Abhishek Kumar Mishra vs Ravirajsinh G. Jadeja
2023 Latest Caselaw 5112 Guj

       C/MCA/1054/2023                                ORDER DATED: 03/07/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/MISC. CIVIL APPLICATION NO. 1054 of 2023

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                            ABHISHEK KUMAR MISHRA
                                     Versus
                         RAVIRAJSINH G. JADEJA & 2 other(s)
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Appearance:
MR. RAJESHKUMAR S MISHRA(9946) for the Applicant(s) No. 1
for the Opponent(s) No. 1,2,3
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
           and
           HONOURABLE MR. JUSTICE M. R. MENGDEY

                                  Date : 03/07/2023
                                   ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. The present application has been filed seeking action under Section 12 of the Contempt of Courts Act, 1971 and sentence against the respondent nos.1 and 3 for six months of imprisonment for willfully violating the directions of Supreme Court of India in the case of Lalita Kumari vs Govt. of U.P.& Ors., AIR 2014 SC 187.

2. It is the case of the petitioner that he had made a complaint to the respondent no.1-Police Inspector, Sayajiganj Police Station, Vadodara for registering a complaint under Sections 34, 120B, 200, 383, 386, 405, 419, 420 and 468 of the Indian Penal Code, 1860 on 03.06.2022. The petitioner also made a complaint to the Commissioner of Police, Vadodara, ACP 'A' Division on 03.06.2022 and also visited his office. However, no FIR has been registered. It is alleged by the petitioner that the respondent nos.1 and 3 have verified the genuinity of the documents, however, they have pressurized to withdraw some paragraphs from his

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complaint. It is submitted that on 20.06.2022 the petitioner was advised by the Commissioner of Police to meet Additional Commissioner of Police to hear him around 7:30 p.m. and assured that solution will be given in one hour. It is alleged by the petitioner that at around 7:52 p.m. the respondent no.1 called the petitioner from his mobile and transferred the case to JP Road Police Station, to which the petitioner objected and thereafter, the respondent no.1 abruptly disconnected the phone. It is alleged that at 9:41 p.m. the Police Sub-Inspector, Mr.A.D.Khant, from Sayajiganj Police Station sent a closure report over WhatsApp.

3. Learned advocate Mr.Mishra appearing for the petitioner has submitted that there are clear violations of the guidelines issued by the Apex Court in the case of Lalita Kumari (supra) and since the petitioner is remedyless, he has filed the present application for initiation of contempt proceedings against the respondents.

4. At this stage, we had invited the attention to the learned advocate Mr.Mishra to go through the judgment of the Division Bench dated 01.05.2023 passed in Misc. Civil Application No.345 of 2023 and thereafter, to make appropriate submissions. Since it was pointed out that the aforesaid issue is already dealt with by the Division Bench, however learned advocate Mr.Mishra refused to do so.

5. The Division Bench of this Court in the judgment dated 01.05.2023 passed in Misc. Civil Application No.345 of 2023 on an identical issue has observed thus:-

"1. By way of this application under Section 12 of the Contempt of Courts Act, applicant (original complainant) has come forward with a relief to initiate process against respondent authorities under the provisions of Contempt of Courts Act by framing charge and punish them for willful disobedience of the directions issued by Hon'ble Apex Court in the case of

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Lalita Kumari v. State of Uttar Pradesh reported in (2014) 2 SCC 1.

14. We have noticed that this proposition and the fact that in the case of Lalita Kumari (supra) the Hon'ble Apex Court has not observed anything which are reflecting in two other decisions i.e. in the case of Arnesh Kumar (supra) as well as D.K. Basu (supra) and which are not disputed by Mr. Y.S. Lakhani, learned Senior Advocate appearing for the applicant and as such, from the reading of the aforesaid observation as well, it would be difficult for this Court to exercise jurisdiction under the Contempt of Courts Act.

15. On such issue, we recollect one proposition laid down by Hon'ble Apex Court in the case of Vitusah Oberaoi and others v. Court of its own Motion reported in (2017) 2 SCC 314, wherein while analyzing the provisions relevant to the issue, Hon'ble the Apex Court has propounded that taking step by the High Court in direction of contempt of Hon'ble Apex Court would be without jurisdiction. Paragraphs 10, 11 and 12 of said decision we deem it proper to quote hereunder since relevant to the issue:-

"10. There is, from a plain reading of the above, nothing in the Contempt of Courts Act, 1971 or in Article 215 of the Constitution which can be said to empower the High Court to initiate proceedings suo-motu or otherwise for the contempt of a superior Court like the Supreme Court of India. As a matter of fact, the Supreme Court under Article 129 and High Court under Article 215 of the Constitution are both declared to be Courts of Record. One of the recognised attributes of a court of record is the power to punish for its contempt and the contempt of courts subordinate to it. That is precisely why Articles 129 and 215, while declaring the Supreme Court and the High Courts as Courts of Record, recognise the power vested in them to punish for their own contempt. The use of the expression "including" in the said provisions is explanatory in character. It signifies that the Supreme Court and the High Courts shall, as Courts of Records, exercise all such powers as are otherwise available to them including the power to punish for their own contempt.

11. Whether or not the power to punish for contempt of a subordinate court was an attribute of a court of record fell for consideration of this Court in Delhi Judicial Service Association vs. State of Gujarat (1991) 4 SCC 406. The argument there was that the Supreme Court could not initiate contempt proceedings based on an incident that involved a subordinate court like a Chief Judicial Magistrate working in the State of Gujarat. That contention was examined and rejected by this Court. It was held that the language employed in Article 129 indicated that the Supreme Court is a Court of Record and was entitled not only to punish for its own contempt but to do all that which is within the powers of a Court of Record.

This Court held that since the Constitution has designed the

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Supreme Court as a Court of Record, Article 129 thereof recognises the existing inherent power of a Court of Record in its full plenitude including the power to punish for its own contempt and the contempt of its subordinate. The Court said:

"29. Article 129 declares the Supreme Court a court of record and it further provides that the Supreme Court shall have all the powers of such a court including the power to punish for contempt of itself (emphasis supplied). The expression used in Article 129 is not restrictive instead it is extensive in nature. If the Framers of the Constitution intended that the Supreme Court shall have power to punish for contempt of itself only, there was no necessity for inserting the expression "including the power to punish for contempt of itself." The Article confers power on the Supreme Court to punish for contempt of itself and in addition, it confers some additional power relating to contempt as would appear from the expression "including." The expression "including" has been interpreted by courts, to extend and widen the scope of power. The plain language of the Article 129 clearly indicates that this Court as a court of record has power to punish for contempt of itself and also something else which could fall within the inherent jurisdiction of a court of record. In interpreting the Constitution, it is not permissible to adopt a construction which would render any expression superfluous or redundant. The courts ought not accept any such construction. While construing Article 129, it is not permissible to ignore the significance and impact of the inclusive power conferred on the Supreme Court. Since, the Supreme Court is designed by the Constitution as a court of record and as the Founding Fathers were aware that a superior court of record had inherent power to indict a person for the contempt of itself as well as of courts inferior to it, the expression "including" was deliberately inserted in the Article.

Article 129 recognised the existing inherent power of a court of record in its full plenitude including the power to punish for the contempt of inferior courts. If Article 129 is susceptible to two interpretations, we would prefer to accept the interpretation which would preserve the inherent jurisdiction of this Court being the superior court of record, to safeguard and protect the subordinate judiciary, which forms the very back bone of administration of justice. The subordinate courts administer justice at the grass root level, their

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protection is necessary to preserve the confidence of people in the efficacy of Courts and to ensure unsullied flow of justice at its base level."

12. The power to punish for contempt vested in a Court of Record under Article 215 does not, however, extend to punishing for the contempt of a superior court. Such a power has never been recognised as an attribute of a court of record nor has the same been specifically conferred upon the High Courts under Article 215. A priori if the power to punish under Article 215 is limited to the contempt of the High Court or courts subordinate to the High Court as appears to us to be the position, there was no way the High Court could justify invoking that power to punish for the contempt of a superior court. That is particularly so when the superior court's power to punish for its contempt has been in no uncertain terms recognised by Article 129 of the Constitution. The availability of the power under Article 129 and its plenitude is yet another reason why Article 215 could never have been intended to empower the High Courts to punish for the contempt of the Supreme Court. The logic is simple. If Supreme Court does not, despite the availability of the power vested in it, invoke the same to punish for its contempt, there is no question of a Court subordinate to the Supreme Court doing so. Viewed from any angle, the order passed by the High Court appears to us to be without jurisdiction, hence, liable to be set aside.

16. Now, in the case on hand, there is a specific plea by the applicant and prayer is also to that effect only that there is willful defiance of the direction of Hon'ble Supreme Court in case of Lalita Kumari (supra). In paragraph 120 of the said decision, it has been clearly held that registration of FIR is mandatory under Section 154 of the Code. Preliminary inquiry to what extent is allowed and under which circumstance same is permitted, all these conclusions/ directions are framed by Hon'ble Apex Court which circumstance is not at all in dispute and we have also noticed that for the purpose of issuing such directions, Hon'ble Apex Court was also assisted by several counsels representing the other States as well. In the case of Lalita Kumari (supra), Hon'ble Apex Court has not clearly observed that failure to comply would lead to a consequences and High Courts of the country having territorial jurisdiction can be approached. No-doubt, directions are issued are universally applicable by virtue of Article 141 of the Constitution of India, but then when question of initiating action under the provisions of Contempt of Courts Act arises, High Courts are under obligation to keep themselves within the bounds of their authority as clearly demarcated by virtue of afore-mentioned relevant provisions quoted herein-above and as such at this stage, we deem it proper to refer to

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observations which are made by Hon'ble Apex Court in case of Arnesh Kumar (supra) as well as in the case of D.K. Basu (supra).

20. Now, reverting back to the case on hand, what has been alleged is the conduct of respondent authority in not observing the directions issued by the Hon'ble Apex Court and therefore, request for initiating appropriate action under the provisions of Contempt of Courts Act and punish. A perusal of this entire judgment and order of Hon'ble Apex Court indicates that it is no-doubt a direction issued in a specific terms but then as has been clarified and explained in two previous decisions of Arnesh Kumar (supra) and D.K. Basu (supra), no such positive observations or directions are mentioned which would permit the High Court to initiate action under the provisions of the Contempt of Courts Act and therefore, even if if is alleged that there is a violation of these directions issued by Hon'ble Apex Court in case of Lalita Kumari (supra). It is not open for the High Court to overstep and travel beyond its jurisdiction which has already been confined by virtue of Section 10 of the Contempt of Courts Act read with Article 215 of the Constitution of India. It is also quite settled proposition of law that High Court cannot pass any order against the statutory provision.

21. It we see the line of approach by other High Courts on almost similar issue about violation of directions of Lalita Kumari's case, we have noticed that High Courts have circumscribed to their own peripheral limits of jurisdiction and did not initiate any action for contempt.

24. It is a trite law that contempt jurisdiction is a powerful weapon in the hands of the Courts of law, but that by itself operates as a string of caution as well. Proceedings are quasi criminal in nature and as such, said jurisdiction cannot be exercised on mere probabilities and it is also a settled position of law that if two interpretations are possible, jurisdiction may not be desirable to be exercised and this power to punish for contempt is a special and rare power and this drastic power if misdirected, would result into miscarriage of justice on either way and Courts while exercising this jurisdiction must not travel beyond four corners of the order which is alleged to have been flouted or enter into, question that have not been dealt with or decided in the judgment or the order failure of which is alleged. Only such directions which are explicit in a judgment or the order or plainly self-evident ought to have been taken into account for the purpose of consideration as to whether there has been any violation and Courts while exercising this jurisdiction must ensure that while considering a contempt plea, jurisdiction available to the Court in other corrective powers like review or appeal is not trenched upon and as such, with this

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limits, which are well-defined, we are of the view that since Hon'ble Apex Court in case of Lalita Kumari (supra) having not clarified or directed or explained as to what has been done in the case of D.K. Basu (supra) and Arnesh Kumar (supra), we are of the opinion that in the absence of such, to entertain the contempt petition would be tinkering with jurisdictional limits which are well defined by virtue of provisions as indicated above. Hence, present contempt petition for want of jurisdiction is not entertainable.

25. We are not observing anything or examining on merit of the allegations which are leveled since we are not entertaining the petition on account of not being maintainable. We express no opinion on the allegations which are leveled by the applicant in the present proceedings, leaving it open for the applicant to take out appropriate steps as may be permissible in law. It may be that the applicant is aggrieved by action or response, but remedy is not present petition, it must be before appropriate forum."

6. Thus, the Division Bench, on an identical issue, has already opined as stated hereinabove and hence, the present contempt petition is not maintainable as powers can only be exercised by the Apex Court under Article 229 of the Constitution of India. The petitioner has also an alternative remedy of challenging the action of the respondents by filing appropriate proceedings before the appropriate forum, more particularly under Section 156(3) read with Section 190 of the Code of Criminal Procedure, 1973.

7. The writ petition is bereft of any merits and hence, the same is rejected.

Sd/-

(A. S. SUPEHIA, J)

Sd/-

(M. R. MENGDEY,J) ABHISHEK/29