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2011 DIGILAW 182 (ALL)

PANKAJ SHUKLA v. ANIRUDH SINGH

2011-01-25

AMAR SARAN, NAHEED ARA MOONIS

body2011
JUDGMENT Hon’ble N.A. Moonis, J.—This criminal contempt petition has been filed by the applicant with a prayer to take suo moto action for initiating criminal contempt proceedings against the opposite party for disobedience of the directions issued by the Hon’ble Apex Court in the case of D.K. Basu v. State of Bengal, and the order passed by the Division Bench of this Court in Virendra Singh and others v. State of U.P. and others. 2. We have heard the learned counsel for the petitioner and Shri Sudhir Mehrotra, the learned AGA appearing on behalf of the State. At the very outset the learned State counsel has submitted that it would not be a case of contempt at all. Criminal and Civil contempt has been defined in the Contempt of Courts Act, 1971. Section 2(b) of the Contempt of Courts Act reads as under : (b) ”Civil Contempt” means willful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a Court; Criminal contempt has been defined in Sub-section c of Section 2 of the Contempt of Courts Act, 1971, which reads as under : (c) ”criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which- (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 (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner; 3. The grievance of the petitioner is that the opposite party who has been impleaded by name did not follow the requirements as enumerated in the case of D.K. Basu v. State of Bengal, JT 1997(1) SC 1, as well as the order passed by the Division Bench of this Court in the case of Virendra Singh and others v. State of U.P. and others, 2002(45) ACC 609 and the petitioner was detained in custody, flouting the directions of the Hon’ble Supreme Court. 4. 4. It has been contended by the learned counsel for the petitioner that an FIR was lodged as case crime No. 477 of 2006, in which the grand father and the father of the applicant were witnesses. It was a case in which one practicing lawyer of Civil Court, Jaunpur, Ved Nath Shukla was killed and one Kamlesh Chandra Mishra moved an application before the S.H.O. of P.S. Sikrara, District Jaunpur, that the applicant is threatening him to withdraw the case, and on the basis of that application an FIR was lodged on 16.12.2010 against the applicant and two unknown persons under Section 504, 506 IPC as case crime No. 1120 of 2010, P.S. Sikrara, District Jaunpur. In pursuance of the aforesaid FIR the applicant was arrested in sheer violation of the order passed by the Division Bench of this Court in Virendra Singh’s (supra) case, wherein it has been held that an offence under Section 506 IPC is cognizable and bailable. Since, both the Sections 504 and 506 IPC are bailable and cognizable, therefore, the arrest of the applicant without having any permission of a Judicial Magistrate was illegal. 5. It has further been contended that the applicant was arrested and was sent to jail and had to apply for bail, and by a judicial order he was released by the Additional Chief Judicial Magistrate, District Jaunpur by an order dated 23.12.2010, whereas the Division Bench of this Court has held in the case of Virendra Singh (supra), that the offence under Section 506 IPC is bailable and non-cognizable. Consequently, the guidelines issued by the Hon’ble Apex Court in D.K. Basu’s case has completely been given a go bye and as such the action of the respondent is wholly contemptuous and he has flouted the orders of the Hon’ble Apex Court, which tantamount criminal contempt under Section 2(c) of the Contempt of Courts Act, 1971. 6. The notification No. 777/VIII-9 4(2)-87, dated July 31, 1989, published in U.P. Gazette, Extra Part-4, Section (Kha), dated 2nd August, 1989 by which the Section 506 IPC was made cognizable and non bailable was held to be illegal by the Division Bench. The aforesaid notification has been issued under Section 10 of the Criminal Law Amendment Act, 1932. 6. The notification No. 777/VIII-9 4(2)-87, dated July 31, 1989, published in U.P. Gazette, Extra Part-4, Section (Kha), dated 2nd August, 1989 by which the Section 506 IPC was made cognizable and non bailable was held to be illegal by the Division Bench. The aforesaid notification has been issued under Section 10 of the Criminal Law Amendment Act, 1932. Section 10(1) of the said Act states as follows : “The State Government may, be notification in the Official Gazette, declare that any offence punishable under Sections 186, 188, 189, 190, 228, 295-A, 298, 505, 506 or 507 of the Indian Penal Code, when committed in any area specified in the notification shall, notwithstanding anything contained in the Code of Criminal Procedure, 1898, be cognizable, and thereupon the Code of Criminal Procedure, 1898, shall, while such notification remains in force, be deemed to be amended accordingly. Section 10(2) of the Act states : “(2) The State Government may, in like manner and subject to the like conditions, and with the like effect declare that an offence punishable under Section 188 or Section 506 of the Indian Penal Code shall be non-bailable.” 7. It is argued by the learned counsel for the petitioner that Section 10 of the Criminal Law Amendment Act, 1932 does not give power to the State Government to amend by notification any part of the Cr.P.C. and declaring Section 506 IPC to be cognizable has become redundant and the Division Bench of this Court was of the view that the said notification of 1989 is illegal. The Criminal Procedure Code of 1973 is a central act which can only be amended by an Act or ordinance and not by a simple notification and the same can be amended only by the Government vide Article 254(2)of the Constitution of India with the assent of the President. The aforesaid notification of 1989 has amended the central act without the assent of the President, therefore, in view of aforesaid decision of Hon’ble Division Bench the notification under Section 10 of the Criminal Law Amendment Act, 1932, making Section 506 cognizable and non bailable is illegal, and therefore, the applicant could not have been arrested by the police by registering an FIR under Sections 504, 506 IPC. 8. 8. The learned AGA on the other hand, has pointed out that the validity of the aforesaid State Government’s notification dated 31.7.1989 has already been considered by the Full Bench of this Court in the case of Mata Sewak Upadhyaya and another v. State of U.P. and others, 1995 JIC 1168 (All) (FB). The Hon’ble Full Bench after considering the Apex Court’s decision in the case of Arnold Rodricks v. State of Maharashtra, AIR 1966 SC 1788 , has held as follows, “In certain situation arising time to time the legislature can leave to the State Government to make necessary changes in the interest of smooth administration, the legislature has made offence under Section 506 IPC and has also laid down the essential procedure for trial thereof. So far as the cognizability and bailability of the offence is concerned the State Government is empowered to change the schedule under Section 10 of the Act, 1932 to make the offence cognizable or non bailable depending on the exigency of the administration. In view of the law laid down in the case of Arnold Rodricks (supra) the power conferred on the State Government to amend the schedule to the Cr.P.C. is permissible”. It is therefore submitted by the learned AGA that the Hon’ble Full Bench of this Court has categorically held that the amendment made in the code does not override the legislative power and Section 10 of the Act as well as the notification dated 2nd August, 1989 are valid, consequently the offence under Section 506 IPC is a cognizable and non bailable offence, and as such the opposite party has not at all violated any part of the order of the Apex Court. In case willful disobedience of judgment, decree or direction is committed, the person would be liable to be punished for civil contempt and not for criminal contempt. The cases of criminal contempt are of different nature, where something more than willful disobedience of an order is alleged or any other act which may tend to scandalise or to lower the authority of any Court. 9. The cases of criminal contempt are of different nature, where something more than willful disobedience of an order is alleged or any other act which may tend to scandalise or to lower the authority of any Court. 9. It is submitted by the learned counsel for the petitioner that the order of the Hon’ble Full Bench of this Court is per incurium as the same was passed in obvious inadvertence by not taking into account that the Criminal Procedure Code, 1973 is a parliamentary enactment and any part of it cannot be amended without the assent of the President as required under Article 254 of the Constitution of India. Hence the order of the Hon’ble Division Bench who has taken notice about the notification of 1989 cannot be said to be unjust or illegal by holding Section 506 IPC non cognizable and bailable offence. 10. Considering the submissions of the learned counsel for the parties, we are of the opinion that the Full Bench decision of this Court still holds good and would prevail over the Division Bench decision. So far as the contention that certain directions have been flouted by the respondent as directed by the Apex Court in D.K. Basu’s case, they have not been specifically pleaded in the application as to what part and in what manner the directions of the Apex Court has been flouted, hence there exist no ground to initiate any action against the opposite party. 11. It has been observed by the Hon’ble Apex Court in D.K. Basu’s case that in the event of failure to comply with the requirements indicated in the judgment the concerned official may be liable for departmental action and may also render himself liable to be punished for contempt of Court and the proceedings for contempt of Court may be instituted in any High Court of the country having territorial jurisdiction of the matter. The officials may be liable for departmental action or punishment for committing contempt, but on the basis of observation indicated above, it would not be open for the petitioner’s counsel to contend that the lapse on the part of the opposite party, if any, would amount to any kind of contempt. It is also necessary to mention here that for initiating contempt proceedings the procedure has been laid down in Section 15 of the Contempt of Courts Act, 1971. It is also necessary to mention here that for initiating contempt proceedings the procedure has been laid down in Section 15 of the Contempt of Courts Act, 1971. The instant case is not of such a nature to take action suo moto, therefore, we are not inclined to interfere to initiate any proceeding against the opposite party. In view of the above the contempt petition is misplaced and misconceived and therefore the petition is dismissed. —————