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2005 DIGILAW 274 (UTT)

Sunil Kumar Chaudhary v. Nandan Arya

2005-07-15

CYRIAC JOSEPH, RAJESH TANDON

body2005
JUDGMENT (Per Hon'ble the Chief Justice) 1. The petitioner who filed this Criminal Contempt Petition under Article 215 of the Constitution of India read with Section 15 of the Contempt of Courts Act, 1971 is the only petitioner in Writ Petition No. 991 of 2004 (M/B). He prays for summoning the respondents and punishing them in accordance with law for committing wilful disobedience of the orders passed by this Court. 2. The respondents in this petition are (1) Sri Nandan Arya, Additional Government Advocate, state of Uttaranchal, Nainital; (2) Asarhu Lal Arya, Inspector, Vigilance Establishment, State of Uttaranchal, Dehradun and (3) Sri Amit Agarwal, S/o Sri Naveen Agarwal, R/o 61/2 Balveer Road Dehradun. The allegation is that when Writ Petition No. 991 of 2004 (M/B) came up for hearing before a Division Bench of this Court on 20-04-2005, the first respondent, acting at the behest of respondents Nos. 2 and 3, made a false statement before the Court that charge-sheet in the criminal case from which the said writ petition arose had been flied against the petitioner and in view of the said statement, the writ petition was dismissed as Infructuous. It is stated that the aforesaid statement of respondent No. 1 was totally false as no such charge-sheet had been filed. It is alleged that such a false statement was made by the first respondent at the instance of respondents Nos. 2 and 3 and that their action was not only illegal but also malafide. It is further stated that in the interest of Justice this Court may summon the respondents and punish them in accordance with law for committing criminal contempt. 3. The registry has noted a defect in this petition. The objection raised by the Registry is that this criminal contempt petition is not accompanied by the consent in writing of the Advocate General as required under Rule 3 (3)(c) of the Contempt of Courts (Allahabad High Court) Rules, 1977 (hereinafter referred to as the Rules) framed under Section 23 of the Contempt of Courts Act 1971. It is not disputed that the said Rules are applicable to the High Court of Uttaranchal. It is not disputed that the said Rules are applicable to the High Court of Uttaranchal. Rule 3 (3)(c) of the said Rules reads thus: "A petition made under Section 15 (1) of the Contempt of Courts Act 1971 shall be accompanied by the consent in writing of the Advocate General and a copy thereof." However, Sub-Rule 4 of Rule 3 of the said Rules provides as follows: "4. Every petition in respect of criminal contempt, where it is not moved by the Advocate General and where the consent in writing of the Advocate General had not been obtained and every petition in regard to criminal contempt of a subordinate court where no reference has been made by it and the petition is moved without the consent of the Advocate General, shall clearly state the reasons why the consent In writing of the Advocate General could not be obtained and why the court has been approached to act suo motu." 4. In paragraph 11 of the affidavit in support of the petition, the petitioner has stated the reason for not seeking and obtaining the consent of the Advocate General. It is stated that since the first respondent Sri Nandan Arya, Additional Public Prosecutor is the junior of the Advocate General Sri M.S. Negi, he cannot be expected to give consent to initiate criminal contempt proceedings against his own junior. It is further stated that a general practice of the State Law Officers making false and frivolous statements is prevailing in this Court. It is also stated that in such circumstances, the petitioner is directly filing the petition without seeking the consent of the Advocate General and that it is necessary to take a lenient view in the matter for the ends of justice. We are not prepared to presume that the learned Advocate General who holds an important Constitutional Office will be swayed by extraneous or Irrelevant considerations while discharging his statutory functions and that he will be influenced by the fact that the alleged contemner is a Law Officer working under him. If we proceed on such a presumption, we will be unfairly casting aspersions on an august office and on the dignitary holding that office. We are also not inclined to accept the sweeping allegation that a general practice of State Law Office making false and frivolous statements is prevailing in this Court. If we proceed on such a presumption, we will be unfairly casting aspersions on an august office and on the dignitary holding that office. We are also not inclined to accept the sweeping allegation that a general practice of State Law Office making false and frivolous statements is prevailing in this Court. However, having regard to the facts and circumstances of this case, we do not propose to reject this petition on the ground that it is not accompanied by the consent of the Advocate General. Therefore we shall proceed to consider whether there is any merit In the petition. 5. At the outset, it may be pointed out that the prayer in this criminal contempt petition is misconceived. The prayer made by the petitioner is as follows: “It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to summon the respondents and punish them in accordance with law, for committing wilful disobedience to the orders passed by this Hon'ble Court." Going by the prayer, the petitioner wants this' Court to Initiate proceedings against the respondents for committing civil contempt. But going by the averments In the affidavit in support of the petition, the petitioner wants this Court “to summon the respondents and punish them in accordance with law for committing criminal contempt". We may ignore the above defect and Inconsistency also and consider whether there are sufficient and valid grounds to initiate proceedings against the respondents for committing criminal contempt. 6. The petitioner filed Writ Petition No. 991 of 2004 (M/B) challenging the criminal prosecution of the petitioner In Crime No. 41 of 2004 registered at Police Station Vasant Vihar, Dehradun under Sections 13 (1) 5/13 (2) of the Prevention of Corruption Act. The petitioner also filed Habeas Corpus Writ Petition No. 10 of 2004 challenging the criminal prosecution of the petitioner in Crime No. 169 of 2004 registered at Police Station Kotwali, Dehradun under Sections 420, 468, 469, 471, 473, 476 I.P.C. In Crime No. 41 of 2004 registered at Police Station Vasant Vihar, Dehradun investigation is still going on and no charge-sheet has been filed. In Crime No. 169 of 2004 registered at Police Station Kotwall; Dehradun, after completing the 4nvestlgation, charge-sheet was filed on 24-07-2004. 7. In Crime No. 169 of 2004 registered at Police Station Kotwall; Dehradun, after completing the 4nvestlgation, charge-sheet was filed on 24-07-2004. 7. When Writ Petition No; 991 of 2004 (M/B) came up for hearing before a Division Bench of this Court on 20-04-2005, Sri Nandan Arya, learned Additional Government Advocate (first respondent herein) stated that charge-sheet had been submitted against the petitioner. Thereupon, the Court passed the following order: "Heard Sri Sudhir Singh, learned counsel for the petitioner, and Sri Nandan Arya, learned A.G.A. Learned A.G.A. states that charge sheet after investigation has been submitted against the petitioner. Therefore, the' writ petition has been' rendered infructuous and is dismissed as such. The petitioner may take recourse to legal remedy as is available to him." Thereafter, the petitioner filed a Criminal Misc. Recall Application No. '3242 of 2005 In Writ Petition No. 991 of 2004 (M/B) pointing out that no charge-sheet had been filed in Crime No. 41 of 2004 from which the writ petition arose and hence, the order dated 20-04-2005 should be recalled. The said Recall Application was heard and disposed of on 22-06-2005 by the same Division Bench which passed the order dated 20-04-2005. The order dated 22-06-2005 passed by the Division Bench is extracted hereunder: "Since Sri Suhail A. Siddiqui, Advocate has been nominated as Brief Holder for the State, he withdraws his power and his name need not be Heard Sri P.M.N. Singh, Senior Advocate assisted by Ms. Prabha, learned counsel for the petitioner and Sri A. Rab, learned Addl. G.A. The petitioner has moved the application for recall of the order dated 20-04-2005 in view of the fact that the charge sheet has not been submitted against him in case crime No. 41/2004 of P.S. Vasant Vihar, District Dehradun. On 20-04-2005 Sri Nandan Arya, learned A.G.A. stated that charge sheet after Investigation had been submitted In that case. Sri A. Rab, learned Addl. G.A. pointed out that In fact two F.I.Rs. On 20-04-2005 Sri Nandan Arya, learned A.G.A. stated that charge sheet after Investigation had been submitted In that case. Sri A. Rab, learned Addl. G.A. pointed out that In fact two F.I.Rs. were lodged against the petitioner for offence punishable under the provisions of Prevention of Corruption Act and also for offences under some sections of the I.P.C. and in one of the two cases charge sheet had been filed and the cognizance had already been taken by the court concerned but due to inadvertence and In view of the chargesheet filed In another case the said statement was given by the learned A.G.A. on that day that the charge sheet had .been submitted against the petitioner after Investigation in the Instant case. The learned Addl. G.A. even regret the mistake made in that regard. Considering this, the order dated 20-04-2005 need to be recalled. The order dated 20-04-2005 is recalled and the recall application is accordingly disposed of. Put up on 11-07-2005 for hearing of the writ petition." 8. From the facts narrated above, it is clear that no charge-sheet has been filed In Crime No. 41 of 2004 registered at Police Station Vasant Vihar, Dehradun and that the statement made by the learned Additional Government Advocate before Court on 20-04-2005 was factually incorrect. When the petitioner's Recall Application came up before the same Bench, it was admitted by the learned Additional Government Advocate that charge-sheet has not been filed In Crime No. 41 of 2004 of Police Station Vasant Vihar, Dehradun and that charge-sheet was filed only in the other criminal case against the petitioner and that the incorrect statement had been made by Sri Nandan Arya due to Inadvertence. The learned Additional Government Advocate also expressed regret for the mistake. Accepting the above explanation, the order dated 20-04-2005 was recalled by the Court and the writ petition was directed to be put up for hearing on 11-07-2005. 9. As directed by this Court, Sri Nandan Arya himself appeared before us and explained in detail how the above-mentioned mistake occurred. He submitted that he made the statement In Court on the basis of a noting in the file relating to Writ Petition No. 991 of 2004 (M/B). In the proceedings sheet, Sri Sukhbir Singh, Police Constable attached to the office of the Government Advocate had recorded on 19-04-2005 that the charge-sheet in the case was filed on 24-072004. He submitted that he made the statement In Court on the basis of a noting in the file relating to Writ Petition No. 991 of 2004 (M/B). In the proceedings sheet, Sri Sukhbir Singh, Police Constable attached to the office of the Government Advocate had recorded on 19-04-2005 that the charge-sheet in the case was filed on 24-072004. The said noting was made by Sri Sukhbir Singh on the basis of the information received by him on telephone from Sri Srikant Upadhyaya, Stenographer In the Vigliance Establishment at Dehradun. Either Sri Srikant Upadhyaya, Stenographer or Sri Sukhbir Singh, Police Constable or both of them failed to realise that the charge-sheet was filed in Crime No. 169 of 2004 of Police Station Kotwali, Dehradun and that the challenge in Writ Petition No. 991 of 2004 (M/B) is against the criminal proceedings arising from Crime No. 41 of 2004 of Police Station Vasant Vihar, Dehradun. As the above-mentioned noting was made In the proceedings sheet of Writ Petition No. 991 of 2004 (M/B), the learned Additional Government Advocate bonafide thought that charge-sheet had been filed in Crime No. 41 of 2004 of Police Station Vasant Vihar, Dehradun and on that basis made the statement before Court on 20-04-2005. The abovementioned noting made on the proceedings sheet by Sri Sukhbir Singh on 19-04-2005 was placed before us for our perusal. We have no reason to disbelieve or discard the above explanation of Sri Nandan Arya who also expressed sincere regret for making such an incorrect statement in the Court. We are fully satisfied that the first respondent Sri Nandan Arya had no intention to make a false statement before Court or to interfere with the course of justice and that the incorrect statement was made due to a bonafide mistake. Hence, we hold that there does not exist any valid or sufficient ground to initiate proceedings against the first respondent for committing criminal contempt. 10. Apart from the vague allegation that the first respondent made the false statement In Court at the instance of respondents Nos. 2 and 3, there is no specific pleading or material to connect them with the statement made by the first respondent in the Court. As already stated, the wrong Information was supplied to the Police Constable Sri Sukhbir Singh by one Sri Srikant Upadhyaya, Stenographer In the Vigilance Establishment. There is nothing to indicate that respondents Nos. 2 and 3, there is no specific pleading or material to connect them with the statement made by the first respondent in the Court. As already stated, the wrong Information was supplied to the Police Constable Sri Sukhbir Singh by one Sri Srikant Upadhyaya, Stenographer In the Vigilance Establishment. There is nothing to indicate that respondents Nos. 2 and 3 were, in any way, responsible for furnishing the wrong information to the office of the Government Advocate. Hence, we hold that there does not exist any valid or sufficient ground to initiate proceedings against respondents Nos. 2 and 3 also for committing criminal contempt. 11. Contempt proceeding is not a dispute between two parties. The proceeding is primarily between the Court and the person who is alleged to have committed contempt of court. The person who informs the Court or brings to the notice of the Court that anyone has committed contempt of such Court is not in the position of a prosecutor. He is simply assisting the Court so that the dignity and the majesty of the Court is maintained and upheld. It is for the Court, In the exercise of its discretion, to decide whether proceeding should be initiated against the alleged contemner and if such proceeding has been initiated, whether he should be punished or discharged taking into consideration the facts and circumstances of the particular case. It is a matter entirely between the Court and the alleged contemner. Having regard to the facts and circumstances of this case, we do not find any reason to Initiate proceedings against any of the respondents. 12. For the reasons stated above, we are of the view that this is not a fit case for initiating proceedings against the respondents for committing criminal contempt. Hence, the criminal contempt petition is liable to be dismissed. 13. However, before parting with this case, we may observe that every counsel appearing for the parties In a case has a solemn duty to ensure that the statements made by the counsel In Court are factually correct. This solemn duty implies and includes conscious effort to make statements only on the basis of proper instructions and after verifying the facts. However, before parting with this case, we may observe that every counsel appearing for the parties In a case has a solemn duty to ensure that the statements made by the counsel In Court are factually correct. This solemn duty implies and includes conscious effort to make statements only on the basis of proper instructions and after verifying the facts. It also Implies and includes a sense of propriety and prudence not to make statements In Court on the basis of vague, unspecific and unclear information particularly when the Information is supplied by persons who are not competent persons directly connected with the cases and who cannot be expected to have sufficient knowledge about the real position. We are constrained to make this observation in the context of the allegation of the petitioner that there were several instances of such incorrect statements being made by the Government Advocates based on which orders were passed by the Court and later, such orders had to be recalled when correct facts were placed before the Court. Our observation is not to condemn anyone, but to warn all those concerned about the possible consequences of making incorrect statements in Court and persuading the Court to pass wrong orders on the basis of such incorrect statements. 14. With the above observations, the criminal contempt petition is dismissed.