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2016 DIGILAW 2260 (HP)

M. Alexander v. State of Himachal Pradesh

2016-10-25

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. The instant petition has been filed under Sections 2, 10, 11 and 12 of the Contempt of Courts Act, 1971 along with Section 482 of the Code of Criminal Procedure against the order passed by the learned Chief Judicial Magistrate, Kangra at Dharamshala on 1.7.2016, whereby the application filed by the petitioner for initiating contempt proceedings against the respondent came to be dismissed. 2. The facts giving rise to this petition as is pleaded in the petition are that on 14.7.2014, petitioner along with adopted son, who is severally disabled were physically and verbally assaulted at their McLoeodganj residence. However, as the assailant was related to lower rank Himachal Pradesh government officials (HPTDC employee) with connection with higher ranking politician, the police refused to investigate the matter. Although the complaint was lodged with the police station concerned on the same day. 3. It has further averred that in retribution for petitioner’s lodging a complaint with the police, the assailant’s spouse subsequently defamed petitioner by way of written publications alleging sexual impropriety on petitioner’s part. This resulted in petitioner’s second complaint lodged with the same police station on 28.7.2014 alleging defamation. Faced with the police’s stonewalling both the assault and the defamation complaints, the petitioner on 20.8.2014 moved the Court of the trial Magistrate for judicial intervention. The two matters in issue were carefully inquired into by the Court and ultimately vide order dated 14.10.2014 the SHO McLeodganj was directed to investigate the case. It is thereafter that the police though registered FIR No. 94 of 2014, however, the same was only a pro forma gesture and did not reflect the complaints lodged in the matter by the petitioner and was completely silent on the twin subjects of defamation and assault. 4. Moreover, during one (1) year, nine (9) months and two (2) weeks that elapsed, no real investigation had taken place and even the evidence provided by the petitioner to the police had not been considered and entered in the record. 4. Moreover, during one (1) year, nine (9) months and two (2) weeks that elapsed, no real investigation had taken place and even the evidence provided by the petitioner to the police had not been considered and entered in the record. That apart, the two victims i.e. petitioner and his son had not at all been associated with any investigation nor any kind of report was submitted to the competent Court, while report submitted by the respondent in non-competent venues, apart from being legally irrelevant, constituted a travesty of justice and amounted to the obstruction of the administration of justice within the meaning of Section 2(c) (iii) of the Contempt of Courts Act, 1971. 5. It is further averred that the learned trial Magistrate illegally dismissed the petition that too after 172 days ignoring the fact that it was pursuant to the order passed by it that the investigation in the case had been conducted by the police authorities. It is claimed that the impugned order is violative of the relevant provisions of the Act and it is factually without foundation as the material evidence underlying the instant case (specifically, assault and defamation) have not been investigated by the respondent that too in violation of the judicial order. 6. It is lastly averred that the impugned order proffers a justification for the dismissal of the contempt petition in pointing out the existence of the private-complaint remedy available to the petitioner, however, such remedy is not equivalent to the criminal remedy prosecuted by the State in fulfillment of the latter’s statutory and constitutional duties and in this manner illegally devolving burdensome responsibilities on the shoulders of victims of crime, thereby, unconscionably condoning the respondents contemptuous act in fostering lawlessness and validation of corrupt practices by law enforcement agencies. 7. The respondent has filed the reply, wherein it raised preliminary objection of mis-joinder of necessary parties, as according to them one Smt. Neena Bhatia, who is the owner of the house where the petitioner is residing as tenant is a necessary party. 8. On merits, it contended that the petitioner had filed complaint against Smt. Neena Bhatia with allegations of throwing some liquid on him and his son. This complaint was entered in daily diary as GD No. 12A, dated 14.7.2014. However, since the complaint related to non cognizable offence, therefore, no action could have legally been taken by the police. 9. 8. On merits, it contended that the petitioner had filed complaint against Smt. Neena Bhatia with allegations of throwing some liquid on him and his son. This complaint was entered in daily diary as GD No. 12A, dated 14.7.2014. However, since the complaint related to non cognizable offence, therefore, no action could have legally been taken by the police. 9. On the same day, Akshay Bhatia, son of Neena Bhatia came to the police station and made a complaint against the petitioner and his adopted son alleging that they had been residing in their house since last three years but the petitioner was not giving the copy of his passport or any other documentary proof and had rather been harassing him on one pretext or the other. He further alleged that petitioner was keeping cats with him, which had been causing loss to the complainant and his family by entering into the kitchen of Neena Bhatia and her family and consuming milk and spreading filth and when the complainant try to drive them away the petitioner had taken photographs and had misbehaved with them. 10. On 14.7.2014, the adopted son of the petitioner threw a coffee cup on Neena Bhatia, the cause of this dispute too, were the cats, the complainant had thrown water to frighten the cats. Complaint made by the petitioner in this regard was entered as GD entry No. 13A, dated 14.7.2014. It is further contended that the perusal of both the GD entries would show that the dispute between the petitioner and family of Neena Bhatia is qua vacation of the house rented out to the petitioner and non supplying of his proofs by way of copy of passport and on account of his keeping cats. 11. It is further averred that since the dispute relates to a non-cognizable offence, therefore, the police can take no action unless directed by the Magistrate in accordance with Section 155(2) of Cr.P.C. 12. As regards other contentions, it is admitted that learned Chief Judicial Magistrate had directed the SHO, Police Station, McLeaodganj to investigate the matter vide order dated 14.10.2014 and upon such directions FIR No. 93/2014 was registered at Police Station, McLeoadganj, under Sections 420, 352, 504, 120B of IPC. However, it is denied that the matter had not been properly investigated. As regards other contentions, it is admitted that learned Chief Judicial Magistrate had directed the SHO, Police Station, McLeaodganj to investigate the matter vide order dated 14.10.2014 and upon such directions FIR No. 93/2014 was registered at Police Station, McLeoadganj, under Sections 420, 352, 504, 120B of IPC. However, it is denied that the matter had not been properly investigated. Rather, it was claimed that the police had associated the petitioner and recorded the statement of the witnesses but the facts alleged in the complaint were not found to be true and accordingly cancellation report was prepared and presented before the learned Judicial Magistrate Ist Class, Dharamshala. The petitioner thereafter preferred a protest petition against cancellation report, upon which the Court sent it for re-investigation to the police station on 2.9.2015. The case was re-investigated in accordance with the direction of the Court but no truth was found in the protest petition. Hence, cancellation report was again sent to the Court on 14.10.2015 and the same is still pending in the Court. 13. The petitioner has filed rejoinder, wherein, it is averred that preliminary submissions made by the respondent are fallacious and untenable and otherwise immaterial and irrelevant to the instant cause, as the petitioner has never been a tenant of any person named “Neena Bhatia” and never had any dealing with the said person. The allegations are false to the knowledge of the respondent and such false narratives have been manufactured in the past by the law enforcement agencies. 14. It is further contended that the offences ordered by the Chief Judicial Magistrate to be investigated by the respondent are still being labeled as non-cognizable even after two years of the decision and in this manner respondent has only reflected insubordination and contempt for the relevant judicial decisions. It is further claimed that the petitioner has no acquaintance to any person named Akshay Bhatia and is ignorant of the latter’s locus standi in this case. 15. It is further claimed that the respondent makes veiled threats against the petitioner on the ground of alleged violation of the rules pertaining to the registration of foreigners, which he does with an unlawful intent to use such threats to effect cessation of petitioner’s instant action at law. 15. It is further claimed that the respondent makes veiled threats against the petitioner on the ground of alleged violation of the rules pertaining to the registration of foreigners, which he does with an unlawful intent to use such threats to effect cessation of petitioner’s instant action at law. In the aftermath of the reply on 19.9.2016, petitioner conducted an examination-in-chief of P.C. Bhatia the owner of the illegal hotel commonly known as WELCOME HOUSE and during investigation the witness deposed under oath that petitioner’s passport was in P.C. Bhatia hands from the beginning of petitioner’s residence at WELCOME HOUSE. This deposition made under oath, exposes both the owners/operators of WELCOME HOUSE, on one hand and the relevant Foreigners’ Registration Officer on the other hand to charges of dereliction of duty and violation of the law. 16. I have heard learned counsel for the parties and gone through the material placed on record. 17. As regards contention of preliminary submission of the respondent regarding non-joinder of necessary parties, the respondent has failed to place on record the relevant GD entries, which alone could have thrown light and helped this Court to come to the conclusion as to whether Neena Bhatia or Akshay Bhatia are in any manner necessary parties for the adjudication of this case. Accordingly, the plea of the respondent on this score is rejected. 18. Now adverting to the impugned order, it would be noticed that the petitioner had approached the Court of learned trial Magistrate alleging willful and intentional non-compliance of its directions dated 14.10.2014, when the trial Magistrate had summoned the SHO, Police Station McLeodganj to personally appear before the Court and directed him to register the FIR. It was alleged that in violation of the Court’s order dated 14.10.2014 no FIR was registered and even the investigation had not been initiated. It was thereafter alleged that FIR No. 93/2004 was eventually registered on 20.10.2014, however, the same was deficient and in violation of the Court’s order. The respondent by defying the order with evil intent have stalled the administration of justice. 19. The respondent had filed their reply, wherein, preliminary objections regarding maintainability, cause of action and jurisdiction had been taken. It was thereafter alleged that FIR No. 93/2004 was eventually registered on 20.10.2014, however, the same was deficient and in violation of the Court’s order. The respondent by defying the order with evil intent have stalled the administration of justice. 19. The respondent had filed their reply, wherein, preliminary objections regarding maintainability, cause of action and jurisdiction had been taken. On merits, it had been submitted that the petitioner had made a report which had been entered in the daily diary on 14.7.2014 at the police station McLeodganj but the petitioner had refused to undergo medical-examination. It was then claimed that the respondent had complied with each and every order of the Court pursuant to which three FIRs bearing FIR No. 93/2014, under Sections 420, 352, 504, 120-B IPC, FIR No. 4/2015, under Section 352, 506 IPC and FIR No. 55/2015, under Sections 342, 506 IPC were lodged at police station McLeodganj and thereafter investigation was conducted by different investigating agencies but eventually no case was found to be made out, and eventually cancellation reports had to be filed. 20. It is vehemently argued by the petitioner that the learned Magistrate had no jurisdiction to go into the merits of the allegations as it was not within his jurisdiction as the same vested entirely in the High Court and all that was required of him was to have forwarded the complaint to this Court. 21. I am afraid, I cannot agree with such submissions. Rule 8 of The Contempt of Courts (Himachal Pradesh) Rules, 1996 framed under the Courts of Contempt Act, 1971 provides for the procedure to be followed before a reference is made by Subordinate Court under Section 15 of the Contempt of the Courts Act and the same reads thus:- “8. Reference under Section 15(2) of the Act may be made by a Subordinate Court either suo-motu or on an application received by it. The Subordinate Court before making a reference to the High Court shall held a preliminary enquiry by issuing a show cause notice accompanied by copies of relevant documents, if any, to the contemnor and after hearing the matter the Subordinate Court shall make concise reasoned order.” 22. The Subordinate Court before making a reference to the High Court shall held a preliminary enquiry by issuing a show cause notice accompanied by copies of relevant documents, if any, to the contemnor and after hearing the matter the Subordinate Court shall make concise reasoned order.” 22. A perusal of the aforesaid Rule makes it abundantly clear that the Subordinate Court may hold a preliminary enquiry by issuing a show cause notice accompanied by copies of relevant documents, if any, to the contemnor and only after hearing the matter pass a concise reasoned order and thereafter make reference to this Court. The Rules makes it absolutely clear that before making a reference, the Subordinate Court itself has to conduct an enquiry and only after it is satisfied that there is case made out for reference for this Court, can it make a reference. 23. Apart from above, it would be noticed that the application filed by the petitioner was filed only by invoking the provisions of the Contempt of Courts Act and no provisions of the Code had been invoked therefore this petition under Section 482 of the Code of Criminal Procedure is misconceived and liable to be dismissed. 24. As regards the petitioner invoking the provisions of Contempt of Courts Act before this Court, Section 19 clearly provides that an order declining to initiate proceedings for contempt is not at all appeal able. It is apt to quote Section 19, which reads thus:- “19. Appeal.-(1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt- (a) where the order or decision is that of a Bench, to the Supreme Court: Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court. (2) Pending any appeal, the appellate Court may order that – (a) the execution of the punishment or order appealed against be suspended; (b) if the appellant is in confinement, he be released on bail; and (c) the appeal be heard notwithstanding that the appellant has not purged his contempt. (2) Pending any appeal, the appellate Court may order that – (a) the execution of the punishment or order appealed against be suspended; (b) if the appellant is in confinement, he be released on bail; and (c) the appeal be heard notwithstanding that the appellant has not purged his contempt. (3) Where any person aggrieved by any order against which an appeal may be filed satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by subsection (2). (4) An appeal under sub-section (1) shall be filed- (a) in the case of an appeal to a Bench of the High Court, within thirty days; (b) in the case of an appeal to the Supreme Court, within sixty days, from the date of the order appealed against.” 25. Thus, I have no hesitation to conclude that an action which cannot be initiated directly cannot be permitted to be initiated indirectly by invoking the provisions of different Act. The petitioner cannot be permitted to circumvent the law and once the petition is barred under Section 19 of the Act, then, resort definitely cannot be taken to either Section 482 of the Code of Criminal Procedure or to the provisions of the Contempt of Courts Act, more particularly, Sections 2, 10, 11 and 12 thereof. 26. However, even if the merits are adverted to, it would be noticed that no case much less a case for initiation of criminal contempt is made out. 27. Contempt jurisdiction conferred onto the law Courts power to punish an offender for his willful disobedience/contumacious conduct or obstruction to the majesty of law, are for the reason that respect and authority commanded by the Courts of law are the greatest guarantee to an ordinary person that his rights shall be protected and the entire democratic fabric of the society will crumble down if the respect of the Judiciary is undermined. Undoubtedly, the contempt jurisdiction is a powerful weapon in the hands of the Courts of law but that by itself operates as a string of caution and, unless, thus, otherwise satisfied beyond reasonable doubt, it would neither be fair nor reasonable for the law Courts to exercise jurisdiction under the Act. The standard of proof required in proceedings of the present kind is beyond all reasonable doubt. 28. The standard of proof required in proceedings of the present kind is beyond all reasonable doubt. 28. In order to punish a contemnor, it has to be established that disobedience of the order is willful. If the disobedience of the order is willful and deliberate, it means that there must be a mental element present before the action can be termed as willful. After-all, ‘willful’ means knowingly, intentional, conscious, calculated and deliberate with full knowledge of consequences flowing there from. It excludes casual, accidental, bonafide or unintentional acts or genuine inability. 29. Similarly, willful acts do not encompass involuntarily or negligent actions. The act has to be done with a bad purpose or without justifiable excuse or stubbornly, obstinately or perversely. Willful act is, therefore, required to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part. Therefore, it necessarily implies that even if there is disobedience of an order, but such disobedience is the result of some compelling circumstances under which it is not possible for the contemnor to comply with the order, the contemnor cannot be punished. Committal or sequestration will not be ordered unless contempt involves a degree of default on his conduct. (Refer: Ram Kishan versus Tarun Bajaj and others (2014) 2 SLJ 112). 30. Even otherwise, if it is assumed that there has been disobedience of the order passed by the Court, then the mere failure to comply with or carry out of an order of the Court may for the benefit of a private party can at least be termed to be a civil contempt and in such case there is no criminality in the disobedience and the contempt, as such is not criminal. It is only when the contemnor adds defiance of the orders of the Court and conduct himself in a manner which amounts to obstruction or to the interference with the Courts of Justice that one can be held to be prima facie guilty of preliminary contempt. 31. It is only when the contemnor adds defiance of the orders of the Court and conduct himself in a manner which amounts to obstruction or to the interference with the Courts of Justice that one can be held to be prima facie guilty of preliminary contempt. 31. Therefore, in this background, it is assumed though not established that there have been some defects in the investigation as alleged, even then the petitioner could not have resorted the remedy under the Contempt of the Courts Act as no case of even civil contempt what to talk of criminal contempt is made out. 32. The petition preferred by the petitioner before the learned Magistrate, to say the least, was vexatious and moved with the sole intent of settling personal score and harassing the respondent who are none other than police officials. It is with an object to curtail such vexatious imputations that the criminal contempt has always been considered to be primarily a matter between the Court and the contemnor and not a matter between an individual and the contemnor. No person gets unfettered right in this respect because in some cases an individual may out of personal grudge, prestige and vendetta and then motive may move to uphold the so-called dignity of the Court. The contempt of Court, jurisdiction is never to be forgotten is a summary in nature and a drastic process, which is just not readily resorted to except in cases of gross affront to the dignity of the Court or in case where the judicial process has been sought intentionally to be seriously interfered with illegally. It is resorted to only in the interest of sanctity of the judicial process and the dignity and majesty of the Court of Justice and not merely because a private party to litigation feeling aggrieved seems to be inspired by desire to settle his own score with his opponent through contempt proceedings. The wide switch of the power of this Court in proceedings by way of contempt, calls for equal amount self-imposed restrained consisting to its majesty and dignity and to permit this power to be invoked too lightly and too frequently because litigating parties alleged may not further end for which the contempt proceedings are designed to serve and promote. 33. The wide switch of the power of this Court in proceedings by way of contempt, calls for equal amount self-imposed restrained consisting to its majesty and dignity and to permit this power to be invoked too lightly and too frequently because litigating parties alleged may not further end for which the contempt proceedings are designed to serve and promote. 33. In view of the aforesaid discussion, I find no merit in this petition and the same is accordingly dismissed, so also the pending applications, if any.