Husband fined and jailed in contempt petition by HC wrt CrPC 125/498A
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
SUO MOTU CRIMINAL CONTEMPT PETITION No. 5 of 2010 High Court on its own Motion .. Petitioner. V/s
1. Dnyandev Tulshiram Jadhav
Mangal Murti Apartment,
Flat No.7B, Kathe Galli, Dwarka,
Nashik .. Contemner.
2. State of Maharashtra .. Respondent No.2. Mr V.S.Kapse, for the Petitioner.
Mr Rahul D.Motkari for Respondent No.1.
Mr A.S.Gadkari, A.P.P.for the State.
CORAM : A.M. KHANWILKAR &
A.R. JOSHI, JJ.
RESERVED FOR JUDGMENT ON :- 23 rd February,2011. DATE OF PRONOUNCING JUDGMENT:- 18 th March,2011. 2 smcp-5-10
JUDGMENT :- Per A.R.Joshi,J.
1. This is one of such cases in which there is unfounded malicious attack on the character of a Judicial Officer, by a party who had been directed to pay the maintenance allowance to the wife and minor child. At the threshold, prior to discussing the facts of the present matter, the observations of the Hon’ble Apex Court in M.R.Parashar v. Dr. Farooq Abdullah, AIR 1984 SC 615: can be mentioned with advantage as under:
“The Judges cannot defend themselves. They
need due protection of law from unfounded attacks on their character. Law of Contempt is one of such laws.
We would like to remind those who criticize
the judiciary that it has no forum from which to defend itself. The legislature can act in defence of itself from the floor of the House. It enjoys privileges which are beyond the reach of law. The executive is all powerful and has ample resources and media at its command to explain its actions and, if need be, to counter-attack. Those, who attack the judiciary must remember that they are attacking an institution which is indispensable for the survival of the rule of law but which has no means of defending itself…
The sword of Justice is in the hands of Goddess of Justice, not in the hands of mortal Judges. Therefore, Judges must receive the due protection of 3 smcp-5-10
law from unfounded attacks on their character.”
2. Keeping in mind, the above observations, we would examine the facts of the present matter to find out whether it is an intentional attempt to scandalize the Judicial Officer. The details of the present matter are explained in the foregoing paragraphs, as under:
3. Present contemner was original accused No.1 in one criminal proceedings bearing No.RTC-156/2002 registered for the offence punishable under Sections 498-A, 323, 504, 506 read with section 34 of the Indian Penal Code. Said criminal proceeding was initiated by the wife of the present contemner. For want of evidence, to bring home guilt for the offences charged against the then accused persons, judgment and order of acquittal was pronounced by the Judicial Officer, Judicial Magistrate, F.C. Akole, District Ahmednagar. Said order of acquittal was passed on 29th June, 2006.
4. During the pendency of said criminal proceedings, an application under Section 125 of Cr.P.C. was instituted by the wife of the contemner being M.A. No. 60 of 2003. Said proceeding was 4 smcp-5-10
independently heard and order was passed by the same Judicial Officer, Akole on 23.4.2007. By the said order said Criminal M.A. No. 60 of 2003 was partly allowed and present contemner was directed to pay Rs.1200/- per month to his wife and Rs.600/- per month to his minor son, then aged about 2 years. Cost of the litigation Rs.500/- were also awarded against the said contemner. Apparently, this order agitated the contemner to write an open letter dated 5th August, 2009 to the Hon’ble Chief Justice, High Court of Judicature at Bombay and copy thereof was sent to the President of India for taking action against the concerned Judicial Officer by making all the wild allegations even involving his own wife. On receiving said written complaint, Registrar of this Court inquired into the allegations and after due consideration found that it is a fit matter to initiate suo motu contempt against the contemner present respondent. Consequently, present proceeding have been initiated.
5. Notice was issued against the present respondent-contemner. He appeared and represented through his Advocate and filed his affidavit-in-reply dated 25th October, 2010. He has tendered apology 5 smcp-5-10
for making said malicious allegations against the Judicial Officer.
6. Rival arguments were heard on previous date. Considering such arguments and the factual position brought before the Court, certain admitted position may be narrated, in order to bring down the scope of the present petition and to decide whether the apology tendered by the respondent-contemner vide his affidavit-in-reply is to be accepted and proceeding to be dropped or he is to be dealt with and awarded appropriate punishment.
7. Factual position is that :
(i) On 29th June, 2006 present contemner and other co-accused were acquitted by the Judicial Magistrate, Akole, Shri U.T.Pol, in the matter of offence punishable under Sections 498-A, 323, 504 and 506 read with Section 34 of the Indian Penal Code.
(ii) Criminal Misc.Application No. 60 of 2003, filed by the wife of the contemner, was decided on 23rd April, 2007 by, the same Judicial Officer, Shri U.T. Pol and present contemner was directed to pay Rs.1,200/- 6 smcp-5-10
per month to his wife and Rs.600/- per month to his minor son and Rs.500/-, as costs of the said litigation. (iii) Contemner wrote a open letter dated 5th August, 2009 to the Hon’ble Chief Justice of the High Court of Judicature at Bombay and copy thereof sent to the President of India for taking action against the Judicial Officer. By this time, concerned Judicial Magistrate, Shri U.T. Pol, was already transferred from Akole, District Ahmednagar to Murbad, District Thane. This fact was known to the contemner as it is specifically mentioned in the said open letter.
(iv) Contemner had challenged the order of grant of maintenance dated 23rd April, 2007 before the Sessions Judge and had already obtained stay for the execution of said maintenance order and reportedly till date such stay is operating.
(v) Contemner has admitted having sent complaint to the Hon’ble Chief Justice of the High Court 7 smcp-5-10
of Judicature at Bombay with copy to the President of India vide his affidavit-in-reply dated 25th October, 2010. He has also tendered apology for his conduct and allegations made against the Judicial Officer and has withdrawn all the allegations against the Judicial Officer.
8. As mentioned above, at the cost of repetition, it may be mentioned that the only issue before us is : whether to accept the apology tendered by the contemner-respondent or to suitably punish him for the contempt of the Court. For this purpose, needless to mention that allegations in the offending written communication in unequivocal terms, spell out the scandalizing of the judicial officer. The contents of said letter, which is in vernacular Marathi language, speak for themselves. However, in order to emphasize the point canvassed by learned Advocate on behalf of the petitioner, certain portion from the letter is required to be highlighted, which is to the effect that :-
(a) Judicial Officer had many relatives in Taluka 8 smcp-5-10
Akole as well as Taluka Murbad and such relatives and the Advocates working in the Court were frequently visiting the Judicial Officer.
(b) Judicial officer was indulging in partisan activities by passing order in favour of such personal relation and thereby causing injustice to some litigants. (c) Judicial Officer was acting in bias manner and his actions were smacking sexual desire against women and due to this, common people had lost faith in the judicial system.
(d) Judicial Officer had managed to get himself transferred from Akole to Murbad, a nearby Taluka place, by exercising his political clout and illegal activities and on this count his C.B.I./C.I.D. inquiry was required to be done.
(e) Said Judicial officer is in habit of indulging in sexual relations with the women litigants by taking assistance of some Advocates.
(f) Said Judicial Officer is in habit of establishing personal relation wherever he is transferred. (g) In Criminal M.A.No.60 of 2003 filed by the wife of the contemner, one day prior to the final order being pronounced against the contemner, two advocates ( named 9 smcp-5-10
in the letter) had sent the wife of the contemner to the residence of Judicial Officer on the earlier night and said Judicial Officer had indulged in sexual activities with the wife of the contemner and on the next date he had allowed the maintenance petition passing the order dated 23rd April, 2007.
(h) Said Judicial Officer is a womanizer and unless dealt with appropriately, due to such activities, would deceive many other women.
9. Needless to mention that above imputations cast against the Judicial Officer by the Contemner are per se malicious and scandalous. Moreover, contemner has gone to the extent of naming his own wife, as mentioned in the above paragraph.
10. Though contemner has given unconditional apology by way of filing reply affidavit, in our considered view, it is not a matter in which accepting such apology the things can be put to rest. This is, more so, in view of per se mala fide attitude spelt out from the conduct of the contemner, inasmuch as he wrote the offending letter and sent it to the Hon’ble the Chief Justice of the High Court of Judicature at 10 smcp-5-10
Bombay, making wild, malicious and reckless allegations against the Judicial Officer, apparently, two years and four months after passing of the order of maintenance which is dated 23 rd April, 2007. The factual aspect as to the contemner making unfounded, reckless and wild allegations after two years and four months, imputing alleged sexual behaviour of the Judicial Officer, that also involving his own wife, is a strong ground which prompts us to reject the plea of the contemner that in a fit of rage and frustration, he wrote the said letter dated 5th August, 2009 – because of the directions to pay maintenance to his wife as per the judgment and order dated 23rd April, 2007.
11. Another argument that benefit of Section 6 of the Contempt of Courts Act, 1971 may be given to the contemner cannot be accepted for the same reason, as mentioned above and for the reason that the allegations imputed against the Judicial Officer were not in good faith while bringing such allegations to the notice of the High Court.
12. We must say that the circumstances under which the wild allegations were made against the Judicial Officer, do not stand the test of ‘good faith’, though such defence is pleaded by the contemner. The contemner has failed to produce any tangible material to even remotely substantiate either one of the several allegations made by him against the Judicial officer. Moreover, the factual position cannot be over looked, inasmuch as in the reply affidavit, at one breath, the contemner is tendering sincere and unconditional apology, as mentioned in paragraph No.2 of the affidavit, and in another breath, taking shelter of provisions of Section 6 of the Contempt of the Courts Act, as mentioned in paragraph No.5 of the same affidavit. Further, the offending communication was sent not only to the High Court but also to the President of India. It was an open letter sent by him. The same by no standards would be protected by the sweep of Section 6 of the Act.
13. Considering the above discussion, in our view, it is a deliberate act on the part of the contemner to scandalize the Judicial Officer and to bring Courts or Judicial system into contempt, 12 smcp-5-10
disrepute, disrespect and to lower its authority and offend its dignity. In other words, the conduct of the contemner is far more than causing the defamation simplicitor or aspersions against a particular judge. Consequently, in our view, it is not a fit case in which an apology tendered by the contemner, taking the shelter of provisions of Section 6 of the Contempt of Courts Act, 1971 can be accepted to purge the contemner. On the other hand, it is a fit case for inflicting appropriate punishment upon the contemner.
14. Now, coming to the last aspect as to how much punishment is to be inflicted upon the contemner, we are not oblivious of the fact that in awarding the sentence to the contemner the courts may not be unduly harsh so as to have a revengeful attitude. A token punishment would subserve the purpose of punishment in order to send message to other unscrupulous litigants and more so to up hold the dignity of the courts.
15. In that view of the matter, we hold the contemner guilty of having committed criminal contempt and sentence him to the following punishment. Hence, the order.
(a) The Contemner-respondent is held guilty of having committed criminal contempt of the Court.The Contemner respondent is sentenced to suffer imprisonment for one month and to pay a fine of Rs.2000/-.
(b) Contempt petition is disposed of, accordingly.
16. After the operative order was pronounced in Court, the contemner, who is personally present in Court, prays for suspension of the sentence awarded by us so as to enable him to prefer appeal before the Supreme Court against our decision. We have no difficulty in acceding to this request. Accordingly, the order of sentence shall remain in abeyance for a period of 60 days from today. (A.R. JOSHI, J) ( A.M. KHANWILKAR, J)