Allahabad High Court
Rajesh Modak S.S.P. Etawah And 2 ... vs Rahul @ Saharukh on 14 December, 2015
Bench: Dhananjaya Yeshwant Chandrachud, Chief Justice, Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Chief Justice's Court
Case :- SPECIAL APPEAL No. - 890 of 2015
Appellant :- Rajesh Modak S.S.P. Etawah And 2 Ors.
Respondent :- Rahul @ Saharukh
Counsel for Appellant :- Piyush Shukla
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Yashwant Varma,J.
This special appeal has arisen from an order of the learned Single Judge in the exercise of the contempt jurisdiction by which the learned Single Judge has observed that the frequent transfer of police officers has affected the smooth administration of justice and amounts to criminal contempt.
The respondent instituted Criminal Misc. Writ Petition No.16712 of 2015 claiming that he was married to Km. Arti (who was impleaded as the second petitioner to the writ petition). On this basis, he sought to challenge the proceedings in Case Crime No.383 of 2015 under Sections 363 and 366 of the Penal Code at Police Station Kotwali, District Etawah. The writ petition was heard by a Division Bench of this Court on 14 July 2015 when an order was passed to the effect that until further orders of the Court, further proceedings in Case Crime No.383 of 2015 under Sections 363 and 366 of the Penal Code shall remain stayed.
A certified copy of the order of the Division Bench was made available by the computerized copying section of this Court on 24 July 2015 (the same date on which an application for a certified copy was made). A certified copy together with an application of the respondent was forwarded on 26 July 2015 to the Senior Superintendent of Police, Etawah (Annexure 11). In the meantime, it appears that the statement of Km. Arti was recorded by the Chief Judicial Magistrate, Etawah on 23 July 2015 to the effect that the respondent had misrepresented his religion and that she had been abducted after being administered an intoxicant upon which she had been raped and confined. The First Information Report in the case had been registered on 21 June 2015. The victim was taken into protective custody at the roadways bus stand at Etawah upon which she was medically examined on 22 July 2015. Her statement was recorded thereafter on 23 July 2015. A contempt petition was filed by the respondent in which it was alleged that in spite of the order passed by the Division Bench on 14 July 2015, a notice of proceedings under Sections 82 and 83 of the Cr.P.C. was affixed which, it was submitted, amounted to a contemptuous act. The respondent averred that he had attempted to serve a certified copy of the order dated 14 July 2015 upon the SSP, Etawah and SHO personally but no receipt was issued, as a result of which, he had forwarded a certified copy by registered post. The date of the application on which service upon the SSP Etawah and SHO was attempted was stated to be 16 July 2015.
An affidavit was filed before the learned Single Judge exercising contempt jurisdiction both by Smt. Manzil Saini, presently posted as Senior Superintendent of Police, Etawah and by the SHO. The present SSP stated that Sri Rajesh Modak who has been impleaded to the contempt proceedings as the first respondent was posted earlier as SSP, Etawah between 9 November 2011 and 14 June 2013 and was not posted at the place during the period of the incident, the filing of the FIR or during the action which was taken by the IO. In his affidavit, the SHO stated that the victim had been produced before the CJM on 23 July 2015 when her statement was recorded under Section 164 and was permitted to proceed with the members of her family since she was a major. Moreover, it was stated that as a matter of fact no notice of a proceeding under Sections 82 and 83 of the Cr.P.C. was issued since any such action could have been initiated only after obtaining necessary orders from the concerned Court. Finally, it was stated that the certified copy of the interim order dated 14 July 2015 was received only on 4 August 2015 and that as a matter of fact no action has been taken thereafter.
A perusal of the relevant record which has been filed together with the proceedings in the special appeal would indicate that a certified copy of the order dated 14 July 2015 of the Division Bench was in fact applied for and was made available only on 24 July 2015. Hence, the entire case of the respondent in the contempt proceedings that a certified copy of the order dated 14 July 2015 was sought to be served on the SSP, Etawah and the SHO on 16 July 2015, is palpably false and misconceived. Moreover, as has been stated on affidavit before the learned Single Judge, the case that notice of proceedings under Sections 82 and 83 of the Cr.P.C. was affixed despite the order of the Division Bench is palpably false since, neither was any order passed by the concerned Magistrate nor did the respondent produce any proof or evidence of such action having been taken.
In our view, the learned Single Judge was clearly not justified in converting the contempt petition into a generalized enquiry into the transfer of police officers and holding that this amounted to criminal contempt. These observations and the finding were clearly not warranted having regard to the material which has come on the record of the contempt proceedings.
In these circumstances, the special appeal filed by the State would have to be allowed. Moreover, as has been stated before the learned Single Judge, the first appellant was not even posted at Etawah as SSP during the relevant period. We, accordingly, allow the special appeal and set aside the impugned judgment of the learned Single Judge dated 17 November 2015. Contempt application (Civil) No.6060 of 2015 shall in the circumstances stand dismissed. The contempt proceedings shall stand discharged. There shall be no order as to costs.
Order Date :- 14.12.2015
VMA
(Dr. D.Y. Chandrachud, C.J.)
(Yashwant Varma, J.)
