Ashok Kumar vs State Of U.P.& 4 Ors.
2013 Latest Caselaw 6082 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 04.09.2013
 
Delivered on 26.09.2013
 
Court No. - 34
 

 
Case :- WRIT - A No. - 41543 of 2013
 

 
Petitioner :- Ashok Kumar
 
Respondent :- State Of U.P.& 4 Ors.
 
Counsel for Petitioner :- Surendra Nath Yadav,Alok Kumar Yadav
 
Counsel for Respondent :- C.S.C.,M.R.Khan
 

 
Hon'ble Sudhir Agarwal,J.

1. This writ petition came to be filed against order dated 9.7.2013 (Annexure 8 to the writ petition) whereby respondent No.5, Zainuddin Ahmad was transferred by District Magistrate, Ballia on administrative ground from Sikanderpur to Belthara Road. By means of another order dated 22.7.2013, Tehsildar, Belthara Road, Ballia, posted respondent no.5 at Village Haldirampur, where petitioner was working and petitioner was shifted to another area i.e. Village Sier, Tahsil Belthara Road.

2. Challenge was made on the ground that respondent No.5 had already worked at Village Haldirampur, Tehsil Belthara Road for more than fifteen years. He was transferred to Tehsil Sikanderpur, Village Karmauta/Baddamaphi in November, 2012 and, just within a few months, has been brought back to Haldirampur. It is alleged that impugned order is founded on malicious exercise of power on the part of concerned authority to show favour and accommodate respondent No.5.

3. This court directed respondents to produce record relating to transfer of petitioner and respondent no.5 on 5.8.2013. On the request of learned Standing Counsel made on 5.8.2013, it was posted for next date i.e. 6.8.2013, on which date certain documents were placed before this Court. A perusal thereof shows that an attempt was made to mislead this Court by not placing appropriate record, as directed, and therefore, taking a serious view of the matter, this Court passed following order:

"1. This Court required learned Standing Counsel to produce the record relating to transfer of petitioner and respondent no. 5. Today some loose papers have been placed before this Court which do not show that they are part and parcel of any particular record. No file number and nothing is there. It appears that some selected documents have been placed for perusal of this Court. This is nothing but an attempt on the part of respondents no. 2, 3 and 4 to mislead this Court by not placing the entire documents. Prima facie, besides improper, it is contemptuous also.

2. Let respondents no. 2, 3 and 4 appear before this Court alongwith entire file containing record relating to transfer of petitioner and respondent no. 5 before this Court on 14.08.2013. The documents placed today shall also be retained by this Court in sealed cover.

3. Put up on 14.08.2013."

4. When the matter came up on 14.8.2013, neither order dated 6.8.2013 was complied with nor anyone appeared nor made any instructions available to learned Standing Counsel as stated by him. Faced with the situation, the Court passed following order:

"1. Despite the Court's order dated 6.8.2013, respondents no.2, 3 and 4 neither appeared before this Court nor relevant record has been produced.

2. Learned Standing Counsel states that he has no instructions in the matter.

3. Let non-bailable warrant be issued to respondents no.2, 3 and 4 so as to ensure their presence before this Court on 2.9.2013.

4. This order shall be executed through Chief Judicial Magistrate concerned and presence of respondents 2 3 and 4 shall be ensured before this Court in custody.

5. List this matter on 2.9.2013."

5. Thereafter Civil Misc. Recall Application No.239588 of 2013 was filed seeking recall of my order dated 14.8.2013. This application accompanyied with an affidavit, sworn by Yogendra Prasad, Tehsildar, Belthara Road, Ballia. In paras 4, 5 and 6, deponent of the affidavit stated as under:

"4. That, the deponent came with the record on 05.08.2013 but due to paucity of time the case could not be taken up. When the court was retired in Chamber, the deponent again contacted the Standing Counsel and on his assurance and instruction the deponent came back to the District Ballia after giving the some paper to the Standing Counsel.

5. That, on 14.8.2013 the Standing Counsel has informed on Telephone to the District Magistrate Ballia in the evening about the order dated 14.8.2013. On the information given by the Standing Counsel the District Magistrate downloaded the order dated 14.8.2013 from the internet.

6. That, the deponent and the respondent no.2 and 3 have not been informed at all about the order dated 6.8.2013 as a result the order dated 14.8.2013 has been passed by this Hon'ble Court."

6. It is important to notice that para 4 of the affidavit has been sworn, partly on the basis of record and partly on the basis of personal knowledge while paras 5 and 6 are sworn on the basis of personal knowledge. From para 4, an attempt was made by deponent, Sri Yogendra Prasad, to suggest that case was not at all taken up on 5.8.2013 though he (the deponent) was present in the Court and when Court retired in Chamber, learned Standing Counsel advised him (deponent) to return back. Learned Standing Counsel assured and instructed him, as a result whereof, he went back to Ballia. In other words, suggestion, evident and apparent therefrom is, that, there was no occasion for this case to be taken up on 6.8.2013 since case was never called on 5.8.2013 and no order was passed fixing 6.8.2013. In other words, he has questioned the propriety of taking up this case on 6.8.2013 and also of order dated 5.8.2013.

7. The averments contained in para 4 make serious allegations on the Court that though the case was not taken up during working time of the Court, when deponent remained throughout present in Court till the Judge retired in Chamber yet without any order passed on 5.8.2013, the case was taken up on 6.8.2013 and a serious order was passed.

8. When I asked learned Standing Counsel on what basis the aforesaid affidavit has been sworn and what is material on record to show that deponent was actually present in the Court, he could not show anything. Normally, litigants, when come to the Court, are issued entry passes. Any such or other material could have been placed on record to show his presence but none placed. On the contrary, learned Standing Counsel stated that he never intended to say that no order was passed on 5.8.2013, inasmuch as, the case was actually called and taken up on 5.8.2013. On his request, it was adjourned to 6.8.2013. On pointing out the seriousness of the allegation, evident from a bare reading of para 4 of the affidavit, which has casted aspersion on the Court, learned Standing Counsel could give no reply. It is in these circumstances, the Court, had no option but to reject recall application and passed following order:

"1. This is an application for recall of my order dated 14.8.2013 supported by an affidavit sworn by Sri Yogendra Prasad, Tehsildar, Tehsil Belthara Road, Ballia. In para 4, it has been averred that deponent came with record on 5.8.2013, but due to paucity of time, the case could not be taken up and after the Court retired to the Chamber, on the instructions of learned Standing Counsel, he went back to Ballia.

2. This averment is apparently false inasmuch the order sheet shows that on 5.8.2013, this case was called on and the following order was passed:

"Put up tomorrow i.e. 6.8.2013."

3. It is, thus, clear that in order to save his skin, the deponent has made a false statement, and, therefore, is guilty of purgery.

4. Let Yogendra Prasad, Tehsildar, Tehsil Belthara Road, Ballia, the deponent of the affidavit, impleaded by Office as respondent no. 4, appear before this Court on the next date fixed and to show cause as to why further proceedings under Section 340 Cr.P.C. be not initiated against him for filing false affidavit in the Court.

5. List this matter on the date fixed, i.e. on 2.9.2013.

6. Further, since the application and affidavit is founded on a false Statement, I find that it does not deserve to be considered further.

7. Rejected."

9. The respondents thereafter, it appears, preferred intra Court appeal against orders dated 14.8.2013 and 26.8.2013 i.e. Special Appeal No.1216 of 2013. Before Division Bench they placed an order dated 26.8.2013 whereby District Magistrate had revoked order of transfer, impugned in the writ petition. In this view of the matter, the Division Bench observed that writ petition itself has rendered infructuous. In the circumstances, this Court has nothing to do so far as writ petition is concerned, which in view of aforesaid order of Division Bench, has rendered infructuous and stands dismissed accordingly.

10. Now the only thing remained to be seen is the notice issued to Yogendra Prasad, Tehsildar, Belthara Road, Ballia to show cause as to why further proceedings under Section 340 Cr.P.C. be not initiated against him for filing false affidavit before the Court. On this aspect, Division Bench has observed that it is a matter between the Court and Tehsildar. On this aspect, the matter has been remitted to this Court.

11. Of late, it appears that when some orders of Court are taken up in appeal, whether intra Court or otherwise, appellant(s) sometime, make such statements of fact, which actually either have not transpired before the Court, order whereof is taken in appeal or sometime, make statement about what transpired in Court though not had happened actually and incorrect. Since the Court itself has no occasion to explain the things, appellate Court takes, what is stated before it by appellant, correct, and that is how some factual aspects are considered or sometimes taken note, which actually either had not transpired or otherwise are incorrect. The tendency to take advantage of situation that Judges, not party in the lis, have no occasion to provide explanation, is encouraging such practice. This need be looked into more seriously so that mischievous litigants may not be benefited of lack of communication due to procedural jargon.

12. In view of order of Hon'ble Division Bench, another recall application No.275351 of 2013 dated 2.9.2013 has been filed seeking recall of my order dated 26.8.2013 to the extent notice was issued to the deponent of the affidavit accompanying this application, with respect to proceedings under Section 340 Cr.P.C. In para 3 thereof it has been stated that averments made in para 4 of earlier affidavit was on account of sheer mistake and incumbent had no intention to cause any aspersion so as to mislead the Court in any manner. The mistake is admitted but said that inconvenience caused to the Court is highly regretted and contend that apology may be granted.

13. A bare reading of para 4 of affidavit accompanying Application No.239588 of 2013 makes it very clear that it is not a sheer typing mistake. A deliberate, intentional and well considered explanation has come that deponent was present in the Court on 5.8.2013 but the case was not taken up. At the end, when Court timings were over, and Judge retired in Chamber, only thereafter, deponent returned to Ballia. Meaning thereby, there was no occasion for the Court to have passed any order on 5.8.2013 for taking up this case on 6.8.2013. It clearly questions how order became available on record on 5.8.2013. Between the lines, matter is very clear that order might have been passed somewhere else but not in the Court. It also questions seriously about the propriety case taken up on 6.8.2013 and thereafter order passed thereon. Undoubtedly, the massage is very clear. A challenge made to Court proceedings questioning very authenticity of order available on record, and that too, on the part of an officer of State Government, who claims his presence in the Court with further fact that case was never taken up in his presence, is a serious thing. If what he says is correct, then what has been done by Court gives rise to various question about integrity and other aspect, else deponent of affidavit in making such a serious averments inflicting so serious accusation on the Court is guilty of committing a gross criminal contempt of Court. Further, if what has been stated in para 4 is incorrect then obviously he is also guilty of filing false affidavit before this Court and that too with an intention to give a explanation for supporting his application for recall of judicial order.

14. During course of argument before this Court, Sri P.P.Chaudhary, learned Standing Counsel, who had made request on 5.8.2013, when the case was taken up, to have it on next date, whereupon 6.8.2013 was fixed, he admitted that he made such request and said that it appears that person, who drafted affidavit committed some wrong. This explanation does not seem to be genuine in view of express and clear words stated in para 4 of the affidavit.

15. I, therefore, at this stage, defer the notice and proposed proceedings under Section 340 Cr.P.C. In my view, deponent of the affidavit, prima facie, being guilty of criminal contempt of this Court must be proceeded against, under the provisions of Contempt of Courts Act and thereafter, if necessary, other proceedings will be considered.

16. I, therefore, frame following charge against Yogendra Prasad, Tehsildar, Belthara Road, Ballia:

"You have committed criminal contempt by making accusation and allegation against Court by stating in para 4 of your affidavit sworn on 17.8.2013 accompanying application No.239588 of 2013 that on 5.8.2013, you were present till the Court rise and Judge retired in Chamber but the case was not taken up and no order was passed hence suggesting that order dated 5.8.2013 on the order sheet, a questioned order, subsequent order dated 6.8.2013 ought not to have been passed, though Sri P.P.Chaudhary, learned Standing Counsel has admitted before the Court that it is he, who requested for short adjournment when the case was taken up on 5.8.2013 and thereafter the Court directed it to be taken on 6.8.2013. The averments in para 4 of your affidavit, therefore, which have a direct accusation on the Court, is nothing but amounts to scandalizing the Court and is a criminal contempt for which you are liable to be punished under the provisions of Contempt of Courts Act, 1971."

17. Let Sri Yogendra Prasad, Tehsildar, Belthara Road, Ballia appear before appropriate Court on 03.10.2013 and submit his explanation.

18. The writ petition having rendered infructuous stands dismissed. Let this matter of criminal contempt be registered separately so as to proceed as an independent case.

19. Let this matter be placed before the bench assigning with the determination of criminal contempt, after obtaining nomination from Hon'ble the Acting Chief Justice.

Order Date :- 26.9.2013

KA