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2003 DIGILAW 34 (HP)

PRASHANT BHUSHAN v. STATE OF H. P.

2003-03-05

M.R.VERMA

body2003
JUDGMENT M. R. Verma, J.: - This petition under Section 482 of the Code of Criminal Procedure (hereafter referred to as the Code1) read with Article 227 of the Constitution of India has been filed by the petitioner for quashing the proceedings against him under Section 228 of the Indian Penal Code. 2. Briefly stated, case of the petitioner, as made out in the petition, is that on April 2, 2000 he was travelling in Maruti Gypsy No. DAV 1205 from Palampur in District Kangra to NOIDA in U.P. The said vehicle is registered in the name of his father. When the petitioner reached Una his vehicle was stopped by the police and he was asked to show Registration Certificate, Insurance Certificate and Pollution Control Certificate of the vehicle. The petitioner was no carrying the original of the aforesaid certificates and he had shown photocopies of the Registration Certificate and Insurance Certificate to the police officials. However, the validity of the Pollution Control Certificate has expired. The police "challaned the petitioner for not having the original RC and for being without Pollution Control Certificate", a photocopy whereof is Annexure A. The infringement report was put up before the learned Chief Judicial Magistrate, Una present on the spot before whom the petitioner explained the lapses on the grounds that he had retained photocopies of the certificates because of the danger of loss of the original documents which were kept at his office at Noida and that in his opinion it is no offence under the Motor Vehicle Act to ply a vehicle without original certificates and copies there of are sufficient proof. It is further case of the petitioner that the learned Chief Judicial Magistrate appeared to be annoyed and rudely replied that minimum penalty for not keeping the original certificates in the vehicle was Rs.2000/- which could extent to Rs.10,000/-. The petitioner felt that the learned Chief Judicial Magistrate was trying to harass him, therefore, he informed him that the vehicle belongs to Mr. Shanti Bhushan, a Senior Advocate and former Law Minister of India. The learned Chief Judicial Magistrate after thinking for some time imposed a penalty of Rs.2100/-. The petitioner asked the name and designation of the Chief Judicial Magistrate who told him to shut up. The fine, as imposed, was paid. Shanti Bhushan, a Senior Advocate and former Law Minister of India. The learned Chief Judicial Magistrate after thinking for some time imposed a penalty of Rs.2100/-. The petitioner asked the name and designation of the Chief Judicial Magistrate who told him to shut up. The fine, as imposed, was paid. On May 8, 2000, the petitioner received a memo from the office of the learned Chief Judicial Magistrate, which was silent as to under what provision of law it has been issued. A copy of the memo is Annexure B. It is further claimed that the notice Annexure B is without jurisdiction and in violation of the provisions of Sections 195 and 352 of the Code and is based on totally baseless and false allegations. The petitioner aggrieved by the misuse of judicial powers by the learned Chief Judicial Magistrate complained to the Honble Chief Justice of this Court vide Annexure C (a copy whereof appears to have been endorsed to Mr. Ram Jethmalani, Union Minister of Law and Justice, New Delhi). Vide Annexure D, the petitioner was informed by the Registry of this Court that his complaint Annexure "C refers to judicial proceedings, therefore, if aggrieved, he could seek redressal of his grievances in the appropriate forum. Hence, this petition on the grounds that the learned Chief Judicial Magistrate is barred to try the case against the petitioner under Section 228 IPC in view of the provisions of Section 195 and 352 of the Code as the petitioner had not been proceeded against under Section 345 of the Code, that the charges levelled against the petitioner are false and " that the mandatory provisions of law required to be followed for prosecution under Section 228 of the Indian Penal Code have been violated and the proceedings initiated against the petitioner are illegal, mala fide, motivated by ill will and amounts to gross abuse of the judicial powers by the learned Chief Judicial Magistrate. 3. The respondent/State chose not to file reply to the petition. 4. I have heard the learned Counsel for the petitioner and the learned Deputy Advocate General for the State and have also gone through the records. 5. 3. The respondent/State chose not to file reply to the petition. 4. I have heard the learned Counsel for the petitioner and the learned Deputy Advocate General for the State and have also gone through the records. 5. It was contended by the learned Counsel for the petitioner that the action has been initiated by the learned Chief Judicial Magistrate against the petitioner in violation of the provisions of Section 345, 346 and 352 of the Code. Since the Magistrate has not complied with the mandatory provisions of Section 345, therefore, his proceeding with the case is violative of Section 352 of the Code and thus the proceedings initiated against the petitioner and the show cause notice Annexure B are liable to be quashed, 6. The learned Deputy Advocate General submitted that in the given circumstances of the case, the action of the Magistrate in not complying with the mandatory provisions of Section 345 of the Code and proceeding to try the case cannot be defended because having failed to act under Section 345 of the Code the learned Magistrate ought to have filed a complaint. 7. The sum and substance of the allegations against the petitioner can be better stated by reproduction of the impugned order of the" learned Chief Judicial Magistrate which reads as follows "Again: 2.4.2000. At this stage after the announcement of fine the accused threatened this Court that he is from the office of former Union Law Minister and will see him. Let notice under Section 228 I PC be issued against the accused to show cause why he should not be sentenced for the offence under Section 228 IPC. Separate proceedings under Section 228 IPC be maintained. To come up on 6.5.2000." The aforesaid order passed by the learned Magistrate apparently is not in conformity with the provisions of Section 345 of the Code. 8. Section 345 of the Code reads as under:- "345. Procedure in certain cases of contempt. Separate proceedings under Section 228 IPC be maintained. To come up on 6.5.2000." The aforesaid order passed by the learned Magistrate apparently is not in conformity with the provisions of Section 345 of the Code. 8. Section 345 of the Code reads as under:- "345. Procedure in certain cases of contempt. - (1) When any such offence as is described in Section 175, Section 178, Section 179, Section 180, or Section 228 of the Indian Penal Code (45 of 1860) is committed in the view or presence of any Civil, Criminal or Revenue Court, the Court may causes the offender to be detained in custody and may, at any time before the issuing of the Court on the same day, take cognizance of the offence and, after giving the offender a reasonable opportunity of showing cause why he should not be punished under this Section, sentence the offender to fine not exceeding two hundred rupees, and in default of payment of fine, to simple imprisonment for a term which may extend to one month, unless such fine be sooner paid. (2) In every such case the Court shall record the facts constituting the offence, with the statement (if any) made by the offender, as well as the finding and sentence. (3) If the offence is under Section 228 of the Indian Penal Code (45 of 1860), the record shall show the nature and stage of the judicial proceeding in which the Court interrupted or insulted was sitting, and the nature of the interruption or insult." 9. It is clear on a bare reading of the aforesaid provisions that these are meant to enable a Court to preserve its decorum and-maintain its dignity and provides a summary remedy to deal with offences punishable under Sections 175, 178, 179, 180 and 228 of the Penal Code if committed within the view of the Court. It is, however; clear that when any of such offences is committed within the view of the Court, the Court may cause the offender to be detained in custody, take cognizance of the offence and impose sentence on him. However, these actions must be taken before the rising of the Court on the same day. It is, however; clear that when any of such offences is committed within the view of the Court, the Court may cause the offender to be detained in custody, take cognizance of the offence and impose sentence on him. However, these actions must be taken before the rising of the Court on the same day. It is evident from the above quoted order of the " learned Magistrate that he did not direct detention of the accused immediately when he formed the opinion that the offence under Section 228 ICP has been committed by the petitioner nor show cause notice was served on the petitioner there and then to enable him to show cause against the proposed action of punishing him. It is not clear from the order whether this order has been passed when the accused was present before the Court. If he was present the detention order should have followed. Once the accused was out of the view and not detained and further proceedings as per the provisions of Section 345 of the Code were not taken, the learned Chief Judicial Magistrate could not proceed under Section 345 of the Code and issue a show cause notice to the petitioner under the said provisions to appear and show cause on a future date. 10. In these circumstances, the only courses open to the learned Chief Judicial Magistrate was, to make a complaint against the petitioner to a competent Magistrate or to make a reference to the High Court under the Contempt of Courts Act if so warranted in the fact and.-circumstances of the case. 11. In view of the above discussion, the order of the learned Chief Judicial Magistrate to issue show cause notice to the petitioner as to why he should not be sentenced under Section 228 of the Indian Penal Code without compliance of the mandatory provisions of Section 345 of the Code and consequential issue of the show cause notice are illegal and cannot be sustained. 12. 12. It may, however, be pointed out that as per order passed by the learned Chief Judicial Magistrate the petitioner who was fined for being not in possession of original Registration Certificate and was without Pollution Certificate threatened the learned Magistrate "that he is from the office of the Former Union Law Minister and will see him" Presumption of corruptness is attached to what a Magistrate or a Judge mentions in his order about the proceedings before him. Therefore, the averments in the petition that the action of the Magistrate was motivated by any bias and are false, are prima facie not acceptable and the action of the learned Chief Judicial Magistrate.-seems to have been bona fide taken but without adherence to the mandatory provisions of Section 345 of the Code. 13. As a result, this petition is allowed and the impugned order directing issue of notice to the petitioner to show cause as to why he be not sentenced under Section 228 of the Indian Penal Code is set aside and the notice Annexure B’ issued pursuant to the said order is quashed. 14. It is, however, clarified that noting contained in this order shall be deemed to have precluded the learned Chief Judicial Magistrate from taking action in the matter in accordance with law as may be deemed fit and proper by him. -