Court On Its Own Motion vs Randhir Jain
2012 Latest Caselaw 6831 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Decision: November 29, 2012

+                          CRL.C.REF.4/2010

      COURT ON ITS OWN MOTION
      In Re:

      RANDHIR JAIN                             ....Respondent/Contemnor
                         Represented by: Mr.Kailash Vasdev, Sr.
                         Advocate/Amicus Curiae instructed by Ms. Shruti
                         Bhasin, Advocate.
                         Mr.S.S.Mishra, Advocate for the respondent with
                         respondent in person.
      CORAM:
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
      HON'BLE MR. JUSTICE MANMOHAN SINGH

PRADEEP NANDRAJOG,J. (ORAL)

1. Having perused the record of the proceedings of the learned Metropolitan Magistrate, applying the precautionary principle for the reason facts of are a kind where it may not be possible to find out the correct version, we discharge the notice of contempt issued.

2. Our reasons for so doing.

3. As per the order passed by the learned Metropolitan Magistrate making the reference and enclosing therewith the order dated May 21, 2010, it stands recorded that the respondent had an altercation with the Judge and shouted and before leaving the Court said 'You will have to dearly and heavily pay for passing such order'.

4. The record of the learned Judge would reveal that in a petition filed

by a wife under Section 12 of the Protection of Women from Domestic Violence Act, 2005 in which she had impleaded her husband, her father-in- law, mother-in-law and her brother-in-law as the respondents, an order was passed by the learned Metropolitan Magistrate fixing interim maintenance, language whereof was to the effect that all respondents were liable to pay the interim maintenance.

5. When put into an execution, the learned Metropolitan Magistrate passed an order which disposed of the Execution Application without attaching the properties indicated in the Execution Application to satisfy the money claim in favour of the wife, which order was set aside by this Court on May 3, 2010 in Crl.(M) Case No.5/2010 directing that the learned Magistrate should execute the order passed for interim maintenance.

6. At the remanded stage, probably dissatisfied by the order passed by this Court, the learned Magistrate passed an order on May 19, 2010 making hard and harsh comments against the wife by highlighting that she was targeting the properties of her in-laws. Strangely enough the learned Magistrate directed the property of the husband and his younger brother which are in the United States of America to be attached, ignoring that the order directing maintenance was a composite order, making jointly as well as severely liable, even her in-laws.

7. It is this order which has given birth to an alleged controversy. As per the learned Judge when she was sitting in Court on May 21, 2010, and the matter was not even listed, the contemnor entered her Court and started confronting her with the order which she has passed; an event which the contemnor denies.

8. As per Protection of Women from Domestic Violence Act, 2005 it is

the duty of every Court to supply order passed to the parties and the record would reveal that the order dated May 19, 2010 was received by the Clerk of the counsel concerned on May 21, 2010.

9. As per the counsel where was the occasion for him to throw a tantrum in the Court, as recorded in the order of reference, when he even did not know the contents of the order inasmuch as he claims that his Court Clerk received the same at 3.45 P.M. and brought the same to his Chamber in the Supreme Court. Learned Counsel vehemently contents that the order dated May 19, 2010, though purports to be an oral order, was never dictated in Court and counsel would draw support for said assertion by pointing out that the record would reveal that the order was received by his Clerk on May 21, 2010.

10. Now, there may be some logic in what the counsel would urge because if the order was passed in Court, the likelihood of the tantrum would be instant inasmuch as the learned Judge was refusing to attach the properties of the in-laws who were jointly and severely liable to pay the maintenance and for reasons unknown firstly dismissed the Execution Petition and when directed by this Court to correct herself, proceeded to issue attachment of properties of the husband and his brother in the United States of America, knowing fully well that a Court can at best issued precepts for properties outside its territorial jurisdiction and no attachments order can be passed; an act which would certainly offend a decree holder and the counsel.

11. It would be impossible for anybody to find out as to when copy of the order dated May 19, 2010 was supplied to the Clerk of the Counsel on May 21, 2010, but one fact would remain i.e. that a copy of the order was

supplied on May 21, 2010.

12. On the other hand we have the law that presumption of correctness in judicial order has to be raised.

13. The facts on record are of a kind where neither version can be correctly identified and conclusive opinion pronounced in summary jurisdiction proceedings and therefore we apply the precautionary principles by counseling the counsel who has a 40 years experience at the Bar that it was his duty to have avoided an ugly spat, if at all, with the Judge, had the inexperience Judge provoked the counsel; and as regards the learned Metropolitan Magistrate, who lacks experience and was working under tiring circumstances due to heavy workload, we counsel to respect an appellate decision even if it may be an incorrect decision or the Judge may so feel, because in a hierarchal structure this has to be accepted. We do find some recalcitrant behaviour on the part of the learned Metropolitan Magistrate who did not correct herself guided by decision of this Court when she initially refused to executed her own order. At the remanded stage the learned Judge ought not to have made disparaging comments on the wife who was fully justified in seeking attachments of properties which were in India as she knew that it was impossible to attach properties in the United States of America. Use of expressions 'target' etc. have to be avoided in judicial decisions when referring to inter-personal relationship, unless there is no other word to express oneself for the reason a person who is pursuing her legitimate right would feel hurt if told that she is targeting somebody. As a matter of fact, the wife was targeting nobody. Her husband abandoned her and went away to the United States of America soon after the marriage. Her in-laws threw her out of the matrimonial house. Howsoever under work

pressure a Judge may be, judicial restraint has to be observed. We close the matter. The notice of contempt is discharged.

14. Record be returned.

15. We find that the learned Metropolitan Magistrate has since recuse herself from the matter and thus we direct the Judge-in-Charge, Saket Court Complex, to supply a copy of this order to the learned Metropolitan Magistrate who has made the contempt reference for her future guidance.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE NOVEMBER 29, 2012 skb