Contempt Petn. No. 207 of 1993. Case: Baba Abdul Khan s/o Daulat Khan Vs Smt. A. D. Sawant J.M.F.C. Nagpur. High Court of Bombay (India)
| Case Number | Contempt Petn. No. 207 of 1993 |
| Counsel | For Petitioner: R. S. Sundaram, Advs. and For Respondents: S. G. Aney (for No. 1); S. P. Dharmadhikari and A. V. Gupta (for No. 2), Advs. |
| Judges | B. U. Wahane, J. |
| Issue | Criminal Procedure Code (2 of 1974) - Sections 322, 323, 324, 325, 457, 362, 451; Constitution of India - Articles 14, 215; Contempt of Courts Act (70 of 1971) - Sections 11, 18, 2(b)(c), 16(1); Judicial Officers Protection Act (18 of 1850) - Section 1 |
| Citation | 1994 CriLJ 2836 |
| Judgement Date | March 04, 1994 |
| Court | High Court of Bombay (India) |
Judgment:
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It is really an unfortunate thing that the instant contempt proceeding has been initiated against the member of the temple of justice and one another. The petitioners who moved this Court to initiate the contempt proceedings against the contemnors are the accused in Criminal Case No. 218 of 1991 for the offence punishable under Sections 420, 392 read with Section 34 of the Indian Penal Code. Initially, on 3-11-1993, the notice before admission was issued by this Court against all the contemnors. The submissions on behalf of the contemnorn Nos. 1 and 2 were filed and after satisfying that there is a prima facie case, this Court issued rule on 3-2-1994 against the contemnors calling upon them to show cause as to why action should not be taken against them under the provisions of Contempt of Courts Act, 1971.
In an ordered community, the Courts are established for the specific settlement of disputes and for the maintenance of law and order. In the general interest of the community, it is imperative that the authority of the Court should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed, it is not because those charged with the responsibilities of administering justice are concerned their own dignity; it is because the very structure of ordered life is at risk if the recognised Courts of the land are so flouted that their authority wanes and is supplanted.
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When the contempt does not occur in the presence and hearing of the Court, it must be brought to the attention of the Court by affidavits or sworn statements of the facts by persons who witnessed them or have knowledge of them. From the sworn facts, it must be shown prima facie that the contemnor/contemnors committed contempt to issue rule to the offender to show cause why he should not be punished for the alleged contempt.
A proceeding for punishment of the person/persons who have committed the contempt, is between the Court and the contemnor. Any person bringing the facts to the notice of the Court, is just an informant.
The jurisdiction to make an order for contempt is per se, neither civil nor criminal, but is segeneris.
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Once this Court takes the cognizance of the matter with regard to the contempt and the rule is issued, it must be made clear for all purposes that the desire of the private party to continue or not to continue such proceedings, is insignificant and is totally irrelevant. The purpose of proceedings in contempt is mainly to maintain the dignity of the Court and instil confidence in the mind of the public about the institutional integrity.
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The facts giving rise to the instant contempt petition, are narrated in brief as follows: The contemnor No. 2 Shri Dilip Babulal Thakkar, a resident of Nagpur, alleged to have been engaged in the business of courier service in the name and style 'Thakkar Agencies'. According to the contemnor No. 2, in the courier business, he has to collect parcels, insured parcels, letters, packets, etc., for the parties to be delivered at different places including Bombay through his agents. As usual, he collected the money, ornaments and valuables from the parties and directed his employee by name Shri Shivshankar Desai on 31-5-1991 to proceed to Bombay. Shri Shivshankar Desai was carrying the material in rickshaw. Near Geetanjali Talkies, Nagpur some persons committed theft/robbery and all the material which was in possession of Shivshankar Desai, were taken away. The incident had occurred at about 4 p.m. Immediately after receiving the knowledge about the theft/robbery, the contemnor No. 2 reported the matter to Tahsil Police Station, Nagpur, at about 5.25 p.m.
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The Police machinery moved the wheels of investigation and ultimately, it is alleged by the prosecution, that some amount, ornaments and other articles were seized from the petitioners/accused. After the completion of the investigation, the charge-sheet was filed in the Court of Judicial Magistrate, First Class, Court No. 4, Nagpur and the criminal case is registered bearing number 284 of 1991.
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While the investigation was in progress, the contemnor No. 2 had filed an application initially in the Court of Judicial Magistrate, First Class, Court No. 4, Nagpur, for return of the goods or material seized by the Police. The learned trial Court, after hearing the parties, rejected the application filed by the contemnor No. 2 for release of the property i.e. a sum of Rs. 24,00,842/- on supratnama. Against this order, Criminal Revision Application No. 176 of 1991 came to be filed in this Court. During the hearing it transpired that there should not be any prejudice to be caused to the accused and, therefore, to give them an opportunity to be heard, they were directed to be summoned by this Court. After hearing the learned counsel of the parties, Criminal Revision Application No. 176 of 1991, came to be rejected by this Court (B. U. Wahane, J.) vide order, D/- 1-11-1991.
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Against the order passed by this Court, the contemnor No. 2 preferred a Special Leave to Appeal in the Hon'ble Supreme Court of India. On 21-9-1992, the Hon'ble Supreme Court passed the following order:
We are not inclined to interfere in this special leave petition in view of the High Court's findings. We have been informed that the charge-sheet has been filed in the Court. The trial Court may consider the question of handing over the money to the petitioner in the light of the fresh material which has come before the trial Court. Special leave petition is disposed of accordingly.
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The contemnor No. 2 filed a fresh application under Section 457 of the Criminal Procedure Code to return the property including a currency amount of Rs. 24,00,842/- on supratnama. The application was filed in the trial Court on 14-12-1992. The learned trial Court on 14-12-1992 itself passed the following order:
Case be registered as criminal case. Call the say and the report from P.S.O. A.P.P. to say.
On the basis of this order, the application was registered as Misc. Application No. 188 of 1992.
On 17-12-1992, the trial Court passed the following order:
Criminal Case No. 284 of 1991 has already been registered. Only the say from A.P.P. be called and not from P.S.
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On 6-1-1993, the A.P.P. gave his say. The learned trial Judge, after considering the say given by the A.P.P., passed the following order:
"Perused the application. The amount in cash currency notes appears to be more than Rs. 3,000/-. Case be transferred to the Hon'ble Chief Judicial Magistrate. Issue summons to the concerned applicant and the counsel to appear before Court of C.J.M. on 6-2-93".
On 26-7-1993, the contemnor No. 2 filed an application for hearing the matter on merit urgently. On this application, the learned trial Court the present contemnor No. 1, passed the following order:
A.P.P. to say only to the limit as to whether this Court can entertain the application in view of the order passed by my learned predecessor.
The A.P.P. has resisted the application on the following grounds:
"The order transferring the case to the Court of C.J.M. passed by the predecessor of this Court, is final order and thus, it cannot be said to be an interlocutory order. The only alternative open to the applicant is to get the order set aside by filing revision. In view of the clear recital in Section 362 of Cr. P. C., this Court cannot alter its own order."
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The original record which is called from the trial Court, shows that in Misc. Case No. 188 of 1992, the operative part of the order passed by the learned trial Court on 27-7-1993, is typed one. The learned trial Court made some corrections and put her initial too. Under her signature, the date 27-7-1993 is put by the learned trial Court. Considering the submissions made by the learned counsel for the applicant (the contemnor No. 2 before me), the order appears to have been passed on the application Exh. 5 which is filed under Section 457 of Cr. P. C., by the learned trial Court on 28-7-1993. Each page of the order is signed by the learned trial Court putting the date below her signature.
By this order, the learned trial Court set aside the order passed by her predecessor on 6-1-1993. The trial Court directed the concerned clerk of the Court to return the amount of Rs. 24,00,842/- to Shri Dilip Thakkar, which amount was already deposited in the Reserve Bank of India through orders of the Court. Further the learned trial Court directed the Senior clerk of the Court to return golden ornaments worth the Rupees 74,854/- to the applicant Dilip Babulal Thakkar, which were deposited in the Court. The cash and ornaments were to be returned to Dilip Babulal Thakkar after executing a bond of Rs. 24,00,842/- and Rs. 74,854/- respectively before the Court. Further directions were given to the applicant to the effect that "he shall give an undertaking in writing that he will return cash amount and ornaments to their respective claimants and will produce the golden and silver ornaments at the time of final hearing for identification." The letter was issued to the Reserve Bank of India accordingly.
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It has been brought to my notice by the petitioners that as they were not noticed about the second application filed by the contemnor No. 2, they had no knowledge about the same. As soon as they learnt about the impugned order passed on 27th and 28th July 1993, they filed an application on 27-7-1993 to supply the copy of the application and time to file their reply. The matter was posted at 3.30 p.m. However, the application came to be rejected. Surprise to note that though the order appears to have been passed on the application filed by the applicants/accused vide Exh. 6, on the reverse of the same, neither it bears the signature nor initial of the learned trial Judge.
On 28-7-1993, another application vide Exh. 7 came to be filed by the accused for grant of stay of the order passed by the...
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