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2016 DIGILAW 2030 (HP)

M. Alexander v. State of H. P.

2016-09-21

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, Judge. The instant petition was initially filed under the provisions of Sections 2, 10, 11 and 12 of the Contempt of Courts Act, 1971 (hereinafter referred to as the ‘Act’) and under Section 482 of the Code of Criminal Procedure (hereinafter referred to as ‘Code’). When the same came up for consideration before this court on 9.9.2016, the petitioner was asked to justify the maintainability of the petition and was also repeatedly informed that in case he is not prepared, the matter could be adjourned and he could also be provided free legal-aid. However, the petitioner insisted that he was fully prepared and would argue the petition himself and gave statement on oath to the effect that he does not seek to invoke the provision of the Act and the petition be treated as one having been filed only under section 482 of the Code and be treated as an appeal. I have heard the petitioner. 2. Even after his statement had been recorded, the petitioner was again asked to justify the maintainability and yet again offered legal assistance, which he refused to accept and while addressing on the question of maintainability of the petition would argue that clerks of the Registry of this court had guided him to file this petition in the manner he did. 3. He would further argue that even at earlier occasion, he had filed a similar petition which was registered as Cr MMO No.282/2014 and, therefore, the petition on the basis of past precedents was very much maintainable. 4. Evidently, the order assailed in this petition emanates from the proceedings conducted by learned Special Judge, Kangra on 1.9.2016 in an application instituted by the petitioner under Sections 2 and 12 of the Contempt of Courts Act. 5. It would be noticed that while instituting the aforesaid application and even while adjudicating upon the same, no provisions of the ‘Code’ have been invoked and same was decided only under the provisions of the ‘Act’ and, therefore, on the face of it, the instant petition under Section 482 of the ‘Code’ is misconceived and liable to be dismissed. Advice given by the Registry (if at all given), to say the least, cannot be a ground to canvass and claim that the petition is maintainable. 6. Advice given by the Registry (if at all given), to say the least, cannot be a ground to canvass and claim that the petition is maintainable. 6. As regards the reliance placed on above Cr.MMO, it would be noticed that the precise prayer made in the said petition was for registration of FIR which obviously could be granted by this court in exercise of its jurisdiction under Section 482 Cr.PC. There is no parity whatsoever in both the petitions, therefore, the said petition can hardly be cited as a precedent for invoking the jurisdiction of this court under Section 482 Cr.P.C. 7. Having answered the question in issue, I may now advert to a very disturbing feature of the case. Petitioner while assailing the impugned order has not only used intemperate and contemptuous language, but has even levelled allegations which are not only scandalous but tactically attribute motive to the learned Judge below as would be evident from paragraphs 2,3,4,7 and 8 of the petition and the same read thus:- “2. That while the contempt petition in question, as set forth hereinabove, ought to have been referenced in short order to this Honourable Court as the sole authority empowered to adjudicate the matter at hand under the law, with the voice of the aforementioned subordinate court of lower instance necessarily added to the voice of petitioner as either assenting to or dissenting from the allegations made, the aid lower court of Sh. Rajeev Bali, very learned Special Judge, Kangra Division at Dharamshala, HP, illegally entertained and adjudicated the contempt petition at issue on merits on its own and of its own accord, thereby (a) causing obstruction in the administration of justice amounting to unnecessary delay of eight months and nine days; (b) illicitly benefiting the accused in the case while directly harming the interest of justice; (c) illegally compounding, in effect, the criminally illegal, unnecessary delays in police investigations prohibited by statute; (d) illegally condoning criminal contempt of the High Court of HP as the author of decisional law in this case. 3. That petitioner complained of the unlawful state of affairs obtaining here, as set forth in para 2 hereinabove, to the Worthy Registrar General of the High Court of HP on 12 August, 2016. 3. That petitioner complained of the unlawful state of affairs obtaining here, as set forth in para 2 hereinabove, to the Worthy Registrar General of the High Court of HP on 12 August, 2016. Following remedial actions taken by the Worthy Registrar General as a result of petitioner’s complaint, the aforementioned very learned Special Judge, as set forth in paras 1 and 2 dismissed the contempt petition in question on 1st September, 2016 after 253 days of litigation. At the same time, the same very learned Special Judge levied a fine in the amount of five thousand rupees (Rs.5000) against petitioner for ‘frivolous litigation’. 4.That the aforementioned very learned Special Judge, as set forth in paras 1 and 2, additionally accused petitioner deliberately concealing material facts from the court, an action which-if corroborated by evidence-ought to have resulted in criminal counteraction against petitioner for perjury, given that full disclosure had been averred by petitioner in the sworn affidavit supporting the petition in question, and given that material concealments would have been a serious matter not amounting to frivolity but patently amounting to criminality, and thus meriting a much sterner punishment than a mere fine. There is, however, no evidence to support such an allegation against petitioner, while the documentation cited in the impugned order does not support the conclusions reached there from, which prima facie seem therefore, to have been framed mala fide. The same may be said of the implicit answer given tacitly by the said very learned Special Judge loco citato to the further and separate question as to whether or not the point at issue, allegedly concealed by petitioner, is material to the cause in the first place, and in such a way as could substantively affect the legal outcome as concerns the determination of respondent State’s non-compliance in question here. While nothing at all is said in the impugned order on the question of material relevance of the point in issue, the unspoken presumption of the impugned order is nevertheless that the said point is unquestionably material; whereas the truth is that it is not and that it does not affect the factum and the pleading in the instant cause. While nothing at all is said in the impugned order on the question of material relevance of the point in issue, the unspoken presumption of the impugned order is nevertheless that the said point is unquestionably material; whereas the truth is that it is not and that it does not affect the factum and the pleading in the instant cause. We are thus dealing here with a case of double judicial misconduct-false evidence against petitioner in a matter that is ipso facto immaterial- a judicial fraud of Chaucerian proportions, intended to exculpate respondent’s offences at al cost and by any means, fair or foul. Even the Pardoner might blush here: there has never been any pleading here from respondent alleging the uncorroborated facts relied on by the impugned order. 7. That the impugned order of 1st September, 2016, as set forth on the title page and paras 3 and 4 hereinabove is illegal, unjust, and unreasonable as having been entered in violation of the dictates of such common sense as might be espoused by any rational mind with regard to its factum of the instant cause, the latter having been established fraudulently without supporting evidence. Moreover, petitioner has not filed any other competent petition pertaining to this case in any other court of law, except as disclosed herein. 8. That in view of the facts, circumstances and points of law as set forth in paras 1-7 hereinabove, petitioner prays your Lordships to quash and set aside the impugned order entered on 1st September, 2016 by the immensely learned Sh. 8. That in view of the facts, circumstances and points of law as set forth in paras 1-7 hereinabove, petitioner prays your Lordships to quash and set aside the impugned order entered on 1st September, 2016 by the immensely learned Sh. Rajeev Bali, Special Judge, Kangra Division at Dharamshala, as illegal, unconscionable, and indeed scandalous, and to revive and reactivate the dismissed contempt petition, this to be pursed within this Honourable High Court of Himachal Pradesh in accordance with the provisions of law, so as to punish respondent for its contempt of court and obstruction of administration of justice in an exemplary fashion, by meting out thereto the maximum prison sentence allowed by the Contempt of Courts Act, given the gravity insidiousness, multiplicity, persistence and massive nature of the offences constituting the contempt in question, as considered in the light of their undermining not just the administration of justice in this one single case but tending to tear to shreds the very fabric of the Union of India’s democracy given the extremely high degree of insidiousness and shamelessness of the illegalities involved on the part of a law-enforcement agent, including in its submissions to the lower court in the instant case. Petitioner additionally prays your Lordships to assign the investigation of the instant case to the Central Bureau of Investigation in the hope of finding therein a more professional, honest, impartial and law abiding investigative agency to carry out the same.” 8. Though as observed above, the instant petition is not maintainable, but it is suggestive that it was the Special Judge who illegally entertained and adjudicated the contempt at issue on merits and of its own accord. This contention is not only preposterous, but is contrary to the record after all it is the petitioner who himself had filed this petition and cannot now turn round and impute motive to the learned Judge by alleging that (a) he caused obstruction in the administration of justice amounting to unnecessary delay of eight months and nine days; (b) illicitly benefiting the accused in the case while directly harming the interest of justice; (c) illegally compounding, in effect, the criminally illegal, unnecessary delays in police investigations prohibited by statute; (d) illegally condoning criminal contempt of the High Court of HP as the author of decisional law in this case. 9. 9. That apart, it would be noticed that the learned court below had imposed a find of Rs.5000/- on the ground that the petitioner had misled the court by filing frivolous petition despite knowing that the time frame for completion of investigation had been extended by this court. 10. It is not in dispute that initially this court vide order dated 24.4.2015, had directed the respondents to re-investigate the case within two months. However, thereafter, respondents moved an application seeking extension of time for completion of the investigation and this court vide order dated 29.7.2015 granted further time of three months to them to complete the investigation and this order was duly communicated to the petitioner by the learned Deputy Advocate General vide letter dated 24.9.2015. The fact that the learned court below had been considerate enough in only imposing a nominal fine of Rs. 5000/- and not initiating any other proceedings like perjury against the petitioner, cannot be a ground to impute motive and assail the order that too by using intemperate language and casting unwarranted aspersions on the Judicial officer and attributing motive to him while he was discharging his judicial functions. 11. Evidently, the language used by the petitioner is intemperate and contemptuous and above all, this petition is loaded with sarcasm and innuendos and, therefore, this court has no hesitation to conclude that the petitioner has made deliberate attempt to interfere with the due course of judicial proceedings and such action could be construed to be obstructive or attending to obstruct the administration of justice. 12. It has to be remembered that the subordinate judiciary forms the very backbone of the administration of justice and the higher court would come down with a heavy hand for preventing the judges of the subordinate judiciary from being subjected to scurrilous and indecent attacks, which scandalize or have the tendency to scandalize, or lower or have the tendency to lower the authority of any court as also all such actions which interfere or tend to interfere with the due course of any judicial proceedings or obstruct or tend to obstruct the administration of justice in any other manner. 13. No affront to the majesty of law can be permitted. The fountain of justice cannot be allowed to be polluted by disgruntled litigants. The protection is necessary for the courts to enable them to discharge their judicial functions without fear. 13. No affront to the majesty of law can be permitted. The fountain of justice cannot be allowed to be polluted by disgruntled litigants. The protection is necessary for the courts to enable them to discharge their judicial functions without fear. (Ajay Kumar Pandey, Advocate, (1998) 7 SCC 248 ). 14. It is well settled that litigant cannot be permitted to browbeat the court or terrorize or intimidate the Judges as held by the Hon’ble Supreme Court in Chetak Construction Ltd. v. Om Prakash (1998) 4 SCC 577 : “16. Indeed, no lawyer or litigant can be permitted to browbeat the court or malign the presiding officer with a view to get a favourable order. Judges shall not be able to perform their duties freely and fairly if such activities were permitted and in the result administration of justice would become a casualty and the rule of law would receive a setback. The Judges are obliged to decide cases impartially and without any fear or favour. Lawyers and litigants cannot be permitted to ‘terrorise’ or ‘intimidate’ Judges with a view to ‘secure’ orders which they want. This is basic and fundamental and no civilized system of administration of justice can permit it.” 15. These observations were subsequently, reiterated in Radha Mohan Lal v. Rajasthan High Court (2003) 3 SCC 427 . 16. It would be evident from the pleadings extracted above that the petitioner has made scurrilous and indecent attacks against the learned Presiding Judge which are not only indecent and distasteful, but on the face of it, are contemptuous. It is most Unbefitting for a litigant to make imputations against the Judge only because he does not get the expected result, which according to him is the fair and reasonable result available to him. Judges cannot be intimidated to seek favourable orders. Only because the party has appeared in person he does not get a licence thereby to commit contempt of the court by using intemperate language and casting unwarranted aspersions on the Judicial Officers and attributing motive to him while he was discharging his judicial functions. He cannot use language, either in pleadings or during arguments which is either intemperate or unparliamentarily. The safeguards are not for the protection of any Judge individually but are essential for maintaining the dignity and decorum of the courts. He cannot use language, either in pleadings or during arguments which is either intemperate or unparliamentarily. The safeguards are not for the protection of any Judge individually but are essential for maintaining the dignity and decorum of the courts. No doubt, fair comments, even if, outspoken, but made without any malice or attempting to impair the administration of justice and made in good faith, in proper language, do not attract any punishment for contempt of court. However, when from the criticism deliberate, motivated and calculated attempt is discernible to bring down the image of judiciary in the estimation of the public or to impair the administration of justice or tend to bring the administration of justice into disrepute, the courts must bestir themselves to uphold their dignity and the majesty of law. No system of justice can tolerate such unbridled licence on the part of a person to permit himself the liberty or scandalizing a court by casting unwarranted, uncalled for an unjustified aspersions on the integrity, ability, impartiality or fairness of a Judge in the discharge of his judicial functions as it amounts to an interference with the due course of administration of justice. (Jaswant Singh Vs. Virender Singh (1995 (supp.1) SCC 384). 17. Indeed, no litigant can be permitted to brow beat the court or malign the Presiding Officer with a view to get a favourable order. Judges shall not be able to perform their duties freely and fairly if such activities are permitted or tolerated and justice would become a casualty and Rule of Law would receive a set back. The Judges are obliged to decide cases impartially and without any fear or favour. Litigants cannot, be allowed to ‘terrorize’ or ‘intimidate’ judges with a view to ‘secure’ orders which they want. This is basic and fundamental and no civilized system of administration of justice can permit it. Not only are the aspersions cast by the petitioner derogatory, scandalous and uncalled for, but also tend to bring the authority and administration of justice into disrespect. 18. This all has been done calculatedly by the petitioner in order to undermine the authority of the Courts and public confidence in the administration of justice. Contempt of Court is to keep a blaze the glory around the judiciary and to deter the people from attempting to render justice contemptible in the eyes of public. 18. This all has been done calculatedly by the petitioner in order to undermine the authority of the Courts and public confidence in the administration of justice. Contempt of Court is to keep a blaze the glory around the judiciary and to deter the people from attempting to render justice contemptible in the eyes of public. A libel upon the Court is a reflection upon the sovereign people themselves. The petitioner has tried to convey to the people that the administration of justice is weak or in corrupt hands and that the fountain of justice is tainted. Therefore, it is necessary to regulate the judicial process free from fouling the fountain of justice to ward off the people from undermining the confidence of the public in the purity of fountain of justice and due administration. Justice thereby remains pure, untainted and unimpeded. If the people’s allegiance to the law is so fundamentally shaken, it is the most vital and most dangerous obstruction of justice calling for urgent action. 19. The petitioner has indulged in scandalizing the Court, which means hostile criticism of Judges as Judges or judiciary. The gravamen of the offence is lowering the dignity or authority or an affront to majesty of justice. The petitioner has challenged the authority of the Court and has, therefore, interfered with the performance of duties of Judge’s office or judicial process or administration of justice that has the tendency of bringing the Judges or judiciary into contempt. If the attempts of the petitioner are encouraged the judicial independence would vanish eroding the very edifice on which the institution of justice stands. Any action on the part of a litigant which has the tendency to interfere with or obstruct the due course of justice has to be dealt with sternly and firmly to uphold the majesty of law. None can be permitted to intimidate or terrorize Judges by making scandalous unwarranted and baseless imputations against them in the discharge of their judicial functions so as to secure orders which the litigant “wants”. 20. The rule of law is the foundation of a democratic society and the judiciary is the guardian of the rule of law. None can be permitted to intimidate or terrorize Judges by making scandalous unwarranted and baseless imputations against them in the discharge of their judicial functions so as to secure orders which the litigant “wants”. 20. The rule of law is the foundation of a democratic society and the judiciary is the guardian of the rule of law. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted, the dignity and authority of the Courts has to be respected and protected at all costs. It is for this reason that the Courts are entrusted with the extraordinary power of punishing those for contempt of court who indulge in acts whether inside or outside the Courts, which tend to undermine the authority of the Courts and bring them in disrepute and disrespect thereby obstructing them to discharge their official duties without fear or favour. This power is exercised by the Courts not to vindicate the dignity and honour of any individual Judge who is personally attacked or scandalized but with a view to uphold the majesty of law and the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice and as such no action can be permitted to shake the very foundation itself. Thus, it is now settled that abuses, attribution of motives, vituperative terrorism and scurrilous and indecent attacks on the impartiality of the Judges in the pleadings, applications or other documents filed in the Court or otherwise published which have the tendency to scandalize and undermine the dignity of the Court and the majesty of law amounts to criminal contempt of court. 21. No doubt, the litigant has the freedom of expression and liberty to project his case forcefully, but it has to be remembered that while exercising this liberty he is required to maintain dignity, decorum and order in the Court proceedings. Liberty of free expression cannot be permitted to be treated as a licence to make reckless imputations against the impartiality of the Judges deciding the cases. Even criticism of the judgment has to be in a dignified and temperate language and without any malice. Liberty of free expression cannot be permitted to be treated as a licence to make reckless imputations against the impartiality of the Judges deciding the cases. Even criticism of the judgment has to be in a dignified and temperate language and without any malice. (See: D.C.Saxena vs. Hon’ble the Chief Justice of India (1996) 5 SCC 216 , In Re: Ajay Kumar Pandey (1996) 6 SCC 510 , Ajay Kumar Pandey, Advocate, in RE: (1998) 7 SCC 248 , S.K.Sundaram: IN RE (2001) 2 SCC 171 and Arundhati Roy, IN RE (2002) 3 SCC 343 ). 22. The Hon’ble Supreme Court in M.B. Sanghi Vs. High Court of Punjab & Haryana (91) 3 SCC 600, while examining the similar case has observed as under (SCC p.602, para 2). “2……….The foundation of judicial system which is based on the independence and impartiality of those who man it will be shaken if disparaging and derogatory remarks are made against the presiding judicial officers with impunity. It is high time that we realise that the much cherished judicial independence has to be protected not only from the executive or the legislature but also from those who are an integral part of the system. An independent judiciary is of vital importance to any free society”. 23. In Asharam M.Jain Vs. A.t. Gupta, (1983) 4 SCC 125 , while dealing with the issue, this Court observed as under: (SCC p.127, para 3) “3……The strains and mortification of litigation cannot be allowed to lead litigants to tarnish, terrorise and destroy the system of administration of justice by vilification of judges. It is not that judges need be protected; judges may well take care of themselves. It is the right and interest of the public in the due administration of justice that has to be protected.” 24. In Jennison v. Baker [1972] 1 All E.R. 997, 1006, it was observed (QB p.66 H) “…..’The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope. ” 25. In Vishram Singh Raghubanshi Vs. State of Uttar Pradesh (2011) 7 SCC 776 , the Hon’ble Supreme Court noted the dangerous trend of making false allegations against judicial officers and observed as under: “18. ” 25. In Vishram Singh Raghubanshi Vs. State of Uttar Pradesh (2011) 7 SCC 776 , the Hon’ble Supreme Court noted the dangerous trend of making false allegations against judicial officers and observed as under: “18. The dangerous trend of making false allegations against judicial officers and humiliating them requires to be curbed with heavy hands, otherwise the judicial system itself would collapse. The Bench and the Bar have to avoid unwarranted situations on trivial issues that hamper the cause of justice and are in the interest of none. "Liberty of free expression is not to be confounded or confused with license to make unfounded allegations against any institution, much less the Judiciary". A lawyer cannot be a mere mouthpiece of his client and cannot associate himself with his client maligning the reputation of judicial officers merely because his client failed to secure the desired order from the said officer. A deliberate attempt to scandalise the court which would shake the confidence of the litigating public in the system, would cause a very serious damage to the Institution of judiciary. An Advocate in a profession should be diligent and his conduct should also be diligent and conform to the requirements of the law by which an Advocate plays a vital role in the preservation of society and justice system. Any violation of the principles of professional ethics by an Advocate is unfortunate and unacceptable. (Vide: O.P. Sharma & Ors. v. High Court of Punjab & Haryana, (2011) 5 SCALE 518 ). 26. The matter cannot therefore be permitted to rest here or else, this would amount to compromising with the majesty of the Court and undermining the authority of the Court and the public confidence in the administration of justice. The petitioner has indulged in scandalizing the Court and his act amounts to interference with the administration of justice. This action tends to lower the authority of the Court and at the same time prejudice and interfere with due course of judicial proceedings apart from scandalizing and lowering the dignity of the Court. 27. Therefore, taking suo motu notice for initiation of criminal contempt proceedings against the acts of the petitioner, let criminal contempt proceedings be separately registered against the petitioner and the matter be placed before Hon’ble the Chief Justice for obtaining orders regarding listing of the same before the Hon’ble Division Bench in accordance with rules.