Smt. Anjana D. Sawant, Judicial ... vs Baba Abdul Khan S/O Daulat Khan, ...
2003 Latest Caselaw 672 Bom

JUDGMENT

1. Heard Mr. Sanyal, learned counsel for the appellant and Mr. Fulzele, learned Asstt. Govt. Pleader for respondent no.5. Other respondents though served, none appears for them.

2. Contempt Appeal is filed against the Judgment and Order, dated 4th/7th March, 1994, assed by the learned Single Judge, whereby the appellant has been sentenced to suffer imprisonment till rising of the Court and a fine of Rs. 1,000-00. It will be appropriate to consider the relevant facts and circumstances which have given rise to initiation of proceedings under the Contempt of Courts Act against the appellant. Those are as follows :-

3. On 31/5/1991 offences punishable under Sections 420, 392, read with Section 34 of the Indian Penal Code came to be registered against respondents 1 to 3 vide Crime No. 218/91 at Tahsil Police Station, Nagpur, and Criminal Case No. 284 of 1991 was registered and the same was in the Court of Judicial Magistrate First Class, Nagpur. The sum and substance of the prosecution case was that the respondent no.4 was the proprietor of a Courier Agency - called "Thakkar Agencies". The alleged offence had taken place on 31/5/1991 on public road near Bhagwaghar Chowk, opposite Petrol Pump, Central Avenue Road, Nagpur. In the alleged crime, Police had seized a currency of Rs. 24,00,842-00 and other gold ornaments and the said amount was deposited with the Reserve Bank of India as per the orders of the Judicial Magistrate First Class, Court No.4 and other valuable items, namely gold and silver ornaments, were in possession of the Court.

4. Respondent no.4 (Proprietor of a Courier Agency) had claimed the ownership of the said cash amount as well as gold and silver ornaments, since the same were entrusted to him by his respective parties for transportation in his regular course of business. The respondent no.4, therefore, filed an application under Section 457 of the Criminal Procedure Code for release of the said property on 5/7/1991, which was registered as Misc. Criminal Application No. 124 of 1991. The Trial Court, which was presided over by Judicial Magistrate First Class - Shri S.Y. Kulkarni, considered the application and vide order, dated 28/8/1991, rejected the application of respondent no.4 and the reason for rejecting the application mentioned in the order is thus :-

"Therefore, this Court did not feel it necessary to go in detail about the legality of his business but from the contention of the applicant when it is clear that he is not real owner of the seized amount and an amount being seized from the possession of the accused, during the investigation by the police I do not find it proper to release the property as claimed by the applicant on his Supratnama. Hence, I come to the conclusion that the application deserves to be rejected, as the matter is under investigation and as the applicant has not satisfactorily proved that he is the only person who is entitled to get the seized amount."

5. Aggrieved by the order, dated 28/8/1991, passed by the Judicial Magistrate First Class, the respondent no.4 preferred Criminal Revision before this Court, which was registered as Criminal Application No. 176 of 1991. In view of the order passed by this Court in the said Revision, the petitioner in the said revision, i.e., respondent no.4, joined present respondents 1, 2 and 3 as party-respondents to the said Criminal Revision. This Court, vide Judgment and Order, dated 1/11/1991, dismissed the Criminal Revision Application preferred by the respondent no.4-Agency by observing thus :-

"22.According to me, if the amount is returned to the applicant who is neither the owner nor established his possession and nexus with the amount recovered from the accused, it will nothing but to grant a licence to encourage the person to carry on the illegal business. As the accused raised objections for return of amount which has been specifically discussed by the learned J.M.F.C., in his order dated 28/3/91, the possibility cannot be ruled out that they may raise any defence. Thus, the return of amount at this stage will cause prejudice to the accused at the time of trial. Similarly, some amount not being produced before the trial court at the time of recording the evidence the prosecution will face difficulty in proving the case."

6. The respondent no.4-Agency, being aggrieved by the order, dated 1/11/1991, passed by this Court, filed a Special Leave Petition before the Honble Supreme Court of India, which was registered as Special Leave Petition No. 1485 of 1992. The Honble Apex Court, by its order, dated 21st September, 1992, disposed of the Special Leave Petition. The said order of the Apex Court reads thus :-

"We are not inclined to interfere in this special leave petition in view of the High Courts findings. We have been informed that the charge-sheet has been filed in the court. The Trial Court may consider the question of handing over the money to the petitioner in the light of the fresh material which has come before the Trial Court. Special Leave petition is disposed of accordingly."

7. The respondent no.4-Agency consequently preferred second application under Section 457 of the Criminal Procedure Code on 14/12/1992, which was registered as Misc. Criminal Application No. 188 of 1992 before the Judicial Magistrate First Class (Fourth Court) and vide order, dated 6/1/1993, Judicial Magistrate First Class transferred the cash involved to the Court of Chief Judicial Magistrate First Class, Nagpur, since the currency notes involved in the crime were more than Rs. 3,000-00 and directed to issue summons to respondent no.4 and its counsel and they were directed to appear before the Chief Judicial Magistrate, Nagpur, on 6/2/1993.

8. Second application moved by respondent no.4 under Section 457 of the Criminal Procedure Code, dated 14/12/1992, remained on the file of Judicial Magistrate First Class Fourth Court itself and the matter was not transferred to the Court of Chief Judicial Magistrate by the Registry of the Lower Court. At the later point of time, the present appellant, who assumed charge of Court No.4, allowed the application moved by the present respondent no.4 under Section 457 of the Criminal Procedure Code, by order, dated 27/7/1993, and the operative part of the said order reads thus :-

"1. The order of dated 6.1.93 of my learned predecessor in the respect of transfer of the case to C.J.M. is hereby set aside.

2. It is hereby directed to Senior Clerk of the Court to return the cash amount of Rs. 24,00,842-00 in favour of Dilip Babulal Thakkar which has been deposited to the R.B.I. through the orders of the Court.

3. It is also hereby directed to Senior Clerk of the Court to return the gold and silver ornaments worth of Rs. 74,854/- to the applicant Dilip Babulal Thakkar.

4. With further direction that the applicant shall execute the bond of Rs. 24,00,842-00 and Rs. 74,854/- respectively before the court.

5. The applicant shall give undertaking into writing that he will return the cash amount and ornaments to their respective claimants and produce the gold and silver ornaments at the time of identification of the property in the final hearing."

9. The respondents 1 to 3 (accused) made a complaint to the District Judge, vide complaint, dated 30/7/1993, against the appellant and the order, dated 27/7/1993, passed by the appellant on the application moved by the respondent no.4 under Section 457. The said complaint was registered/treated as Revision Application bearing no. 1377 of 1993, and the District Judge had stayed the effect and operation of the order, dated 27/7/1993. The respondents 1 to 3 also filed a Criminal Revision Application challenging the order, dated 27/7/1993, before the learned Sessions Judge, Nagpur, which was numbered as 1649 of 1993 and at the relevant time when the contempt proceedings were initiated by the respondent nos. 1 to 3 against the present appellant in this court, the said revision application was pending in the court of Sessions Judge.

10. The respondents 1 to 3 initiated proceedings against the present appellant as well as respondent no.4 under the Contempt of Courts Act by filing Contempt Petition No. 297 of 1993, on the ground that the respondent no.4-Dilip Babulal Thakkar submitted second application under Section 457 of the Criminal Procedure Code before the trial court after dismissal of the Special Leave Petition by the Supreme Court of India without there being any fresh grounds/circumstances. The Apex Court having finally concluded the issue, it was the bounden duty of the appellant who was discharging duties as a Judicial Magistrate First Class, Court No.4, to show indulgence only after ascertaining that whether there are any new circumstances to entertain the application and could have shown indulgence only after reaching such satisfaction. The respondent no.4 having not brought out any new facts in his second application for release of property, had set the process of law in motion contrary to the order of the Apex Court and thereby it is a contemptuous act committed by the respondent no.4. Similarly, since the present respondent nos. 1, 2 and 3 (accused) ought to have been joined by the appellant as parties to the said application by respondent no.4. However, the respondent no.4, with a malafide intention, did not join respondents 1 to 3 (accused) as parties to the second application and the present appellant also did not issue notices to them and purposely deprived the accused of an opportunity of being heard. According to the accused nos. 1 to 3, it was the bounden duty of the appellant to see that all interested parties were before the Court and it was incumbent on the appellant to grant them reasonable opportunity to put forth their arguments before deciding the second application of respondent no.4 under Section 457 of the Criminal Procedure Code. It was also the bounden duty of the Judicial Officer (appellant) firstly to concur with the earlier order passed by her predecessor and ought to have ensured compliance of the said order. It was not open for the appellant to revise the earlier order of rejection passed by her predecessor-in-office, whereby the first application moved by respondent no.4 under Section 457 of the Criminal Procedure Code was rejected in absence of any review application or any specific ground for suo motu review, and lastly the contention of the respondents 1 to 3 in the Contempt Petition was that the appellant, who was the Judicial Officer, was duty bound to consider the order, dated 1/11/1991, passed by this Court as well as the order, dated 21/9/1992, passed by the Apex Court, and in the light of these orders, the appellant, acting as a Judicial Magistrate, ought to have considered the second application preferred by respondent no.4. However, in the facts and circumstances, it is apparent that the appellant being a Judicial Officer did not exercise her judicial power in all fairness and in the interest of justice. The appellant has disregarded the orders of this Court, Apex Court as well as the order of her predecessor which itself speaks volumes for her conduct and, therefore, the appellant as well as respondent no.4 had not only committed a civil contempt disregarding the orders of this Court as well as Apex Court, but at the same time, have committed a criminal contempt scandalizing and lowering the image of the Judiciary and it was prayed that appropriate action be taken. The learned Single Judge, vide impugned Judgment and order, dated 4th/7th March, 1994, held the appellant guilty of committing the contempt of this Court as well as trial court on the ground of wilful disobedience committed by the appellant and with an oblique motive returned the property to the respondent no.4. Hence the present appeal.

11. The appellant challenged the impugned order on the following grounds :-

(a) Nature of allegation contained in the Contempt Petition did not make out a case either of civil or criminal contempt, nor that of contempt by the appellant of her own court and, therefore, the appellant could not have been held guilty under the provisions of Contempt of Courts Act. It is contended by the learned counsel for the appellant that from a bare reading of the facts narrated in the contempt petition, it is clear that acts of omission and commission, which are alleged against the appellant, do not make out any case of wilful disobedience of any order either of this Court, or of the Supreme Court of India. There is, therefore, no case of civil contempt within the provisions of Sub-section (b) of Section 2 of the Contempt of Courts Act. It is contended that in fact, there is no disobedience of any order either of this court or the Supreme Court, muchless wilful disobedience to establish civil contempt. In absence of deliberate and willful disobedience, no charge of civil contempt could be sustained against the appellant.

(b) Mr. Sanyal, learned counsel for the appellant, states that the learned Single Judge committed a grave error in law in not properly appreciating the order passed by the Apex Court in Special Leave Petition, which entitles the appellant to consider the application under Section 457 in changed circumstances. It is, therefore, contended that the judicial order, dated 27/7/1993, does not amount to breach of any order of this Court or of the Apex Court and, therefore, question of committing contempt does not arise.

(c) Counsel for the appellant contended that the last order passed by the Apex Court is dated 21st September, 1992 in the Special Leave Petition and, therefore, all earlier orders passed by the predecessor-in-office of the present appellant as well as this Court in revision stand merged in the order of the Apex Court and, therefore, question of disobedience of the orders of this Court and the trial court does not arise. It is contended that the learned Single Judge failed to appreciate that the Supreme Court, vide order, dated 21/9/1992, granted fresh direction to the trial court, presided over by the appellant, to decide the quantum of handing over of the property on the basis of fresh material available before the appellant and, therefore, the order, dated 1/11/1991, passed by this Court stands superseded to that extent and, therefore, there is no contempt, whatsoever, committed by the appellant.\

(d) Learned counsel for the appellant contended that the appellant has not committed any criminal contempt of Court, since there is no question of scandalizing the Judiciary or lowering down the image of Judiciary in the eyes of public at large. Even otherwise, the learned Single Judge does not possess jurisdiction to try the criminal contempt and, therefore, the observations in the order in this regard are of no consequence. The learned counsel for the appellant contended that the learned Single Judge did not consider the provisions of Sections 322 to 325 of the Criminal Procedure Code in their proper perspective. As far as Section 322 of the Criminal Procedure Code is concerned, it empowers the Judicial Magistrate First Class to submit the case before Chief Judicial Magistrate in case he has no jurisdiction to try the case or when the Judicial Magistrate is of the view that the case should be tried by the Chief Judicial Magistrate. It is contended that in such a situation, the Judicial Magistrate needs to stay the proceedings and submit the case with a brief report explaining its nature to the Chief Judicial Magistrate. In the instant case, the predecessor of the appellant has neither stayed the proceedings in question, nor prepared a brief report. Similarly, the provisions of Section 323 and 325 are not attracted in the present case and, therefore, the finding of conviction recorded by the learned Single Judge on the backdrop of these provisions is misconceived and unsustainable in law.

(e)Learned counsel for the appellant further states that the observation of the learned Single Judge that the appellant had no power to review the earlier order passed by the predecessor-in-office of the appellant is also not relevant for the issue in question. It is, therefore, contended that the judgment and order of conviction passed by the learned Single Judge against the appellant is unsustainable in law and

may kindly be quashed and set aside.

12. We have given our anxious thought to various contentions canvassed by the learned counsel for the appellant, perused the Judgment and Order, dated 4th/7th March, 1994, passed by the learned Single Judge in Contempt Petition as well as orders passed by the Judicial Magistrate First Class and the Apex Court.

13. Before we adjudicate upon the issue in question, it will be appropriate to summarize certain relevant undisputed facts :-

i) Respondents 1 to 3 were prosecuted for the offences punishable under Sections 420, 392, read with Section 34 of the Indian Penal Code, and Criminal Case No. 284 of 1991 was registered before the Judicial Magistrate First Class, Fourth Court.

ii) On 5/7/1991, respondent no.4 (complainant) filed an application under Section 457 of the Criminal Procedure Code for return of property, i.e., cash and gold and silver ornaments seized in the crime vide Misc. Criminal Application No. 124 of 1991.

iii) Vide order, dated 18/8/1991, passed by the then Chief Judicial Magistrate, Nagpur, the said application was rejected for the reasons stated hereinabove.

iv) Respondent no.4 challenged the said order before this Court by filing Criminal Application No. 176 of 1991. The same was rejected by this Court vide order, dated 1/11/1991, for the reasons stated hereinabove.

v) Respondent no.4 filed a Special Leave Petition against the order of the High Court and the Honble Apex Court, vide order, dated 21/9/1992, disposed of the Special Leave Petition and the observations of the Apex Court in the said order are mentioned hereinabove.

vi) Respondent no.4 on 14/12/1992 preferred second application under Section 457 of the Criminal Procedure Code, and the appellant vide order, dated 27/7/1993, released the property, i.e., cash and ornaments, in favour of respondent no.4 on certain terms and conditions. This order is challenged by the original accused, i.e., present respondents 1 to 3, by filing a revision before the Sessions Court and the same was pending at the time when contempt proceedings were initiated in this court against the present appellant.

14. On the backdrop of the above referred facts, it is totally evident that the order, dated 28/8/1991, passed by the then Judicial Magistrate First Class Mr. S.Y. Kulkarni rejecting the application of the respondent no.4 under Section 457 as well as Judgment and Order, dated 1st November, 1991, passed by this Court in Criminal Revision Application preferred by respondent no.4 are completely merged in the order passed by the Apex Court on 1/9/1992 in Special Leave Petition. The said order of the Apex Court supersedes all the earlier orders passed by the Judicial Magistrate First Class as well as this Court. The said order of the Apex Court in no uncertain terms gives power to the trial court to consider the question of handing over of money to the appellant in the light of fresh material which has come before the trial court after filing of the charge-sheet. It is, therefore, amply clear that the Supreme Court was informed about filing of charge-sheet in the matter against respondents 1 to 3 (accused) and, therefore, in view of this changed circumstance, the Apex Court has specifically observed in the order that the trial court may consider the question of handing over the money to the appellant in the light of the fresh material, which has come before the trial court. The language of the order is plain and totally clear and completely unambiguous and it permits the trial court to consider the issue under Section 457 afresh. It is incorrect to interpret the order of the Apex Court to mean that the trial court is entitled to consider the application under Section 457 moved by the respondent no.4 only in case of changed circumstances. On the other hand, since the fact of filing of charge-sheet was informed to the Apex Court, the Apex Court considered this as a change circumstance and permitted the trial court to consider the question of handing over of money to the respondent no.4 in the light of the fresh material in the form of a charge-sheet which has come before the trial court.

15. It is, no doubt, true that this Court vide Judgment and Order, dated 1/11/1991, passed in Criminal Revision Application No. 176 of 1991, dismissed the revision filed by respondent no.4 and though confirmed the order, dated 28/8/1991, of the Judicial Magistrate First Class, however, both these orders merged in the order, dated 21/9/1992, of the Apex Court. Both these orders do not survive after the order of the Apex Court, dated 21/9/1992. On the backdrop of these undisputed facts, there is no question of committing any disobedience or breach thereof by the appellant in respect of these two orders.

16. The learned Single Judge completely ignored the above referred factual aspect of the matter and totally misconceived the situation and erroneously came to the conclusion that the appellant committed contempt of this Court, when the order of this Court, dated 1/11/1991, was superseded by the order of the Apex Court, dated 21/9/1993.

17. Similarly, so far as the order, dated 6/1/1993, passed by the Judicial Magistrate First Class, transferring the case from his file to the file of Chief Judicial Magistrate is concerned, we fail to understand as to how the present appellant can be said to have committed wilful disobedience of the order, dated 6/1/1993, passed by the predecessor-in-office of the appellant. This order, in fact, has no nexus with the controversy in issue. In the instant case, we are concerned with the civil contempt of Court alleged to have been committed by the appellant. Sub-section (b) of Section 2 of the Contempt of Courts Act, 1971 reads thus :-

"(b) "civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;"

The above referred provision, in no uncertain terms, contemplates that for holding somebody guilty of civil contempt, there must be material available to show that he has wilfully disobeyed the judgment, decree, direction, order or writ or other process of the court. In the instant case, there is no material to show that the appellant has disobeyed either order, dated 1/11/1991, passed by this Court in Revision Application moved by the respondent no.4, or the order, dated 6/1/1993, passed by the Judicial Magistrate (predecessor-in-office of the appellant). Even otherwise, at the relevant time, the appellant was a Judicial Magistrate First Class and was discharging her duties in the capacity of a Presiding Officer of the Court and while discharging her official duties, has decided the second application moved by respondent no.4 under Section 457, Criminal Procedure Code and, therefore, her conduct as well as order passed by her in her capacity as a Judge cannot be a subject-matter of contempt proceedings. The order passed by the appellant may be the subject-matter of criticism, and not the Judge. Therefore, no proceedings in such a situation can be initiated against the appellant under the Contempt of Courts Act, particularly when the second application under Section 457 of the Criminal Procedure Code was filed by respondent no.4 and decided by the appellant in view of the observations of the Apex Court in the order, dated 21/9/1992.

18. However, it is, no doubt, true that when it is said that the Judge had a predisposition to convict or deliberately took a turn in disucssion of evidence because he had already resolved to convict the accused, or is attributing motives, lack of dispassionate and objective approach and analysis and prejudging of the issues which would bring administration of justice into ridicule if not infamy. When there is a danger of grave mischief being done in the matter of administration of justice, the animadversion cannot be ignored and viewed with placid equanimity, if the criticism is likely to interfere with due administration of justice or undermine the confidence which the public rightly repose in the courts of law as courts of justice. The statutory law or the Constitution does not confer a right on persons to level serious allegations against the Judge of impropriety/motive, lack of dispassionate approach, prejudging the issues etc., without substantial and cogent evidence in this regard. Otherwise, the person making such allegations would undoubtedly be committing a criminal contempt.

19. The observations made by the learned Single Judge in the impugned Judgment and Order, dated 4th/7th March, 1994, show that the learned Single Judge has misconceived the concept of civil and criminal contempt and in para 33 of the Judgment has observed thus :-

"As it is rightly said, the question of contempt particularly in this case, is a mixed question if civil and criminal nature. I have perused the original record of the trial Court. There is a voluminous material placed on record which itself shows that the contemnors have committed the contempt of Court."

The learned Single Judge totally failed to consider the concept of criminal contempt which 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 scandalizes or tends to scandalize, or lowers or tends to lower the authority of any court; or prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. Similarly, the learned Single Judge has completely forgotten that the criminal contempt is exclusively triable by the Division Bench. The entire approach of the learned Single Judge, while considering the material on record for holding the appellant guilty for the contempt of court, is misconceived and devoid of substance.

20. It appears that the learned Single Judge gave undue weightage while holding the appellant guilty for contempt of court to the facts that the appellant violated the principles of natural justice by not giving an opportunity of hearing to the accused - respondents 1 to 3 as well as ignored the order of transfer of case passed by the Judicial Magistrate First Class, who was predecessor-in-office of the appellant as well as reviewed the same without there being any provision in this regard for review in the Criminal Procedure Code. All these factors, in the facts and circumstances of the present case, particularly in view of the undisputed facts referred to hereinabove, are totally irrelevant for the purpose of holding the appellant guilty of civil contempt. Though the learned Single Judge has passed an exhaustive order, whereby the appellant is held guilty of the civil contempt, however, the whole order is based on misconception of law and facts of the case.

21. In the instant case, the appellant being a Judicial Officer of the Court was discharging judicial functions and exercising power conferred on her under Section 457 of the Criminal Procedure Code. The observations of the Apex Court in the order, dated 21/9/1992, clearly show that the appellant, in view of the changed circumstance, i.e. filing of charge-sheet, was expected to consider the issue of handing over of property to the respondent no.4 on Supratnama. All earlier orders in this regard stand superseded by the last order of the Apex Court and, therefore, the question of disobedience of those orders does not arise. Even otherwise, when the Judge is discharging his judicial functions and the order passed by him is appelable or revisable, he/she cannot be prosecuted under the provisions of Contempt of Courts Act, and is completely protected from such prosecutions. The discretion exercised and the finding arrived at by the learned Judge in a given case may be right or wrong, but that does not give rise to the prosecution of such Judicial Officer under the provisions of Contempt of Courts Act. It is, no doubt, true that the Judiciary enjoys prestige of highest order and slightest disrespect shown to Judiciary and disregard to its Judgment and order amounts to contempt of court punishable under the prevailing law of Contempt of Court. Similarly, rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. If the Judiciary is to perform its duties and functions effectively and remains true to the spirit with which they are sacredly entrusted to, the dignity and the authority of the courts have to be respected and protected at all cost. It is for this purpose that the Courts are entrusted with the extraordinary power of punishing those who indulge in acts, whether inside or outside the Court, which tend to undermine their authority and bring them in disrepute by scandalising them and obstructing them from discharging their duties without fear and favour. We must remember that the power of contempt must be used sparingly and only in a situation which warrants such exercise. These are summary proceedings and the Court can convict the contemnor by conducting a summary trial. In the instant case, the learned Single Judge has given a go bye to all these established norms and convicted a Judicial Officer for civil contempt on the misconception of law and facts.

22. Even otherwise, at the cost of repetition, we want to state that the order, dated 1/11/1991, passed by this Court in Criminal Revision Application No. 176 of 1991, for disobedience of which the appellant is held guilty for contempt of Court merged in the order of the Apex Court, dated 21/9/1992, and stands superseded by the said order of the Apex Court and, therefore, the question of committing contempt of order of this court by the appellant does not arise. We are of the view that the Court, which deals with the contempt matters, particularly against the Judicial Officers, needs to be very careful and insensitivity in such proceedings by the Court would not only result in destroying the career of the concerned Judicial Officer, but would also destroy the majesty of law and prestige of the legal system. In the instant case, it is surprising that at the instance of the accused, proceedings under the provisions of Contempt of Courts Act were initiated and those misconceived proceedings were unfortunately culminated in the conviction of the appellant.

For the reasons stated hereinabove, impugned order, dated 4th/7th March, 1994, passed by the learned Single Judge, is hereby quashed and set aside. Contempt proceedings are dropped. The amount of fine be refunded to the appellant.