HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Civil Misc. Review/Recall Application No.243043 of 2015 IN Case :- CONTEMPT APPLICATION (CRIMINAL) No. - 16 of 2011 Applicant :- In Re: Opposite Party :- Sri Ashok Kumar Vaish, Advocate Counsel for Applicant :- A.G.A. Counsel for Opposite Party :- Anjani Kumar Dubey Hon'ble Sudhir Agarwal,J.
Hon'ble Shashi Kant,J.
1. Heard Sri Shesh Kumar, learned counsel for review applicant, Sri Sudhir Mehrotra, Special Counsel nominated for assistance to the Court and perused the record.
2. This application seeking review/recall of our judgment dated 25.5.2015, has come up at the instance of contemnor on the ground that criminal contempt proceedings initiated against him were barred by limitation under Section 20 of Contempt of Courts Act, 1971 (hereinafter referred to as "Act, 1971") and further that direction given by this Court restraining him from entering premises of Civil Court/District Judgeship, Kannauj for a period of three months is beyond jurisdiction since no such punishment is provided under Section 12 of Act, 1971 and is also contrary to law laid down in Supreme Court Bar Association Vs. Union of India & Anr., 1998 (4) SCC 409.
3. It is admitted that aforesaid two issues were not raised earlier but that it is sought to be explained that this was due to inadvertence. The learned counsel urged that these issues now can be raised by means of present application particularly in view of order dated 13th July, 2015 passed by Apex Court in Criminal Appeal No.851 of 2015 dismissing the aforesaid appeal.
4. The first obstruction before contemnor is lack of power of review under Act, 1971 read with Article 215 of Constitution of India. The power of review is not inherent unless conferred by statute. Even when conferred, the power of review has to be exercised in a very limited sphere i.e. to prevent travesty of justice. So far as power of recall is concerned, it has been held time and again, when there is no power of recall under the statute, a Court may exercise inherent power of recall of its order if the order in question is in violation of principles of natural justice or has been passed on account of fraud or misrepresentation of the party/parties.
5. In Surendra Mohan Arora Vs. HDFC Bank Ltd. and Ors., JT 2014 (5) SC 416, dealing with the question of inherent power of review, the Court said :
"It is trite law that unless the power of review is specifically conferred by the statute, there cannot be any inherent power of review."
6. In the context of power of this Court under Article 226, it has been observed that nothing in Article 226 of the Constitution precludes a High Court from exercising power of judicial review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave palpable errors committed by it. (See Shivdeo Singh and Ors. Vs. State of Punjab and Ors. AIR 1966 SC 1909; Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and Ors. 1979(4) SCC 389). It is evident that in aforesaid cases, the Court was considering power of review of orders of subordinate Courts under Article 226 i.e. 'power of judicial review' and not the 'power of review' of its own order.
7. In Mohd. Arif alias Ashfaq Vs. Registrar, Supreme Court of India and others, 2014 (9) SCC 737, the Court in para 70 has said :
"It is a settled position of law that the Courts of limited jurisdiction don't have any inherent power of review."
8. It is further said that even where power of review is exercised it is within the ambit of provision permitting such power.
9. Admittedly, in the present case, none of the aforesaid contingency exist. After long drawn argument advanced on behalf of contemnor through his counsel, Sri Anjani Kumar Dubey, who appeared earlier, the criminal contempt application was decided by a detailed judgment dealing with all the arguments raised by him. Therefore, there is no question of complaining that contemnor-applicant was not afforded opportunity of hearing and judgment has been passed in violation of principles of natural justice.
10. Secondly, issue of fraud and misrepresentation is not attracted at all. On the contrary, contemnor-applicant admits that whatever arguments were raised, have already been considered and decided but the two arguments, which he intends to raise by means of present application, were not raised earlier due to inadvertence. This is evident from paras 10 and 11 of the affidavit accompanying application in question and read as under :
"10. That the aforesaid points mentioned in this affidavit could not be raised by the applicant/respondent due to inadvertence. However, on the aforesaid points being raised before the Apex Court, the Apex Court dismissed the Criminal Appeal without prejudice to the applicant's right to initiate appropriate proceedings, as the aforesaid points were not raised previously before this Hon'ble Court.
11. That the consideration of the aforesaid points do not require any additional or new facts and material and it goes to the root of the matter."
11. Sri Shesh Kumar, learned counsel for contemnor states that contemnor has raised these grounds in appeal and while dismissing appeal vide order dated 13th July, 2015, Apex Court clearly mentioned therein that such dismissal is without prejudice to initiate appropriate proceedings. It is contended that this observation of Apex Court has conferred a right upon contemnor-applicant to move this review application.
12. In our view, the submission is thoroughly misconceived. The entire order passed by Apex Court reads as under :
"Learned counsel for the Appellant endeavoured to raise a question of law which appears not to have been addressed in the Courts below as it does not find mention in the impugned order. The appeal is dismissed without prejudice to the appellant's right to initiate appropriate proceedings." (emphasis added)
13. The Court has dismissed appeal but made it clear that appellant if has any right to initiate appropriate proceedings, dismissal of appeal by Apex Court shall not prejudice him. Therefore, appellant has to show to this Court first that this application, which he has filed, constitute an "appropriate proceeding" and there exist some provision enabling this Court to review its judgment passed on merits when there is no complaint of fraud or misrepresentation or violation of principles of natural justice and there does not exist any provision under Act, 1971 for review. The aforesaid order of Apex Court by itself has not conferred any right upon the applicant, which is not otherwise available. Learned counsel could not show any such provision or authority to support this application and show that it constitute an appropriate proceeding before this Court. Therefore, submission is thoroughly misconceived hence rejected.
14. However, to ensure that no injustice is done, we have permitted learned counsel to address us on both the issues which he has raised and we are considering the same also on merits to demonstrate that even on those aspects, there is no substance and therefore, judgment dated 25.05.2015 passed by this Court warrants no review/recall or modification in any manner.
15. It is contended that reference was made by Court below vide letter dated 12.9.2010 and forwarded by President, State Consumer Dispute Redressal Commission vide letter dated 4th January, 2011. This Court issued notice to contemnor on 28.10.2014 i.e. after more than 12 months from the date when contempt is alleged to have been committed and therefore, on the date, when notice was issued, it was already barred by limitation under Section 20 of Act, 1971.
16. From the record, we find that reference was made by Sri Om Prakash Goel, President, District Consumer Forum, Kannauj vide letter dated 12.09.2010. It was forwarded by State Consumer Dispute Redressal Commission, U.P. vide letter dated 04.01.2011. In the reference, it was stated that on 09.9.2010, contemnor has committed various acts and omission constituting contempt. The reference was received in Registry of this Court on 13.01.2011. It was examined by a Committee constituted by Hon'ble the Chief Justice for examining such matters on administrative side and on 16.07.2011 it made following recommendation :
"Placed before Hon'ble the Chief Justice with the recommendation to initiate proceedings of criminal contempt."
17. It was approved by Hon'ble the Chief Justice on 04.07.2011 and thereafter matter sent to the Court having determination of criminal contempt. The criminal contempt application was registered as application no.16 of 2011 and submitted to the Court on 15.07.2011. Thereafter, on 28.10.2014, it could be listed by Registry before Division Bench having determination of criminal contempt when the Bench passed following order :
"Issue notice to the contemnor"
18. It is now in these circumstances, we have to examine whether it can be said that proceedings initiated by this Court on 28.10.2014 were barred by limitation or not. We find that looking to the judgment of Apex Court in Pallav Sheth Vs. Custodian and others, 2001 (7) SCC 549, the proceedings for criminal contempt would be said to have been initiated when the reference is made by the subordinate Court and all subsequent acts of its registration, listing of the matter before the Court and issuance of notice are only steps following or succeeding to such initiation. Therefore, for the purpose of limitation under Section 20, it is the date on which the contempt was referred by the subordinate Court, would govern whether the reference is barred by limitation or not.
19. The issue as to when limitation for the purpose of Section 20 of Act, 1971 would commence in civil as well as criminal contempt, the matter was examined by highest Court in Pallav Sheth Vs. Custodian and others (supra). The Court, in paras 38, 39 and 40 of the judgment, has said as under :
"38. The Rules so framed by all the Courts in India do show that proceedings are initiated inter alia with the filing of an application or a petition in that behalf. If, however, proceedings are not initiated by filing of an application within a period of one year from the date on which the contempt is alleged to have been committed then the Court shall not have jurisdiction to punish for contempt. If, on the other hand, proceedings are properly initiated by the filing of an application, in the case of civil contempt like the present before the Court within the period of limitation then the provisions of Section 20 will not stand in the way of the Court exercising its jurisdiction.
39. In the case of criminal 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 or the Law Officer of the Central Government in the case of Union Territory. This reference or motion can conceivably commence on an application being filed by a person whereupon the subordinate court or the Advocate-General if it is so satisfied may refer the matter to the High Court. Proceedings for civil contempt normally commence with a person aggrieved bringing to the notice of the Court the wilful disobedience of any judgment, decree, order etc. which could amount to the commission of the offence. The attention of the Court is drawn to such a contempt being committed only by a person filing an application in that behalf. In other words, unless a Court was to take a suo motu action, the proceeding under the Contempt of Courts Act, 1971 would normally commence with the filing of an application drawing to the attention of the Court to the contempt having been committed. When the judicial procedure requires an application being filed either before the Court or consent being sought by a person from the Advocate-General or a Law Officer it must logically follow that proceeding for contempt are initiated when the applications are made.
40. In other words, the beginning of the action prescribed for taking cognizance of criminal contempt under Section 15 would be initiating the proceedings for contempt and the subsequent action taken thereon of refusal or issuance of a notice or punishment thereafter are only steps following or succeeding to such initiation. Similarly, in the case of a civil contempt filing of an application drawing the attention of the Court is necessary for further steps to be taken under the Contempt of Courts Act, 1971."
(emphasis added)
20. The Apex Court in Pallav Sheth (supra) then also confirmed the view taken by a Full Bench of Punjab and Haryana High Court in Manjit Singh and Others Vs. Darshan Singh and Others, 1984 Cri.L.J. 301. The Court while affirming the view taken by Punjab and Haryana High Court, has quoted observation made in para 19 of Manjit Singh and Others (supra) as under :
"19. To finally conclude it must be held that the terminus a quo for limitation begins under Section 20 of the Act on the date on which the contempt is alleged to have been committed. The terminus ad quem in case of criminal contempt would necessarily vary and be related to the modes of taking cognizance thereof provided for in S. 15. In cases where it is initiated on the Court's own motion it would necessarily be from the issuance of the notice for contempt by the Court. In case of a motion by the Advocate General under S. 15 (1)(a), the proceedings would initiate from the date of the filing of such a motion in the High Court. Where any other person moves the Advocate General for his consent in writing as prescribed in S.15 (1)(b), the initiation of proceedings would be with effect from the date of such application. Lastly, in cases of criminal contempt of a subordinate Court on a reference made by it the proceedings must be deemed to be initiated from the date when such reference is made."
21. From a perusal of the aforesaid, it is evident that the view taken by the Court is that beginning of action for contempt under Section 15 would be when proceedings for contempt are 'initiated'. That initiation would be when the reference is made. The order issuing notice or not is only a step follow or succeeded to such initiation. The limitation for contempt has to be seen when the contempt is said to have been committed and when the reference was made by the subordinate court. If the date for reference made by subordinate court is within one year from the date when the action or omission constituting contempt was committed, the matter would be within limitation and the date on which this Court issued notice would be relevant. In the present case, the act of contempt was committed by applicant-contemnor on 9th September, 2010 and reference was made by Presiding Officer of the Court below on 12.9.2010, which is just within a week. Therefore, proceedings are deemed to be initiated on that date i.e. 12.9.2010 and it cannot be said that Section 20 is attracted in the case in hand.
22. It appears that earlier counsel Sri Anjani Kumar Dubey, who appeared for the contemnor, was aware of this exposition of law and therefore, chose not to raise this argument, but now, by changing the counsel, this argument has been sought to be raised for the first time, which, in our view, is nothing but an abuse of process of law.
23. Now we come to the second question. It is contended that there is no punishment authorizing the Court to suspend licence of practice of an advocate and therefore, direction of this Court, contained in para 27 of judgement, is without jurisdiction.
24. The submission is thoroughly misconceived. So far as punishment is concerned, we have specifically provided punishment in para 26 of the judgment which is well within the four corners of the statutes i.e. Act, 1971. The directions contained in para 27 clearly do not constitute a punishment, under Act, 1971.
25. A five Judges Bench of this Court in Suo motu action taken by the Court Vs. Smt. Sadhna Upadhyaya, Adocate, District Allahabad, 2009 (2) ACR 1797, after referring to the Apex Court's decision in Supreme Court Bar Association (supra) and some other subsequent judgments, said as under :
"We need not delve into this any further as we also endorse the view of retention of such powers in the High Court particularly in situations of the present category. "
26. Again in State Vs. M.P. Rana, reported in (2006) 1 UPLBEC 465, this Court has acknowledged the existence of such powers with the Court by referring to Chapter 35-E of the Allahabad High Court Rules, 1952 read with Section 34 of Advocates Act.
27. The order passed by this Court would not have the effect of suspending license of the contemnor but he has been restrained from entering the premises of Court below for a limited period. It is always open to the contemnor to practice his law license anywhere across the country wherever he likes to do so, render opinion to the litigants and do all other such functions which as an advocate he can perform. The limited restriction is only with respect to the entry to the premises of the concerned district judgeship. It cannot be said, if a person has been restrained by this Court, from entering the premises of a subordinate Court, it amounts to suspension of his licence to practice as an advocate. The two things are different. This aspect has been considered and explained by Apex Court in Ex. Capt. Harish Uppal Vs. Union of India and Another, 2003 (2) SCC 45.
28. Even in Supreme Court Bar Association (supra) the decision relied by Sri Shesh Kumar, learned counsel for contemnor, in para 80, the Court has said :
"In a given case it may be possible, for this Court or the High Court, to prevent the contemner advocate to appear before it till he purges himself of the contempt but that is much different from suspending or revoking his licence or debarring him to practice as an advocate. In a case of contemptuous, contumacious, unbecoming or blameworthy conduct of an Advocate-on-Record, this court possesses jurisdiction, under the Supreme Court Rules itself, to withdraw his privilege to practice as an Advocate-on-Record because that privilege is conferred by this Court and the power to grant the privilege includes the power to revoke or suspend it. The withdrawal of that privilege, however, does not amount to suspending or revoking his licence to practice as an advocate in other courts or tribunals."
29. Then in Ex. Captain Harish Uppal Vs. Union of India (UOI) and Anr. (supra), the Court, in para 34, said :
"One last thing which must be mentioned is that the right of appearance in Courts is still within the control and jurisdiction of Courts. ....... The right of the advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions, he can work in any office or firm as a legal officer, he can appear for clients before an arbitrator or arbitrators etc. Such a rule would have nothing to do with all the acts done by an advocate during his practice. He may even file Vakalat on behalf of client even though his appearance inside the court is not permitted. Conduct in Court is a matter concerning the court and hence the Bar Council cannot claim that what should happen inside the Court could also be regulated by them in exercise of their disciplinary powers. The right to practice, no doubt, is the genus of which the right to appear and conduct cases in the Court may be a specie. But the right to appear and conduct cases in the Court is a matter on which the Court must and does have major supervisory and controlling power. Hence Courts cannot be and are not divested of control or supervision of conduct in Court merely because it may involve the right of an advocate." (emphasis added)
30. The counsel for the applicant in order to read the provisions of Act, 1971 has miserably failed to consider exposition of law already settled by Apex Court as well as this Court and also provisions of Advocates' Act, 1961 as also the rules of the Court. To suggest that this Court has suspended licence and right to practice as an advocate or has revoked it altogether is totally misconceived and it amounts to nothing but clear misconstruction of the order of this Court. He is free to practice anywhere except of entering the premises of concerned subordinate Court and that too, for a limited period of three months, as directed in judgment under review.
31. The aforesaid discussion makes it clear that on both the aspects, arguments raised by learned counsel for contemnor/review-applicant have no merit and deserve to be rejected.
32. The review/recall application is accordingly rejected.
(Shashi Kant, J.) (Sudhir Agarwal J.)
Order Date :- 14.8.2015
KA