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2004 DIGILAW 1356 (PNJ)

Ashok Arora v. O. P. Sharma

2004-12-15

BINOD KUMAR ROY, SURYA KANT

body2004
Judgment Surya Kant, J. 1. An Interview purported to have been given by the Contemnor - O.P. Sharma, Advocate as President of the District Bar Association, Faridabad, to a local T.V. Channel, "Aap Ki Aawaz" which was telecast live on April 3, 2001, April 14, 2001 and October 24, 2001 in which the Contemnor is alleged to have made derogatory remarks against some Members of the Subordinate Judiciary, has led to the initiation of these criminal contempt proceedings. 2. The petitioner has averred that the contemnor (respondent) though an Advocate but is actually a muffled criminal against whom a number of criminal cases are pending including the cases initiated on the complaints made by the Judicial Officers; that several criminal contempt petitions including those initiated by this Court suo motu, bearing Nos. 5 of 1999, 18 of 1999, 25 of 1999, 3, 4 and 17 to 20 of 2001 are pending in this Court wherein serious allegations of abusing the Presiding Officers of the Courts below and/or intimidating them, are levelled against the contemnor. Brief facts of some criminal cases pending against the contemnor have been given, apart from a specific reference to a case registered under the provisions of the Prevention of Untouchability Act on the complaint of a Judicial Officer. 3. The petitioner has further alleged that the contemnor gave an interview to the local T.V. Channel in a programme titled as "Aap Ki Aawaz" on 3.4.2001, 14.4.2001 and 24.10.2001; the interview was telecast in Hindi and the relevant part thereof, on translation, reads as follows :- "Now every body knows about the incident and the sequence of events and 2-3 months have passed after this incident, but what has hurt me the most is that the judges have fallen to this level where in their conversation among each other, they admit that Sharma Ji had no role in those incidents and he was not even present, but still despite the entire judicial of Haryana does not have the guts and not a single judge dare to say that why you have involved me in these cases when he is not there. I admit that there had been some incidents in which complaints have been made and action could be taken in them, but as far as the fight of corruption is concerned and if that is the offence then they can do whatever they want to and they are welcomed to do it. I still confess that I have said these words and have made complaints regarding the judges. The whole country is facing these circumstances where you see that every day a new scam regarding corruption surfaces and if these scams surface in the judiciary, then what will be the fate of the country. You can imagine the fate that if there is any kind of fight when you can fight with the government come to the Court and you can take up the fight with any body. You can fight with any association and come to the Courts but here the fight is with judiciary and this is the kind of fight where you are standing alone un- armed. Somebody is having a rifle and some body is having a revolver and some body is having a cannon. It is this kind of fight but this is good fight. I am enjoying it. There is no trouble regarding this type of fight because in this fight where the power of truth is with you then in front of these all weapons fail. They may fight with all the might and I have no regrets. Kaushik Ji you are speaking with fear. How can you say that judges dont take bribe. Even if you dont say I am saying so. All the people say so that the judges are neck deep in corruption. If the judges did not take bribe, then this situation does (would ?) not have arisen. If voice had not been raised against the bribes being taken by the judges, then a person like me who has no connection with the said incidents would not have to go to jail. I was jailed not because there was some kind of involvement of mine in the FIR or that I was aware of the incident. I was jailed because I had raised the voice against the corruption against the judges and they can arrest me again, but I will still raise this voice. I was jailed not because there was some kind of involvement of mine in the FIR or that I was aware of the incident. I was jailed because I had raised the voice against the corruption against the judges and they can arrest me again, but I will still raise this voice. I will not stop and if they think that they can give this incident a twist so as to suppress me or victimise me, then I want to tell the judges that they may forget it." 4. According to the petitioner, the contemnor again gave an interview on April 14, 2001 to the same channel in Hindi and the translated version of its relevant extracts reads as follows:- "Actually if you take up a case then it is but certain that you will have more enemies than friends. Similarly our battle has been going on from the beginning. We openly say that put an end to corruption. A time came when there was a popular cry which ran out in the Courts that put an end to corruption. All the people are crying for it. The Law Minister has also said that corruption is rampant in the Courts. When I said the same thing then so many enemies sprang up that one cannot imagine. Actually a few vested interests, in fact, those judges who are absolutely corrupt and their favourites who are openly encouraged by them (Judges) and they (favourites) operate openly. I am facing a threat from those quarters and they want to finish me off." "I gave an application in the police station. They refused to write the same and so we got the report diarised. But neither any case has been registered on it nor has any body come to enquire about it. It seems that there is a nexus between the judges, the Bureau and the Police and that in this they have left politicians far behind. We used to hear about Bihar, U.P. that there politicians are increasingly becoming criminals but now we are ashamed to say that the judiciary, police and officials of the Administration is/are together running towards that direction (criminalisation). Incidents like this are now taking place. We say that we have concrete evidence and if I have made a false complaint, allegations are there. Incidents like this are now taking place. We say that we have concrete evidence and if I have made a false complaint, allegations are there. I throw a challenge that they may take action against us otherwise get the matter investigated impartially and ascertain whether the allegations levelled by us are correct or not. There is no harm in enquiring into these. We have given the name, out of which there are xx xx xx" 5. The petitioner, therefore, complains that by making reckless and scandalous allegations against members of the subordinate judiciary and by getting his interview telecast in a particular tone and tenor, the contemnor has caused serious impediments to justice and inroads on the majesty of justice. He has lowered the dignity and authority of the judiciary as a whole. Therefore, the respondent is guilty of grossest committal of contempt. 6. Based upon the facts averred in the petition, a Division Bench of this Court vide order dated February 19, 2002 having found that prima facie a case for initiating criminal proceedings for contempt of Court was made out against the respondent, issued show-cause notice to him as to why proceedings under Section 15 of the Contempt of Courts Act, 1971 be not initiated against him. In response thereto, the contemnor submitted his reply by way of an affidavit dated 29.5.2002 with a preliminary submission that "he is tendering unconditional apology before this Honble Court and that he holds the Honble Judges and the Court in very high esteem and has all respect for them." The contemnor also took a preliminary objection that the criminal contempt proceedings initiated by the petitioner are not maintainable due to non- compliance of Section 15 of the Contempt of Courts Act, 1971 as no consent of Advocate General, Haryana was taken. Vide yet another preliminary objection, the contemnor has attempted to attack on the bona fides of the petitioner by pointing out that he has appeared in several cases pending in the Civil Courts at Faridabad against the petitioner, on account of which the latter is harbouring a grudge against the contemnor and that these contempt proceedings have been initiated allegedly to pressurise the respondent to withdraw a criminal complaint which he is stated to have filed against the petitioner. It has been further claimed that the petitioner has initiated these proceedings as a result of some deep-rooted conspiracy hatched by the rival group to which the petitioner belongs and that the petitioner had even attempted to kidnap and physically assault the contemnor as a result of which FIR No. 709 dated October 23, 2001 under Sections 148, 149, 323, 115 and 506, IPC was registered against the petitioner at P.S. Central, Faridabad. Reference has been made to various Court cases filed by the petitioner and/or against him to suggest that the petitioner has been found to be an easy prey by the opposite group of the Bar Association for being used against the contemnor. 7. In reference to the alleged interview given by him to a local T.V. Channel which was telecast live, the stand taken by the contemnor finds mention in paras 1 and 7 of the reply on merits of his affidavit which read to the following effect :- "(1) The respondent not only claims but also is still President of District Bar Association, Faridabad. It is vehemently denied that he has caused immense damage to the Institution (of) which he is an integral part by making derogatory remarks about the Judges in the interviews which were telecast on 3rd April, 2001, 14th April, 2001 and 24th October, 2001. It is submitted that the respondent stated only truth and never had any mala fide intention on his part to malign any one but it is most respectfully submitted that the respondent might have become vocal in putting forth his grievances. Still the respondent tenders apology for being vocal in putting forth his grievances. It is also most respectfully submitted that the Honble Court can well imagine the condition of the respondent under the circumstances mentioned above." "(7) Para No. 7 of the petition is not disputed to the extent the respondent gave interview to the said local TV Channel on the dates mentioned in para No. 7. However it is submitted that vernacular version of the same has not been supplied to the respondent. The English translation seems to have been done so as to convey a different sense. It is further submitted that the respondent cannot submit proper reply unless the vernacular version of the interviews is also supplied to the respondent. However it is submitted that vernacular version of the same has not been supplied to the respondent. The English translation seems to have been done so as to convey a different sense. It is further submitted that the respondent cannot submit proper reply unless the vernacular version of the interviews is also supplied to the respondent. However, the respondent is still trying his level best to reply the same as far as possible." (emphasis applied) 8. As reproduced above, the contemnor, instead of denying or admitting the contents of his alleged interview before the T.V. Channel, has come up with the plea that the vernacular transcription of the video cassettes in relation to his afore-mentioned interview was yet to be supplied to him. This stand was taken by him before a Division Bench of this Court on May 28, 2002 when a direction was also issued to supply to him the afore-mentioned vernacular transcription of the video cassettes recording by the next date. Pursuant to the orders passed by this Court, two video cassettes containing the alleged interview given by the respondent to the local T.V. Channel were supplied to him and on receipt thereof he came up with the plea that the video cassettes had been tampered with and he wanted to file a reply in this regard. This stand on behalf of the contemnor was taken notice of by a Division Bench of this Court in the order dated October 31, 2002. 9. On January 13, 2004, the matter was taken up for hearing by us obviously to find out as to whether or not charges should be framed against the contemnor ? During the course of hearing, learned counsel appearing for the contemnor raised the following two-fold objections against the maintainability of these proceedings :- (i) this proceeding is not maintainable in the absence of the consent of the Advocate General; (ii) in view of the fact that the authenticity of the video is seriously disputed by the contemner, onus of which lay on the petitioner to prove its authenticity has not been discharged. 10. Faced with the preliminary objections, especially No. (i) in relation to the maintainability of these proceedings, the petitioner moved Criminal Misc. 10. Faced with the preliminary objections, especially No. (i) in relation to the maintainability of these proceedings, the petitioner moved Criminal Misc. Application bearing No. 5490 of 2004 seeking directions (a) to summon the records from the Office of the Local Faridabad T.V. Channel by the name of "Aap Ki Aawz"; (b) to get the video cassettes enclosed with the petition (Annexure P-4 to P-6) examined from Experts to establish their authenticity; and (c) to view these cassettes in order to arrive at a just and fair conclusion. 11. So far as the prayer (a) regarding summoning of the original cassettes from the Local T.V. Channel was concerned, we rejected the same vide our order dated February 11, 2004 by giving the following reasons :- "Mr. Grover comes up with a prayer to summon the concerned person who is having the custody of the original Video Cassette on the ground that it is not earthly possible for him to produce it before us for the reason that Mr. Sharma is his learned counsel in some criminal case and, therefore, he has hesitation in handing over the original Video Cassette to him for its production before us. The Court cannot make a fishy (fishing ?) enquiry. It is for the informant to prove that Mr. Sharma has committed the contempt. The onus, thus, lay on him, which he is required to discharge. When Mr. Grover found us reluctant to accede to his prayer, he comes up with a prayer for adjournment so that he may make another endeavour for securing the original Video Cassette for its production before this Court." 12. The desirability of prayer No. (b) referred to above, namely, examination by Experts of the Video Cassettes (Annexure P-4 to P-6) which are in nature of secondary evidence, was decided to be considered after acceding to the prayer No. (c), namely, viewing of these cassettes by us. 13. on August 19, 2004, we directed that the matter be listed on August 24, 2004 so as to enable learned counsel for the petitioner to bring a T.V. along with a Video Cassette Player for displaying of the Video Cassettes filed in support of the accusation of committal of criminal contempt by the contemnor. 14. We accordingly viewed the video clippings in the presence of learned counsel for the parties as well as the contemnor. 14. We accordingly viewed the video clippings in the presence of learned counsel for the parties as well as the contemnor. In our order dated October 5, 2005, we observed as follows:- "In Chambers of one of us (Chief Justice), we had seen the video clippings in the presence of all relevant concerned and we had found force when Mr. O.P. Sharma intimated editing of the clippings at four places." 15. Thereafter, learned counsel for the petitioner as well as the contemnor in person were heard at length especially on the objections raised on behalf of the contemnor against the maintainability of these contempt proceedings. 16. Coming to the first preliminary objection, namely, non-maintainability of these proceedings for want of consent of the Advocate General of the State, we are of the view that in the light of settled legal position, the objection raised on behalf of the contemnor cannot sustain. Whether Clause (2) of Section 15 of the Contempt of Courts Act, 1971 restricts the powers of the High Court for taking cognizance of and to punish for contempt or not, was clarified way back by the Apex Court in the case of S.K. Sarkar, Member of Board of Revenue v. Vinay Chandra Misra, AIR 1981 SC 723 clarifying that the afore-mentioned clause is neither restrictive nor does it whittle down the constitutionally recognised powers of the Court to punish contempt. Their Lordships of the Supreme Court held that if Section 15(2) is interpreted as confining the mode of action to be taken by the High Court only in two eventualities, i.e. (a) on the report of Subordinate Court; and (b) on motion by the Advocate General or any person with his consent, it will amount to nullifying the constitutionally guaranteed inherent power of the High Court as a Court of Record under Article 215 of the Constitution. It was further held that Section 10 of the 1971 Act expressly says that every High Court shall have the same jurisdiction, power and authority in accordance with the same procedure and practice in respect of the Contempt of Subordinate Courts, as it has and exercises in respect of its own contempt. It was further held that Section 10 of the 1971 Act expressly says that every High Court shall have the same jurisdiction, power and authority in accordance with the same procedure and practice in respect of the Contempt of Subordinate Courts, as it has and exercises in respect of its own contempt. The ambit of power and procedure is, therefore, wide for the Court of Record and Section 15(2) merely specifies the safe mode of procedure lest frivolous petitions flood the Court and it does not exclude or render otiose the suo motu power of a Court of Record to punish contempts of subordinate Courts. 17. This view has been consistently followed by the Apex Court in the latter judgments as well including in the case of J.R. Prashar, Advocate v. Prasant Bhushan, Advocate and others, 2001(4) RCR(Crl.) 171 (SC) : 2001 Cr.L.J. 4207 where in the context of Clauses (a), (b) and (c) of Section 15(1) of the 1971 Act, their Lordships of the Supreme Court observed as follows :- "21. The underlying rationale of Clauses (a), (b) and (c) appears to be that when the Court is not itself directly aware of the contumacious conduct, and the actions are alleged to have taken place outside its presence, it is necessary to have the allegations screened by the prescribed authorities so that the Court is not troubled with frivolous matters. See S.K. Sarkar v. Vinay Chandra Misra, AIR 1981 SC 723. The Sanyal Committee which had been set up in 1961 to consider and suggest reforms to the existing law of contempt and whose recommendations formed the basis for the present Act, explained the need for this screening : In the case of criminal contempt, not being contempt committed in the face of the Court, we are of the opinion that it would lighten the burden on the Court, without in any way interfering with the sanctity of the administration of justice, if action is taken on a motion by some other agency. Such a course of action would give considerable assurance to the individual charged and the public at large." 18. There is, thus, nothing which precludes this Court from punishing the contempt of its subordinate Courts by initiating action suo motu, even if the role of the petitioner is restricted and confined to that of an informant. Such a course of action would give considerable assurance to the individual charged and the public at large." 18. There is, thus, nothing which precludes this Court from punishing the contempt of its subordinate Courts by initiating action suo motu, even if the role of the petitioner is restricted and confined to that of an informant. The failure to obtain the consent of the Advocate General, however, is a circumstance which this Court can take into consideration while examining the matter on merits. 19. Coming to the second objection, namely, as to whether the petitioner has discharged the onus to prove the authenticity of video cassettes or not, it may be mentioned here that the petitioner himself came up in Criminal Misc. No. 4590 of 2004 with a prayer that the Local T.V. Channel of Faridabad may be directed to produce the original video cassette containing the alleged interview given by the contemnor. We were, however, not convinced with the afore-mentioned prayer and also being reluctant to make a fishy enquiry, left it open for the petitioner to prove and discharge the onus that the contemnor has committed the contempt. Sufficient opportunities were given to the petitioner to arrange and place before us the original video cassettes, which the petitioner, however, could not produce. 20. That apart, and with a view to see that the contemnor if he is actually guilty of committal of the contempt of subordinate Courts, does not take undue advantage of non-production of the original video cassettes, we decided to view the video cassettes ourselves allegedly recorded by the petitioner and it contains that part of the interview which the contemnor is stated to have given and which, according to the petitioner, contains highly derogatory remarks against certain judicial officers. Having seen the video clippings on October 5, 2004, we found force in the plea taken by the contemnor that the vide cassette placed on record has been edited at four places. To put the record straight, we mention here that the editing in the video cassette appears to have been done in a manner which makes it highly doubtful as to whether the complete statement made by the contemnor in the interview in question has been included and/or only the selective pieces thereof are knotted together. 21. The law is well settled that proceedings for contempt are quasi criminal and summary in nature. 21. The law is well settled that proceedings for contempt are quasi criminal and summary in nature. Their Lordships of the Supreme Court in J.R. Prashars case (supra) have held that proceedings for contempt being quasi criminal nature, "if there is reasonable doubt on the existence of the state of facts, that doubt must be resolved in favour of the person or persons proceeded against." (emphasis applied) 22. The petitioner has failed to produce the original video cassette containing the alleged interview given by the cotemnor. Only the video cassette recorded by the petitioner, which is secondary evidence in nature, has been placed on record. There is absolutely no evidence or material on record to establish that the video cassette recorded by the petitioner is a genuine and correct copy of the original video cassette. No other evidence which might include the affidavits of the persons in whose presence the alleged interview was given by the contemnor, have been placed on record. It is highly unsafe to rely upon the petitioners own affidavit, who appears to be having his own axe to grind against the contemnor for more than one reasons, namely, the latter being an informant in one of the F.I.Rs. registered against the petitioner and he is also the counsel in several property disputes filed by or against the petitioner and his wife. We are, therefore, unable to persuade ourselves to direct the framing of charges against the contemnor. 23. There is yet another reason for us to show our reluctance to frame charges and/or proceed with these contempt proceedings. We have seen the video cassettes on record containing the alleged interview given by the contemnor. It appears that the contemnor is a somewhat stubborn and obstinate person who is too much obsessed with his determination to eradicate corruption from different spheres of our society. While highlighting certain alleged incidents of corrupt actions/practices of executive authorities of district administration, he informed the news reporter regarding a complaint sent by him to the High Court demanding enquiry against a few judicial officers. He also asserted that the allegations of corruption mentioned in the complaint against some judicial officers were true and correct and if on enquiry the allegations are found to be false, he was ready and willing to face the consequences. He also asserted that the allegations of corruption mentioned in the complaint against some judicial officers were true and correct and if on enquiry the allegations are found to be false, he was ready and willing to face the consequences. The news reporter appears to have insisted upon to disclose the names of the judicial officers against whom the contemnor had allegedly made a complaint in his capacity as President of the Bar Association. The contemnor then disclosed the names of three officers. If what has been depicted in the video cassettes shown to us is taken as an interview given by the contemnor, it appears to us that his primary concern was to pursue his complaint against some members of the subordinate judiciary and about which he was sure certain that the allegations will prove to be true in the event of any such enquiry. His object does not seem to malign, defame or cause imputations to some identified members of the subordinate judiciary though the news reporter, by asking one or the other question, appears to have trapped him in disclosing the names of the officers against whom he had made the complaint. 24. In the facts and circumstances and having been reminded of what Lord Denning had said about the contempt jurisdiction, namely, that "we will never use this jurisdiction as a means to uphold our own dignity. That must rest on higher foundations. Nor will we use to press those who speak against us. We do not fear criticism. Nor do we resent it," we are not inclined to proceed further with these proceedings. 25. However, on the hypothesis that what is contained in the video cassettes shown to us was actually said by the contemnor in the interview, we wish to remind him not to forget that the public have vital stake in effective and administration of justice. The Court has a duty of protecting the interests of the community in the due administration of justice for which it has been entrusted with the power to commit (convict ?) for contempt of Court. The defamatory statement/or any caricature of a judge calculated to lower the dignity of the Court is bound to destroy, undermine or tend to undermine public confidence in the administration of justice. The lawyers are one wheel of the chariot of administration of justice. The defamatory statement/or any caricature of a judge calculated to lower the dignity of the Court is bound to destroy, undermine or tend to undermine public confidence in the administration of justice. The lawyers are one wheel of the chariot of administration of justice. The very nature of duties discharged by the judiciary of which lawyers are integral component, keeps on annoying though for no valid reasons, certain sections of our society. They, out of vengeance and/or frustration, tend to indulge in various types of nefarious activities to defame, scandalise and/or lower the image of judiciary in the eyes of general public. The great deal of responsibility, therefore, is fastened upon all the components of judiciary to act and behave with great care and circumspection and to see that fence-sisters are given no opportunity to throw mud upon the institution to which we owe our existence. Growing tendency amongst a section of lawyers either to brow-beat the Presiding Officers of the Courts and/or to rush to media for getting published scandalous and irresponsible news items would not serve the cause of the institution irrespective of their high sounding voice in support of a pious agenda like "eradication of corruption." The need is to refrain themselves from blowing the issues publicly and rather to confine themselves to the well established mechanism provided within the institution to weed out the minuscule exceptions, if any. We, therefore, strongly deprecate and condemn the manner of rushing to the media especially by office-bearers of the Bar Association who are fully aware that a genuine and bona fide complaint against the conduct of a judicial officer never goes un-noticed by the High Court. 26. In view of the observations made herein above and having held that there does not exist sufficient material to proceed further in these criminal contempt proceedings against the contemnor, we dismiss this petition and discharge the Rule without making any order as to costs.