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2005 DIGILAW 239 (PNJ)

Archit Goyal v. State Of Punjab

2005-02-09

BINOD KUMAR ROY, RAJIVE BHALLA

body2005
Judgment 1. Great Saint and poet Shri Tulsi Dasji in his monumental mythological treatise Shri Ramcharitmanas (Ayodhya Kaand, 171 second line) has stated through the sage Vashisthji that loss and profit, life and death, fame and infamy all are in the hands of providence. 2. The Bar Council of India has framed Rules know as "The Bar Council of India Rules, 1975" under its Rule making power derived under the Advocates Act, 1961. Under Part IV, Chapter 2 of 1975 Rules framed under Section 49(1)(c) of the Act read with the proviso thereto, the Bar Council has laid down the "Standards of Professional Conduct and Etiquette." The Bar Council of Punjab and Haryana is a statutory body under Section 3(1)9(d) read with Section 37 of the Advocates Act, 1961 of which the noticee Shri C.M. Munjal is the Chairman, who adjudges the standard of professional conduct of any advocate on receipt of complaints against them. Thereby his responsibility is much more onerous as compared to other advocates. 3. Anil Midha filed Criminal Misc. No. 48428-M of 2004 in this Court for grant of anticipatory bail in case bearing F.I.R. No. 198 dated 25.9.2004 P.S. City Abohar, District Ferozepur under Section 206 IPC, registered on the statement of Ayodhya Prasad Goyal son of Chanan Mol Goyal, resident of Sham Vihar Colony, Abohar, impleading the State of Punjab as they only respondent in which notice of motion to the Advocate General of Punjab was issued by Jasbir Singh, J. fixing October 26, 2004. The Advocate General, Punjab had entrusted this case to be conducted by Shri H.S. Grewal, Deputy Advocate General (Punjab). The case, however, could not be taken up on 26.10.2004 and by order it was adjourned to 2.11.2004. 4. On 2.11.2004, this case was listed at Serial No. 236 in the Court of M.M. Kumar, J. The Advocate General entrusted this case to be conducted by Shri K.K. Beniwal, Deputy Advocate General (Punjab). At about 11.00 A.M. Shri Munjal asked Shri Beniwal to hand over brief of this case to him. Shri Beniwal handed over the brief to him. According to the learned Advocate General it was done so on his direction though made orally. The case could not be called out as it was down in the list. Shri Munjal, however, prepared the following note on the Police file of the case :- 02.11.04 Today, Mr. Shri Beniwal handed over the brief to him. According to the learned Advocate General it was done so on his direction though made orally. The case could not be called out as it was down in the list. Shri Munjal, however, prepared the following note on the Police file of the case :- 02.11.04 Today, Mr. Baljinder Singh, H.C. 958 of P.S. City, Abohar, came present with file in case "Anil Midha V/s State of Punjab" Crl. Misc. 48428-M of 2004 before the Court of Honble Mr. Justice M.M. Kumar of Punjab and Haryana High Court. Due to paucity of time, the case could not be taken up and the matter is adjourned to 09.12.04 and as per the oral direction of Honble Bench, the petitioner Anil Midha is not to be arrested till the next date of hearing. Due to heavy list, this matter could not be heard as no bail application was heard today. Sd/- C.M. Munjal, Addl. Advocate General, (PB), 02.11.04. 5 The noting on the record of the case shows that it was adjourned to 9.12.2004. This case was finally dismissed on 3.1.2005 as the petitioner has submitted that it has become infructuous. 6. The Complainant Archit Goyal, when found that the accused Anil Midha has not been arrested by the police, made enquiry and suspected the correctness of the note made by Shri Munjal on the Police file on 2.11.2004 as when the case was not heard then where was the question of passing oral orders and accordingly sent a letter on 22.11.2004, which is substantially in Hindi to one of us (the Chief Justice) (ii) M.M. Kumar, J. (iii) Registrar of the High Court (iv) Advocate General of Punjab and even (v) The President (? Chairman) of the Bar Council of Punjab and Haryana praying for an enquiry of this serious matter and giving him justice by initiating an appropriate proceeding. 7. Even though M.M. Kumar, J. with effect from 16.11.2004 was not assigned any criminal matter in the roster by one of us (the Chief Justice), yet after summoning the records of Criminal Misc. Chairman) of the Bar Council of Punjab and Haryana praying for an enquiry of this serious matter and giving him justice by initiating an appropriate proceeding. 7. Even though M.M. Kumar, J. with effect from 16.11.2004 was not assigned any criminal matter in the roster by one of us (the Chief Justice), yet after summoning the records of Criminal Misc. No. 48428-M of 2004 he passed the following order on 1.12.2004 : "A letter dated 22.11.2004 has been received from one Archit Goyal son of late Shri Pawan Kumar resident of H.No. 701, Gali No. 1-A. Abohar stating that oral orders have been (sic) arrest of the petitioner, Anil Midha, as the turn of the case could not mature on 2.11.2004. The letter is attached herewith. The contents of the letter when translated in English read as under : "Most respectfully it is submitted that above mentioned case for grant of time, the hearing of the case was adjourned to 9.12.2004. But Shri C.M. Munjal, Addl. Advocate General who appeared in the Court of Honble Mr. Justice M.M. Kumar on behalf of State of Punjab has written with his own hands that the Honble Court has orally ordered not to arrest Shri Anil Midha till the next date. A photocopy of the note is appended. On the basis of the above note, the police has refused to arrest the accused. Shri C.M. Munjal has recorded in his self-contradictory note that due to long list, no case concerning bail matter could be heard. It has become doubtful that if no hearing has taken place then the question of oral orders would not arise. Hence, it is prayed that the matter be got deeply enquired and suitable action be taken and justice be done." The file was summoned by me. On perusal of the file I find that neither the case was taken up for hearing on 2.11.2004 nor any such oral orders have been passed. This Court does not follow any practice of issuing any oral orders of staying arrest. Moreover, once the case is not taken up no question would arise for passing of any such order. The office is directed to register the letter of the complainant as a separate Crl. Misc. Petition which shall be taken up along with Crl. Misc. No. 48428-M of 2004. Notice of motion to A.G. Punjab for 6.12.2004. Moreover, once the case is not taken up no question would arise for passing of any such order. The office is directed to register the letter of the complainant as a separate Crl. Misc. Petition which shall be taken up along with Crl. Misc. No. 48428-M of 2004. Notice of motion to A.G. Punjab for 6.12.2004. The Chief Judicial Magistrate, Abohar is directed to immediately take into his custody the police file along with the note dated 2.11.2004 of the State Counsel in case FIR No. 198 dated 25.9.2004 registered under Section 306 IPC at P.S. Ahobar (District Ferozepur) and shall put it in a sealed cover which shall be sent to this Court expeditiously but positively by 6.12.2004. The Law Officer who has prepared the note dated 2.11.2004 stating that oral orders staying the arrest of the petitioner, Anil Midha were passed by this Court shall remain present in the Court on 6.12 2004 to explain his conduct as to how such a note was recorded by him on 2.11.2004. A copy of this order be sent to the Chief Judicial Magistrate, Abohar forthwith." 8. The office registered this letter as Crl. Misc. No. 56791-M of 2004, though wrongly shown its Petitioner as Anil Midha. We direct the office to correct the name of the Petitioner 9. On 4.12.2004, the Registrar (Judicial) of the Court placed the records of this case before one of us (the Chief Justice), who after their perusal passed an order to place both cases before his Division Bench. That is how the matter came up before our Bench. 10. Shri Munjal in his show cause filed pursuant to the notice issued by M.M. Kumar, J, has stated as follows :- "1. That the deponent has gone through the records of Criminal Misc. No. 56791-M of 2004 (Anil Midha v. State of Punjab) and had the opportunity to peruse the orders of Honble Mr. Justice M.M. Kumar dated 1.12.2004. 2. That at the very outset the deponent who has the highest regard for the dignity of the law and courts, deeply expresses his deep regret over the developments noticed by the Honble Single Bench in aforementioned order. Although the deponent has not committed any act with malicious intent yet it is his moral duty to accept the responsibility for what finally happened. Although the deponent has not committed any act with malicious intent yet it is his moral duty to accept the responsibility for what finally happened. Before the deponent explain, the circumstances in which the note was recorded by him on the brief of above said criminal misc. Petition on 2.11.2004, it is the deponents bounden duty to see the matter in a larger perceptive and to tender unconditional apology for recording a note which appeared to be a result of clear misunderstanding about the proceedings in court of Honble Mr Justice M.M. Kumar on 2.11.2004. Thus, the deponent reiterates his intention to express deep and sincere regret in recording the note in question. 3. That the deponent joined the Bar in the year 1978 and has done his best to uphold the high ethical standard of the profession not only individually but has been active in enforcing the standards by way of his participation in the self-regulatory body of Bar. The deponent started practice in the District Bar of Ferozepur and held that office of the President in the year 1990-91. Later the deponent shifted to the High Court Bar in the same year. At present the deponent is an elected member and Chairman of the Bar Council of Punjab and Haryana. Therefore, the deponent has been entrusted with the profound standard in the profession. It is precisely for the reason that the deponent considers it more important to sincerely acknowledge the error rather than indulging in a hair-splitting debate on the nitty-gritty of what had transpired in the Court. 4. That at this stage the deponent may briefly set out his version of the proceedings of Honble Mr. Justice M.M. Kumar on 2.11.2004, there was heavy roster with his Lordship and even the matters shown in the urgent list lasted well beyond 3.00 p.m. Thereafter, his Lordship took up habeas corpus matters. As the Court hours were coming to a close, at about 3.40 to 3.45 p.m. a number of learned counsels who were present in the Court stood up to make request for hearing of their matters or for adjournments for a very short date. Most of these requests came from counsels who had either got no interim protection in applications under Section 438 Cr.P.C. or where regular bail applications were pending for a very long period. The Honble Judge patiently heard request being simultaneously made. Most of these requests came from counsels who had either got no interim protection in applications under Section 438 Cr.P.C. or where regular bail applications were pending for a very long period. The Honble Judge patiently heard request being simultaneously made. In that atmosphere one had to concentrate hard to pick up the exact contents of the conversation as more than one person would speak at one time. Shri Chaudhary, learned counsel for the petitioner in criminal misc. No. 48428-M of 2004 made an earnest request to the Honble Court either for hearing the matter on that very day or for interim protection. He persisted in his request on the ground that liberty of his client is under imminent threat. The Honble Judge inter alia asked the counsel as to when the case was registered, in the course of this exchange the deponent formed a clear impression that the Court had observed that the petitioner in above said Crl. Misc. be not arrested till the adjourned date of hearing. There is nothing unusual in such a course and since the matter could not be heard on merits the survival of his petition would depend on protection of that petitioners liberty. 5. That the deponent made a concise and clear note on the basis of his perception of the proceedings and communicated the same to the I.O. Had there been any extraneous interest the deponent would not express himself in black and white. 6. That having read the order of Honble Mr. Justice M.M. Kumar dated 1.12.2004 it would be futile to raise a controversy on the issue whether or not an observation was made that the petitioner be not arrested till the next date of hearing. The deponent accepts his error in not correctly understanding the proceedings in the Court and regrets having recorded a note which does not appear to be an authentic record of what the Court observed. However, the deponent humbly submits that the entire development is a result of the deponent having misunderstood the contents of the exchange between the counsel on the one hand and the Court on the other hand and had absolutely no intention of either conveying an incorrect order or in any manner interfering with the administration of justice. 7. That the deponent has the highest regards for the esteem institution of judiciary. 7. That the deponent has the highest regards for the esteem institution of judiciary. The deponent expresses deep and sincere apology and humbly requests that the same may be accepted. 8. That the deponent further undertakes to act with extreme caution in such matters in future." 11. The Complainant, on a direction made by us, has filed his affidavit supporting the facts stated in his letter. 12. We note that on a query as to whether the Petitioner Anil Midha is a relation of Shri Munjal, his counsel took up a stand that there is no defined relationship between them. The learned Amicus Curiae thereafter disclosed that Shri Munjals maternal uncle is Shri Madan Mohan Chabra, whose son is Shri N.K. Chabra, whose wife is Smt. Neena Chabra, who is sister of Anil Midha, then this fact was admitted by Shri Munjals counsel. 13. The learned Advocate General, Punjab took up a stand that in the absence of non-mentioning of any provision of the Code of Criminal Procedure or of the Contempt of Courts Act, 1971 (hereinafter referred to as the Act) or even of Article 215 of the Constitution of India it would mean prima facie initiation of proceedings in Criminal contempt under the Act whereas according to the counsel of the noticed Shri Munjal, the Notice issued by M.M. Kumar, J. is not sustainable as he was not vested with jurisdiction to take up Criminal matters on 1.12.2004, which was issued to ascertain the views of Shri Munjal as well as of the Advocate General, Punjab. In our order dated 16.12.2004 we have observed that the order was presumably under the Act though without mentioning any provisions of the Act. 14. Controversy also cropped up as to under what provisions M.M. Kumar, J. has passed his orders and whether in the absence of non-allotment of the case his order was/is without jurisdiction, in excess of jurisdiction, void and nullity in view of a number of pronouncements of the Apex Court. 15. A number of other submissions were made orally followed by in writing and decisions were cited at the Bar by the learned counsel, but we do not consider appropriate to deal with many of them without first framing the charge under Section 15(3) of the Act as its framing is mandatory. 16. 15. A number of other submissions were made orally followed by in writing and decisions were cited at the Bar by the learned counsel, but we do not consider appropriate to deal with many of them without first framing the charge under Section 15(3) of the Act as its framing is mandatory. 16. Section 2(c) of the act read as under :- "criminal contempt means the publication (whether by words, spoken or written or by signs, or by visible representation, or otherwise) of an undertaking given to a court :- (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner," 17. Relevant part of Section 15 of the Act read as under :- "15. Congnizance of criminal contempt in other cases. - (1) In the case of a criminal contempt, other than a contempt referred to in Section 14, the Supreme Court or the High Court may take action on its own motion ......... xxxxx (3) Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty .........." 18. The Rules framed by our High Court in regard to congnizance and procedures to be adopted in the Contempt proceedings are necessary to be remembered. Rules 3, 4, 6, 7 and 8 read as under :- "3. (1) Every petition, reference or motion for taking proceedings under the Act, shall be registered as Civil Original Petition (Contempt) in respect of civil contempts and Criminal Original Petition (Contempt) in respect of criminal contempts. (2) In proceedings initiated by petition the initiator shall be described as the "petitioner" and the opposite party as the "Respondent" and in other cases the description of the person proceeded against shall be as follows :- "In re.... A son of ....B son of C........ Occupation...... resident of ........." 4. (2) In proceedings initiated by petition the initiator shall be described as the "petitioner" and the opposite party as the "Respondent" and in other cases the description of the person proceeded against shall be as follows :- "In re.... A son of ....B son of C........ Occupation...... resident of ........." 4. (1) Every petition, motion or reference made under Rule 3 above shall contain in precise language a statement setting forth the facts constituting the contempt of which the person charged is alleged to be guilty and shall specify the date or the dates on which the contempt is alleged to have been committed. (2) When the petitioner relies upon a document or documents in his possession, shall file them along with the petition. (3) Every petition for taking action under the Act shall state the nature of the contempt (civil or criminal), shall be supported by an affidavit, and shall be presented in the manner required by rules contained in the Chapter I of Part A(a) of Volume V of the Rules and Orders of the High Court. xxx xxx 6. (1) Every petition, motion or reference in relation to civil contempt shall, unless the Chief Justice directs it to be heard by a large Bench, be laid for motion hearing before a Single Bench. (2) Every petition, motion or reference in relation to Criminal contempt, shall be laid for motion hearing before a Division Bench. Explanation : Nothing contained in sub-rule (2) shall apply to proceedings initiated by the High Court on its own motion. However, after service of notice on the persons charged, such petitions shall be heard and decided by a bench of not less than two judges. (3) Every notice issued by the High Court shall be in the form appended to these rules and shall be accompanied by a copy of the motion, petition or reference as the case may be, together with the copies of the affidavits, if any. (4) The notice shall be sighed and dated by the Registrar and shall be sealed with the seal of the High Court. (5) Notice of every proceeding under the Act shall be served personally on the person charged, unless the High Court for reasons to be recorded directs otherwise. (4) The notice shall be sighed and dated by the Registrar and shall be sealed with the seal of the High Court. (5) Notice of every proceeding under the Act shall be served personally on the person charged, unless the High Court for reasons to be recorded directs otherwise. (6) The High Court may, if satisfied that the person charged is absconding or likely to abscond or is keeping or likely to keep out of the way to avoid, service of the notice, order the issue of warrant of his arrest which in the case of criminal contempt, may be in lieu of or in addition to the attachment of his property under sub-sections (3) and (4) of Section 17 of the Act. Such warrant may be endorsed in the manner laid down in Section 71 of the Code of Criminal Procedure, 1973, in terms of the order of the High Court. (7) Whenever the High Court issues a notice, it may, if it sees reason so to do, dispense with the personal attendance of the person charged with the contempt and permit him to appear by his pleader, and may, in its discretion, at any stage of the proceedings direct the personal attendance of such person, and, if necessary, enforce, such attendance in the manner hereinbefore provided. 7. (1) When any person charged with contempt appears or is brought before the High Court and is prepared, while in custody or at any stage of the proceeding, to give bail, such person shall be released on bail, if a bond for such sum of money as the High Court thinks sufficient is executed with or without sureties conditioned that the person charged shall attend at the time and place mentioned in the bond and shall continue to so attend until otherwise directed by the High Court : Provided further that the High Court may, if it thinks fit, instead of taking bail from such person, discharge him on his executing a bond without sureties for his attendance as aforesaid, or without executing such bond. (2) Notwithstanding anything contained in sub-rule (1), where a person fails to comply with the conditions of the bail-bond as regards the time and place of attendance, the High Court may refuse to release him on bail when on a subsequent occasion in the same case he appears before the High Court or is brought in custody and any such refusal shall be without prejudice to the powers of the High Court to call upon any person bound by such bond to pay the penalty thereof. (3) The provisions of Sections 422 to 448 and 450 of the Code of Criminal Procedure, 1973, shall, so far as may be, apply to all bonds executed under the rule. 8. (1) Any person charged with criminal contempt, other than a contempt referred to in Section 14, may file an affidavit in support of his defence on the date fixed for his appearance or any other date fixed by the High Court in that behalf. (2) If such person pleads guilty to the charge, his plea shall be recorded and High Court may, in its discretion, either convict him thereon or accept bail for his appearance at such time, as may be appointed, to receive its judgment. (3) If such person refuses to plead or does not plead, or claims to be tried or the High Court does not convict him on his plea of guilty, it may determine the matter of the charge either on the affidavit filed or after taking such further evidence as may be necessary." 19. The apology tendered by Shri Munjal was pressed before us on the very first day by his Counsel and even subsequently by filing another affidavit. Keeping in mind the law declared by the Supreme Court in K.T. Chandy v. Mansa Zad, AIR 1974 SC 642 (Paragraph 9 at 645) that "Apology goes to sentence and may be accepted only upon a finding that contempt has been committed", we proceeded to hear the case. 20. It pains us to note as follows :- Shri Munjal is one of Additional Advocate General of the State. He was representing the State of Punjab in the case. After holding the brief of the State of Punjab he undoubtedly owed a duty to the State of Punjab to place facts correctly, impartially and fairly to its Police authorities. 20. It pains us to note as follows :- Shri Munjal is one of Additional Advocate General of the State. He was representing the State of Punjab in the case. After holding the brief of the State of Punjab he undoubtedly owed a duty to the State of Punjab to place facts correctly, impartially and fairly to its Police authorities. Scandalising the Court (Court of M.M. Kumar, J.) in such manner was really polluting the very fountain of justice and has prima facie brought in disrepute the entire administration of justice. He has obviously misunderstood his functions both as a lawyer representing the interest of his client i.e. the State of Punjab and as an officer of the Court. By indulging in making a note in the Police papers he has prima facie abused his position both as a lawyer and an officer of the Court and has done distinct disservice to the State of Punjab in general and to the noble profession of law and the administration of justice in particular. We cannot ignore the incident and the facts recorded by M.M. Kumar, J. 21 We are prima facie of the view that in making a note on the police papers, Shri Munjal has scandalised the administration of justice of the Court of M.M. Kumar, J. in view of the fact recorded by him that he does not pass any oral directions altogether or had not made the alleged oral direction, as referred to in the note of Shri Munjal who has also attempted to interfere in the administration of justice of the Court of M.M. Kumar, J. as envisaged under Section 2(c)(i) & (iii) of the Act aforementioned and thereby he has prima facie committed criminal contempt as defined under Section 2(c) of the Act. Thus, we proceed to take action on our own motion as envisaged under Section 15(1) of the Act. 22. We proceed to formulate and specify the charge under Section 15(3) of the Act against Shri Munjal as follows :- "Whether in stating in our note dated 2.11.2004 "as per the oral directions of the Honble Bench, the petitioner Anil Midha is not to be arrested till the next date of hearing" prepared in the capacity of Additional Advocate General of Punjab in the Police file in relation to Crl. Misc. Misc. No 48428-M of 2004, who, as admitted by you before the High Court is brother of the wife of your own maternal brother and in intimating that fact to the Police you have scandalised and attempted to interfere in the administration of justice of the Court (M.M. Kumar, J.) as envisaged under Section 2(c)(i) & (iii) of the Contempt of Courts Act, 1971 and have thereby committed Criminal Contempt as defined under Section 2(c) of the Act and suitably punished under Section 12(1) of the said Act?" 23. Let the office register this case as Criminal Contempt Case and issue notice to Shri Munjal in terms of the Rules incorporating the charge aforementioned and hand over to him to have his show cause fixing Friday dated 11.2.2005 as the next date.