HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 A.F.R. Reserved on 17.08.2015. Delivered on 21.09.2015. Case :- CONTEMPT APPLICATION (CRIMINAL) No. - 24 of 2010 Applicant :- In Re Opposite Party :- Sri Nahar Singh, Advocate, Ghaziabad & Others Counsel for Applicant :- A. G. A.,Sudhir Mehrotra Counsel for Opposite Party :- Prem Prakash,V.K.Jaiswal Hon'ble Sudhir Agarwal,J.
Hon'ble Brijesh Kumar Srivastava-II,J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. Sri Himanshu Bhatnagar, Additional District Judge, Fast Track Court, Baghpat vide his Letter/ Reference dated 01.07.2010 addressed to the Registrar General of this Court, made a complaint against Sri Nahar Singh Yadav, Advocate(hererin after referred to as the 'Contemnor'), practising in Ghaziabad judgeship, that he has got a booklet, titled as 'Smarika Ghaziabad Bar Association 2007-08' (hereinafter referred to as 'Souvenir'), wherein there is an article at page Nos. 20-21, which has been written and got published by Sri Nahar Singh Yadav, Advocate. Its language is shabby, derogatory and contemptuous and tends to lower down authority of this Court. It also caused hindrance in judicial work, therefore, he requested for taking an appropriate action. It is also pointed out that earlier on a reference made by Chief Judicial Magistrate, Ghaziabad, pertaining to an incident dated 17.05.2007, a Contempt Application(Criminal) No. 5 of 2008 was registered against Contemnor and one Sri Shailendra Sharma, in which this Court vide judgment dated 16.02.2010 punished both the contemnors therein and imposed punishment of six months imprisonment and fine of Rs. 20,000/- each.
2. In the aforesaid article, written by Contemnor as President, Bar Association, Ghaziabad, the offending part thereof reads as under:
"मैं एक बात विशेष रूप से आपसे कहना चाहता हूँ कि मैं न्यायालय में व्याप्त भ्रष्टाचार के पहले से ही खिलाफ रहा हूँ जो न्यायलय में भ्रष्टाचार के चलते गरीब आदमी को न्याय मिलना मुश्किल है | मैंने अपने समय में श्री हिमांशु भटनागर का मामला उठाया और मुख्य न्यायाधीश महोदय से मिलकर उनके द्वारा किये गए करोड़ो रूपये के भ्रष्टाचार के साक्ष्य भी दिए और बार एसोसिएशन के अथक प्रयास से उनका स्थानांतरण गाजियबाद से किया गया जिसकी लड़ाई बार एसोसिएशन लड़ रही थी | लेकिन मुझे यह कहते हुए बड़ा दुःख हो रहा है कि बार एसोसिएशन के कुछ अधिवक्ताओं द्वारा जो बार एसोसिएशन के पूर्व पदाधिकारी भी रह चुके हैं, ने हिमांशु भटनागर के भ्रष्टाचार के खिलाफ आन्दोलन को तोड़ने का भरसक प्रयास किया और बार एसोसिएशन की प्रत्येक गतिविधियों को उन तक पहुंचाते रहे | मैं उनका नाम अपनी जुबान से लेना नहीं चाहता क्योंकि बार एसोसिएशन के सभी सदस्य उनके इस कार्य को जानते व पहचानते हैं | क्योंकि वे पहले से ही ऐसा कार्य करते रहे हैं |"
"One thing specially I want to say that since long I have been against corruption prevailing in court, on account whereof it is difficult for a poor man to get justice. During my tenure I staked the matter of Sri Himanshu Bhatnagar and in the meeting with Hon'ble Chief Justice I provided evidence of embezzlement/ corruption of crores of rupees committed by him and with sincere efforts of Bar Association, he had been transferred from Ghaziabad for which Bar Association was struggling. But I am feeling very sorry to say that some advocates of Bar Association who had also been Ex-Office bearers of Bar Association tried their level best to defeat the movement started against corruption by Himanshu Bhatnagar and had been conveying every activities of Bar Association to him. I d not wish to name those, because all members of the Bar Association are well aware of their acts in as much as in past also they have been indulged in such activities."
(English Translation by Court)
3. This Court after registering the present criminal contempt, issued notice on 09.12.2010 to the Contemnor as to why contempt proceedings be not initiated against him. The Contemnor, after putting appearance, filed objections vide Misc. Application No. 234103 of 2011, raising two objections; firstly that relevant documents were not supplied to him and secondly, questioned the notice on merits. This Court on 18.09.2012 passed following order:
"Two objections have been filed, to the show-cause notice issued, by Nahar Singh, Advocate to the show-cause.
The objection, which has been termed as Misc. Interim Application, numbered as Misc. Interim Application No. 234103 of 2011, is in two parts. First part alleges non-supply of relevant documents and therefore, denial of full and fair opportunity. Second part deals with the merit of the notice.
It would be appropriate that the contemnor or his counsel may peruse the papers, which are on record before this Court today itself. If he so desires, he may obtain photo stat copies of the said documents. He is further at liberty to file additional reply to the show-cause notice within ten days. Objections both on the procedure as well as on the merit to the notice issued shall be considered on the next date.
Let the matter come up again on 10th October, 2012."
4. It appears that thereagainst Contemnor preferred Special Leave to Appeal(Criminal) No. 8155 of 2012, wherein the Hon'ble Supreme Court, while issuing notice stayed proceedings of contempt pending before this Court. The order dated 18.10.2012 passed by Apex Court reads as under:
"Issue notice, returnable six weeks hence.
In the meantime, the proceedings pending before the High Court in connection with Contempt Application (Crl.) No. 24 of 2010, shall remain stayed."
5. Ultimately, the appeal was dismissed by Apex Court on 3rd March, 2013, observing that it was premature and consequently these proceedings revived.
6. A reply was filed by Contemnor for the first time, in September, 2014 by putting appearance through Sri Prem Prakash, Advocate, along with an application requesting that contempt proceedings be dropped. In paras 30 and 31 of the said reply, Contemnor has complained that copy of report submitted by Registrar General to Hon'ble the Chief Justice on 25.11.2010, was not made available to him. The Court directed to supply a copy of the said report to Contemnor and adjourned the matter to 13th October, 2014.
7. Sri Prem Prakash, learned counsel for Contemnor has pressed to decide the preliminary objections, which Contemnor has raised through this misc. application; firstly regarding 'limitation' and secondly on merits also. He submitted that there is no case of criminal contempt committed by Contemnor and, therefore, proceedings should be dropped.
8. He contended that Contemnor is said to have committed contempt by publishing a 'Souvenir', named as 'Smarika' but no date for such incident has been mentioned in the Reference dated 01.07.2010. In a criminal contempt, the proceedings commence on framing of charge and thereafter notice is to be issued. In the present case only a notice was issued as to why contempt proceedings be not initiated against Contemnor. It is said that till date, no charge has been framed, and, therefore, contempt proceedings are now barred by limitation.
9. Learned counsel for Contemnor drew our attention to the averments made in counter affidavit sworn on 4th September, 2014, wherein it is said that the Souvenir containing offending article, was published by District Bar Association, Ghaziabad relating to the year 2007-08. The souvenir was printed and published in the year 2007-08. It was not republished and there was no occasion for Judicial Officer making Reference to claim that he came to know through public in subsequent year i.e. on 01.07.2010, when reference has been made. He pointed out that in Reference, the learned Judicial Officer has said that the aforesaid article and Souvenir was brought to his notice by some advocates practising in Civil Court, Baghpat, and, thereafter, he made this Reference. It is contended that unless it is specifically shown that Reference is made within one year from the date the alleged contempt has been committed, which is limitation prescribed under Section 20 of Contempt of Courts Act, 1971(hereinafter referred to as 'Act, 1971), no notice ought to have been issued to the Contemnor. It was the duty of Court to look into this question and for this purpose, he placed reliance upon Gujarat High Court's decision in Dineshbhai A. Parikh Vs. Kripalu Co-operative Housing Society, AIR 1980 Guj. 194.
10. It is further asserted that in order to find out whether reference was made within one year from the date the alleged contempt was committed, it was necessary to find out when the offending contumacious article was published. Rule 3 Chapter XXXV-E of Allahabad High Court Rules, 1952(hereinafter referred to as 'Rules, 1952') specifically requires the date to be mentioned on which the contempt is alleged to have been committed. No such date has been mentioned in the Reference. Even the alleged Souvenir was not made part of Reference. Thus, the Registry of this Court sent a D.O. letter dated 04.08.2010 to the District Judge, Baghpat, requiring him to furnish a copy of Souvenir. Thereafter, Sri Himanshu Bhatnagar, Additional District Judge, was required to supply a copy of Souvenir. Sri Bhatnagar sent a letter dated 10.08.2010 stating that copies of the aforesaid Souvenir are lying in administrative office of District Judgeship, from where the same may be sent to the High Court. The District Judge, Baghpat, then, vide letter dated 11th August, 2010, sent two copies of souvenir published in 2007-08 by Bar Association, Ghaziabad. The article was published in the Souvenir about two years back. Whatever alleged contumacious act was committed, it was in the year 2007-08 and it was not a continuing offence, hence notice issued to Contemnor is barred by Section 20 of Act, 1971.
11. He further submitted that notice dated 09.12.2010 only says that Contemnor should showcause, why contempt proceedings be not initiated against him. This notice cannot be said to be initiation of contempt proceedings and, therefore, till date there is no "initiation". It renders proceedings barred by limitation under Section 20 of the Act, 1971. Reliance has been placed on the Apex Court's decision in Om Prakash Jaiswal Vs. D. K. Mittal and another, (2000) 3 SCC 171.
12. It is then contended that learned Additional District Judge in Reference has said that he has been defamed by offending article. If that be so, it is an offence under Section 228 IPC read with Section 500 IPC, hence no contempt would be maintainable. It is barred by Section 10 of Act, 1971.
13. It is further said that complaint by judicial officer to the superior court, per se, cannot be treated to be an act of contempt. Such complaint is permissible vide Section 6 of Act, 1971. In the article the factum of complaint made to Hon'ble the Chief Justice against the then Chief Judicial Magistrate, Ghaziabad was mentioned and nothing further was said. There is nothing in the said article which may tend to lower down the authority of Court or to scandalize, therefore, no contempt is made out. It is urged that a complaint has been made that judicial proceedings were hindered but when it happened, has not been specified. The assertion is quite vague and cannot be relied on to try the contemnor in this criminal contempt proceedings. The District Judge has also forwarded Reference without application of mind on his part by simply mentioning the word 'forwarded'. Before making such Reference, no notice or opportunity was given to Contemnor by District Judge, though it was incumbent upon him. Here he relied upon Kerala High Court's decision reported in 1988 Cri.L.J. 90, Berely Vs. Xavier and another. The notice was issued without framing of charge which is contrary to the rules.
14. It appears that during pendency of this criminal contempt, the Court permitted Judicial Officer concerned to submit his comments, which he has submitted and, thereafter, a rejoinder affidavit has also been filed by Contemnor.
15. For the purpose of considering the issues raised by Contemnor, suffice for us to consider the Reference made by Judicial Officer concerned, statutory provisions of Act, 1971 as also the offending article. They are the sufficient material to examine preliminary issues.
16. From a perusal of entire Souvenir, exact date of its publication is not clear but this much is evident from various commendatory letters appended therein which are of November-December, 2007 and January, 2008 that it was published sometime in 2008. The Souvenir is of the year 2007-08. From the editorial column, it appears that in March, 2008, pamphlets were published inviting Advocates of Ghaziabad judgeship to furnish their articles etc. for publication in the Souvenir. In any case in absence of anything otherwise, we may simply presume that the souvenir must have been published on or before 31st December, 2008. In the Reference dated 01.07.2010, there is no averment as to when the alleged incident of contempt took place.
17. Now we propose to consider first the question regarding limitation. Section 20 of Act, 1971 reads as under:
"20. Limitation for actions for contempt. No court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed."
(emphasis added)
18. This Court has framed rules under Section 23 of Act, 1971 which are published in Chapter XXXV-E of Rules, 1952. Rule 3(1) thereof reads as under :
"3. Facts to be stated in the motion or reference:- (1) Every such motion or reference made under Section 15 (1) of the Act shall contain in precise language the statement setting forth the facts constituting the contempt of which the person charged is alleged to be guilty and shall specify the date or dates on which the contempt is alleged to have been committed."
(emphasis added)
19. Rule 5 thereof reads as under:
"5. Issuance of notice :- Such allegations contained in the petition as appears to the Court to make out a prima facie case of contempt of Court against the person concerned, shall be reduced into charge or charges by the Court against such person, and notice shall be issued only with respect to those charges :
Provided that the Court shall not issue notice if more than a year has elapsed from the alleged act of contempt of court."
20. Thus, one of the requirements of Rules is that the date or dates, on which contempt is alleged to have been committed, must be specified in Reference made under Section 15(1) of Act, 1971. The reason being that this date is relevant to determine whether criminal contempt proceedings, when initiated, are within the period of limitation of one year under Section 20 or not? Section 20 makes it very clear that proceedings for contempt shall not be initiated after expiry of period of one year from the date on which contempt is alleged to have been committed. The learned Judicial Officer while making Reference in this case had completely failed to notice this statutory provision and no date on which the alleged contempt is said to have been committed, has been mentioned therein. The question of limitation is an important relevant issue and if the proceedings have not been initiated within the period prescribed in the statute, the Court would not be justified in going ahead in a criminal contempt proceedings which are not initiated within one year from the date alleged contempt has been committed. In this regard, though learned counsel for Contemnor has placed reliance on the decisions in Baradakanta Mishra Vs. Mr. Justice Gatikrushna Misra, Chief Justice of The Orissa High Court, (1975) 3 SCC 535; Ashok Kumar Aggarwal Vs. Neeraj Kumar and another, (2014) 3 SCC 602; Rajeev Dhavan Vs. Gulshan Kumar Mahajan and others, (2014) 12 SCC 618, but we do not find anything therein which may help him on this question.
21. A Division Bench of Karnataka High Court in N. Venkataramanappa Vs. D. K. Naikar, AIR 1978 Karnataka 57, has, however taken a view and we are in agreement therewith that the date, the contempt is alleged to have been committed, would be the date on which contempt is committed and not the date of knowledge to the complainant. The starting point of limitation was the date on which date contempt is alleged to have been committed and, therefore, its mention in Reference was necessary.
22. Learned counsel for Contemnor has also suggested that mere issuance of notice, requiring to show cause does not amount to initiation of proceedings and to support it, he has relied on a Division Bench decision of this Court in Hari Nandan Agrawal and another Vs. S. N. Pandita and others, AIR 1975 Alld. 48; a Single Judge decision in Kishan Lal Vs. Chhotey Lal 1987 (13) All. L.R. 44; Tripal Singh Vs. Harpal Singh 1929 (29) ACC 96; Dinesh Chandra Sharma Vs. B. K, Banerji, 1988 ALJ, 1279; 1988 ALJ 114; 1983 ALJ 700, a Division Bench decision of Andhra High Court in SJGM High School Vs. Director of School Education Government of Andhra Pradesh, 1996 Cr.L.J. 699; a Single Judge decision of Bombay High Court in V. M. Kanade Vs. Madhav Gadkari, 1990 (1) Cr.L.J. 1990. Here we find that none of the decisions cited would help him and the judgments refered to above of various High Courts are no longer good law in view of a larger Bench decision of three Hon'ble Judges in Pallav Sheth Vs. Custodian & others, (2001) 7 SCC 549. Therein the Court has held that proceedings for criminal contempt would be said to have been initiated when reference is made by subordinate Court and all subsequent acts of its registration, listing of matter before 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 and that would govern whether the reference is barred by limitation or not.
23. The issue as to when limitation for the purpose of Section 20 of Act, 1971 would commence in civil as well as criminal contempt, was examined in Pallav Sheth Vs. Custodian and others (supra). The Court, in paras 38, 39 and 40 of the judgment, said:
"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)
24. 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."
25. Following the above decision in Pallav Sheth Vs. Custodian and others (supra), a Division Bench of this Court in which one of us (Hon'ble Sudhir Agarwal, J.) was also a member in the judgment dated 14th August, 2015 passed in Review/Recall Application No. 243043 of 2015 filed in Contempt Application (Criminal) No. 16 of 2011 held as under:
"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."
26. Therefore, the judgments cited by Sri Yadav cannot be said to hold the field so as to constitute valid precedents to be followed by this Court, instead we are bound by the three Judges' decision in Pallav Sheth Vs. Custodian and others (supra).
27. Be that as it may, the fact remains that the alleged article said to have committed contempt, was published sometime in the year 2008 and the Reference has been made vide letter dated 01.07.2010. The Reference also did not mention any date on which the alleged contempt was committed in order to bring in the Reference within the period of one year of limitation prescribed under Rule 20 of Act, 1971.
28. We, therefore, find that the aforesaid Reference is incompetent and barred by limitation as prescribed under Section 20 of Act, 1971. Since the contempt proceedings, in our view, are barred by limitation, we do not find any reason to proceed to discuss other issues raised. The Reference dated 01.07.2010 is, therefore, rejected. The contempt proceedings are dropped, being barred by limitation. The notice issued to Contemnor is discharged.
Order Date :- 21.09.2015 Mustaqeem.