G] 6.4 What would be the need of “complete justice” in a cause or matter would depend upon the facts and circum- stances of each case and while exercising that power the Court would take into consideration the express provisions of a substantive statute. Once this Court has taken seisin of a case, cause or matter, it has power to pass any order or issue direction as may be necessary to do complete jus- tice in the matter. [998D]

Prem Chand Garg v. Excise Commissioner, U.P. Allahabad, [1963] Supp. 1 SCR 885 and A.R. Antulay v.R.S. Nayak & Anr., [ 1988] 2 SCC 602, referred to.

In the instant case, the foundation of the criminal trial of CJM-NL Patel is based on facts which have been found to be false. It would be in the ends of justice and also to do complete justice in the cause to quash the crimi- nal proceedings. [998F]

7.1 Article 20(3) of the Constitution declares that no person accused of any offence shall be compelled to be a witness against himself. In order to avail the protection of Article 20(3) three conditions must be satisfied. Firstly, the person must be accused of an offence. Secondly, the element of compulsion to be a witness should be there, and thirdly it must be against himself. All the three ingredi- ents must necessarily exist before protection of Article 20(3) is available. If any of these ingredients do not exist, Article 20(3) cannot be invoked. [964E-F] Balkishan Devidayal v. State of Maharashtra, [1980] 4 SCC 600, referred to.

7.2 Mere issue of notice or pendency of contempt proceedings do not attract Article 20(3) of the Constitution as the contemners against whom notices were issued were not accused of any offence. A Criminal contempt is punishable by the superior courts by fine or imprisonment, but it has many characteristics which distinguishes it from an ordinary offence. [964G]

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7.3 The power to take proceedings for contempt of Court is an inherent power of a Court of record. The Criminal Procedure Code does not apply to such proceedings. Since the contempt proceedings are not in the nature of criminal proceedings for an offence, the pendency of contempt pro- ceedings cannot be regarded as criminal proceedings merely because it may end in imposing punishment on the contemner. A contemner it is not in the position of an accused. It is open to the Court to cross-examine the contemner and even if the contemner is found to be guilty of contempt, the Court may accept apology and discharge the notice of contempt, whereas tendering of apology is no defence to the trial of a criminal offence. This peculiar feature distinguishes con- tempt proceedings from criminal proceedings. In a criminal trial where a person is accused of an offence there is a public prosecutor who prosecutes the case on behalf of the prosecution against the accused but in contempt proceedings the court is both the accused as well as the judge of the accusation. [966C-E]

Debabrata Bandopadhyaya’s case, AIR 1969 SC 189, referred to.

7.4 In the instant case, the contemners do no stand in the position of a “person accused of an offence” merely on account of issue of notice of contempt by this Court and the Commission which was acting on behalf of this Court had full authority to record the testimony of the contemners. There has, therefore, been no violation of Article 20(3) of the Constitution and the Commission’s finding are not violated. [966F-G]

8.1 In determining, what punishment should be awarded to contemners found guilty, the degree and the extent of part played by each of the contemners has to be kept in mind. [998G]

8.2 In the instant case, Sharma, the Police Inspector was the main actor in the entire incident and who had planned the entire episode with a view to humiliate the CJM in the public eye is the main culprit and therefore, he deserves maximum punishment. The Sub Inspector took an active part in assaulting and tying the CJM at the behest of the Police Inspector. The Head Constable and Constable also took active part in handcuffing and tying the CJM with ropes, but as subordinate officials they acted under the orders of the superior officers. The Mamlatdar was a friend of the Police Inspector, he had no axe to grind against the CJM but he acted under the influence of the Police Inspec- tor. So far as the DSP is concerned, he actively abetted the commission of onslaught on the CJM. The contemners are held guilty of contempt and awarded punishment. [998H-999B] 954

8.3 The Police Inspector to undergo simple imprisonment for a period of six months and to pay fine of Rs.2,000. The Sub-Inspector to undergo simple imprisonment for a period of five months and pay a fine of Rs.2,000 and in default one month’s simple imprisonment. Head Constable and Constable, each to undergo simple imprisonment for two months and a fine of Rs.500 and in default 15 days simple imprisonment. The Mamlatdar to undergo simple imprisonment for a period of two months and a fine of Rs.1,O00 and in default one month’s simple imprisonment. The DSP is sentenced to imprisonment for a period of one month and a fine of Rs.1,O00 and in default simple imprisonment for 15 days. So far as the other respondents against whom notices were issued no adequate material on record holds them guilty. The contempt notices are therefore discharged. [999C-E]

9.1 The Court expressed displeasure on the conduct of the DGP. As the head of the Police in the State, he was expected to intervene in the matter and to ensure effective action against the erring Police Officers. He was totally indifferent to the news that a CJM was arrested, handcuffed, roped, and assaulted. He took this news as a routine matter without taking any steps to ascertain the correct facts for effective action against the erring Police Officers. If the head of the State Police Administration exhibits such indif- ference to a sensitive matter which shook the entire judi- cial machinery in the State, nothing better could be expect- ed from his subordinate officers. The State Government should take action departmentally on the basis of the find- ings recorded by the Commission. [999F-1000A] 9.2 The discharge of the contempt notices does not absolve the officers of their misconduct. The State Govern- ment is directed to proceed with the disciplinary proceed- ings for taking appropriate action. [1000B]

&

ORIGINAL JURISDICTION: Writ Petition (CRL.) No. 517 of 1989 etc. etc.

(Under Article 32 of the Constitution of India). Soli. J. Sorabjee, Attorney General, Ashok H. Desai, Addl. Solicitor General, R.K. Garg, G. Ramaswamy, F.S. Nariman, Dr. L.M. Singhvi, G.A. Shah, T.U. Mehta, V.M. Tarkunde, B.K. Mehta S.S. Ray, A.K. Gupta, S.K. Dhingra, T.C. Sharma, Kishan Dutt, R.J. Trivedi, Manoj Swarup, M.N. Shroff, Sudarsh Menon, Sushil Kumar Jain, Bahl Singh Malik, Gopala Subramanium, Ms. Binu Tamta, Shahid Rizi. D.K. Singh, T. Ray, Pramod Swarup, Praveen Swarup,

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P.H. Parekh, Sunil Dogra, C.L. Sahu, G.L. Gupta, Brij Bhu- shan, N.S. Das Bahl, Mrs. H. Wahi, Harish Javeri and S. Ganesh. T.C. Sharma for the appearing parties. The Judgment of the Court was delivered by

K.N. SINGH, J. On 25th September, 1989, a horrendus incident took place in the town of Nadiad, District Kheda in the State of Gujarat, which exhibited the berserk behaviour of Police undermining the dignity and independence of judi- ciary. S.R. Sharma, Inspector of Police, with 25 years of service posted at the Police Station, Nadiad, arrested, assaulted and handcuffed N.L. Patel, Chief Judicial Magis- trate, Nadiad and tied him with a thick rope like an animal and made a public exhibition of it by sending him in the same condition to the Hospital for medical examination on an alleged charge of having consumed liquor in breach of the prohibition law enforced in the State of Gujarat. The In- spector S.R. Sharma got the Chief Judicial Magistrate photo- graphed in handcuffs with rope tied around his body along- with the constables which were published in the news papers all over the country. This led to tremors in the Bench and the Bar throughout the whole country.

The incident undermined the dignity of courts in the country, Judicial Officers, Judges and Magistrates all over the country were in a state of shock, they felt insecure and humiliated and it appeared that instead of Rule of Law there was Police Raj in Gujarat. A number of Bar Associations passed Resolutions and went on strike. The Delhi Judicial Service Association, the All India Judges Association, Bar Council of Uttar Pradesh, Judicial Service of Gujarat and many others approached the Apex Court by means of telegrams and petitions under Article 32 of the Constitution of India for Saving the dignity and honour of the judiciary. On 29.9.1989, this Court took cognizance of the matter by issuing notices to the State of Gujarat and other Police Officers. The Court appealed to the Members of the Bar and Judiciary to resume work to avoid inconvenience to the litigant public. Subsequently, a number of petitions were filed under Article 32 of the Constitution of India for taking action against the Police Officers and also for quashing the criminal proceedings initiated by the Police against N.L. Patel, Chief Judicial Magistrate. A number of Bar Associations, Bar Councils and individuals appeared as interveners condemning the action of the police and urging the Court for taking action against the Police Officers. 956

In Petition No. 5 18 of 1989 alongwith Contempt Petition No. 6 of 1989 filed by the President, All India Judges Association, notices for contempt were issued by this Court on 4.10.1989 to seven Police Officials, D.K. Dhagal, D.S.P., A.M. Waghela, Dy. S.P., S.R. Sharma, Police Inspector, Kuldeep Singh Lowchab, Police Inspector (Crime), K.H. Sadia, Sub-Inspector of Police, Valjibhai Kalabhai, Head Constable and Pratap Singh, Constable. N.L. Patel, CJM, Nadiad also filed an application in W.P. No. 517 of 1989 with a prayer to quash the two FIRs lodged against him, to direct the trial of the complaint filed by him as State case and to award compensation.

On 13.2.1990 notices from contempt were issued to. K. Dadabhoy, Ex. D.G.P., Gujarat, Dr. Bhavsar, Senior Medical Officer of Govt. Hospital Nadiad and M.B. Savant, Mamlatdar, Nadiad. The Court during the proceedings also issued notices to R. Bala Krishnan, Additional Chief Secretary (Home), Government of Gujarat and S.S. Subhalkar, District Judge, Nadiad to show cause why action be not taken against them in view of the Report of Justice Sahai.

N.L. Patel was posted as Chief Judicial Magistrate at Nadiad in October, 1988. He soon found that the local Police was not cooperating with the courts in effecting service of summons, warrants an notices on accused persons, as a result of which the trials of cases were delayed. He made complaint against the local Police to the District Superintendent of Police and forwarded a copy of the same to the Director General of Police but nothing concrete happened. On account of these complaints S.R. Sharma, Police Inspector Nadiad was annoyed with the Chief Judicial Magistrate, he withdrew constables posted in the CJM Court. In April, 1989 Patel filed two complaints with the Police against Sharma and other Police Officials, Nadiad for delaying the process of the court. On 25 July, 1989 Patel directed the Police to register a criminal case against 14 persons who had caused obstruction in judicial proceedings but subsequently since they tendered unqualified apology, the CJM directed the Police Inspector to drop the cases against-those persons. Sharma reacted strongly to Patel’s direction and he made complaint against the CJM to the Registrar of the High Court through District Superintendent of Police. These facts show that there was hostility between the Police of Nadiad and the CJM. On 25.9. 1989, S.R. Sharma met Patel, CJM in his Chambers to discuss the case of one Jitu Sport where the Police had failed to submit charge-sheet within 90 days. During discussion Sharma invited the CJM to visit the Police Station to see the papers and further his visit would mollify the sentiments of the Police Officials. It is al- leged that at

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8.35 p.m. Sharma sent a Police Jeep at Patel’s residence, and on that vehicle Patel went to the Police Station. What actual happened at the Police Station is a matter of serious dispute between the parties. According to the CJM, he ar- rived in the Chamber of Sharma in the Police Station, he was forced to consume liquor and on his refusal he was assault- ed, handcuffed and tied with rope by Sharma, Police Inspec- tor, Sadia Sub-Inspector, Valjibhai Kalajibhai, Head Consta- ble and Pratap Singh, Constable. It is further alleged that Patal was sent to Hospital for Medical examination under handcuffs where he was made to sit on a bench in the varanda exposing him to the public gaze. Sharma, Police Inspector and other Police Officers have disputed these allegations. According to Sharma, Patel entered his chamber at the Police Station at 8.45 p.m. on 25.9. 1989 in a drunken state, shouting and abusing him, he caught hold of Sharma and slapped him, since he was violent he was arrested, hand- cuffed and sent to Hospital for medical examination. Patel himself wanted to be photographed while he was handcuffed and tied with ropes, a photographer was arranged to take his photograph which was published in the newspapers. Since, there was serious dispute between the parties with regard to the entire incident, the Court appointed Justice R.M. Sahai senior puisne Judge of the Allahabad High Court (as he then was) to inquire into the incident and to submit report to the Court. Justice Sahai was appointed to hold the inquiry on behalf of this Court and not under the provisions of the Commission of Inquiry Act. Justice Sahai visited Nadiad and held sittings there. The learned Commis- sioner/Judge invited affidavits/statements, and examined witnesses including S.R. Sharma the Police Inspector, D.K. Dhagal, D.S.P. and other Police Officers, lawyers, N.L. Patel, CJM, and Doctors and other witnesses. Justice Sahai afforded full opportunity to all the concerned persons including the State Government, Police Officers and lawyers to lead evidence and to cross examine witnesses. He submit- ted a detailed Report dated 28.11.1989 to this Court on 1.12.1989. On receipt of the Report this Court directed copies to be delivered to concerned parties and permitted the parties and the contemners to file their objections, if any, before this Court. The objections were filed by the Police Officers and the contemners disputing the findings recorded by the Commissioner,

On 12.12.1989, when the matter came up for final dispos- al the Court issued notices to the Attorney-General and Advocate-General of the State of Gujarat. On 10.1.1990 the Court directed the State of Gujarat to file affidavit stat- ing as to what action it had taken or pro-

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posed to take against the officers in the light of the Report of Justice Sahai. The Court further issued notices to R. Bala Krishnan, Additional Chief Secretary (Home), Govern- ment of Gujarat, K. Dadabhoy, Director General of Police, S.S. Sudhalkar, District Judge, to show cause as to why action should not be taken against them in view of the Report of Justice Sahai. The State Government was further directed to explain as to why action against D.K. Dhagal, DSP, S.R. Sharma, Police Inspector and other police officers had not been taken. On 13.2. 1990 a notice for contempt of this Court was issued to K. Dadabhoy on the same date in view of the findings recorded by Justice Sahai, notices for contempt of court were issued to Dr. Bhavsar and M.B. Sa- vant, Mamlatdar, Nadiad also.

in his affidavit, S.R. Sharma, Police Inspector has raised a number of objections to the findings recorded by the Commissioner. The objections are technical in nature, chal- lenging the authority and jurisdiction of the Commissioner in collecting evidence and recording findings against him. Sharma has further stated in his objections that the Commis- sioner acted as if he was sitting in judgment over the case. Other Police Officers have also raised similar objections. We find no merit in the objections raised on behalf of Sharma, Police Inspector and other contemners. The Commis- sioner had been appointed by this Court to hold inquiry and submit his report to the Court. Justice Sahai was acting on behalf of this Court and he had full authority to record evidence and cross-examine witnesses and to collect evidence on behalf of this Court. Since, the main incident of Chief Judicial Magistrate’s arrest, assault, handcuffing and roping was connected with several other incidents which led to the confrontation between the Magistracy and local po- lice, the learned Commissioner was justified in recording his findings on the background and genesis of the entire episode. The Police Inspector Sharma raised a grievance that he was denied opportunity of cross-examination of Patel, CJM and he was not permitted to produce Dr. Jhala as a witness, Sharma’s application for the recall of CJM for further cross-examination and for permission to produce Dr. Jhala, retired Deputy Director, Medical and Health Services, Guja- rat, was rejected by a well reasoned order of the Commis- sioner dated 9.11.1989. We have gone through the order and we find that the Commissioner has given good reasons for rejecting the recall of CJM for further cross-examination, as he had been crossexamined by the counsel appearing on behalf of the Police officials including Sharma. The Police Officers and the State Government and CJM were represented by counsel before the Commissioner and every opportunity was afforded to them for cross-examining the witnesses. 959

Dr. Jhala’s evidence was not necessary, the Commissioner rightly refused Sharma’s prayer.

On behalf of the contemners it was urged that in the absence of any independent testimony the Commission was not justified in accepting interested version of the incident as given by the CJM with regard to his visit to the Police Station and the incident which took place inside the Police Station. There was oath against oath and in the absence of any independent testimony the Commission was not justified in accepting the sole interested testimony of Patel, CJM. We find no merit in this objection. The learned Commissioner has considered the evidence as well as the circumstances in support of his findings that Patel had been invited by Sharma to visit the Police Station and he had sent a Police jeep on which Patel went to the Police Station. This fact is supported by independent witnesses as discussed by the Commissioner. If Patel had gone on the invitation of Sharma on Police jeep and not in the manner as alleged by Sharma, Patel could not be drunk and there appears no reason as to why he would have assaulted Sharma as alleged by the Police. The circumstances as pointed out by the Commissioner fully justify the findings recorded against the Police Officers. It is settled law that even in a criminal trial, accused is convicted on circumstantial evidence in the absence of an eye witness, Learned Commissioner acted judicially in a fair and objective manner in holding the inquiry, he afforded opportunity to the affected Police Officers and other per- sons and submitted his Report based on good reasons in respect of his findings which are amply supported by the material on record. The Commissioner did a commendable job in a record time. After hearing arguments at length and on perusal of the statements recorded by the Commissioner and the documentary evidence submitted by the parties, and a careful scrutiny of the affidavits and objections filed in this Court, we find no valid ground to reject the well- reasoned findings recorded by the learned Commissioner. The Commissioner’s Report runs into 140 pages, which is on record. The contemners and other respondents have failed to place any convincing material before the Court to take a different view. We accordingly accept the same. After hearing learned counsel for the parties and on perusal of the affidavits, objections, applications and the Report of the Commissioner, we hold that the following facts and circumstances are fully proved:

(1) N.L. Patel, Chief Judicial Magistrate found that the Police of

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Nadiad was not effective in service of summons and it had adopted an attitude of indifference to court orders. He tried to obtain the assistance of the District Superintend- ent of Police in February, 1989 and addressed a letter to the Director General’ of Police but no response came from the Police Authorities, even though the Government had reminded D.K. Dhagal, D.S.P., Kheda to do the needful. Patel, the CJM filed two complaints against Police Officers of Nadiad Police Station and the Inspectors, and forwarded it to the District Superintendent of Police on 19th and 24th July, 1989 for taking action against them. Sharma, the Police Inspector who had by then been posted at Nadiad reacted to the CJM’s conduct by withdrawing constables working in the courts of Magistrates on the alleged pretext of utilising their services for service of summons. This led to confrontation between the local Police and the Magistracy commenced.

(2) On 25th July, 1989, the CJM had directed the regis- tration of a case against 14 accused persons for misbeha- viour and causing obstruction in the judicial proceedings. Since the accused persons had later expressed regret and tendered unqualified apology to the court, the CJM sent a letter to the Police Inspector, Sharma to drop proceedings. Sharma went out of his way, to send a complaint to the High Court through the D.S.P. saying that Patel was functioning in an illegal manner in the judicial discharge of his du- ties. The action of Sharma, Police Inspector was highly irresponsible and Dhagal, D.S.P. should not have acted in a casual manner in forwarding Sharma’s letter to the Registrar of the High Court directly.

(3) Remand period of Jitu Sport was to expire on 27th September, 1989, the CJM directed the Police Inspector to produce complete papers before the expiry of the period of remand but he applied for the extension of the judicial remand. The CJM directed the Police Inspector to produce papers on 22.9.1989, Sharma did not appear before the CJM as directed, on the contrary he interpolated the order, sent to him indicating that he was required to appear before the CJM on 23.9.1989, which was admittedly a holiday. (4) On 25th September, 1989, Sharma met the CJM in his Chamber and as a pretext requested him to come to the Police Station to see the papers which could not be brought to the Court, as that could satisfy him that the Police was doing the needful for complying with the orders of the Court. Sharma pleaded with CJM that his visit to Police Station will remove the feeling of confrontation between the Police and Magistracy. The CJM agreed to visit the Police Station and

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Sharma offered to send police jeep to CJM’s house for bring- ing him to the Police Station.

(5) On 25.9.89 after the Court hours the CJM went to the officers’ club where he remained in the company of Sudhal- kar, District Judge and Pande, Civil Judge till 8,30 p.m. Thereafter, he went to his residence. A Police jeep came to his residence at about 8.40 p.m. in the Officers Colony, he went on that Police jeep to the Police Station situated at a distance of about 2 kms. Patel had not consumed liquor before he went to the Police Station.

(6) The Police version that Patel had consumed liquor before coming to the Police Station and that he assaulted the Police Inspector Sharma and misbehaved with him at the Police Station is a cooked up story. Patel did not go to the Police Station on foot as alleged by Sharma, instead, he went to the Police Station in a Police jeep on Sharma’s invitation. Patel was handcuffed and tied with rope, and he received injuries at the Police Station, he was assaulted and forced to consume liquor after he was tied to the chair on which he was sitting, Police Inspector Sharma, Sub-In- spector Sadia, Head Constable Valjibhai Kalabhai and Consta- ble Pratap Singh took active part in this episode. They actively participated in the assualt on Patel and in forcing liquor in his mouth. They acted in collusion with Sharma to humiliate and teach a lesson to Patel.

(7) On the direction of Sharma, Police Inspector, Patel was handcuffed at the Police Station and he was further tied up with a thick rope by the Police Inspector, Sharma, Sadia, Sub-Inspector, Valjibhai Kalabhai, Head Constable and Pratap Singh, Constable. This was deliberately done in defiance of Police Regulations and Circulars issued by the Gujarat Government and the law declared by this Court in Prern Shankar Shukla v. Delhi Administration., [1980] 3 SCC 526. Patel had not committed any offence nor he was violent and yet he was handcuffed and tied up with rope without there being any justification for the same. There were seven police personnel present at the Police Station and most of them were fully armed while Patel was empty handed, there was absolutely no chance of Patel escaping from the custody or making any attempt to commit suicide or attacking the Police Officers and yet he was handcuffed and tied up with a thick rope like an animal with a view to humiliate and teach him a lesson. For this wanton act there was absolutely no justification and pleas raised by Sharma that Patel was violent or that he would have escaped from the custody are figment of imagination made for the purpose of the case. 962

(8) The panchnama showing the drunken state of Patel prepared on the dictation of Sharma, Police Inspector, and signed by Sharma as well as by two panches, M.B. Savant, Mamlatdar and P.D. Barot, Fire Brigade Officer, Nadiad, did not represent the correct facts, instead, it was manufac- tured for the purpose of preparing a false case against CJM PateI, justifying his arrest and detention.

(9) On examination at the Civil Hospital Patel’s body was found to have a number of injuries. The injury on the left eye was very clear which appeared to have been caused by external force. His body had bruises and abrasions which could be caused by fists and blows. While in the casualty ward of the Civil Hospital, Patel requested the Doctors to contact the District Judge and inform him about the inci- dent. Dr. Parashar tried’ to ring up the District Judge but he was prevented from doing so by Sharma and other Police Officers who were present there. Dr. Parashar and Dr. Bhav- sar found the speech of Patel normal, gait steady, he was neither violent, nor he misbehaved. His blood was taken for chemical examination but the Forms used were not according to the rules and the blood was not taken in accordance with procedure prescribed by the Rules and the Circulars issued by the Director of Medical Services, Gujarat. The chemical examination of the blood sample taken in the Civil Hospital was not correctly done. The blood sample was analysed by a teenager who was not a testing officer within the Bombay Prohibition Act and necessary precautions at the time of analysis were not taken. The phial in which the blood sample had been sent to the Chemical Examiner did not contain the seal on phial and the seal was not fully legible. The Chemi- cal Examiner who submitted the report holding that the blood sample of Patel contained alcohol on the basis of the calcu- lation made by him in the report clearly admitted before the Commission that he had never determined the quantity of liquor by making calculation in any other case and Patel’s case was his first case.

(10) When Patel was taken to Civil Hospital handcuffed and tied with thick rope he was deliberately made to sit outside in the Varanda on bench for half an hour in public gaze, to enable the public to have a full view of the CJM in that condition. A Press photographer was brought on the scene and the Policemen posed with Patel for the press photograph. The photographs were taken by the Press Reporter without any objection by the Police, although a belated justification was pleaded by the Police that Patel desired to have himself photographed in that condition. This plea is totally false. The photographs taken by the Press Reporter were published in `Jan Satta’ and ‘Lokmat’ on 26th 963

September. 1989 showing Patel handcuffing and tied with rope and the Policemen standing beside him. This was deliberately arranged by Sharma to show to the public that Police weilded real power and if the CJM took confrontation with Police he will not be spared.

(11) At the initial stage, one case was registered against Patel by the Police under the Bombay Prohibition Act. Two Advocates Kantawala and Brahmbhatt met Sharma at 11.30 p.m. for securing Patel’s release on bail, as offences under the Prohibition Act were bailable. The lawyers re- quested Sharma to allow them to meet the CJM who was in the police lock-up but Sharma did not allow them to do so. With a view to frustrate lawyers’ attempt to get Patel released on bail. Sharma registered another case against Patel under Sections 332 and 506 of Indian Penal Code as offence under Section 332 is non-bailable.

(12) D.K. Dhagal, the then District Superintendent of Police, Kheda exhibited total indifference to CJM’s com- plaint regarding the unsatisfactory state of affairs in the matter of execution of court processes. Dhagal identified himself with Sharma, Police Inspector who appeared to be his favourite. Instead of taking corrective measures in the service of processes, he became party along with Sharma in forwarding his complaint to the High Court against Patel’s order in a judicial matter. The incident which took place in the night of 25/26 September 1989, had the blessing of Dhagal. He did not take any immediate action in the matter instead he created an alibi for himself alleging that he had gone to Lasundara and then to Balasinor Police Station and stayed there in a Government Rest House. The register at the Rest House indicating the entry regarding his stay was manipulated subsequently by making interpolation. On the direction of Additional Chief Secretary (Home) Dhagal sub- mitted his report on 27.9. 1989 but in that report he did not make any reference of handcuffing and roping of the CJM although it was a matter of common knowledge and there was a great resentment among the judicial officers and the local public. Dhagal’s complicity in the sordid episode is further fortified by the fact that he permitted Sharma, the main culprit of the entire episode to carry on investigation against Patel in the case registered against him by Sharma and also in the case registered by Patel against Sharma. (13) Police Inspector Sharma had pre-planned the entire incident and he had even arranged witnesses in advance for preparing false case against N.L. Patel, CJM, as M.B. Sa- vant, Mamlatdar in the

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Police Station, immediately on the arrival of PateI, CJM, and they acted in complicity with Sharma in preparing the panchnama which falsely stated that Patel was drunk. M.B. Sawant and P.D. Barot both were hand in glove with Sharma to flasely implicate Patel in Prohibition Case. Learned Commissioner has adversely commented upon the conduct of various officers including K. Dadabhoy, the then Director General of Police, Gujarat, Kuldip Singh Lowchab, CID Inspector, Dr. Bhavsar, Senior Medical Officer, Nadiad, M.B. Savant, Mamlatdar, P.D. Barot, Fire Brigade Officer and A.N. Patel, Chemical. Examiner, Nadiad. After considering the material on record, we agree with the view taken by the Commissioner that ,their conduct was not above board as expected from responsible officers. We do not consider it necessary to burden the judgment by referring to the details of the findings as the same are contained in the Commis- sioner’s Report.

Mr. Nariman contended on behalf of the Po1ice Officers that the findings recorded by the Commission cannot be taken into account as those findings are hit by Article 20(3) of the Constitution. Inspector Sharma and other Police Officers against whom criminal cases have been registered were com- pelled to be witnesses against themselves by filing affida- vits and by subjecting them to cross examination before the Commissioner. Any finding recorded on the basis of their evidence is violative of Article 20(3) of the Constitution. Article 20(3) of the Constitution declares that no person accused of any offence shall be compelled to be a witness against himself. In order to avail the protection of Article 20(3) three conditions must be satisfied. Firstly, the person must be accused of an offence. Secondly, the element of compulsion to be a witness should be there and thirdly it must be against himself. All the three ingredients must necessarily exist before protection of Article 20(3.) is available. If any of these ingredients do not exist, Article 20(3) cannot be invoked see: Balkishan Devidayal v. State of Maharashtra., [1980] 4 SCC 600. In the instant case this Court had issued notices for contempt to Sharma, Police Inspector and other contemners. Mere issue of notice or pendency of contempt proceedings do not attract Art. 20(3) of the Constitution as the contemners against whom notices were issued were not accused of any offence. A criminal contempt is punishable by the superior courts by fine or imprisonment, but it has many characteristics which distin- guishes it from ordinary offence. An offence under the criminal jurisdiction is tried by a Magistrate or a Judge and the procedure of trial is regulated by the’ Code of Criminal Procedure, 1973 which provides as elaborate 965

procedure for flaming of charges, recording of evidence, crossexamination, argument and the judgment. But’ charge of contempt is tried on summary process without any fixed procedure as the court is free to evolve its own procedure consistent with fair play and natural justice. In contempt proceedings unlike the trial for a criminal offence no oral evidence is ordinarily recorded and the usual practice is to give evidence by affidavits. Under the English Law a crimi- nal offence is tried by criminal courts with the aid of Jury but a criminal contempt is tried by courts summarily without the aid and assistance of Jury. Ordinarily, process of trial for contempt is summary. A summary form of trial is held in the case of civil contempt and also in the case of criminal contempt where the act is committed in the actual view of the court or by an officer of justice. The summary procedure is applicable by immemorial usage when criminal contempt was committed out of court by a stranger. The practice of pro- ceeding summarily for the punishment of contempt out of court has been the subject of comment and protest, but the practice is founded upon immemorial usage, it has, since the eighteenth century, been generally assumed. We do not con- sider it necessary to refer to decisions from English Courts which have been discussed in detail in the History of Con- tempt of Court by Fox JC 1927. Proceedings for contempt of Court are not taken in the exercise of original criminal jurisdiction. Proceedings for contempt of Court are of a peculiar nature; though it may be that in certain aspects they are quasi criminal, but in any view they are-not exer- cised as part of the original criminal jurisdiction of the Court, as was held in re: Tushar Kanti Ghosh and Another. AIR 1935 Calcutta 419. The High Court held that since the proceedings for contempt of Court do not fall within the original criminal jurisdiction of the Court no leave could be granted for appeal to Privy Council under Clause 41 of the Letters Patent of that Court. In Sukhdev Singh Sodhi v. The Chief Justice and Judges of the PEPSU High Court, [1954] SCR 454. Sukhdev Singh Sodhi approached this Court for transfer of contempt proceedings from PEPSU High Court to any other High Court under Section 527 of the Criminal Procedure Code, 1898. This Court. re- jected the application holding that Section 527 of the Criminal Procedure Code did not apply to the contempt pro- ceedings as the contempt jurisdiction is a special jurisdic- tion which is inherent in all courts of record and the Cr. P.C. excludes such a special jurisdiction from the Code. The Court further held that notwithstanding the provisions contained in the Contempt of Courts Act, 1926 making an offence of contempt, punishable, the Act does not confer any jurisdiction or create the offence, it merely limits the 966

amount of the punishment which could be awarded and it removes a certain doubt. The jurisdiction to initiate the proceedings and take seisin of the contempt is inherent in a court of record and the procedures of the Criminal Procedure Code do not apply to contempt proceedings. Section 5 of the Code of Criminal Procedure lays down that nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. The power to take proceedings for the contempt of Court is an inherent power of a Court of record, the Criminal Procedure Code does not apply to such proceedings. Since, the contempt proceedings are not in the nature of criminal proceedings for an of- fence, the pendency of contempt proceedings cannot be re- garded as criminal proceedings merely because it may end in imposing punishment on the contemner. A contemner is not in the position of an accused, it is open to the Court to cross-examine the contemner and even if the contemner is found to be guilty of contempt, the Court may accept apology and discharge the notice of contempt, whereas tendering of apology is no defence to the trial of a criminal offence. This peculiar feature distinguishes contempt proceedings from criminal proceedings. In a criminal trial where a person is accused of an offence there is a public prosecutor who prosecutes the case on behalf of the prsecution against the accused but in contempt proceedings the court is both the accuser as well as the judge of the accusation as ob- served by Hidayatullah, CJ in Debabrata Bandopadhyaya’s, case AIR 1969 SC I89. Contempt proceeding is sui generis, it has peculiar features which are not found in criminal pro- ceedings. In this view the contemners do not stand in the position of a person accused of an offence” merely on ac- count of issue of notice of contempt by this Court and the Commission which was acting on behalf of this Court had full authority to reord the testimony of the contemners. Commis- sion issued notice and directed Sharma, Police Inspector and other Police Officials to place their version of the inci- dent before it and there was no element of compulsion. In this view there has been no violation of Article 20(3) of the Constitution and Commission’s findings are not vitiated. Mr. F.S. Nariman contended that this Court has no jurisdiction or power to indict the Police Officers even if they are found to be guilty as their conduct does not amount to contempt of this Court. He urged that Article 129 and 215 demarcate the respective areas of jurisdiction of the Su- preme Court and the High Courts respectively. 967

This COurt’s Jurisdiction under Article 129 is confined to the contempt of itself only and it has no jurisdiction to intict a person for contempt of an inferior court subordi- nate to the High Court. The Parliament in exercise of its legislative power under Entry 77 of List 1 read with Entry 14 of List III has enacted Contempt of. Courts Act 1971 (hereinafter referred to as the ‘Act’) and that Act does not confer any jurisdiction on this Court for taking action for contempt of subordinate courts. Instead the original juris- diction of High Courts in respect of contempt of subordinate courts is specificially preserved by Sections 11 and 15(2) of the Act. The Supreme Court has only appellate powers under Section 19 of the Act read with Articles 134(1)(c) and 136 of the Constitution. The Constitutional and statutory provisions confer exclusive power on the High Court for taking action with regard to contempt of inferior or subor- dinate court, and the Supreme Court has no jurisdiction in the matter. Shri Nariman further urged that in our country there is no court of universal jurisdiction, and the juris- diction of all courts including Supreme Court is limited and this Court can not enlarge its jurisdiction. Shri Soli J. Sorabji learned Attorney General (as he then was) urged that power to punish contempt is a special jurisdiction which is inherent in a court of record. A superior court of record has inherent power to punish for contempt of itself and it necessarily includes and carries with it the power to punish for contempt committed in respect of subordinate or inferior courts. A superior court of record having power to correct the order of inferior court has power to protect that court by punishing those who interfere with the due administration of justice of the court. Articles 129 and 2 15 do not confer any additional jurisdiction on the Supreme Court and the High Court. The constitutional provisions as well as the legislative enactment “The Contempt of Courts Act” recognise and preserve the existing contempt jurisdiction and power of the court of record for punishing for contempt of subordi- nate or inferior courts. The Act has not affected or re- stricted the suo moto inherent power of the Supreme Court being a court of record which has received constitutional sanction under Article 129. Mr. Sorabji further urged that even otherwise the Act does not restrict or affect the suo moto exercise of power by the Supreme Court as a court of record in view of Section 15(1) of the Act. The Supreme Court as the Apex Court is the protector and guardian of justice throughout the land, therefore, it has a right and also a duty to protect the courts whose orders and judgments are amenable to correction, form commission of contempt against them. This right and duty of the Apex Court is not abrogated merely because the High Court also has this right and duty of protection of the subordinate courts. The juris- dictions are concurrent and not exclusive or antagonistic. 968

The rival contentions raise the basic question whether the Supreme Court has inherent jurisdiction or power to punish for contempt of subordinate or inferior courts under Article 129 of the Constitution and whether the inherent jurisdiction and power of this Court is restricted by the Act. The answer to the first question depends upon the nature and the scope of the power of this Court as a court of record, in the background of the original and appellate jurisdiction exercised by this Court under the various provisions of the Constitution. It is necessary to have a look at the constitutional provisions relating to the origi- nal and appellate jurisdiction of this Court. Article 124 lays down that there shall be a Supreme Court of India consisting of Chief Justice of India.and other Judges. Article 32 confers original jurisdiction on this Court for enforcement of fundamental rights of the citizens. This jurisdiction can be invoked by an aggrieved person even without exhausting his remedy before other courts. Article 129 provides that the Supreme Court shall be a court of record and shall have all the powers of such a court includ- ing the power to punish for contempt of itself. Article 13 1 confers original jurisdiction on the Supreme Court in cer- tain matters. Article 132 confers appellate jurisdiction on this Court against any judgment, decree or final order of the High Courts in India. Articles 133, 134 and 134A confer appellate jurisdiction in the Supreme Court in appeals from High Courts in regard to civil and criminal matters respec- tively on certificate to be issued by the High Court. Arti- cle 136 provides for special leave to appeal before the Supreme Court, notwithstanding the provisions of Articles 132, 133, 134 and 134A. Article 136 vests this Court with wide powers to grant special leave to appeal from any judg- ment, decree determination sentence or order in any cause or matter passed or made by any court or tribunal in the terri- tory of India except a court or Tribunal constituted by or under any law relating to the Armed Forces. The Court’s appellate power under Article 136 is plenary, it may enter- tain any appeal by granting special leave against any order made by any Magistrate. Tribunal or any other subordinate court. The width and amplitude of the power is not affected by the practice and procedure followed by this Court in insisting that before invoking the jurisdiction of this Court under Article 136 of the Constitution, the aggrieved party must exhaust remedy available under the law before the appellate authority or the High Court. Self imposed restric- tions by this Court do not divest it of its wide powers to entertain any appeal, against any order or judgment passed by any court or Tribunal in the country without exhausting alternative remedy before the appellate authority or the High Court. The power of this Court under Article 136 is unaffected by Article 132, 133, 134 and 134(A) in view of the expression

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“notwithstanding anything in this Chapter” occurring in Article 136.

This Court considered the scope and amplitude of plenary power under Article 136 of the Constitution in Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors., [1955] 1 SCR 267. Mukherjee, J. speaking for the Court observed: “The powers given by Article 136 of the Con- stitution however are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by the Supreme Court of the land. The article itself is worded in the widest terms possible. It vests in the Supreme Court a plenary juris- diction in the matter of entertaining and hearing appeals, by granting of special leave, against any kind of judgment or order made by a court or Tribunal in any cause or matter and the powers could be exercised in spite of the specific provisions for appeal contained in the Constitution or other laws. The Constitu- tion for the best of reasons did not choose to fetter or circumscribe the powers exercisable under this Article in any way.”

In Arunachalam v.P.S.R. Sadhanantham & Anr., [1979] 2 SCC 297 this Court entertained an appeal under Article 136 of the Constitution of India by special leave at the in- stance of a complainant against the judgment and the order of acquittal in a murder case and on appraisal of evidence, it set aside the order of acquittal. Objections raised on behalf of the accused relating to the maintainability of the special leave petition under Article 136 of the Constitu- tion, was rejected. Chinnappa Reddy, J. speaking for the Court held as under:

“Article 136 of the Constitution of India invests the Supreme Court with a plentitude of plenary, appellate power over all courts and Tribunals in India. The power is plenary in the sense that there are no words in Article 136 itself qualifying that power. But, the very nature of the power has led the court to set limits to itself within which to exercise such power. It is now the well established practice of this Court to permit the invoca- tion of the power under ArtiCle 136 only in very exceptional circumstances, as when a question of law of general public importance arises or a decision shocks the conscience of the Court. But, within the restrictions im- posed by itself, this Court has the

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undoubted power to interfere even with find- ings of fact, making no distinction between judgments of acquittal and conviction, if the High Court, in arriving at those findings, has acted “perversely or otherwise improperly”.” With regard to the competence of a private party, distin- guished from the State, to invoke the jurisdiction of this Court under Article 136 of the Constitution, the Court observed:

“Appellate power vested in the Supreme Court under Article136 of the Constitution is not to be confused with ordinary appellate power exercised by appellate courts and appellate tribunals under specific statutes. As we said earlier, it is a plenary power, exercisable outside the purview of ordinary law’ to meet the pressing demands of justice (vide Durga Shankar Mehta v. Thakur Raghuraj Singh,). Article 136 of the Constitution neither con- fers on anyone the right to invoke the juris- diction of the Supreme Court nor inhibits anyone from invoking the Court’s jurisdiction. The power is vested in the Supreme Court but the right to invoke the Court’s jurisdiction is vested in no one. The exercise of the power of the Supreme Court is not circumscribed by any limitation as to who may invoke it.”

There is therefore no room for any doubt that this Court has wide power to interfere and correct the Judgment and orders passed by any court or Tribunal in the country. In addition to the appellate power, the Court has special residuary power to entertain appeal against any order of any court in the country. The plenary jurisdiction of this Court to grant leave and hear appeals against any order of a court or Tribunal, confers power of judicial superintendence over all the courts and Tribunals in the territory of India including subordinate courts of Magistrate and District Judge. This Court has, therefore, supervisory jurisdiction over all courts in India.

Article 129 provides that the Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Article 215 contains similar provision in respect of High Court. Both the Supreme Court as well as High Courts are courts of record having powers to punish for contempt in- cluding the power to punish for contempt of itself. The Constitution does not define “Court of Record”. This expres- sion is well recognised in jurisdical world. In Jowitt’s Dictionary of English Law, “Court of Record” is defined as: 971

“A court whereof the acts and judicial pro- ceedings are enrolled for a perpetual memorial and testimony, and which has power to fine and imprison for contempt of its authority.”

In Wharton’s Law Lexicon, Court of Record is defined as: “Courts are either of record where their acts and judicial proceedings are enrolled for a perpetual memorial and testimony and they have power to fine and imprison; or not of record being courts of inferior dignity, and in a less proper sense the King’s Courts–and these are not entrusted by law with any power to fine or imprison the subject of the realm, unless by the express provision of some Act

of Parliament. These proceedings are not enrolled or recorded.”

In Words and Phrases (Permanent Edition) Vol. 10 page 429, “Court of Record” is defined as under:

“Court of Record is a court where acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony, which rolls are called the “record” of the court, and are of such high and supereminent authori- ty that their truth is not to be questioned.” Halsbury’s Laws of England Vol. 10 page 319, states: “Another manner of division is into courts of record and courts not of record. Certain Courts are expressly declared by statute to be courts of record. In the case of courts not expressly declared to be courts of record, the answer to the question whether a court is a court of record seems to depend in general upon whether it has power to fine or imprison, by statute or otherwise, for contempt of itself or other substantive offences; if it has such power, it seems that it is a court of record…….. proceedings of a Court of record preserved in its archives are called records, and are conclusive evidence of that which is recorded therein.”

In England a superior court of record has been exercised power to indict a person for the contempt of its authority and also for the contempt of its subordinate and inferior courts in a summary manner

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without the aid and assistance of Jury. This power was conceded as a necessary attribute of a superior court of record under Anglo Saxon System of Jurisprudence. The con- cept of inherent power of the superior court of record to indict a person by summary procedure was considered in detail in Rex v. Almon, 97 ER 94 commonly known as Aimon’s case. In that case King’s Bench initiated proceedings for contempt against John Almon, a book-seller for publishing a libel on the Chief Justice, Lord Mansfied. On behalf of the contemner objection was taken to the summary procedure followed by the Court. After lengthy arguments judgment was prepared by Chief Justice Wilmot holding that a libel on a Judge was punishable by the process of attachment without the intervention of a Jury, as the summary form of procedure was founded upon immemorial usage. The judgment prepared with great learning and erudition could not be delivered as the proceedings were dropped following the change of Govern- ment. After long interval Wilmot’s judgment was published in 1802. The judgment proceeded on the assumption that the superior Common Law Courts did have the power to indict a person for contempt of court, by following a summary proce- dure on the principle that this power was ‘a necessary incident to every court of justice’. Undelivered judgment of Wilmot, J. has been subject of great controversy in England’ and Sir John Fox has severely criticised Almon’s case, in his celebrated book “The History of Contempt of Court’, The Form of Trial and Mode of Punishment: In spite of serious criticism of the judgment of Wilmot, J. the opinion ex- pressed by him has all along been followed by the English and Commonwealth Courts. In Rainy v. The Justices of Seirra Leone, 8 Moors PC 47 at 54 on an application for leave to appeal against the order of the Court of Seirra Leone for contempt of court, the Privy Council upheld the order on the ground that the court of Seirra Leone being a Court of Record was the sole and exclusive judge of what amounted to contempt of court.

In India, the courts have followed the English practice in holding that a court of record has power of summarily punishing contempt of itself as well as of subordinate courts. In Surendra Nath Banerjee v. The Chief Justice and Judges of the High Court at Fort William in Bengal, ILR to Calcutta 109 the High Court of Calcutta in 1883 convicted Surendra Nath Banerjee, who was Editor and Proprietor of Weekly newspaper for contempt of court and sentenced him to imprisonment for two months for publishing libel reflecting upon a Judge in his judicial capacity. On appeal the Privy Council upheld the order of the High Court and observed that the High Courts in Indian Presidencies were superior courts of record, and the powers of the High

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Court as superior courts in India are the same as in Eng- land. The Privy Council further held that by common law every court of record was the sole and exclusive judge of what amounts to a contempt of court. In Sukhdev Singh Sodhi’s case this Court considered the origin, history and development of the concept of inherent jurisdiction of a court of record in India. The Court after considering Privy Council and High Courts decisions held that the High Court being a court of record has inherent power to punish for contempt of subordinate courts. The Court further held that even after the codification of the law of contempt in India the High Court’s jurisdiction as a court of record to initi- ate proceedings and take seisin of the matter remained uneffected by the Contempt of Courts Act, 1926. Mr. Nariman contended that even if the Supreme Court is a court of record, it has no power to take action for the contempt of a Chief Judicial Magistrate’s court as neither the Constitution nor any statutory provision confer any such jurisdiction or power on this Court. He further urged that so far as the High Court is concerned, it has power of judicial and administrative superintendence over the subor- dinate courts and further Section 15 of the Act expressly confers power of the High Court to take action for the contempt of subordinate courts. This Court being a court of record has limited jurisdiction to take action for contempt of itself under Article 129 of the Constitution, it has no jurisdiction to indict a person for the contempt of subordi- nate or inferior courts.

The question whether in the absence of any express provision a Court of Record has inherent power in respect of contempt of subordinate or inferior courts, has been consid- ered by English and Indian Courts. We would briefly refer to some of those decisions. In the leading case of Rex v. Parke, [1903] 2 K.B. 432 at 442. Wills, J. observed: “This Court exercises a vigilant watch over the proceedings of inferior courts and suc- cessfully prevents them from usurping powers which they do not possess, or otherwise acting contrary to law. It would seem almost a natu- ral corollary that it should possess correla- tive powers of guarding them against unlawful attacks and interferences with their independ- ence on the part of others.”

In King v. Davies, [1906] 1 K.B. 32. Wills, J. further held that the Kings Bench being a court of record must protect the inferior courts

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from unauthorised interference, and this could only be secured by action of the Kings Bench as the inferior courts have no power to protect themselves and for that purpose this power is vested in superior court of record. Since the Kings Bench is the custos morum of the kingdom it must apply to it with the necessary adaptations to the altered circumstances of the present day to uphold the independence of the judiciary. The principle laid down in Rex v. Davies, was followed in King v. Editor of the Daily Mail, [1921] 2 KB 733 where it was held that the High Court as a court of record has inherent jurisdiction to punish for contempt of a court martial which was an inferior court. Avory, J. observed:

“The result of that judgment (Rex v. Davies ) is to show that wherever this Court has power to correct an inferior court, it also has power to protect that court by punishing those who interfere with Due administration of ,justice in their court.”

In Attorney–General v. B.B.C., [1980] 3 ALR 16 1 the House of Lords proceeded on the assumption that a court of record possesses protective jurisdiction to indict a person for interference with the administration of justice in the inferior courts but it refused to indict as it held that this protection is available to a court exercising judicial power of the State and not to a Tribunal even though the same may be inferior to the court of record. These authori- ties show that in England the power of the High Court to deal with the contempt of inferior court was based not so much on its historical foundation but on the High Court’s inherent jurisdiction being a court of record having juris- diction to correct the orders of those courts. In India prior to the enactment of the Contempt of Courts Act, 1926, High Court’s jurisdiction in respect of contempt of subordinate and inferior courts was regulated by the principles of Common Law of England. The High Courts in the absence of statutory provision exercised power of con- tempt to protect the subordinate courts on the premise of inherent power of a Court of Record. Madras High Court in the case of Venkat Rao, 21 Madras Law Journal 832 held that it being a court of record had the power to deal with the contempt of subordinate courts. The Bombay High Court in Mohandas Karam Chand Gandhi’s, [1920] 22 Bombay Law Reporter 368 case held that the High Court possessed the same powers to punish the contempt of subordinate courts as the Court of the King’s Bench Division had by virtue of the Common Law of England. Similar view was expressed by the

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Allahabad High Court in Abdul Hassan Jauhar’s, case AIR 1926 Allahabad 623 and Shantha Nand Gir v. Basudevanand., AIR 1930 Allahabad 225 (FB). In Abdul Hassan Jauhar’s case (supra) a Full Bench of the Allahabad High Court after considering the question in detail held:

“The High Court as a court of record and as the protector of public justice through out its jurisdiction has power to deal with con- tempts’ directed against the administration of justice, whether those contempts are committed in face of the court or outside it, and inde- pendently or whether the particular court is sitting or not sitting, and whether those contempts relate to proceedings directly concerning itself or whether they relate to proceedings concerning an inferior court, and in the latter case whether those proceedings might or might not at some stage come before the High Court.”

Similar view was taken by the Nagpur and Lahore High Courts in Mr. Hirabai v. Mangal Chand, AIR 1935 Nagpur 16; Harki- shan Lal v. Emperor, AIR 1937 Lahore 197 and the Oudh Chief Court took the same view in Mohammad Yusuf v. Imtiaz Ahmad Khan., AIR 1939 Oudh 13 1. But, the Calcutta High Court took a contrary view in Legal Remembrancer v. Motilal Ghosh, ILR 41 Cal. 173 holding that there was no such inherent power with the High Court.

Judicial conflict with regard to High Court’s power with regard to the contempt of subordinate court was set at rest by the Contempt of Courts Act 1926. The Act resolved the doubt by recognising to the power of High Courts in regard to contempt of subordinate courts, by enacting Section 2 which expressly stated that the High Courts will continue to have jurisdiction and power with regard to contempt of subordinate courts as they exercised with regard to their own contempt. Thus the Act reiterated and recognised the High Court’s power as a court of record for taking action for contempt of courts subordinate to them. The only excep- tion to this power, was made in subsection (3) of Section 2 which provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code. Section 3 of the Act restricted the punishment which could be passed by the High Court. Since doubt was raised whether the High Court as a court of record could punish contempt of itself and of courts subordinate to it if contempt was committed outside its territorial jurisdiction, the Parliament enacted the Con-

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tempt of Courts Act 1952 removing the doubt. Section 3 of the 1952 Act again reiterated and reaffirmed the power, authority and jurisdiction of the High Court in respect of contempt of courts subordinate to it, as it existed prior to the enactment. It provided that every High Court shall have and exercise the same jurisdiction, power and authority, in accordance with the same procedure and prac- tice in respect of contempt of courts subordinate to it as it has and exercise in respect of contempt of itself. Sec- tion 5 further expanded the jurisdiction of the High Court for indicting a person in respect of contempt committed outside the local limits of its jurisdiction. The Parliamen- tary legislation did not confer any new or fresh power or jurisdiction on the High Courts in respect of contempt of courts subordinate to it, instead it reaffirmed the inherent power of a Court of Record, having same jurisdiction, power and authority as it has been exercising prior to the enact- ments. The effect of these statutory provisions was consid- ered by this Court in Sukhdev Singh Sodhi’s case, and the Court held that contempt jurisdiction was a special one inherent in the very nature of a court of record and that jurisdiction and power remained unaffected even after the enactment of 1926 Act as it did not confer any new jurisdic- tion or create any offence, it merely limited the amount of punishment which could be awarded to a contemner. The juris- diction of the High Court to initiate proceedings or taking action for contempt of its subordinate courts remained as it was prior to the 1926 Act. In R.L. Kapur v. State of Tamil Nadu, AIR 1972 SC 858 the Court again emphasised that in view of Article 215 of the Constitution, the High Court as a court of record possesses inherent power and jurisdiction, which is a special one, not arising or derived from Contempt of Courts Act and the provisions of Section 3 of 1926 Act, do not affect that power or confer a new power or jurisdic- tion. The Court further held that in view of Article 215 of the Constitution, no law made by a Legislature could take away the Jurisdiction conferred on the High Court nor it could confer it afresh by virtue of its own authority. The English and the Indian authorities are based on the basic foundation of inherent power of a Court of Record, having jurisdiction to correct the judicial orders of subor- dinate courts. The Kings Bench in England and High Courts in India being superior Court of Record and having judicial power to correct orders of subordinate courts enjoyed the inherent power of contempt to protect the subordinate courts. The Supreme Court being a Court of Record under Article 129 and having wide power of judicial supervision over all the courts in the country, must possess and exer- cise similar jurisdiction and power as the High Courts had prior to Contempt Legislation in 1926. Inherent 977

powers of a superior Court of Record have remained unaffect- ed even after Codification of Contempt Law. The Contempt of Courts Act 1971 was enacted to define and limit the powers of courts in punishing contempts of courts and to regulate their procedure in relation thereto. Section 2 of the Act defines contempt of court including criminal contempt. Sections 5, 6, 7, 8, and 9 specify matters which do not amount to contempt and the defence which may be taken. Section 10 which relates to the power of High Court to punish for contempt of subordinate courts. Section 10 like Section 2 of 1926 Act and Section 3 of 1952 Act reiterates and reaffirms the jurisdiction and power of a High Court in respect of its own contempt and of subordinate courts. The Act does not confer any new jurisdiction instead it reaf- firms the High Courts power and jurisdiction for taking action for the contempt of itself as well as of its subordi- nate courts. We have scanned the provisions of the 1971 Act, but we find no provision therein curtailing the Supreme Court’s power with regard to contempt of subordinate courts, Section 15 on the other hand expressly refers to this Court’s power for taking action for contempt of subordinate courts. Mr. Nariman contended that under Section 15 Parlia- ment has exclusively conferred power on the High Court to punish for the contempt of subordinate courts. The legisla- tive intent being clear, this Court has no power under its inherent jurisdiction or as a court of record under Article 129 of the Constitution with regard to contempt of subordi- nate courts. Section 15 of the Act reads as under: “15. Cognizance of criminal contempt in other cases–(1) In the case of a criminal contempt, other than a contempt referred to in Section 14, the Supreme Court or the High Court may take action on its own motion or a motion made by–

(a) the Advocate-General, or

(b) any other person, with the con-

sent in writing of the Advocate-General (or) (c) in relation to the High Court for

the Union Territory of Delhi, such Law Officer as the Central Government may by notification in the official Gazette, specify in this behalf or any other person, with the consent in writing of such Law Officer.

(2) In the case of any criminal contempt of subordinate

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court, the High Court may take action on a reference made to it by the subordinate Court or on a motion made by the Advocate-General or, in, relation to a Union Territory, by such Law Officer as the Central Government may, by notification in the official Gazette, specify in this behalf.

(3) Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty.

Explanation–In this section, the expression “Advocate General” means-

(a) in relation to the Supreme

Court, the Attorney General or the Solicitor General;

(b) in relation to the High Court,

the Advocate General of the State or any of the States for which the High Court has been established;

(c) in relation to the Court of a

Judicial Commissioner, such Law Officer as the Central Government may, by notification in the official Gazette, specify in this behalf.

Under sub-section (1) the Supreme Court and High Court both have power to take cognizance of criminal contempt and it provides three modes for taking cognizance. The Supreme Court and the High Court both may take cognizance on its own motion or on the motion made by the Advocate-General or any other person with the consent in writing of the Advocate- General. Sub-section (2) provides that in case of any crimi- nal contempt of subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate-General, and in, relation to a Union Territory, on a motion made by any officer as may be specified by the Government. Thus Section 15 prescribes modes for taking cognizance of criminal contempt by the High Court and Supreme Court, it is not a substantive provision conferring power or jurisdiction on the High Court or on the Supreme Court for taking action for the contempt of its subordinate courts. The whole object of prescribing proce- dural modes of taking cognizance in Section 15 is to safe- guard the valuable time of the’ High Court and the Supreme Court being wasted by frivolous complaints of contempt of court. Section 15(2) does not restrict the power of the High Court to take cognizance of the

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contempt of itself or of a subordinate court on its own motion although apparently the Section does not say so. In S.K. Sarkar, Member, Board of Revenue, U.P. Lucknow v. Vinay Chandra Misra, [1981] 2 SCR 331 this Court held that Section 15 prescribed procedure for taking cognizance and it does not affect the High Court’s suo moto power to take cogni- zance and punish for contempt of subordinate courts. Mr. Nariman urged that under Entry 77 of List I of the VIIth Schedule the Parliament has legislative competence to make law curtailing the jurisdiction of Supreme Court. He further urged that Section 15 curtails the inherent power of this Court with regard to contempt of subordinate courts. Entry 77 of List 1 states: “Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practise before the Supreme Court.” This Entry. read with Article 246 confers power on the Parliament to enact law with respect to the constitution, organisation, jurisdiction and powers of the Supreme Court including the contempt of this court. The Parliament is thus competent to enact a law relating to the powers of Supreme Court with regard to ‘contempt of itself’ such a law may prescribe procedure to be followed and it may also prescribe the maximum punishment which could be awarded and it may provide for appeal and for other matters. But the Central Legisla- ture has no legislative competence to abridge or extinguish the jurisdiction or power conferred on this Court under Article 129 of the Constitution. The Parliament’s power to legislate in relation to law of contempt relating to Supreme Court is limited, therefore the Act does not impinge upon this Court’s power with regard to the contempt of subordi- nate courts under Article 129 of the Constitution. Article 129 declares the Supreme Court a court of record and it further provides that the Supreme Court shall have all the powers of such a court including the power to punish for contempt of itself (emphasis supplied). The expression used in Article 129 is not restrictive instead it is exten- sive in nature. If the Framers of the Constitution intended that the Supreme Court shall have power to punish for con’- tempt of itself only, there was no necessity for inserting the expression “including the power to punish for contempt of itself’. The Article confers power on the Supreme Court to punish for contempt of itself and in addition, it confers some additional power relating to contempt as would appear from the expression ‘*including”. The expression “including” has been interpreted by courts, to extend and widen the 980

scope of power. The plain language of Article clearly indi- cates that this Court as a court of record has power to punish for contempt of itself and also something else which could fall within the inherent jurisdiction of a court of record. In interpreting the Constitution, it is not permis- sible to adopt a construction which would render any expres- sion superfluous or redundant. The courts ought not accept any such construction. While construing Article 129, it is not permissible to ignore the significance and impact of the inclusive power conferred on the Supreme Court. Since, the Supreme Court is designed by the Constitution as a court of record and as the Founding Fathers were aware that a superi- or court of record had inherent power to indict a person for the contempt of itself as well as of courts inferior to it, the expression “including” was deliberately inserted in the Article. Article 129 recognised the existing inherent power of a court of record in its full plenitude including the power to punish for the contempt of inferior courts. If Article 129 is susceptible to two interpretations, we would prefer to accept the interpretation which would preserve the inherent jurisdiction of this Court being the superior court of record, to safeguard and protect the subordinate judici- ary, which forms the very back bone of administration of justice. The subordinate courts administer justice at the grass root level, their protection is necessary to preserve the confidence of people in the efficacy of Courts and to ensure unsullied flow of justice at its base level. Disputing the inherent power of this Court with regard to the contempt of subordinate courts, Mr. Nariman contended that inherent powers are always preserved, but they do not authorise a court to invest itself with jurisdiction when that jurisdiction is not conferred by law. He urged that the status of an appellate court like High Court, does not enable the High Court to claim original jurisdiction not vested by law. Similarly, the Supreme Court having appellate jurisdiction under Section 19 of the Contempt of Courts Act 1971, cannot invest itself with original jurisdiction for contempt of subordinate courts. He placed reliance on the decision of this Court in Raja Soap Factory & Ors. v. S.P. Shantharaj & Ors., [1965] 2 SCR 800. We are unable to accept the contention. In Raja Soap Factory’s case (supra), High Court had entertained an original suit and issued injunction under the Trade and Merchandise Marks Act 1958 although under the Act the suit was required to be instituted in the District Court. In appeal before this Court, order of the High Court was sought to be justified on the ground of High Court’s power of transfer under Section 24 read with its inherent power under Section 151 of the Code of Civil Proce- dure. This Court rejected the submission on the ground that exercise

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of jurisdiction under Section 24 of Code of Civil Procedure was conditioned by lawful institution of the proceeding in a subordinate court of competent jurisdiction, and transfer thereof to the High Court. The Court observed that power to try and dispose of proceedings, after transfer from a court lawfully-seized of it, does not involve a power to entertain a proceeding which is not otherwise within the cognizance of the High Court. Referring to the claim of inherent powers under Section 151 to justify entertainment of the suit grant of injunction order, the Court observed that the inherent power could be exercised where there is a proceeding lawful- ly before the High Court, it does not, however, authorise the High Court to invest itself with jurisdiction where it is not conferred by law. The facts and circumstances as available in the Raja Soap Factory’s case, were quite dif- ferent and the view expressed in that case do not have any bearing on the inherent power of this Court. In Rata Soap Factory’s case there was no issue before the Court regarding the inherent power of a superior court of record instead the entire case related to the interpretation of the statutory provisions conferring jurisdiction on the High Court. Where jurisdiction is conferred on a court by a statute, the extent of jurisdiction is limited to the extent prescribed under the statute- But there is no such limitation on a superior court of record in matters relating to the exercise of constitutional powers. No doubt this Court has appellate jurisdiction under Section 19 of the Act, but that does not divest it of its inherent power under Article 129 of the Constitution- The conferment of appellate power on the court by a statute does not and cannot affect the width and ampli- tude of inherent powers of this Court under Article 129 of the Constitution.

We have already discussed a number of decisions holding that the High Court being a court of record has inherent power in respect of contempt of itself as well as of its subordinate courts even in the absence of any express provi- sion in any Act. A fortiori the Supreme Court being the Apex Court of the country and superior court of record should possess the same inherent jurisdiction and power for taking action for contempt of itself, as well as, for the contempt of subordinate and inferior courts. It was contended that since High Court has power of superintendence over the subordinate courts under Article 227 of the Constitution, therefore, High Court has power to punish for the contempt of subordinate courts. Since the Supreme Court has no super- visory jurisdiction over the High Court or other subordinate courts, it does not possess powers which High Courts have under Article 215. This submission is misconceived. Article 227 confers supervisory jurisdiction on the High Court and in exercise of that

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power High Court may correct judicial orders of subordinate courts, in addition to that, the High Court has administra- tive control over the subordinate courts. Supreme Court’s power to correct judicial orders of the subordinate courts under Article 136 is much wider and more effective than that contained under Article 227. Absence of administrative power of superintendence, over the High Court and subordinate court does not affect this Court’s wide power of judicial superintendence of all courts in India. Once there is power of judicial superintendence, all the Courts whose orders are amenable to correction by this Court would be subordinate courts and therefore this Court also possesses similar inherent power as the High Court has under Article 215 with regard to the contempt of subordinate courts. The jurisdic- tion and power of a superior Court of Record ‘to punish contempt of subordinate courts was not founded on the court’s administrative power of superintendence, instead the inherent jurisdiction was conceded to superior Court of Record on the premise of its judicial power to correct the errors of subordinate Courts.

Mr. Nariman urged that assumption of contempt jurisdic- tion with regard to contempt of subordinate and inferior courts on the interpretation of Article 129 of the Constitu- tion is foreclosed by the decisions of Federal Court, he placed reliance-on the decisions of Federal Court in K.L. Gauba v. The Hon’ble the Chief Justice and Judges of the High Court of Judicature at Lahore & Anr., AIR 1942 FC 1 and Purshottam Lal Jaitly v. The King Emperor., [1944] FCR 364. He urged that this Court being successor to Federal Court was bound by the decisions of the Federal Court under Arti- cle 374(2) of the Constitution. Mr. Sorabji, learned Attor- ney-General seriously contested the proposition, he contend- ed that there is a marked difference between the Federal Court and this Court, former being established by a statute with limited jurisdiction while this Court is the Apex constitutional court with unlimited jurisdiction, therefore, the Federal Court decisions are not binding on this Court. He urged that Article 374(2) does not bind this Court with the decisions of the Federal Court, instead it provides for meeting particular situation during transitory period. In the alternative learned Attorney-General urged that the aforesaid two decisions of Federal Court in Gauba’s case and Jaitly’s case do not affect the jurisdiction and power of this Court with regard to contempt of subordinate and infe- rior courts as the Federal Court had no occasion to inter- pret any provision like Article 129 of the Constitution in the aforesaid decisions. Article 374 made provision for the continuance of Federal Court Judges as the Judges of the Supreme Court on the commencement of the Constitution and it also made

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provisions for transfer of the proceedings pending in the Federal Court to the Supreme Court. Clause (2) of Article 374 is as under:

“All suits, appeals and proceedings, civil or criminal, pending in the Federal Court at the commencement of this Constitution shall stand removed to the Supreme Court, and the Supreme Court shall have jurisdiction to hear and determine the same, and the judgments and orders of the Federal Court delivered or made before the commencement of this Constitution shall have the same force and effect as if they had been delivered or made by the Supreme Court.”

On the promulgation of the Constitution, Federal Court ceased to exist and the Supreme Court was set up and with a view to meet the changed situation, provisions had to be made with regard to the matters pending before the Federal Court. Article 374(2) made provision for two things, firstly it directed the transfer of all suits, appeals and proceed- ings, civil or criminal pending before the Federal Court to the Supreme Court. Secondly, it provided that any orders and judgments delivered or made by the Federal Court before the commencement of the Constitution shall have the same force and effect as if those orders or judgments had been deliv- ered or made by the Supreme Court. This was necessary for the continuance of the proceedings before the Supreme Court. The Federal Court may have passed interlocutory orders, it may have delivered judgments in the matters pending before it and in order to maintain the continuance of validity of orders or judgments of Federal Court a legal fiction was created stating that those judgments and orders shall be treated as of Supreme Court. Article 374(2) is in the nature of transitory provision to meet the exigency of the situa- tion on the abolition of the Federal Court and setting of the Supreme Court. There is no provision in the aforesaid Article to the effect that the decisions of the Federal Court shall be binding on the Supreme Court. Similar view was taken by the Allahabad High Court in Om Prakash Gupta v. The United Provinces, AIR 195 1 Allahabad 205 para 43 and Bombay High Court in State of Bombay v. Gajanan Mahadev Badley., AIR 1954 Bombay 352 para 14. The decisions of Federal Court and the Privy Council made before the com- mencement of the Constitution are entitled to great respect but those decisions are not binding on this Court and it is always open to this Court to take a different view. In The State of Bihar v. Abdul Majid, [1954] SCR 786 at 795 and Shrinivas Krishnarao Kango v. Narayan Devji Kango and Ors. [1955] 1 SCR 1 at 24 and 25. Federal

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Court decisions were not followed by this Court. There is, therefore, no merit in the contention that this Court is bound by the decisions of the Federal Court. But even otherwise the decisions of Federal Court in K.L. Gauba’s case and Purshottam Lal Jaitly’s case have no bearing on the interpretation of Article 129 of the Consti- tution. In K.L. Gauba’s case the facts were that K.L. Gauba, an Advocate of Lahore High Court was involved in litigation of various kinds including a case connected with his insol- vency. A Special Bench of the High Court of Lahore was constituted to decide his matters. His objection against the sitting of a particular Judge on the Special Bench, was rejected. His application for the grant of certificate under Section 205 of the Government of India Act to file appeal against the order of the High Court before the Federal Court was refused. Gauba filed a petition before the Federal Court for the issue of direction for the transfer of his case to Federal Court from High Court. The Federal Court held that appeal against the order of the High Court refusing to grant certificate was not maintainable. Gauba argued that the High Court was guilty of contempt of Federal Court as it had deliberately and maliciously deprived the Federal Court’s jurisdiction to hear the appeal against its orders. Gwyer, CJ. rejected the contention in the following words: “We have had occasion more than once to con- strue the provisions of Section 205, and we repeat what we have already said, that no appeal lies to this Court in the absence of the certificate prescribed by that Section: a certificate is the necessary condition prece- dent to every appeal. We cannot question the refusal of a High Court to grant a certificate or investigate the reasons which have prompted the refusal; we cannot even inquire what those reasons were, if the High Court has given none. The matter is one exclusively for the High Court; and, as this Court observed in an earlier case, it is not for us to speculate whether Parliament omitted per incuriam to give a right of appeal against the refusal to grant a certificate or trusted the High Courts to act with reasonableness and impartiality: 1939 FCR 13 at page 16. The jurisdiction of the Court being thus limited by the statute in this way, how could it be extended by a High Court acting even perversely or maliciously in withholding the certificate.”

In Purshottam Lal Jaitly’s case an application purporting to 985

invoke extraordinary original jurisdiction of the Federal Court under Section 2 10(2) of the Government of India Act, 1935 was made with a prayer that the Federal Court should itself deal directly with an alleged contempt of a Civil Court, subordinate to the High Court. By a short order the Court rejected the application placing reliance on its decision in K.L. Gauba’s case. The Court observed as under: “The expression “any contempt of court” in that provision must be held to mean “any act amounting to contempt of this Court”. This was the view expressed in Gauba’s case and we have been shown no reason for departing from that view. Under the Indian Law the High Courts have power to deal with contempt of any Court subordinate to them as well as with contempt of the High Courts. It could not have been intended to confer on the Federal Court a concurrent jurisdiction in such matters. The wider construction may conceivably lead to conflicting judgments and to other anomalous con sequences.”

In the case of K.L. Gauba the Federal Court found itself helpless in the matter as the Government of India Act, 1935 did not confer any power on it to entertain an appeal against the order of High Court refusing to grant certifi- cate. The decision has no bearing on the question which we are concerned. In Purshottam Lal Jaitly’s case the decision turned on the interpretation of Section 210(2) of the 1935 Act. Section 2 10 made provisions for the enforcement of decrees and orders of Federal Court. Sub-section (2) provid- ed that Federal Court shall have power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents or the investiga- tion or “punishment of any contempt of court”, which any High Court has power to make as respects the territory within its jurisdiction, and further the Federal Court shall have power to award costs and its orders shall be enforce- able by all courts. While interpreting Section 2 10(2) the Federal Court held that it had no power to deal with con- tempt of any court subordinate to High Court and it further observed that the wider constructions may lead to conflict- ing judgments and to other anomalous consequences. It is not necessary for us to consider the correctness of the opinion expressed by the Federal Court, as in our view the Federal Court was a court of limited jurisdiction, it was not the Apex Court like this Court as against the judgment, order and decree of the Federal Court appeals lay to the Privy Council. The Federal Court exercised limited jurisdiction as conferred on it by the 1935 Act. The question regarding the inherent power of the

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Superior Court of Record in respect of the Contempt of Subordinate court was neither raised nor discussed in afore- said decisions. The Federal Court observed that if the High Court and the Federal Court both have concurrent jurisdic- tion in contempt matters it could lead to conflicting judg- ments and anomalous consequences, that may be so under the Government of India Act as the High Court and the Federal Court did not have concurrent jurisdiction, but under the Constitution, High Court and the Supreme Court both have concurrent jurisdiction in several matters, yet no anomalous consequences follow.

While considering the decision of Federal Court, it is necessary to bear in mind that the Federal Court did not possess wide powers as this Court has under the Constitu- tion. There are marked differences in the constitution and jurisdiction and the amplitude of powers exercised by the two courts. In addition to civil and criminal appellate jurisdiction, this Court has wide powers under Article 136 over all the courts and Tribunals in the country. The Feder- al Court had no such power, instead it had appellate power but that too could be exercised only on a certificate issued by the High Court. The Federal Court was a court of record under Section 203 but it did not possess any plenary or residuary appellate power over all the courts functioning in the territory of India like the power conferred on this Court under Article 136 of the Constitution, therefore, the Federal Court had no judicial control or superintendence over subordinate courts.

Advent of freedom, and promulgation of Constitution have made drastic changes in the administration of justice neces- sitating new judicial approach. The Constitution has as- signed a new role to the Constitutional Courts to ensure rule of law in the country. These changes have brought new perseptions. In interpreting Constitution, we must have regard to the social, economic and political changes, need of the community and the independence of judiciary. The court cannot be a helpless spectator, bound by precedents of colonial days which have lost relevance. Time has come to have a fresh look to the old precedents and to lay down law with the changed perceptions keeping in view the provisions of the Constitution. “Law”, to use the words of Lord Coler- idge, “grows; and though the principles of law remain un- changed, yet their application is to be changed with the changing circumstances of the time.” The considerations which weighed with the Federal Court in rendering its deci- sion in Guaba’s and Jaitley’s case are no more relevant in the context of the constitutional provisions. 987

Since this Court has power of judicial superintendence and control over all the courts and Tribunals functioning in the entire territory of the country, it has a corresponding duty to protect and safeguard the interest of inferior courts to ensure the flow of the stream of justice in the courts without any interference or attack from any quarter. The subordinate and inferior courts do not have adequate power under the law to protect themselves, therefore, it is necessary that this court should protect them. Under the constitutional scheme this court has a special role, in the administration of justice and the powers conferred on it under Articles 32, 136, 14 1 and 142 form part of basic structure of the Constitution. The amplitude of the power of this Court under these Articles of the Constitution cannot be curtailed by law made by Central or State Legislature. If the contention raised on behalf of the contemners is accept- ed, the courts all over India will have no protection from this Court. No doubt High Courts have power to persist for the contempt of subordinate courts but that does not affect or abridge the inherent power of this court under Article

129. The Supreme Court and the High Court both exercise concurrent jurisdiction under the constitutional scheme in matters relating to fundamental rights under Article 32 and 226 of the Constitution, therefore this Court’s jurisdiction and power to take action for contempt of subordinate courts would not be inconsistent to any constitutional scheme. There may be occasions then attack on Judges and Magistrate of subordinate courts may have wide repercussions through out the country, in that situation it may not be possible for a High Court to contain the same, as a result of which the administration of justice in the country may be paraly- sed, in that situation the Apex Court must intervene to ensure smooth functioning of courts. The Apex Court is duty bound to take effective steps within the constitutional provisions to ensure a free and fair administration of justice through out the country, for that purpose it must wield the requisite power to take action for contempt of subordinate courts. Ordinarily, the High Court would protect the subordinate court from any onslaught on their independ- ence, but in exceptional cases, extra ordinary situation may prevail affecting the administration of public justice or where the entire judiciary is affected, this Court may directly take cognizance of contempt of subordinate courts. We would like to strike a note of caution that this Court will sparingly excercise its inherent power in taking cogni- zance of the contempt of subordinate courts, as ordinarily matters relating to contempt of subordinate courts must be dealt with by the High Courts. The instant case is of excep- tional nature, as the incident created a situation where functioning of the subordinate courts all over the country was adversely affected, and the administration of justice was paralysed,

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therefore, this Court took cognizance of the matter. Mr. Nariman contended that in our country there is no court of universal jurisdiction, as the jurisdiction of all courts including the Supreme Court is limited. Article 129 as well as the Contempt of Courts Act 1971 do not confer,any express power to this Court with regard to contempt of the subordinate courts, this Court cannot by construing Article 129 assume jurisdiction in the matter which is not entrusted to it by law. He placed reliance on the observations of this Court in Naresh Shridhar Mirajkar & Ors. v. State of Maha- rashtra & Ors., [1966] 3 SCR 744 at 77 1. We have carefully considered the decision but we find nothing therein to support the contention of Mr. Nariman. It is true that courts constituted under a law enacted by the Parliament or the State Legislature have limited jurisdiction and they cannot assume jurisdiction in a matter, not expressly as- signed to them, but that is not so in the case of a superior court of record constituted by the Constitution. Such a court does not have a limited jurisdiction instead it has power to determine its own jurisdiction. No matter is beyond the jurisdiction of a superior court of record unless it is expressly shown to be so, under the provisions of the Con- stitution. In the absence of any express provision in the Constitution the Apex court being a court of record has jurisdiction in every matter and if there be any doubt, the Court has power to determine its jurisdiction. If such determination is made by High Court, the same would be subject to appeal to this Court, but if the jurisdiction is determined by this Court it would be final. Halsbury’s Laws of England Vol. 10 Para 7 13, states:

“Prima facie no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court.”

The above principle of law was approved by this Court in Special Reference No. I of 1964 [1965] 1 SCR 413 at 499 in holding that the, High Court being a superior court of record was entitled to determine its own jurisdiction in granting interim bail to a person against whom warrant of arrest had been issued by the Speaker of a State Legisla- ture. In Mirajkar’s case (supra) this Court again reiterated the principles that a superior court of record unlike a court of limited jurisdiction is entitled to determine about its own jurisdiction. In Ganga Bishan v. Jai Narain, [1986] 1 SCC 75 the Court emphasised that the

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Constitution has left it to the judicial discretion of Supreme Court to decide for itself the scope and limits of its jurisdiction in order to render substantial justice in matters coming before it. We therefore hold that this Court being the Apex Court and a superior court of record has power to determine its jurisdiction under Article 129 of the Constitution, and as discussed earlier it has jurisdiction to initiate or entertain proceedings for contempt of subor- dinate courts. This view does not run counter to any provi- sion of the Constitution.

Constitutional hurdles over, now we would revert back to the incident which has given rise to these proceedings. The genesis of the unprecedented attack on the subordinate judiciary arose out of confrontational attitude of the local police against the Magistracy in Kheda. The Chief Judicial Magistrate is head of the Magistracy in the District. Under the provisions of Chapter XII of the Code of Criminal Proce- dure, 1973, he exercises control and supervision over the investigating officer. He is-an immediate officer on the spot at the lower rung of the administration of justice of the country to ensure that the Police which is the law enforcing machinery acts according to law m investigation of crimes without indulging into excesses and causing harass- ment to citizens. The main objective of Police is to appre- hend offenders, to investigate crimes and to prosecute them before the courts and also to prevent commission of crime and above all to ensure law and order to protect the citi- zens life and property. The law enjoins the Police to be scrupulously fair to the offender and the Magistracy is to ensure fair investigation and fair trial to an offender. The purpose and object of Magistracy and Police are complemen- tary to each other. It is unfortunate, that these objectives have remained unfulfilled even after 40 years of our Consti- tution. Aberrations of Police officers and Police excesses in dealing with the law and order situation have been the subject of adverse comments from this court as well as from other courts but it has failed to have any corrective effect on it. The Police has power to arrest a person even without obtaining a warrant of arrest from a court. The amplitude of this power casts an obligation on the Police to take maximum care in exercising that power. The Police must bear in mind, as held by this Court that if a person is arrested for a crime, his constitutional and fundamental rights must not be violated. See: Sunil Batra v. Delhi Administration & Ors., [1978] 4 SCC 494. In Prem Shankar Shukla’s (supra) case 526, this Court considered the question of placing a prisoner under handcuff by the Police. The Court declared that no prisoner shall be handcuffed or lettered routinely or merely for the convenience of custody or escort. The Court empha- sised that the Police did not enjoy any unrestricted or unlimited

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power to handcuff an arrested person. If having regard to the circumstances including the conduct, behaviour and character of a prisoner, there is reasonable apprehension of prisoner’s escape from custody or disturbance of peace by violence, the Police may put the prisoner under handcuff. If a prisoner is handcuffed without there being any justifica- tion, it would violate prisoner’s fundamental rights under Articles 14 and 19 of the Constitution. To be consistent with Articles 14 and 19 handcuffs must be the last refuge as there are other ways for ensuring security of a prisoner. In Prem Shankar Shukla’s case, Krishna Iyer, J. observed: “If today freedom of the ferlorn person fails to the police somewhere tomorrow the freedom of many may fall else where with none to whimper unless the court process invigilates and polices the police before it is too late.” The prophetic words of Krishna Iyer, J. have come true as the facts of the present case would show.

In the instant case, Patel, CJM, was assaulted, arrested and handcuffed by Police Inspector Sharma and other Police Officers. The Police Officers were not content with this, they tied him with a thick rope round his arms and body as if N.L. Patel was a wild animal. As discussed earlier, he was taken in that condition to the hospital for medical examination where he was made to sit in varanda exposing him to the public gaze, providing opportunity to the members of the public to see that the Police had the power and privi- lege to apprehend and deal with a Chief Judicial Magistrate according to its sweet will. What was the purpose of unusual behaviour of the police, was it to secure safety and securi- ty of N.L. Patel, or was it done to prevent escape or any violent activity on his part justifying the placing of handcuffs and ropes on the body of N.L. Patel. The Commis- sion has recorded detailed findings that the object was to wreck vengeance and to humiliate the CJM who had been polic- ing the police by this judicial orders. We agree with the findings recorded by the Commission that there was no justi- fication for this extraordinary and unusual behaviour of Police Inspector Sharma and other Police Officers although they made an attempt to justify their unprecedented, dehuma- nising behaviour on the ground that Patel was drunk, and he was behaving in violent manner and if he had not been hand- cuffed or tied with ropes, he could have snatched Sharma’s revolver and killed him. We are

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amazed at the reasons given by Sharma justifying the hand- cuffs and ropes on the body of N.L. Patel. Patel was un- armed, he was at the Police Station in a room, there were at least seven police officials present in the room who were fully armed, yet, there was apprehension about Patel’s escape or violent behaviour justifying handcuffs and roping. The justification given by them is flimsy and preposterous. S.R. Sharma acted in utter disregard of this Court’s direc- tion in Prem Shankar Shukla’s case. His explanation that he was not aware of the decision of this Court is a mere pre- tence as the Commissioner has recorded findings that Gujarat Government had issued Circular letter to the Police incorpo- rating the guide lines laid down by this Court in Prem Shanker Shukla’s case with regard to the handcuffing of prisoner.

What constitutes contempt of court? The Common Law definition of contempt of Court is: ‘An act or omission calculated to interfere with the due administration of justice.’ (Bowen L.J. in Helmore v. Smith, [1886] 35 Ch. D. 436 at 455. The contempt of court as defined by the Contempt of Courts Act, 1971 includes civil and criminal contempt. Criminal contempt as defined by the Act: ‘Means the publica- tion whether by words, spoken or written, or by signs, or by visible representations, or otherwise of any matter or the doing of any other act whatsoever which scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or prejudices, or interferes or tends or to interfere with, the due course of any judicial proceeding; or interferes, or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. The definition of criminal contempt is wide enough to include any act by a person which would tend to interfere with the administration of justice or which would lower the authority of court. The public have a vital stake in effective and orderly administration of justice. The Court has the duty of protecting the interest-of the commu- nity in the due administration of justice and, so, it is entrusted with the power to commit for contempt of court, not to protect the dignity of the Court against insult or injury, but, to protect and vindicate the right of the public so that the administration of justice is not pervert- ed, prejudiced, obstructed or interfered with. “It is a mode of vindicating the majesty of law, in its active manifesta- tion against obstruction and outrage.” (Frank Furter, J. in Offutt v. U.S.) [1954] 348 US 11. The object and purpose of punishing contempt for interference with the administration of justice is not to safeguard or protect the dignity of the Judge or

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the Magistrate, but the purpose is to preserve the authority of the courts to ensure an ordered life in society. In AttOrney-General v. Times Newspapers, [1974] A.C. 273 at p. 302 the necessity for the law of contempt was summarised by Lord Morris as:

“In an ordered community courts are estab- lished for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable inter- ference is suppressed it is not because those charged with the responsibilities of adminis- tering justice are concerned for their own dignity: it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted and their authority wanes and is supplanted.”

The Chief Judicial Magistrate is head of the Magistracy in the District who administers justice to ensure, protect and safeguard the rights of citizens. The subordinate courts at the district level cater to the need of the masses in administering justice at the base level. By and large the majority of the people get their disputes adjudicated in subordinate courts, it is, in the general interest of the community that the authority of subordinate.courts is pro- tected. If the CJM is led into trap by unscrupulous Police Officers and if he is assaulted, handcuffed and roped, the public is bound to lose faith in courts, which would be destrictive of basic structure of an ordered society. If this is permitted Rule of Law shall be supplanted by Police Raj. Viewed in this perspective the incident is not a case of physical assault on an individual judicial officer, instead it is an onslaught on the institution of the judici- ary itself. The incident is a clear interference with the administration of justice, lowering its judicial authority. Its effect was not confined to one District or State, it had a tendency to affect the entire judiciary in the country. The incident highlights a dangerous trend that if the Police is annoyed with the orders of a presiding officer of a court, he would be arrested on flimsy manufactured charges, to humiliate him publicly as has been done in the instant case. The conduct of Police Officers in assaulting and humiliate the CJM brought the authority and administration of justice into disrespect, affecting the public confidence in the institution of justice. “The summary power of punish- ment for contempt has been conferred on the courts to keep a blaze of glory around them, to deter people from attempting to render

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them contemptible in the eyes of the public. These powers are necessary to keep the course of justice free, as it is of great importance to society.” (Oswald on Contempt of Court). The power to punish contempt is vested in the Judges not for their personal protection only, but for the protec- tion of public justice, whose interest, requires that decen- cy and decorum is preserved in Courts of Justice. Those who have to discharge duty in a Court of Justice are protected by the law, and shielded in the discharge of their duties, any deliberate interference with the discharge of such duties either in court or outside the court by attacking the presiding officers of the court, would amount to criminal contempt and the courts must take serious cognizance of such conduct.

It takes us to the question against which of’ the con- temners contempt is made out. On behalf of the petitioners it was urged that the Police Officers’ conduct amounts to criminal contempt as their action lowered the authority of the Chief Judicial Magistrate and it further caused inter- ference with the administration of justice. Mr. Soli Sorab- jee, learned Attorney-General contended that all those who abetted and helped the Police Officers’ in their conduct and design are also guilty of contempt of court. On behalf of the contemners it was urged that the incident which took place in the Police Station does not make out any contempt of court. The Chief Judicial Magistrate had consumed liquor and in druken state he went to the Police Station and slapped the Police Inspector, Sharma, thereby he committed offence under the Bombay Prohibition Act as well as under Section 332, 504 and 506 of the Indian Penal Code. Criminal cases have been registered against N.L. Patel, CJM and after investigation charge-sheets have been submitted to the court. In this context, it was urged that no action could be taken against the contemners as the facts in issue in the present proceedings are the same as involved in the criminal prosecutions pending against N.L. PateI, CJM. The question raised on behalf of the contemners need not detain us long. Proceedings for contempt of court are different than those taken for the prosecution of a person for an offence under the criminal jurisdiction. Contempt proceedings are peculiar in nature although in certain aspects they are quasicriminal in nature but they do not form part of criminal jurisdiction of the court. Criminal prosecution pending against the CJM or against the contemners has no bearing on the contempt proceedings initiated by this Court as the present proceed- ings are not for the purpose of punishing the contemners for the offence of wrongful detention and assault on N.L. Patel, Chief Judicial Magistrate, instead these proceedings have been taken to protect the interest of the public in the 994

due administration of justice and to preserve the confidence of people in Courts. We, accordingly, reject the contemner’s objection.

We have already recorded findings that Sharma, Police Inspector, Nadiad had preplanned the entire scheme, he deliberately invited Patel to visit Police Station where he was forced to consume liquor and on his refusal he was assaulted, arrested, handcuffed and tied with rope S.R. Sharma, K.H. Sadia, Sub-Inspector, Valjibhai Kalajibhai, Head Constable and Pratap Singh, Constable, all took active part in this shameful episode with a view to malign and denigrade the CJM on accout of his judicial orders against the Police. We, therefore, hold S.R. Sharma, Police Inspec- tor, K.H. Sadia, Sub Inspector, Valujibhai Kalajibhai Head Constable and Pratap Singh, Constable guilty of contempt of court. M.B. Savant, Mamlatdar had been summoned by Sharma, Police Inspector, to the Police Station in advance for purposes of being witness to the Panchnama drawn up by Sharma describing drunken condition of Patel, CJM. The document was false and deliberately prepared to make out a Case against Patel, CJM. M.B. Sawant was in complicity with Sharma, he actively participated in the preparation of the document to malign and humiliate the CJM and to prepare a false case against him, he is also, therefore, guilty of contempt of court.

As regards D.K. Dhagal, the then District Superintendent of Police, Kheda, we have already recorded findings that he was hand in glove with Sharma, Police Inspector. The circum- stances pointed out by the Commission and as discussed earlier, show that though D.K. Dhagal, had not personally participated in the shameful episode but his Conduct, act and omission establish his complicity in the incident. It is difficult to believe or imagine that a Police Inspector would arrest, humiliate, assault and handcuff a CJM and the Police Chief in the District would be indifferent, or a mute spectator. The circumstances unequivocally show that Sharma was acting under the protective cover of Dhagal as he did not take any immediate action in the matter instead he created an alibi for himself by interpolating the entries in the register at the Government Rest House, Balasinor. In his report submitted to the Addl. Chief Secretary (Home) on 27.9.1989, Dhagal did not even remotely mention the hand- cuffing and roping of CJM. It is unfortunate that Dhagal as the district Superintendent of Police did not discharge his duty like a responsible Police Officer instead he identi- fied himself with Sharma, Police Inspector and actively abetted the commission of onslaught on the CJM. We, accord- ingly, hold D.K. Dhagal, the then D.S.P. Kheda guilty of contempt of court.

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This takes us to the petition filed by N.L. Patel for quashing the criminal cases initiated against him on the basis of two First Information Reports made by Police In- spector S.R. Sharma. As noticed earlier Sharma, Police Inspector, had registered two FIRs on 25.9.1989 against N.L. Patel for the offences under Section 85(1)(3) read with Section 66(1)(b) and also under Section 110 of Bombay Prohi- bition Act on the allegations that Patel had consumed liquor without permit or pass and under the influence of alcohol entered into Sharma’s chamber and behaved in an indecent manner. The FIR further alleged that Patel caught hold of PoliCe Inspector Sharma and slapped him. The second FIR was lodged by Sharma against Patel for offences under Sections 332,353, 186 and 506 of the Indian Penal Code on the same allegations as contained in the earlier FIR. During the pendency of the contempt proceedings before this Court, the Police continued the investigation and submitted charge sheet in both the cases against N.L. Patel and at present Criminal Cases Nos. 1998/90 and 1999/90 are pending in the Court of Chief Judicial Magistrate, Nadiad. These proceed- ings are sought to be quashed.

On behalf of the State and the Police Officers, it was urged that since charge sheets have already been submitted to the Court, Patel will have full opportunity to defend himself before the court where witnesses would be examined and cross-examined, therefore, this Court should not inter- fere with the proceedings. The gravamen of the charge in the two cases registered against N.L. Patel is that he had consumed liquor without a pass or permit and under the influence of liquor, he entered the chamber of Police In- spector Sharma at the Police Station and assaulted him. The Police over-powered and arrested him and a panchnama was prepared and he was taken to the Hospital for medical exami- nation, and the report of medical examination indicates that he had consumed liquor. These very facts have been inquired into by the Commissioner and found to be false. We have recorded findings that Police Inspector Sharma and other Police Officers manipulated records and manufactured the case against N.L. Patel with a view to humiliate and teach him a lesson as the Police was annoyed with his judicial orders. We have already recorded findings holding S.R. Sharma, Police Inspector, Sadia, Sub-Inspector, Valjibhai Kalabhai, Head-Constable, Pratap Singh, Constable, M.B. Savant, Mamlatdar, and D.K. Dhagal, D.S.P. guilty of con- tempt of court. These very persons are specified as witness- es in the two charge sheets. The Commission’s as well as our findings clearly demonstrate that the allegations contained in the two FIRs are false. If Police is permitted to prose- cute Patel on those allegations merely on the basis 996

that charge sheets have been submitted by it, it would amount to gross abuse of the process of the Court. In the circumstances, proceedings against N.L. Patel are liable to be quashed.

Learned counsel, appearing on behalf of the State of Gujarat and the Police Officers, urged that in the present proceedings this Court has no jurisdiction or power to quash the criminal proceedings pending against N.L. Patel, CJM. Elaborating his contention, learned counsel submitted that once a criminal case is registered against a person the law requires that the court should allow the case to proceed to its’ normal conclusion and there should be no interference with the process of trial. He further urged that this Court has no power to quash a trial pending before the criminal court either under the Code of Criminal Procedure or under the Constitution, therefore, the criminal proceedings pend- ing against Patel should be permitted to continue. Learned Attorney-General submitted that since this Court has taken cognizance of the contempt matter arising out of the inci- dent which is the subject matter of trial before the crimi- nal court, this Court has ample power under Article 142 of the Constitution to pass any order necessary to do justice and to prevent abuse of process of the court. The learned Attorney-General elaborated that there is no limitation on the power of this Court under Article 142 in quashing a criminal proceeding pending before a subordinate court. Before we proceed to consider the width and amplitude of this Court’s power under Article 142 of the Constitution it is necessary to remind ourselves that though there is no provision like Section 482 of the Criminal Procedure Code conferring express power on this Court to quash or set aside any criminal proceedings pending before a criminal court to prevent abuse of process of the court, but this Court has power to quash any such proceedings in exercise of its plenary and residuary power under Article 136 of the Consti- tution, if on the admitted facts no charge is made out against the accused or if the proceedings are initiated on concocted facts, or if the proceedings are initiated for oblique purposes. Once this Court is satisfied that the criminal proceedings amount to abuse of process of court it would quash such proceedings to ensure justice. In State of West Bengal & Ors. v. Swapan Kumar Guha & Ors., [1982] 3 SCR 121 this Court quashed First Information Report and issued direction prohibiting investigation into the allegations contained in the FIR as the Court was satisfied that on admitted facts no offence was made out against the persons named in the FIR. In Madhavrao Jivajirao Scindia & Ors. v. Sambhajirao Chandrojirao Angre & Ors., [1988] 1 SCC 692 criminal proceedings were quashed as this Court Was satis- fied that the case was founded on false facts, and the proceedings

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for trial had been initiated for oblique purposes. Article 142(1) of the Constitution provides that Supreme Court in exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete jus- tice in any ’cause’ or ‘matter’ pending before it. The expression ’cause’ or ‘matter’ would include any proceeding pending in court and it would cover almost every kind of proceeding in court including civil or criminal. The inher- ent power of this Court under Article 142 coupled with the plenary and residuary powers under Article 32 and 136 em- braces power to quash criminal proceedings pending before any court to do complete justice in the matter before this Court. If the court is satisfied that the proceeding in a criminal case are being utilised for oblique purposes or if the same are continued on manufactured and false evidence or if.no case is made out on the admitted facts, it would be in the ends of justice to set aside or quash the criminal proceedings. It is idle to suggest that in such a situation this Court should be a helpless spectator.

Mr. Nariman urged that Article 142(1) does not contem- plate any order contrary to Statutory provisions. He placed reliance on the Court’s observations in Prem Chand Garg v. Excise Commissioner. U.P. Allahabad, [1963] Supp. 1 SCR 885 at 899 and, A.R. Antulay v. R.S. Nayak & Anr. [1988] 2 SCC 602 where the Court observed that though the powers con- ferred on this Court under Article 142(1) are very wide, but in exercise of that power the’ court cannot make any order plainly inconsistent with the express statutory provisions of substantive law. It may be noticed that in Prem Chand Garg’s and Antulay’s case (Supra) observations with regard to the extent of this Court’s power under Article 142(1) were made in the context of fundamental rights. Those obser- vations have no bearing on the question in issue as there is no provision in any substantive law restricting this Court’s power to quash proceedings pending before subordinate court. This Court’s power under Article 142(1) to do “complete justice” is entirely of different level and of a different quality. Any prohibition or restriction contained in ordi- nary laws cannot act as a limitation on the constitutional power of this Court. Once this Court has seisin of a cause or matter before it, it has power to issue any order or direction to do “complete justice” in the matter. This constitutional power of the Apex Court cannot be limited or restricted by provisions contained in statutory law. In Har- bans Singh v. U.P. State, [1982] 3 SCR 235 at 243 the Court observed:

“Very wide powers have been conferred on this Court for

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due and proper administration of justice.

Apart from the jurisdiction and powers con- ferred on this Court under Articles 32 and 136 of the Constitution I am of the opinion that this Court retains and must retain, an inher- ent power and jurisdiction for dealing with any extra-ordinary situation in the largest interests of administration of justice and for preventing manifest injustice being done. This power must necessarily be sparingly used only in exceptional circumstances for furthering the ends of justice.”

No enactment made by Central or State Legislature can limit or restrict the power of this Court under Article 142 of the Constitution, though while exercising power under Article 142 of the Constitution, the Court must take into considera- tion the statutory provisions regulating the matter in dispute. What would be the need of “complete justice” in a cause or matter would depend upon the facts and circum- stances of each case and while exercising that power the Court would take into consideration the express provisions of a substantive statute. Once this Court has taken seisin of a case, cause or matter, it has power to pass any order or issue direction as may be necessary to do complete jus- tice in the matter. This has been the consistent view of this Court as would appear from the decisions of this Court in State of U.P. v. Poosu & Anr. [1976] 3 SCR 1005; Ganga Bishan & Ors. v. Jai Narain, [1986] 1 SCC 75; Navnit R. Kamani & Ors. v. R.R. Kamani, [1988] 4 SCC 387; B.N. Nagara- jan & Ors. v. State of Mysore & Ors., [1966] 3 SCR 682: Special Reference No. I of 1964, (supra), and Harbans Singh v. State of U,P. Ors. (supra). Since the foundation of the criminal trial of N.L. Patel is based on the facts which have already been found to be false, it would be in the ends of justice and also to do complete justice in the cause to quash the criminal proceedings. We accordingly quash the criminal proceedings pending before the Chief Judicial Magistrate, Nadiad in Criminal Cases Nos. 1998/90 and 1999/ 90.

The question arises what punishment should be awarded to the contemners found guilty of contempt. In determining the punishment, the degree and the extent of part played by each of the contemners has to be kept in mind. Sharma, Police Inspector who was the main actor in the entire incident and who had planned the entire episode with a view to humiliate the CJM in the publis eye is the main culprit, therefore, he deserves maximum punishment. Sadia, Sub-Inspector took active part in assaulting and tying the CJM at the behest of Sharma, Police Inspector. Valijibhai Kalajibhai, Head Con- stable and Pratap

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Singh, Constable also took active part in handcuffing and tying the CJM with ropes, but as subordinate officials they acted under the orders of his superior officer. M.B. Sawant, Mamlatdar was friendly to Sharma, Police Inspector, he had no axe to grind against the CJM but he acted under the influence of Sharma, Police Inspector. So far as D.K. Dhagal is concerned, he actively abetted the commission of on- slaught on the CJM. Having regard to the facts and circum- stances and individual part played by each of the aforesaid contemner we hold them guilty of contempt and award punish- ment as under:

S.R. Sharma, the then Police Inspector, Nadiad shall undergo simple imprisonment for a period of six months and he shall pay fine of Rs.2,000. K.H. Sadia, Sub-Inspector, Nadiad shall undergo simple imprisonment for a period of five months and will pay a fine of Rs.2000 and in default he will undergo one month’s simple imprisonment. Valjibhai Kalajibhai, Head Constable and Pratap Singh, Constable, both are convicted and awarded simple imprisonment for a period of two months and a fine of Rs.500 each, in default they would undergo simple imprisonment for a further period of 15 days. M.B. Savant, Mamlatdar is convicted and awarded two month’s simple imprisonment and a fine of Rs. 1000 and in default he would undergo one month’s simple imprisonment. D.K. Dhagal, the then District Superintendent of Police, Kheda, is convicted and sentenced to imprisonment for a period of one month and to pay a fine of Rs. 1000 and in default to undergo simple imprisonment for 15 days. So far as other respondents against whom notices of contempt have been issued by the Court, there is no adequate material on record to hold them guilty of contempt of court, we accord- ingly discharge the notices issued to them.

Before we proceed further, we would like to express the Court’s displeasure on the conduct of K. Dadabhoy, the then Director General of Police, Gujarat. As the head of the Police in the State he was expected to intervene in the matter and to ensure effective action against the erring Police Officers. We are constrained to observe that he was totally indifferent to the news that a CJM was arrested, handcuffed, roped and assaulted. He took this news as a routine matter without taking any steps to ascertain the correct facts or effective action against the erring Police Officers. If the head of the Police administration in the State exhibits such indifference to a sensitive matter which shook the entire judicial machinery in the State, nothing better could be expected from his subordinate officers. K. Dadabhoy did not act like a responsible officer. The State Government should

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take action against him departmentaly on the basis of the findings recorded by the Commission. The State Government has initiated proceedings against other erring officers in respect of whom the Commission has adversely commented, we would make it clear that discharge of contempt notices does not absolve those officers of their misconduct, the State Government is directed to proceed with the disciplinary proceedings for taking appropriate action against them. We are constrained to observe that the State Government did not immediately take effective steps against the erring officials. In spite of the direction issued by this Court the erring Police Officers were neither arrested nor placed under suspension. It was only after this Court took serious view of the matter and directed the State Government to suspend the erring Police Officers and arrest them, the State Government moved in the matter. The apathy of the State Government in taking effective action against the erring Police Officers leads to an impression that in the State of Gujarat, Police appears to have upper-hand, as the administration was hesitant in taking action against the erring Police Officers. If this practice and tendency is allowed to grow it would result in serious erosion of the Rule of Law in the State. We hope and trust that the State Government will take effective measures to avoid re-occur- rence of any such instance. The State Government should further take immediate steps for the review and revision of the Police Regulations in the light of findings recorded by the Commission.

The facts of the instant case demonstrate that a presid- ing officer of a court may be arrested and humiliated on flimsy and manufactured charges which could affect the administration of justice. In order to avoid any such situa- tion in future, we consider it necessary to lay down guide- lines which should be followed in the case of arrest and detention of a Judicial Officer. No person whatever his rank, or designation may be, is, above law and he must face the penal consequences of infraction of criminal law. A Magistrate, Judge or any other Judicial Officer is liable to criminal prosecution for an offence like any other citizen but in view of the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are properly investigated, we think that the following guidelines should be followed. (A) If a judicial officer is to be arrested for some offence, it should be done under intimation to the District Judge or the High Court as the case may be.

1001

(B) If facts and circumstances necessitate the immediate arrest of a judicial officer of the subordinate judiciary, a technical or formal arrest may be effected.

(C) The facts of such arrest should be immedi- ately communicated to the District and Ses- sions Judge of the concerned District and the Chief Justice of the High Court.

(D) The Judicial Officer so arrested shall not be taken to a police station, without the prior order or directions of the District & Sessions Judge of the concerned District, if available.

(E) Immediate facilities shall be provided to the Judicial Officer to communication with his family members, legal advisers and Judicial Officers, including the District & Sessions Judge.

(F) No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be drawn up nor any medical tests be conducted except in the presence of the Legal Adviser of the Judicial Officer concerned or another Judicial Office of equal or higher rank, it’ available.

(G) There should be no handcuffing of a Judi- cial Officer. If, however, violent resistance to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting arrest may be over-powered and’ handcuffed. In such case, immediate report shall be made to the District & Sessions Judge concerned and also to the Chief Justice of the High Court. But the burden would be on the Police to establish necessity for effecting physical arrest and handcuffing the Judicial Officer and if it be established that the physical arrest and handcuffing of the Judicial Officer was unjustified, the Police Officers causing or responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally liable for compensation and/or damages as may be summarily determined by the High Court.

The above guidelines are not exhaustive but these are minimum safeguards which must be observed in case of arrest of a judicial officer. These guidelines should be implement- ed by the State Government as well as by the High Courts. We, accordingly, direct that a copy of the guidelines shall be forwarded to the Chief Secretaries of all the State Governments and to all the High Courts with a direction that the

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same may be brought to the notice of the concerned officers for compliance.

We do not approve N.L. Patel’s conduct in visiting the Police Station on the invitation of Police Inspector Sharma. In our opinion, no Judicial Officer should visit a Police Station on his own except in connection with his official and judicial duties and functions. If it is necessary for a Judicial Officer or a Subordinate Judicial Officer to visit the Police Station in connection with his official duties, he must do so with prior intimation of his visit to the District & Sessions Judge.

Pursuant to this Court’s appeal made on September 29, 1989, the members of the Bar as well as the members of the Judiciary throughout the country refrained from going on strike as a result of which inconvenience to general public was avoided and the administration of justice continued. The Court is beholden to the members of the Bar and members of the Judiciary for their response to this Court’s appeal. We record our appreciation of the able assistance rendered to the Court by the learned counsel for the par- ties. We are beholden to Sri Soli Jl. Sorabjee, the then Attorney-General, who at our request ably assisted the Court in resolving complex questions of law.

The Writ Petitions, Contempt Petitions and Criminal Miscellaneous Petitions are disposed of accordingly. N.V.K. Petitions disposed

of.

Categories: Judgement

Gujrat HC: 25000/- fine for perjury

SCA/9161/2010 2/2 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION No. 9161 of 2010

======================================

BABUBHAI MERVANBHAI PATEL – Petitioner

Versus

STATE OF GUJARAT THROUGH SECRETARY & 1 – Respondents

====================================== Appearance : MR M.B.GANDHI FOR MR NAYAN D PAREKH for the Petitioner. MR M.R.MENGDEY, AGP for Respondent(s) : 1, None for Respondent(s) : 2,

======================================

CORAM :

HONOURABLE MR.JUSTICE M.R. SHAH

Date : 18/08/2010

ORAL ORDER

In response to the Notice issued by this Court, the petitioner is personally present in the Court and Mr.M.B.Gandhi, learned advocate has appeared for him. The petitioner has tendered unconditional apology and has requested to pardon him as he is senior citizen. He has admitted the guilt, however, he has requested not to initiate any proceedings for perjury. He has submitted that he is ready and willing to pay fine/heavy cost, which may be quantified by this Court.

Before considering as to whether the unconditional apology should be accepted or not, let the petitioner deposit an amount of Rs.25,000/- (Rupees Twenty Five Thousands only) as probable fine/cost with the Registry of this Court on or before 23/08/2010 in lieu of initiation of proceedings of perjury and for making false statement before this Court on affidavit. Only thereafter, request of the petitioner to pardon him and/or as to whether to accept his unconditional apology or not, shall be considered.

S.O. to 23/08/2010. To be placed in 11:00 a.m. board.

[M.R.SHAH,J]

*dipti

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Categories: Judgement

HC: Under DV Act it is not statutory obligation of the respondents to personally appear before the Court or to furnish bail bonds for appearance

Crl.Misc.No.M-25966 of 2008

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Crl.Misc.No.M-25966 of 2008.

Decided on: March 25, 2010.

Navrose Singh and others

.. Petitioners

VERSUS

State of Haryana and another

.. Respondents

***

CORAM: HON’BLE MR.JUSTICE M.M.S.BEDI ***

PRESENT Mr.Raghujeet Singh Madan, Advocate, for the petitioners.

Ms.Shubhra Singh, DAG, Haryana.

M.M.S. BEDI, J. (ORAL)

Petitioners seek quashing of proceedings under the complaint initiated by respondent No.2 Parminder Kaur, against the petitioners under the provisions of the Protection of Women from Domestic Violence Act, 2005, inter alia, on the grounds that the proceedings have been initiated with an oblique motive to aggravate the agony by adding another litigation to the earlier cases filed by the respondent. Besides this, it has been argued that the ladies cannot be added as respondents in proceedings under the Protection of Women from Domestic Violence Act, 2005, as per definition of respondent under Section 2 (q) of the Act, which reads as follows: -

“respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved …1

Crl.Misc.No.M-25966 of 2008

person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.”

I have heard counsel for the petitioners as well counsel for the respondent.

The summoning order Annexure P-1, indicates that the petitioners have been merely summoned and given a liberty to either appear in person or through duly authorized counsel in the Court to show why the reliefs claimed by the respondent should not be granted. It is made clear that under the provisions of the Protection of Women from Domestic Violence Act, 2005, it is not statutory obligation of the respondents to personally appear before the Court or to furnish bail bonds for appearance. The appearance of respondents under the provisions of the Protection of Women from Domestic Violence Act, 2005, is not the requirement of law unless and until, the Court exercises discretion to direct the parties to appear in person for some specific purpose. It is the wish of the petitioners either to appear in person or engage a counsel and pursue the proceedings before the Judicial Magistrate, Dabwali. It is also open to the petitioners to avoid the appearance on behalf of female respondents in the light of definition of respondent under Section 2(q) of the Protection of Women from Domestic Violence Act, 2005, laid down in Ajay Kant and others Vs. Smt.Alka Sharma, 2007 (4) RCR (Crl.), Page 930. Disposed of.

(M.M.S.BEDI)

JUDGE

March 25, 2010.

rka

…2

Categories: DV Judgements

PUNJAB AND HARYANA HC: Maintenance in one case to be set off against another case

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CR NO.4813 OF 2009 (O&M)

DECIDED ON : 25.08.2009

Raman Ahuja @ Banti …Petitioner versus

Vandana …Respondent CORAM : HON’BLE MR. JUSTICE AJAY TEWARI Present : Mr. Karan Vir Nanda, Advocate for the petitioner.

AJAY TEWARI, J. (ORAL)

This petition has been filed against the award of maintenance pendente lite of Rs.3,000/- per month. The only prayer made by the learned counsel for the petitioner is that the petitioner is already paying maintenance under Section 125 Cr.PC and Protection of Women from Domestic Violence Act, 2005 and that the petitioner should not have to pay maintenance on independent accounts. In fact what the learned counsel for the petitioner is praying for is really the law. Learned counsel further relied upon the judgment of Hon’ble Supreme Court titled as Sudeep Chaudhary versus Radha Chaudhary 1999 AIR (SC) 536.

Consequently, this petition is dismissed with the clarification that the amount awarded by the impugned order would be set off against the maintenance being paid by the petitioner to the respondent under other proceedings. August 25, 2009 (AJAY TEWARI) sonia JUDGE

Categories: Judgement, Judgement

Kolkata High Court: 125 CrPC to be adjusted against HMA maintenance

03.04.09

C.O. No.3925 of 2008

Anutosh Datta

Versus

Manasi Datta @ Sona

Mr. Jiban Ratan Chatterjee

Mr. T. N. Halder

.For the petitioner

Mr. Sanat Chowdhury

For the O.P.

This application under Article 227 of the Constitution of India is filed by the petitioner/plaintiff challenging the order dated 18th December, 2006 and order dated 30th August, 2008 passed by the learned Additional District and Sessions Judge, Fast Track Court, fifth Court at Alipore, 24-Parganas (South), in Misc. Case No.19 of 2005 arising out of Mat. Suit No.83 of 2004.

It is necessary to mention relevant fact for disposing of the present application. The petitioner/plaintiff filed the above Matrimonial Suit before the learned District Judge at Alipore and subsequently the same was transferred to the learned Additional District and Sessions Judge, Fast Track Court, 5th Court at Alipore. 2

During the pendency of the above matrimonial suit the opposite party/defendant filed an application under Section 24 of the Hindu Marriage Act for alimony Pendentilite vide Misc. Case No.19 of 2005. Learned Additional District Judge passed the order on 18.12.2006 in Misc. Case NO.19 of 2005 as ex parte and directed to pay a sum of Rs.3,500/- per month to the petitioner and further Rs.2000/- per month for the minor daughter of the petitioner towards alimony pendentilite and it is further directed to the husband to pay sum of Rs.4,000/- in lump sum towards cost. The petitioner husband filed another application under Section 151 C.P.C. with a prayer for vacating the said ex parte order dated 18.12.2006. Learned Additional District Judge after hearing of both sides rejected the said application on 30.8.2008.

Being aggrieved and dissatisfied against the order dated 18.12.2006 and 30.8.2008 the petitioner/husband filed the present application for setting aside the orders.

Mr. Jiban Ratan Chatterjee learned advocate appearing on behalf of the petitioner 3

pointed out that the learned Court below was vacant since a long time i.e., from August, 2005 to 12.10.2006. On 23.11.2006 the learned Judge joined in the Court and the said Misc. Case No.19 of 2005 was taken up for hearing but the O.P./husband was absent and as such another date was fixed on 18.12.2006 and on that date the learned Judge after taking the evidence of the petitioner/wife disposed of the case as an ex parte as the O.P. was absent. The present petitioner has filed the application under Section 151 C.P.C. for vacating the said order and on 30.8.2008 the learned Judge rejected the prayer of the petitioner after hearing of both sides. Learned Advocate also pointed out that the opposite party/wife is receiving the amount of maintenance as per order of the learned Magistrate under Section 125 Cr. P. C. but the learned Judge without adjustment the said amount passed the order for maintenance pendentilite till the disposal of the Mat. Suit. That order is bad in law and relevant order dated 18.12.2006 is liable to be set aside. 4

In support of the contention Learned Advocate on behalf of the petitioner has cited a case law reported in AIR 1999 Supreme Court 536 (Sudeep Chaudhary v. Radha Chaudhary). Learned Advocate also pointed out that there was the sufficient ground for allowing the application under Section 151 C.P.C. but the Court did not show any liberal approach for allowing the same and as such learned Court refused the prayer on 30.8.2008. In support of the contention learned Advocate has cited a case law reported in AIR 1987 Supreme Court 1353 (Collector, Land Acquisition Anantnag and another v. Mst. Katiji and others).

Considering the above aspects the present application may be allowed for setting aside the above orders passed by the learned Additional District Judge, Fast Track Court. Learned Advocate on behalf of the O.P. has pointed out that when the order was passed by the learned Court as ex parte, the petitioner/husband might approach to the Court for setting aside the said ex parte order under 5

Order 9 Rule 13 of the C. P. C. and in the present matter the petitioner/husband did not approach before the learned Judge for setting aside the same. As such there is no scope to interfere in the orders dated 18.12.2006 and 30.8.2008. The present application is liable to be dismissed.

In support of the contention learned Advocate cited a case law reported in AIR 1964 Supreme Court 993 (Arjun Singh v. Mohindra Kumar and others.)

Heard both sides.

From the xerox copy of the relevant day to day order sheets of the learned Court below filed on behalf of the petitioner it is clear that the learned Judge, Fast Track, 5th Court at Alipore was vacant. In the relevant order No.39 dated 23.11.2006 it states that learned Judge took up the Misc. Case for hearing but the O.P. was absent on that day and as such the learned Court fixed the date on 18.12.2006 as ex parte and on 18.12.2006 the O.P. did not appear and as such the learned Judge disposed of the Misc. Case No.19 of 2005 as ex parte after taking the 6

evidence of the petitioner/wife and in the said order learned Judge directed to pay a sum of Rs.3,500/- per month to the petitioner and further Rs.2,000/- per month for the minor daughter of the petitioner towards alimony pendentilite. In the said order there is no observation regarding the adjustment of the amount awarded under Section 125 Cr. P. C. towards the amount awarded in the matrimonial proceeding under Section 24 of the Hindu Marriage Act. In the written objection filed on behalf of the opposite party/husband in Misc. Case No.19 of 2005, it is clear in paragraph 10 that the interim maintenance of Rs. 1,200/- per month was allowed. However, in the case Sudeep Chaudhury (supra) the Apex Court observed “the amount awarded under Section 125 of the Cr. P. C. for maintenance was adjustable against the amount awarded in the matrimonial proceeding and was not to be given over and above the same.”

There is gross irregularity in the order dated 18.12.2006 passed by the learned Judge, 7

Fast Track Court for not adjustment of the amount awarded under Section 125 Cr. P. C. It is true that the petitioner/husband filed an application under Section 151 C. P. C. and that was dismissed on contest. The said application was filed with reference to a proceeding not in the suit and as such there is no scope to interfere in the said application as per provision order 9 Rule 13 of the C. P. C. However, the said application was filed in a belated way. The Court should adopt liberal approach to consider the matter. But the learned Judge failed to do the same.

Considering all aspects the orders dated 18.12.2006 and 30.8.2008 passed by the learned Additional District Judge Fast Track 5th Court at Alipore in Misc. Case No.19 of 2005 have some irregularities. Orders dated 18.12.2006 and 30.8.2008 are set aside. Learned Additional District and Sessions Judge, Fast Track, 5th Court at Alipore is requested to dispose of the Misc. Case 19 of 2005 afresh after giving an opportunity for hearing of both sides within two months from the date of receipt of the order. 8

The application is disposed of accordingly.

There is no order as to costs.

C.O. No.3925 is disposed of accordingly. Urgent xerox certified copy of the order be supplied to the party, if applied for. (TAPAS KUMAR GIRI, J.)

Categories: Judgement, Judgement