In-Re vs Neetu Yadav W/O Late Raj Yadav
2015 Latest Caselaw 1220 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 42
 

 
Case :- CONTEMPT APPLICATION (CRIMINAL) No. - 26 of 2015
 
Applicant :- In-Re
 
Opposite Party :- Neetu Yadav W/O Late Raj Yadav
 
Counsel for Applicant :- AGA
 

 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Pramod Kumar Srivastava,J.

This criminal contempt has been placed before us on the directions as contained in the Division Bench judgment of this Court dated 24.6.2015. The direction of the Division Bench contained in para-14 of the judgment giving rise to this criminal contempt is extracted hereunder.

"14. Before parting, we also cannot ignore to notice the facts that the affidavit accompanying writ petition has been sworn by one Neetu Yadav, aged about 39 years, wife of late Raj Yadav, resident of House No. 56, Pahadi Gali, Meergunj, Police Station Kotwali, Allahabad, giving wholly incorrect and wrong facts which included not only the name of petitioner but her parentage, address etc. The girl has specifically stated that she is not resident of Meergunj, Allahabad, and she expressed totally unacquaintance to the deponent of the affidavit. It is thus clear that the aforesaid deponent has filed a false affidavit before the Court. Filing of a false affidavit intentionally before this Court amounts to criminal contempt. Therefore, we issue notice to Neetu Yadav to show cause as to why a proceeding for criminal contempt be not initiated against her and she be not punished under the provisions of Contempt of Courts Act, 1971. The criminal contempt proceeding shall be registered by the Registry separately. The aforesaid contemnor shall file reply within three weeks of issuing notice. This matter shall be listed before the appropriate Bench after obtaining nomination from Hon'ble The Chief Justice for further proceedings in the matter of criminal contempt. "

We have gone through the entire judgment and in order to seek assistance in the matter, we have heard learned AGA as well as Sri Daya Shankar Mishra, counsel who had appeared in the Habeas Corpus Petition for the detenue on the issue so raised.

It appears that a Habeas Corpus Petition was preferred in the name of Chandni Yadav. The FIR which was registered in Case Crime No. 326 of 2014, police station Kotwali, district Allahabad on 18.11.2014 is stated to contain the names of several females including one Chandni Yadav. It appears that she was sent to the Women's Protection Home, Agra under the orders of the Magistrate thereafter. The petition seeking her release for the benefit of the above named Chandni Yadav was supported by an affidavit of Neetu Yadav contending that the detention of Chandni Yadav is unlawful, in inasmuch, as it is contrary to the provisions of the Immoral Traffic (Prevention) Act, 1956 and is even otherwise violative of Article 21 of the Constitution of India.

The Court, it appears that, had summoned the detenue from the Women's Protection Home. Sri Daya Shankar Mishra who was the counsel for the detenue informs that through out the investigation including the FIR, the statement recorded under section 161 Cr.P.C and her statement under section 164 Cr.P.C. describes the detenue as Chandni Yadav and no other name of this detenue was indicated. This was further fortified by the report which was sent for the purpose of detaining her in the Women's Protection Home by the CO as well. It nowhere indicated her name to be Lipi Das and it was for the first time she has stated before the Court that her name is Lipi Das and that she wants to reside with her husband Palash Das who was also present in the Court. Her identity as such namely Chandni Yadav which was mentioned in the entire investigating documents as referred to hereinabove was a matter of record. Sri Mishra informs that it is on the basis of record that the deponent had mentioned her name. In such circumstances to construe that Neetu Yadav has deliberately filed a false affidavit does not appear to be borne out from the facts of the case in as much as in all the prosecution documents the detenue who was identified and released by the court was mentioned as Chandni Yadav and not as Lipi Das.

Consequently on what has been urged before us, we are of the opinion that the affidavit which was filed by Neetu Yadav may not be said to be a false affidavit as it was based on the records of the prosecution.

Sri Daya Shankar Mishra is right in his submission that this could have been a matter of dispute had the prosecution been called upon to give any explanation in this regard about the identity of the name of the detenue which admittedly was not done by the court before drawing this presumption that the affidavit was false. The Habeas Corpus Petition was disposed of on the same date when the statement of the detenue was recorded.

On the submission made by Sri Mishra it appears to us that the deponent of the affidavit had came forward to seek release of the detenue. There does not appear to be any deliberate intent on the part of the deponent to get a release on wrong facts. The name and address of the detenue according to Sri Mishra was the same as disclosed by the prosecution in its documents. We are, therefore, inclined to accept the submission of Sri Mishra that there was no intention of the deponent to mislead this court or file a false affidavit with regard to the name of the detenue. This examination of identify before this court should have been left to be probed by the court that is seized of the case relating to the offences for which the detenue is allegedly charged as any finding on the identity of her correct name would ultimately affect the criminal protection.

"Criminal Contempt is defined under section 2 (C) of the Contempt of Courts Act, 1971, which is quoted hereinbelow:-

(C) "Criminal Contempt" means the publication (whether by words, spoken or written, or by signs or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which:

(i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of any court; or

(ii) prejudice or interferes or tends to interfere with, the due course of any judicial proceedings; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration or justice in any other manner.

No element as per the aforesaid provisions are available at present to initiate such proceedings. Mere presumption of a false affidavit without investigation the facts, and just because a women charged under the Immoral Trafficking Act, who is yet to be tried, has stated a different alias name before the police that may have been done to hide her real identity, cannot be presumed to be a false deposition by the deponent. The presumption against the deponent was drawn without any further opportunity to her which violates the principles of natural justice.

If such a wide proposition is accepted then in the jurisdiction of Article 226 of the Constitution of India, where every case is decided on affidavits, one party is bound to not get any relief and otherwise they would be a loosing a party against successful litigant. Can in such a contingency it be said that the loosing party whose affidavit has not been believed has deliberately filed a false affidavit? This would lead us to a complete chaos in as much then any aggrieved party can file a criminal contempt alleging filing of a false affidavit against a loosing litigant. It is here that we would like to clarify that there is a distinction between incorrect statement of fact, a wrong statement of fact, and filing of a deliberate false affidavit. The court will have to keep in mind these distinctions before ultimately proceeding to initiate criminal contempt as that would entail consequences upon a litigant which may lead to penalty.

Learned AGA could not successfully dispute the aforesaid propositions as detailed by Sri Mishra.

We also do not find that any case is made out for drawing criminal contempt proceedings which are hereby dropped. Consigned to records.

Order Date :- 14.7.2015

SKS