Bharti Agarwal vs Shri Ram Net A.C.J.M. Saharanpur & ...
2017 Latest Caselaw 134 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 
Court No. - 19
 

 
Case :- CONTEMPT APPLICATION (CIVIL) No. - 1154 of 2017
 

 
Applicant :- Bharti Agarwal
 
Opposite Party :- Shri Ram Net A.C.J.M. Saharanpur & Another
 
Counsel for Applicant :- Govind Krishna,Gyanendra Bahadur Rai
 

 
Hon'ble B. Amit Sthalekar,J.

This contempt application has been filed by one Bharti Agarwal claiming to be an Advocate in Deoband, District-Saharanpur. It has not been stated in the affidavit accompanying the contempt application that she is a Pairokar of the accused Jai Prakash Jawahariya, whose case she claims to be advancing.

The case set up by the applicant is that a First Information Report was lodged against one Jai Prakash Jawahariya on 11.11.2016 under Sections 295A and 153A I.P.C. and Section 66A of the Information Technology Act, 2000 in the Police Station-Deoband, District-Saharanpur. Sections 153A and 295A of the Indian Penal Code read as under:-

"153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.--(1) Whoever--

(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or

(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, [or]

(c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,

shall be punished with imprisonment which may extend to three years, or with fine, or with both.

Offence committed in place of worship, etc.--(2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.]"

"295A. Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.--Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of [citizens of India], [by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to [three years], or with fine, or with both."

It is stated that an application was filed by Jai Prakash Jawahariya on 12.11.2016 praying therein that he is a student of B.Sc and is studying in the Agra University and therefore, in view of the judgment of this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57)ALR 290 and the judgment of the Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. reported in 2009 (3) ADJ 322 (SC), he be granted interim bail. The application came up before the court on 14.11.2016 and on that date, the court after hearing counsel for the parties has held that the charges against the applicant are very serious and considering these facts has held that the question of releasing the applicant on bail does not arise and the application was rejected.

Prior to that, the matter came up before the court on 12.11.2016 and on that date, the court below considering the allegations contained in the First Information Report, the copy of the GD and original case diary which were produced before the court, sent the applicant on remand for 14 days and he was directed to remain in judicial custody from 12.11.2016 up to 25.11.2016.

This contempt application has been filed on an allegation that the judicial officer-respondent no.1 is guilty of contempt of the orders of the court passed in Amrawati (Supra) and Lal Kamlendra Pratap Singh (Supra) which lay down the law on the subject, therefore the opposite parties may be punished for having committed contempt of courts in view of the provisions of Section 16(1) of the Contempt of Courts Act, 1971. Section 16(1) of the Act reads as under:-

"16. Contempt by Judge, Magistrate or other person acting judicially.--

(1) Subject to the provisions of any law for the time being in force, a Judge, Magistrate or other person acting judicially shall also be liable for contempt of his own court or of any other court in the same manner as any other individual is liable and the provisions of this Act shall, so far as may be, apply accordingly.

(2) Nothing in this section shall apply to any observations or remarks made by a Judge, Magistrate or other person acting judicially, regarding a subordinate court in an appeal or revision pending before such Judge, Magistrate or other person against the order or judgment of the subordinate court.

The contention of Sri Govind Krishna, learned counsel for the applicant is that Section 66A of the Information Technology Act, 2000 has been struck down by the Supreme Court vide its judgment and order dated 24.03.2015 passed in Writ Petition (Criminal) no. 167 of 2012 (Shreya Singhal Vs Union of India), as violative of Article 19(1)(a) of the Constitution of India and therefore, even otherwise, the court below could not have taken cognizance of the First Information Report and much less, sent the accused on remand.

The learned counsel for the applicant next submitted that the presiding officer, Additional Chief Judicial Magistrate of Deoband had committed contempt of court in disregarding the judgments of this court in the case of Amrawati (supra) and of the Supreme Court in the case of Lal Kamlendra Pratap Singh (supra) in not considering the application dated 12.11.2016 of the accused for grant of interim bail on that date itself instead of sending him to judicial remand of 14 days. The learned counsel referred to the provisions of Section 16 of the Contempt of Courts Act.

The sub-section (1) of Section 16 itself starts with the words "Subject to the provisions of any law for the time being in force, a Judge, Magistrate or other person acting judicially shall also be liable for contempt of his own court........" Merely because the Additional Chief Judicial Magistrate concerned has sent the accused to judicial remand of 14 days and subsequently rejected his application for grant of bail vide order dated 14.11.2016, it cannot be said that the concerned judicial officer has committed contempt of his own court or of the High Court or of the Supreme Court. In order to constitute contempt, it must be shown that the judicial officer was acting willfully and deliberately in disregarding an order passed by the High Court or by the Supreme Court which had arisen out of some matter directly involving the matter pending before him and in which a direction has been given to him to act in a particular manner.

In the present case, there is no adjudication of any case of the accused by the High Court or by the Supreme Court and at least no such order has been shown to the court under which the learned ACJM may have been directed to act in a particular manner and he has acted in a manner contrary to such direction thereby constituting willful and deliberate disobedience of such order.

The Additional Chief Judicial Magistrate while rejecting the applicant's application for bail has stated in clear terms that the allegations are of a extremely serious nature. The offences of which the applicant was charged was not relating to Section 66A of the Information Technology Act, 2000 along but also to Section 153A and Section 295A of I.P.C. Therefore, this order was well within his judicial competence to pass and it cannot be said that he has exceeded his jurisdiction in rejecting the application. It has not been disclosed in the contempt petition whether the accused has challenged the order dated 14.11.2016 of the ACJM in any superior forum and therefore, this application filed for contempt seeking to punish the concerned judicial officer is nothing but an abuse of process of court and an attempt to intimidate and browbeat and humiliate the concerned judicial officer which conduct, this Court very seriously deprecates. This application appears to be more in the nature of publicity litigation than to serve any genuine interest of the accused.

For reasons aforesaid, this contempt application is dismissed with cost of Rs.10,000/- against the applicant. The applicant shall deposit the amount of cost within one month from today with the Registrar General of this Court. In case the applicant fails to deposit the amount of cost within the time stipulated, the Registrar General shall take appropriate and necessary steps for recovery of the same in accordance with law.

The amount of cost shall be transmitted by the Registrar General to the U.P. State Legal Services Authority.

Order Date :-5th May, 2017

Kirti