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2005 DIGILAW 3026 (RAJ)

Ashok Kumar Bhargava v. General

2005-11-18

V.K.BALI

body2005
Judgment V.K. Bali, J.-This writ is sequal to an incident which happened in Court No. 8 on 13.04.2005 when, while dealing with the case, two lawyers of this Court, petitioner herein and Mr. Ashwani Garg appear to have exchanged hot words with each other. Both of them filed a petition for contempt against each other. Petitioner filed D.B. Criminal Contempt Petition 13.04.2005 against Mr. Ashwani Garg, Advocate and the Registrar (Admn.) of this Court is said to have forwarded it to the Dy. Registrar (Judicial) after putting his remarks. It is then averred in the petition that the Dy. Registrar (Judicial) kept the file in his cupboard for three days and on 19.04.2005 with the date of 15.04.2005 forwarded it to the Advocate General for further action under provisions of the Contempt of Courts Act, 1971. The original Court file is said to have been received by the Advocate General on 19.04.2005 but was pending at the time when the present writ petition was filed. It is averred that the petitioner made a request to the Advocate General on three occasions for taking appropriate action but he did not even think it proper to pay any attention to the entreaties made by him. Advocate General is said to have kept the file in cold storage. The act of Advocate General has been styled to be unreasonable in detaining the Court file in his office for a long time. It is then pleaded that there was no provision to forward the original Court file to the Advocate General, Rajasthan by the Dy. Registrar (Judicial) arrayed as second respondent in the present petition as per the High Court Rules as also the constitutional provisions as the petition was filed under Article 215 of the Constitution of India. The second respondent is stated to have acted deliberately and with mala fide intention while forwarding the original Court file to the Advocate General in order to protect order for initiation of contempt proceedings against Mr. Ashwani Garg. The act of Respondent No. 2 is said to have interfered and obstructed administration of justice. By way of illustration, the petitioner states that D.B. Criminal Appeal No. 2338/2004 titled Paras Kuhad vs. RHCB & Ors. was never forwarded to the Advocate General for action, by the Dy. Ashwani Garg. The act of Respondent No. 2 is said to have interfered and obstructed administration of justice. By way of illustration, the petitioner states that D.B. Criminal Appeal No. 2338/2004 titled Paras Kuhad vs. RHCB & Ors. was never forwarded to the Advocate General for action, by the Dy. Registrar (Judicial) but this time the second respondent acted in issuing letter No. 79 dated 15.04.2005 by sending the file to the Advocate General. Second respondent did not think it even proper to register the case in Registry and rather chose to sent the file to the Advocate General at his own level. Any petition submitted in the Registry, in submission of the petitioner, has to be registered as per the High Court Rules but the second respondent himself unconstitutionally and in an arbitrary manner and against the High Court Rules, sent it to the Advocate General for which he needs to be punished. 2. In the wake of pleadings as mentioned above, the petitioner seeks the following reliefs: “(i) to issue a writ of mandamus directing Respondents No. 1 Advocate General, Rajasthan to return the Court original criminal contempt petition file referred by Dy. Registrar (Judil.) vide letter No. 79 dated 15.04.2005 within a period of three days positively with further direction to explain why such serious matter file is detained by him for a long period. (ii) issue an appropriate writ of mandamus directing Respondent No. 2 and 3 to explain under what provision of High Court Rules/laws, the Court original file without registering/inwarding in Registry is forwarded to Advocate General, Rajasthan specially when D.B. Criminal Petition No. 12338/1994 was not referred previously by him. (iii) issuean appropriate order or direction to Registrar General, Rajasthan High Court Jodhpur/Jaipur to initiate departmental proceedings against Respondent No. 2 of his misconduct and acting in his own manner without provision of Rules forwarding the file to Advocate General, Rajasthan and registering/ inwarding the file in the Registry. Further it is also prayed that if Honble Court thinks it proper a contempt proceedings may also kindly be initiated against Respondent No. 2 for his interfered with and have deliberately, willfully and intentionally obstructed the Administration of Justice as stated hereinabove. (iv) issue an appropriate direction to Respondent No. 3 to list the contempt petition before the Honble Court within a period of one week positively. (iv) issue an appropriate direction to Respondent No. 3 to list the contempt petition before the Honble Court within a period of one week positively. (v) anyother appropriate order or direction which deem fit may kindly be passed in favour of the petitioner.” 3. Records of the case will bear out that this writ came up for hearing before the Honble Single Judge on 07.06.2005 when defects pointed out by the office were over ruled. As per the officer report, thereafter, the matter was to be listed in Court on 05.07.2005. It appears that the petitioner made a request for adjournment and therefore, by order of the Court, so recorded by the Court Master, the case was adjourned for two weeks. Office than ordered that the matter be listed for hearing on 22.08.2005. On the date when the case was to be fixed before the Court, once again the petitioner made a request for adjournment and the matter was ordered to be listed for hearing on 23.09.2005. This order has also been recorded by the Court Master. .4. The petitioner, who as mentioned above, is a lawyer, meanwhile filed a Transfer Petition Civil Nos. 874-875/2005 which came up for haring on 23.09.2005 and the Honble Supreme Court on the date aforesaid recorded the following order:- .“A grievance is made that though on 05.07.2005, an order was passed to list the matters after two weeks, the same have not been listed as yet. It is open to the petitioner to bring this aspect to the notice of the learned Chief Justice of the High Court. The transfer petitions, are accordingly, disposed of .” .5. Grievance of the petitioner, it appears, when he made an application for transfer before the Honble Supreme Court, was that though on 05.07.2005 order was passed to list the matter after two weeks, the same had not been listed as yet. Records, as mentioned above, would rather show that on 05.07.2005 the petitioner himself made request for adjournment. The order recorded by the Court Master, obviously on the orders by the Presiding Judge dated 05.07.2005, reads as follows:- .“Mr. A.K. Bhargava, in person Put up after two weeks, as prayed.” 6. Dy. Registrar (Judicial) had made a note in the case file on 210.2005 wherein details of the case with requests made from time to time have been mentioned. A.K. Bhargava, in person Put up after two weeks, as prayed.” 6. Dy. Registrar (Judicial) had made a note in the case file on 210.2005 wherein details of the case with requests made from time to time have been mentioned. I am in complete agreement with the note made by the Dy. Registrar (Judicial) dated 210.2005 and it appears to this Court that the complaint made by the petitioner before the Supreme Court for non fixing of the case is wholly unjustified. 7. I have heard learned Counsel representing the petitioner and with his assistance examined records of the case. The prayers made by the petitioner as enumerated above, in the context of the facts and circumstances of the present case, appear to be wholly untenable. 8. It was conceded during the course of arguments that the Advocate General rejected prayer of both the Advocates for initiation of contempt proceedings against each other. It further appears from the records of the case and in particular letter dated 15.04.2005 written by the Dy. Registrar (Judicial) to the Advocate General that the file pertaining to contempt matter was sent to the Advocate General on the directions given to him. The Court is informed during the course of arguments by Mr. R.P. Singh, President of the Rajasthan High Court Bar Association, who has voluntarily chosen to appear in the matter pertaining to the members of the Bar, that the then Honble Acting Chief Justice had given oral directions to the Dy. Registrar (Judicial) to send the case file to the Advocate General. Even otherwise, mention of the words “As per directions” in the letter dated 15.04.2005 (ibid) would necessarily suggest that the directions were of the then Honble the Acting Chief Justice as under the rules of business, the Dy. Registrar (Judicial) would not have taken directions from anybody else. In so far as thus, prayer of the petitioner for issuing writ in the nature of mandamus to explain as to under what provisions of the High Court Rules the original Court file was sent to the Advocate General is concerned, the same has no merit and needs to be rejected. No case for taking or initiating departmental proceedings against the second respondent has been made out as well. The Court does not find it to be a case of misconduct. 9. No case for taking or initiating departmental proceedings against the second respondent has been made out as well. The Court does not find it to be a case of misconduct. 9. What survives for consideration is first prayer of the petitioner which is to issue writ in the nature of mandamus directing Respondent No. 1 Advocate General to return the original Court file of contempt petition and to further direct him to explain why such a serious matter remained in his office for such a long period. Before I might deal with this relief , it would be pertinent to mention here that as per the provisions contained in Section 15 of the Act, action for contempt may be taken on its own motion or on a motion made by the Advocate General or any other person, with the consent in writing of the Advocate General. Action for contempt is thus divisible in two categories as mentioned above. The mode of initiation of contempt proceedings in the two categories mentioned above has necessary to be different. The Court may itself initiate proceedings deriving knowledge from newspapers, letters, speeches or any other material that may come to its notice whereas in the other category, contempt can be initiated only by a party on filing of application. 10. Honble the Supreme Court in Bal Thackrey vs. Harish Pimpalkhute & Ors., 2005 (1) SCC 254 , on a question framed by it as to whether in the matter in hand, contempt proceedings were initiate against the appellants in the said case suo motu or by the respondents, first went into the background in which the matters were referred to the larger Bench. Delhi High Court in the case of Anil Kumar Gupta vs. K. Suba Rao, ILR 1974 (1) Del 1, had issued the following directions: “The office is to take note that in future if any information is lodged even in the form of a petition inviting this Court to take action under the Contempt of Courts Act or Article 215 of the Constitution, where the informant is not one of the persons named in Section 15 of the said Act, it should not be styled as a petition and should not be placed for admission on the judicial side. Such a petition should be placed before the Chief Justice for orders in chambers and the Chief Justice may decide either by himself or in consultation with the other Judges of the Court whether to take any cognizance of the information.” 11. While challenging the conviction of the appellant for an offence under Section 15 of the Act of 1971 it was urged that the directions issued in P.N. Duda Vs. P. Shiv Shanker, 1988 (3) SCC 167 , were not followed by the High Court inasmuch as the informative papers styled as contempt petitions were not placed before the Chief Justice of the High Court for suo motu action and therefore, the exercise was uncalled for and beyond legal sanctity. This aspect assumed significant importance because admittedly the contempt petitions were filed in the High Court without the consent of the Advocate General and, therefore, not competent except when the Court finds that the contempt action was taken by the Court on its own motion. The two Judges Bench hearing the appeals expressed the view that the aforesaid directions approved by this Court in P.N. Dudas case (Supra), were of far-reaching consequences. The Bench observed that the power under Section 15 of the Act to punish contemnors for contempt rests with the Court and in Duda case (Supra) they seem to have been denuded to rest with the Chief Justice on the administrative side. Expressing doubts about the correctness of the observations made in Dudas case (Supra) and observing that the same require reconsideration, these appeals were directed to be referred for decision by a larger Bench. Honble Supreme Court after referring to the provisions contained in Contempt of Courts Act, 1971, Judgment s in Supreme Court Bar Association vs. Union of India, 1998 (4) SCC 409 , Pritam Pal vs. High Court of M.P., 1993 Supp. (1) SCC 529, L.P. Misra (Dr.) vs. State of UP, 1998 (7) SCC 379 and some other Judgment s, in Para 17 held that “in the light of the aforesaid, the procedure laid and directions issued in Duda case are required to be appreciated also keeping in view the additional factor of the Chief Justice being the master of the roster. . . . . . . . . . . . . In Para 18, it was further held that “The directions in Dudas case when seen and appreciated in the light of what we have noticed hereinbefore in respect of contempt action and the powers of the Chief Justice, it would be clear that the same prescribe the procedure to be followed by High Courts to ensure smooth working and streamlining of such contempt actions which are intended to be taken up by the Court suo motu on its own motion. These directions have no effect of curtailing or denuding the power of the High Court. It is also to be borne in mind that the frequent use of suo motu power on the basis of information furnished in a contempt petition otherwise incompetent under Section 15 of the Act may render the procedural safeguards of the Advocate Generals consent nugatory. We are of the view that the directions given in Duda case are legal and valid.” 12. Supreme Court then examined question as to whether in matter in hand High Court initiated contempt action on its own motion or on motions made by the respondents. The said contempt petitions were filed in the High Court against the appellant under Section 15 of the Act for having committed contempt of Court. The petitions were filed without obtaining consent of the Advocate General. In one of the petitions, consent had not even been sought for and besides the prayer for holding the appellant guilty of contempt, further prayers were also made for suitable inquiry being made in the allegations made by the appellant in the speech and for issue of directions to him to appear before the Court and reveal the truth and for prosecuting him. Honble Supreme Court, on this question held “It is well settled that the requirement of obtaining consent in writing of the Advocate General for making motion by any person is mandatory. A motion under Section 15 not in conformity with the requirements of that section is not maintainable”. In the second petition, an application was indeed submitted to the Advocate General alongwith the proposed contempt petition. A motion under Section 15 not in conformity with the requirements of that section is not maintainable”. In the second petition, an application was indeed submitted to the Advocate General alongwith the proposed contempt petition. Permission of the Advocate General was sought and it was mentioned that the same be granted before the date mentioned in the letter and if no answer was to be received from the Advocate General, it will be presumed that the permission had been granted and the applicant would proceed with the intended contempt proceedings. Honble the Supreme Court held that such a course was not permissible under Section 15 of the Act. There was no question of any presumption. In fact, the contempt petition was filed without the consent of the Advocate General. Supreme Court further held that “as already noticed, the procedure of Section 15 is required to be followed even when petition is filed by a party under Article 215 of the Constitution of India though in these matters, petitions filed were under Section 15 of the Act. From the material on record, it is not possible to accept the contention of the respondents that the Court had taken suo motu action. Of course, the Court had the power and jurisdiction to initiate contempt proceedings suo motu and for that purpose consent of the Advocate General was not necessary.” 13. From perusal of the Judgment of the Supreme Court in Bal Thackrey (Supra), it is crystal clear that present is not a case where the Court might have taken suo motu notice of contempt. The case in hand is covered by Clause (b) of Section 15 of the Act of 1971 which deals with initiation of proceedings for contempt on a motion made by any other person with the consent in writing of the Advocate General. It further appears from the said judicial precedent that the directions issued by the Delhi High Court in the case of Anil Kumar Gupta (Supra), reproduced above, have to be followed, as has been specifically stated in the concluding part of the Judgment itself . In fact, the Supreme Court directed framing of necessary rule by the respective High Courts in terms of the decision rendered in the case of P.N. Duda (Supra). In fact, the Supreme Court directed framing of necessary rule by the respective High Courts in terms of the decision rendered in the case of P.N. Duda (Supra). On the law, as has been held by the Supreme Court, it is not possible to accept this prayer of the petitioner as well. The Dy. Registrar (Judicial) in considered view of this Court strictly followed the directions issued by the Supreme Court in Bal Thackrey (Supra). The only procedural deviation appears to be that instead of taking instructions in writing from the Honble Acting Chief Justice, he took oral instructions. The Dy. Registrar (Judicial) on that count, however, cannot be faulted. 14. The only prayer that needs acceptance in the present case is however that it is ultimately the power of the Court to issue notice or dismiss the contempt petition and even, therefore, the Advocate General might have refused to give permission, the matter had to come before the Court for orders. Consent in writing of the Advocate General cannot be treated as an automatic dismissal of the contempt petition even though it may be a case of passing formal orders, the same has to be done by the Court. 15. In wake of the discussion made above, while rejecting all prayers of the petitioner, as enumerated above, all that can be and is indeed directed is that the office will put up the original contempt petition before an appropriate Bench for orders.