Delhi High Court
Syed Nusrat Ali vs State & Anr. on 5 August, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 12th July, 2010
Date of Order: August 05 , 2010
+ Crl.MC 2899 of 2009
% 05.08.2010
Syed Nusrat Ali ...Petitioner
Through: Mr. Abhay Kumar & Mr. Tenzing Tsering, Advocate
Versus
State & Anr. ...Respondents
Through: Mr. Vikas Pahwa, Advocate for State
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
JUDGMENT
1. By way of present petition under Section 482 Cr.P.C the petitioner has prayed for
quashing of an order dated 20th July, 2009 passed by Special Judge, NDPS, Patiala
House Courts, New Delhi. Learned Special Judge, NDPS, vide the impugned order
partly allowed the Crl. Revision and partly set aside the order dated 27 th April, 2009
passed by learned ACMM and disposed of the revision petition.
2. Brief facts relevant for deciding this petition are that learned ACMM vide order
dated 27th April, 2009, on an application made by petitioner no.1 Syed Nusrat Ali passed
an order directing ACP Mr. Amit Roy and the Investigating Officer to appear in person
and to show cause as to why proceedings under Contempt of Courts Act and for other
offences be not initiated against both of them. Against this order of learned ACMM, the
State filed a revision and the learned Special Judge NDPS Act vide order dated 20th July,
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2009 set aside the order dated 27th April, 2009 passed by learned ACMM qua ACP Mr.
Amit Roy but held the order qua Investigating Officer Ram Kumar Chaudhary.
3. By present petition applicant/ petitioner no.1 Syed Nusrat Ali assailed the order of
learned Special Judge (NDPS Court) contending that there was no power of revision
vested in learned Special Judge since the order passed by learned ACMM was an
interlocutory order. Petitioner also assailed the order passed by learned Special Judge,
NDPS on merits.
4. I have perused the order of learned ACMM and learned Special Judge, NDPS.
After perusal of the order of learned ACMM, I find that learned ACMM grossly exceeded
his powers in issuing show cause notice as to why proceedings under Contempt of
Courts Act be not initiated against the investigating officer and ACP. It is well settled that
neither ACMM nor any Court below the High Court has inherent powers under Cr.P.C.
The inherent powers under Criminal law are vested only in High Court. All courts below
High Court can exercise statutory powers only in accordance with Cr.P.C. When a Court
of ACMM or a Court of learned ASJ issues show cause notice to any person, it must be
in accordance with the provisions of Cr.P.C. Surprisingly, the learned ACMM has not
even mentioned as to under which provisions of law, he had the authority or powers to
issue show cause notice to an investigating officer or ACP to initiate proceedings under
Contempt of Courts Act or to initiate proceedings for commission of offence. It is
expected that when a matter comes before learned Metropolitan Magistrate, ACMM or
Sessions Judge, during trial for exercise of its powers, it has to specify as to under
which provision of Cr.P.C or Penal Code, the powers were being exercised. If there was
no provision under Cr.P.C of issuing a show cause notice to an investigating officer or to
his superior officer for contempt of court, such powers cannot be exercised by the
subordinate courts.
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5. A perusal of order of learned ACMM would show that he considered that the
conduct of two police officials had the effect of lowering the reputation of the Court of
learned ACMM in the eyes of the applicant or other persons associated with him. He,
therefore, issued a show cause notice to both of them. A perusal of provisions of
Contempt of Courts Act would show that a Court subordinate to High Court has no
powers to initiate proceedings under Contempt of Courts Act. Under Section 10 of
Contempt of Courts Act, the High Court alone can take cognizance of an alleged
contempt having been committed in respect of subordinate Courts. In order to bring the
conduct to the notice of High Court, a subordinate court is supposed to send a reference
of the matter to the High Court. A subordinate court cannot itself assume jurisdiction
under Contempt of Courts Act and issue show cause notice as to why contempt
proceedings should not be initiated. The provisions of Contempt of Courts Act cannot be
resorted to by subordinate court even as a threatening provision. In the present case, the
learned ACMM had all material before him, if he considered that it was a fit case for
initiation of proceedings under Contempt of Courts Act, he ought to have sent a
reference to the High Court and asked the High Court for initiation of contempt
proceedings. It was for the High Court to issue show cause notice to the officer
concerned. The order of learned ACMM suffered from total lack of jurisdiction. The
learned ACMM exercised the powers not vested in it. The learned Special Judge, NDPS,
did not discuss the powers available to learned ACMM under Cr.P.C and only after
discussing some facts allowed the revision petition qua one of the police officials. I
consider that the order of learned ACMM was itself not tenable.
6. It is settled law that this Court can suo moto exercise powers under Article 227 of
the Constitution of India to keep the subordinate courts within the four walls of law. I,
therefore, in exercise of powers under Article 227 of the Constitution of India, set aside
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the order of learned ACMM issuing show cause notice to the Investigating Officer/ ACP.
However, Court of learned ACMM will have liberty to refer issue of contempt to High
Court. The present revision petition was filed by the applicant Syed Nusrat Ali who
wanted proceedings against ACP and Investigating Officer to be initiated. The applicant
(petitioner no.1) would be at liberty to take resort to appropriate law to initiate action, if so
advised, and if there was a cause for the same. The action, as initiated by learned
ACMM, was illegal and contrary to law.
7. The present petition stands disposed of with above observations.
August 05, 2010 SHIV NARAYAN DHINGRA J.
rd
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