GOVERNMENT OF ANDHRA PRADESH
REGISTRATION AND STAMPS DEPARTMENT
(i)The particulars of organization, functions and duties:-
HISTORY
The Registration and Stamps Department is one of the oldest departments of the State Government tracing its origin to the year 1860. This Department administers mainly the Indian Registration Act, 1908 and the Indian Stamp Act, 1899 along with eight other Acts like Marriage Act, Societies Act, Chit Fund Act etc.,
FUNCTIONS OF THE DEPARTMENT
1. Registration of documents (Testamentary & Non-Testamentary) by administering Registration Act along with enforcement of certain relevant provisions under Income Tax Act U.L.C., Act, A.P.Assigned Land Act, Agency Lands Transfer Prohibition Act Land Ceiling Act ,The Transfer of Property Act,1882, The Indian Contract Act 1872, The Indian Trust Act 1882, The Specific Relief Act 1877,The Contonment Act 1926,The Destruction of Records Act 1917, and The A.P. Cooperative Societies Act 1964 Etc.,
2. Collection of registration fee as per the table of fee prescribed.
3. Collection of stamp duty administering the Indian Stamp Act.
4. Prosecution of defaulters under Section 64 & 64-A of Indian Stamp Act.
5. Audit of Public Offices to unearth the leakage of stamp duty and collection of the amount under Section 73 of Indian Stamp Act.,
6. Adjudication, impounding and validation of documents under the provisions of Indian Stamp Act.
7. Calculation and determination of Market Value on local enquiries, post-facto spot inspections of properties through the enforcement of Market Value Scheme.
8. Distribution and sale of stamps through department stamp sale counters.
9. Collection of Transfer Duty and allocation of Transfer Duty to the local bodies.
10. Licensing of Document Writers and control of their activities.
11. Renewals of Licenses of stamp vendors, payment of commission and control of their activities.
12. Issue of certified copies for the documents registered.
13. Issue of encumbrance Certificates.
14. Preservation of copies of documents and title records.
15. Registration of partnership firm, administering of Indian Partnership Act and maintenance of records.
16. Registration of Societies under Societies Registration Act, 2001 and maintenance of records.
17. Registration of marriages under Hindu Marriage Act, 1955 and maintenance of records.
18. Solemnization and Registration of Marriages under Special Marriage Act and maintenance of records.
19. Preservation and maintenance of records under Indian Christian Marriage Act, 1872.
20. Preservation and maintenance of records under Parsi Marriage Act.
21. Administration of Notaries Act, 1952, processing of issue and renewal of licences of Notaries and Inspection of notarial records and collection of deficit stamp duty and control notarial activities.
22. Administration of Non-Trading Companies Act, 1962.
23. Administration of A.P.Chit Fund Act.
(ii) The powers and duties of its officers and employees:-
STRUCTURE OF THE DEPARTMENT
(a) The department is under the ministry of revenue and at Secretariat level it is under the administrative control of Principal Secretary to Government, Revenue who is assisted by Joint/Deputy Secretary.
(b) The Commissioner and Inspector General is the head of the department who is assisted by one Joint I.G., three Deputy Inspectors General and five Asst.Inspectors General and one A.D.R. in head office, at the State headquarters 22 sections headed by Grade-I, Grade-II SRs assisted by 42 Sr.Assistants 44 Jr.Assistants 12 Typists manage the administration of department.
(c) At the regional level there are six Deputy Inspectors General each assisted by one A.D.R., One Sub-Registrar, four Sr.Assistants, four Jr.Assistants and one typist and 2 Attenders. A Vigilance Officer in the rank of District Registrar assisted by one Sr.Assistant, One Attender is also functioning at regional level.
At the regional level there are six Flying Squads consisting of one Deputy
Collector One A.D.R and one Dy.Executive Engineer.
(d) There are 28 Registration Districts in 23 Revenue Districts. The District Administration is headed by District Registrar assisted by A.D.R. and two Joint Sub-Registrars and ministerial staff.
At Hyderabad, Vijayawada and Visakhapatnam there are posts of District
Registrar (Audit) assisted by one Sub-Registrar and Sr.Assistant.
(e) Sub District Level: there are 387 Sub-Registrar Offices in the State, each headed by Sub-Registrar, either Grade-I or Grade-II. The Sub-Registrar, is assisted by two Jr.Assistants, two Attenders, and three Temporary Section Writers in certain offices. Assistance of one Sr.Asst is also given in some offices.
FUNCTIONS OF EACH FUNCTIONARY IN DEPARTMENT:
1. Commissioner and Inspector General of Registration and Stamps:
He is the Head of the Department. He exercises general superintendence over all the registration offices and makes rules consistent with the Registration Act. He is the Chief Controlling Revenue Authority under Indian Stamp Act, 1899. He is Ex-Officio (i) Registrar of Firms (ii) Registrar General of Births, Deaths and Marriages (iii) Registrar of Non-Trading Companies (iv) Registrar of Societies under A.P. (Telangana area) Public Societies Registration Act, 1350 F, (v) Director of Chits (vi) Competent authority under the Notaries Act, 1952. He is the appointing authority in respect of Assistant District Registrar.
2. All other officers in the Head Quarters office assist the Commissioner and Inspector General of Registration and Stamps in administering the various Acts by the departmental functionaries.
3. DEPUTY INSPECTOR GENERAL OF REGISTRATION AND STAMPS:
He is the administrative head of the entire Zone. He is the appointing authority in respect of Sub-Registrars Grade-I & II and Senior Assistants. He is the appellate authority in respect of service matters upto the level of Junior Assistants and in respect of licenced Stamp Vendors and Document Writers. He is the authorized Officer to undertake stamp Audit of Public Offices under Section 73 of Indian Stamp Act. He is the Inspecting Officer of the records maintained by Notaries.
4. DISTRICT REGISTRARS;
They are In-charge of District Administration. They administer various Acts including Indian Registration Act and Indian Stamp Act. They are the inspecting Officers of Sub-Registry Offices. They are Appointing Authorities in respect of Junior Assistants, Shroffs, Attenders and Section Writers. They undertake internal audit of Sub-Registry Offices and monitor the implementation of the Market Value Scheme. They are inspecting Officers of the notarial records. They are also entrusted with the regular enquiry under A.P.C.C. (CC&A) Rules, 1991 against the Sub-Registrars and their staff.
5. VIGILANCE OFFICERS:
They are responsible for the Vigilance and enforcement in their respective zones. They undertake surprise visits in order to check the irregularities in Sub-Registry Offices. They undertake preliminary enquiries into the complaints made by the public and maintain liaison between the public and the department. They undertake inspection of Notarial records, super checks of properties in the documents registered and Stamp Audit under Section 73 of Indian Stamp Act.
6. DISTRICT REGISTRARS (AUDIT):
They conduct post audit of the registered documents and detect leakage of revenue.
7. ASSISTANT DISTRICT REGISTRARS;
They assist the Deputy Inspectors General / District Registrar in day to day administration. They are Drawing and Disbursing Officers in their respective offices. They conduct Superchecks / post-facto spot inspection of properties and inspect Notarial records as may be prescribed by the officer concerned.
8. SUB-REGISTRARS:
They play pivotal role in the department. They are the officers at field level who serve the public and discharge their functions under various acts including Indian Registration Act and Indian Stamp Act. They are the custodians of records relating to the Title Deeds of properties, required to be preserved for eternity. They are Ex-Officio Stamp Vendors. They collect Transfer Duty and allocate the same to the Panchayats every month. They are Drawing and Disbursing Officers in their respective offices.
(iii) the Procedure followed in the decision making process, including channels of supervision and accountability:
Sub-Registrar is a registering officer appointed by the Registration Act and he will have to take independent decision on the classification of the documents, chargeability of stamp duty and Registration fee. If he has any doubt regarding classification of the document, he may seek clarificatory orders from the District Registrar.
If the District Registrar has a doubt regarding classification of the document, which were referred to him u/s 31 of I.S.Act, he may submit the reference to the CCRA u/s 56(2) of I.S.Act. If CCRA felt any doubt regarding classification of the document, he may refer to the Hon’ble High Court of A.P. for final decision on the classification of the documents.
At district level recruitment of Junior Assistant, Attenders, and the service maters will be dealt by the District Registrar
and exercise over all supervision on all Sub-Registrar Offices in the district. He will conduct annual Inspection for every year and submit report to the Deputy Inspector General. The Deputy Inspector General in turn reviews the report and pass final orders on the paras of the Annual Inspection Report. Further he will supervise the work of Internal Audit Subregistrar and take final decision on the paras of the Internal Audit Report.
Deputy Inspector General is the Regional Officer who will control and supervise all the districts in his region. He is the appointing and disciplinary authority on the Sub-Registrars and Senior Assistants.
Vigilance Officers are specially appointed for arresting the corruption activities and see that Citizen Charter is implemented. He is directly under control of Commissioner & I.G (R&S). His Super Check reports will be submitted to the Deputy Inspector General and Commissioner & I.G (R&S).
Audit Registrar will conduct the Internal Audit of some important offices and submit the report to the Deputy Inspector General. Deputy Inspector General will review the report and final orders will be passed.
Commissioner & Inspector General of Registration & Stamps shall exercise general superintendence over all the Registration Offices in the state and shall have powers from time to time make rules consistent with the Registration Act. He is vested u/s 69 of the Indian Registration Act.
All the officers in the Commissioner & Inspector General of Registration & Stamps office, Assistant Inspector General, Deputy Inspector General, Joint Inspector General will assist the Commissioner & I.G (R&S) in decision making process.
(iv) The norms set by it for the discharge of its functions:-
Citizen’s satisfaction is most important in Good Governance. In order to propel the Good Governance. Citizen Charter is introduced in all the Departments having large public interface to achieve the objective of Good Governance.
The following steps have been taken to implement the Citizen Charter on top priority basis.
1. Citizen Charter is placed on Notice Boards at all offices of Deputy Inspector General (R&S), District Registrar and Sub-Registrar Offices particularly at “ May I help you “ counter besides at places of large public interface to create public awareness and to invite their suggestions.
2. “ Suggestion Box “ is installed at each Sub-Registrar Office as a sort of feedback mechanism on deficiencies, if any.
3. Public awareness is created by distributing the brochures / pamphlets / feed back forms on Citizen Charter.
4. Website address is popularized among the Citizens to know more details about the department and to go through Frequently Asked Questions on services.
5. Information is displayed with the following details like;
(a) Our department has a Citizen Charter / Feed back form.
(b) In case of difficulty or delay in services pleases contact District Registrar / Deputy Inspector General (R&S) / Vigilance Officer and give a complaint.
(c) Visit Website for more details
http://igrs.ap.gov.in
www.ap.gov.in/card
6. The service standards regarding registration of Marriages, Societies and Firms shall also be put on Notice Board at all District Registrar Offices.
7. District Registrars in the Districts and Vigilance Officer in the Zone are appointed as Nodal Officers to monitor, coordinate and integrate with field level functionaries.
8. Small stamp with brief details of Citizen charter is affixed on all the deliverables to clientele, like receipts, check slips etc.,
9. Feed back forms duly filled in shall be obtained from the registering public.
10. Wide publicity is given on the availability of document writing software at Sub-Registrar Offices.
11. Citizen Charter is being modified from time to time, based on the study of implementation of Citizen Charter in the field offices viz., Sub-Registrar Offices.
12. Top priority is being taken on the exit poll results communicated by the Centre for Good Governance and immediate remedial action is taken over deficiency is pointed out and strive to improve the image of the Department.
(v) The rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions:
The department deals with the following Acts: -
(i) Registration Act, 1908.
(ii) Indian Stamp Act, 1899
(iii) Notaries Act, 1952.
(iv) Hindu Marriage, Special Marriage and Indian Christian Marriage Acts.
(v) Indian Partnership Act, 1962.
(vi) A.P.Societies Registration Act 35 of 2001.
(vii) A.P.Non Trading Companies Act, 1962.
(viii) A.P.Chit Funds Act, 1971
Appointment of Director of Chits, Inspecting Officer, Registrar and Chit Auditors: -
(1) The Government may, by notification appoint a Director of Chits and as many Inspecting Officers and Registrars as may be necessary for the purpose of discharging the duties imposed upon the Director of Chit, the Inspecting Officers and the Registrars by or under this Act.
(2) The Director of Chits may appoint as many Chit Auditors as may be necessary for the purpose of discharging the duties imposed upon the Chit Auditors by or under this Act.
(3) All Inspecting Officers, Registrars and Chit Auditors shall discharge the duties imposed upon them by or under this Act, under the general superintendence and control of the Director of Chits.
(4) If the Registrar is of the opinion that accounts of any chit are not properly maintained and that such accounts should be audited; it shall be lawful for him to have such accounts audited by a Chit Auditor. It shall be the duty of the foreman of the chit concerned to produce before the Chit Auditor, all accounts, books and other records relating to the chit, to furnish him such information as may be required and to afford him all such assistance and facilities as may be necessary or reasonable and may be required in regard to the audit of the accounts of the chit.
(5) The foreman shall pay to the Chit Auditors such fees as may be prescribed for the audit of the accounts of a chit under sub-section (4).
The concerned officers are followed their duties as per A.P Chit Fund Act, 1971.
(vii) A statement of the categories of documents that are held by it or under its control
Sub-Registrar Office level:-The following documents are available at Sub-Registrar
Office level and shall get copies of such documents by paying the requisite fee fixed by the Government and subject to the restrictions laid down in the Registration Rules.
Book I documents: Documents of which registration is compulsory u/s 17 of I.R.Act.
Book II documents: It is register of refusals.
Book III documents: Will and Authority to adopt.
Book IV documents: GPA: Adoption Deeds and other documents which registration
is optional and miscellaneous in nature.
Market Value guidelines are available with Sub-Registrar and open to public, to elicit the information regarding the Market Value of the lands. It is an important document to the public. Will enquiry reports and file of appeal orders and judgements are maintained in the Sub-Registrar Office.
District Registrar Office: All Annual Inspection Reports are maintained by the District Registrar. Appeals against the orders of the Sub-Registrar in case of refusal to register will be entertained by the District Registrar and he conducts further enquiry and such enquiry reports are available with the District Registrar.
Sealed covers (Will) be preserved by the District Registrar under his direct supervision and copies of such Wills after opening of the Sealed cover available to the public subject to the Registration Rules.
V.O.& District Registrar (Audit): Vigilance officers surprise inspection reports of Sub-Registrar offices will be available with Vigilance Officer and Internal Audit Reports will be available with District Registrar (Audit).
Commissioner & I.G (R&S)’s office:-,The following documents are available at Commissioner & I.G (R&S),’s office:-
1.Appeals u/s 56(2) of I.S. Act.
2.Notary Inspection Reports of the District Registrar.
3.Register of sale of stamps in Commissioner & I.G (R&S),’s Public Counters and Vendor’s counters.
(vii) The particulars of any arrangement that exists for consultation with, or representation by the members of the public in relation to the formulation of its policy or implementation thereof.
The market value assistance is made available to the public in all registration offices. The market values were fed into the systems, and a citizen can access the same in any office and the duty payable on the instruments therein. These values are placed on web site also.
The particulars requiring for registration, i.e. Market Value and the Software required for chargeability etc. are incorporated in the systems. Feedback mechanism was also provided in the Website for giving any suggestions or modifications by citizens.
(viii) A statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public.
The Committees constituted vide G.O.Ms. No.301, Revenue (Registration.I) Dept., Dated 4.5.1998 for the purpose of the rectification of anomalies in the market values fixed by the Committees. If any anomaly noticed by the departmental officials or representation from any public, the Convenor shall make a note to the Chairman of the Committee and other members too for their appraisal. The decision of the Committee shall be sent to the Commissioner and Inspector General of Registration and Stamps for its approval.
The following authorities competent to prepare the Market Value Guidelines in different areas.
(a) Urban Areas : - i.e. areas falling within the jurisdiction of
Municipality/Municipal Corporations, Urban Development Authorities, Municipalities and Notified areas including the Gram Panchayat falling within their master plan areas and Urban Agglomeration areas.
Chairman:- Joint Collector of the District.
Members:- (i) Commissioner of Municipal Corporation or his authorised representative:-
(ii) Vice-Chairman of Urban Development Authority or his authorised representative;
(iii) Chief Executive Officer of the Zilla Parishad (Chief Planning Officer in respect of Hyderabad District).
(iv) Commissioner of Municipality.
Convenor: - Assistant District Registrar, Office of the District Registrar
concerned.
(b) In respect of Secunderabad Cantonment:
Chairman: - District Collector, Hyderabad.
Members:-(i) Joint Collector, Hyderabad
(ii) Chief Executive Officer of Secunderabad Cantonment Board.
(iii) Chief Executive Officer, Zilla Praja Parishad, Ranga Reddy District.
Convenor: - Assistant District Registrar, Hyderabad.
(c) Rural Areas: i.e., areas falling within Gram Panchayat (other than the Gram Panchayat falling within the areas covered by the master plan of any Municipal Corporation or Municipality, Notified Nagar Panchayat falling in the Urban agglomeration of any Urban Development Authority).
Chairman: - Revenue Divisional Officer concerned.
Members: - (i) Mandal Revenue Officer concerned.
(ii) Mandal Development Officer concerned.
Convenor: - Sub-Registrar concerned.
d) For revision of construction rates of buildings, apartments and structures for the entire State.
Chairman: - Joint Inspector General, Office of the Commissioner & Inspector General of Registration & Stamps, A.P., Hyderabad.
Members: -Superintending Engineer, Office of the Chief Engineer (R&B) A.P., Hyderabad.
Convenor: -Deputy Inspector General (Market Value), Office of the
Commissioner & Inspector General of Registration and Stamps, A.P., Hyderabad.
(ix) a directory of its officers and employees;
iv) IN CASE OF DEVIATIONS FROM CITIZEN’S CHARTER
If there is any delay in the delivery of our services as committed through this charter, we want to know about it contact, or the following officers. Please help by contacting.
Name Designation Phone/Fax Address
a) Sri S.K.Sinha, I.A.S. Commissioner and Inspector General of Registration and Stamps , 040- 23449157 H.No:1-7- 10, N.B.K. Estate, Golconda “X” Road, Musheerabad, Hyderabad-500 020.
b) Sri C.Tirumala Rajan Joint Inspector General(R&S) FAC 040-23449156 H.No:1-7- 10, N.B.K. Estate, Golconda “X” Road, Musheerabad, Hyderabad-500 020.
c) Sri V. Ravi Kumar, I/c. Deputy Inspector General(R&S) Visakhapatnam. 0891- 2569329 H.No: 50-50-35/10, Seethammadhara, Visakhapatnam.–530 016.
Sri A. Subramanyam Naidu Vigilance Officer, Zone-I. Visakhapatnam. 0891- 2569329 H.No: 50-50-35/10, Seethammadhara, Visakhapatnam.–530 016.
d) Sri K.Jayarami Reddy, I/c.Deputy Inspector General(R&S), Eluru. 08812 252968 H.No: 24-A-15-7,
Ashoknagar,
Eluru-2.
Sri K. Samba Murthy, Vigilance Officer, Zone-II, Eluru. 08812 252968 H.No: 24-A-15-7,
Ashoknagar,
Eluru-2.
e) Sri J.Lokanadha Reddy, I/c. Deputy Inspector General(R&S), Guntur. 0863 2232591 D.No.3-27-13, Ravindranagar, Guntur-6
Sri C. Sundaraiah, Vigilance Officer Zone-III, Guntur. 0863 2232591 D.No.3-27-13, Ravindranagar, Guntur-6
f) Sri B. Narasimha Murthy, I/C Deputy Inspector General(R&S) Kurnool 08518- 230723 10/101, Sri Krishna Nagar, Kurnool – 518 001.
Sri D.Prashantha Kumar, Vigilance Officer-Zone-IV, Kurnool 08518- 230723 10/101, Sri Krishna Nagar, Kurnool – 518 001.
g) Kum. Sk. Ashrafunnisa Begum, I/C Deputy Inspector General(R&S),Zone –V, Warangal 0870-23449155 H.No.2/725/1-3, Sridhar Complex, Circuit House Road, K.L.N.Reddy Colony, Hanamkonda, Warangal - 506 001
Sri A. Giri Kumar ,
Vigilance Officer Zone-V, Warangal
0870-23449155 H.No.2/725/1-3, Sridhar Complex, Circuit House Road, K.L.N.Reddy Colony, Hanamkonda, Warangal - 506 001
h) Sri G.Subba Raidu I/c. Deputy Inspector General(R&S), zone VI, Hyderabad. 040-23449166 6th Floor, Chandra Vihar, M.J.Road, Hyderabad-1.
Sri M.Udayabhaskara Rao, Vigilance Officer – Zone-VI, Hyderabad. 040- 23449155 H.No:1-7- 10, N.B.K. Estate, Golconda “X” Road, Musheerabad, Hyderabad-500 020.
i) Web-site Addresses:
http://igrs.ap.gov.in
www.ap.gov.in/card
(x) The monthly remuneration received by each of its officers
and employees, including the system of compensation as
provided in its regulations
28 Sri A.Satyanarayana, S.A 9,273
29 Sri V.Venkateswara Rao, S.A 9,523
30 Sri G.Tyaga Raju, S.A 12,563
31 Sri N.Chandraiah, R.A 9,193
32 Sri A.Sudarshan, R.A 8,361
33 Sri V.S.M.A.R.Krishnamacharyulu, S.A 7,401
34 Shaik Nazeer Ahmed, Roneo Operator 8,912
35 Sri M.A.Jabbar, J.A 8,609
36 Sri M.V.Ratna Sarma, J.A 9,815
37 Sri R.Satish Kumar, J.A 7,905
38 Sri N.Sree Ramulu, S.A 9,553
39 Sri T.Hanumantha Rao, Attender 5,964
40 Sri K.Yadaiah, Attender 5,239
41 Sri G.Sravan Kumar, Attender 4,139
42 Sri Shaik Ahmed, Chowkidar 8,361
43 Smt P.Manemma, Attender 7,865
CPU-II
44 Sri B.Govinda Rao, Attender 7,865
45 Sri A.Brahmaiah, J.A 8,112
46 Smt.B.Shanta, Shroff 12,070
47 Sri M.Bikshapathi, Driver 11,228
48 Sri M.Purya, S.A 7,021
49 Sri K.Chandu, Attender 5,964
50 Sri P.Yadagiri, Attender 5,964
51 Sri G.Satyanarayana Prasad, Shroff 6,694
52 Sri Y.K.Nanda Kishore, S.A 9,523
53 Sri P.Chandra Sekhar, Shroff 6,573
54 Sri B.Sanjeevaiah, S.A 7,657
55 Sri Md.Yaseen, J.A 7,419
56 Sri D.Kodandam, Shroff 6,374
57 Sri G.Paradesi, J.A 10,035
58 Sri J.Shyam Rao, Attender 7,905
59 Sri T.P.Alwar Swamy, S.A 10,279
60 Sri T.S.N.Prasad, S.R/Supdt., 10,812
61 Sri B.Narasimha, J.A 11,309
62 Sri C.Agamaiah, Shroff 11,709
63 Sri S.Nasir, J.A 6,863
64 Sri G.V.S.S.Shastry, S.R/Supdt., 13,346
64 Sri J.Suraj Singh, Shroff 6,294
65 Smt Y.V.D.Koteswaramma 9,503
66 Sri Md.Sayeed, Shroff 6,129
67 Smt.M.B.Hemalatha, S.A 9,223
68 Smt.R.Tulasi, S.R/Supdt., 11,429
69 Sri P.Adinarayana, S.A 11,108
70 Sri R.Satish, J.A 6,294
71 Smt.P.Girija, S.A 7,905
72 Sri M.Yadagiri, Attender 7,220
73 Sri S.Vidya Sagar Reddy, S.A 8,126
74 Sri P.Issac, S.A 9,503
75 Sri M.Penchala Raju, S.A 7,250
76 Sri K.Narayana, S.R/Supdt., 11,934
77 Sri K.Ram Chander, R.A 9,193
78 Smt.M.Subba Laxmi, S.A 8,112
79 Sri Bashumiya, S.A 10,747
CPU – III
80 Sri Kazim Ali Khan, S.R/Supdt., 13,773
81 Sri M.Murali, J.A 8,221
82 Sri A.Raghava Rao, J.A 7,800
83 Sri T.Rama Krishna Prasad, J.A 7,214
84 Sri M.Srinivasulu, Attender 4,848
85 Sri G.Dhananjay, J.A 6,863
86 Sri K.Satya Gnana, S.R/Supdt., 17,269
87 Sri N.Vasudeva Rao, S.R/Supdt., 12,533
88 Sri K.Satyanarayana Murthy, S.R/Supdt 11,270
89 Sri K. Taviti Naidu, S.R/Supdt., 10,695
90 Smt.B.Rama Devi, S.A 9,223
91 Sri E.Ananta Rao, J.A 9,473
92 Sri K.Venkata Narayana, S.A 6,358
93 Sri P.V.Ramapathi Rao, S.A 9,673
94 Sri Shaik Ismail Shareef, S.A 8,179
95 Sri D.Srihari Naidu, S.A 8,927
96 Sri A.Sravan Kumar, S.A 7,021
97 Sri B.Narender, J.A 5,569
98 Sri D.Venkata Swamy, J.A 5,838
99 Sri K.Sudarshan, R.A 6,129
100 Smt P.S.V.Subba Lakshmi, J.A 5,534
101 Smt.N.Jarina, S.A 6,786
102 Sri R.Ram Babu, S.A 8,401
103 Smt.K.Seetha Kumari, S.R/Supdt 17,718
104 D.Narsimha Raju, S.A 8,152
105 Smt.T.Kamala Devi, Attender 7,865
106 Sri V.Narasimha, Attender 7,865
107 Smt.Ch.Nagamani, Attender 7,865
108 Sri N.Srinivasa Chary, worker 8,912
109 Sri M.Ramesh, worker 8,912
110 Sri M.Ram Kumar, worker 5,187
111 Sri M.Benhur Samuel, worker 5,068
112 Sri K.Yadagiri, worker 5,107
113 Sri Sk.Sadiq Ali, worker 5,107
114 Sri V.Ravinder, Staff 10,035
115 Sri P.Vamana Rao, staff 11,309
116 Sri G.N.Ravi Kanth, Operator 10,035
117 Sri A.Srinivas, worker 9,193
118 Sri P.Srinivas Reddy, worker 9,193
119 Sri M.L.Krishna, worker 9,193
120 Sri N.Raju, Worker 5,187
121 Sri K.Suresh Kumar, worker 8,361
122. Sri D. Laxmi Narayarna SR/ Supdt 9,579
(xi) The budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made:-
nil
(xii) the manner of execution of subsidy programmes, including the
amounts allocated and details of beneficiaries of such programmes:-
There are no subsidy programmes in the Registration and Stamps Department and no amount was allocated for such programmes.
(xiii) particulars of recipients of concessions, permits or authorisations
granted by it:-
Stamp section: Separately enclosed (Vide Annexure-I)
(xiv) details in respect of the information, available to or held by it in an
electronic form:- This department has created a web site http://igrs.ap.gov.in with detailed information for citizens in electronic form like;
To know Market Value for his/her property; with details of unit rate and
Stamp duty, and Registration fee etc.,
To know the jurisdiction for the property to be registered along with
Sub-Registrar Office, location etc.,
Citizen can know the details of previously registered document
particulars of property which he/she intended to purchase and;
Citizen can also know the encumbrances if any, on the particular
property by giving the details of the property on web site.
The time frames prescribed for various services rendered by this
department to the citizens in the Citizen Charter were kept on the website.
(xv) The particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use: -
All relevant information of the Department was kept on the website.
The information kept on the website is as follows: - The timeframes prescribed for various services to the citizens in the in the Citizen Charter were kept on the website and also displayed in 387 Sub-Registrar Offices across the State.
This Department is having the functions and duties on the following Acts and some of the acts are kept in web site along with Schedules and Table of Fees.
i) Registration Act.
ii) Stamp Act,
iii) Hindu Marriage Act,
iv) A.P.Society Act.
v) Special Marriage Act.
vi) Notaries Act
And also placing the information like Amendments and G.Os, Circulars.
(xvi) The names, designations and other particulars of the Public Information Officers.
Name of the Office Public Information Officer
Name/Designation/Address Chief Public Information Officer
Name/Designation
/Address
O/o Commissioner & I.G (R&S),
A.I.G.-I Commissioner & Inspector General (R&S), or
Joint Inspector General (R&S)
O/o the Commissioner & Inspector General of Registration and Stamps,
N.b.K.Estates, Golconda ‘X’ Roads, Hyderabad.
O/o Dy.Inspector General(R&S), Dy.Inspector General (R&S) of concerned Zone:
Viz., Vizag, Eluru, Guntur, Kurnool, Warangal & Hyderabad.
O/o Deputy Collector(F.S.) Deputy Collector(F.S.) of concerned Zone: Viz., Vizag, Eluru, Guntur, Kurnool, Warangal & Hyderabad.
O/o District Registrar
District Registrar of concerned Districts.
O/o Vigilance Officer Vigilance Officer of concerned Zone.
Sub Registrar Office Sub Registrar of concerned Sub-District.
(xvii) Such other information as may be prescribed and thereafter update
these publications every year.
All the update information is available in Department website
http://igrs.ap.gov.in
Sd/-
Commissioner & I.G (R&S).
For Commissioner & I.G (R&S),
A.P.Hyderabad.
Wednesday, July 14, 2010
Tuesday, May 18, 2010
JUDGMENT OF HIGH COURT OF AP ON CONTEMPT OF COURT
THE HON'BLE MR JUSTICE RAMESH RANGANATHAN
Contempt Case No. 1370 OF 2005
21-09-2007
N. Venkata Swamy Naidu
M/s. Sri Surya Teja Constructions Pvt. Ltd, Gandhinagar, Sy. No. 151, Rayala Avenue Apartments,
Hyderabad and others.
Counsel for the petitioner: Sri K. Vasudeva Reddy.
Counsel for the Respondents 5 & 7: Sri K. Satyanarayana Murthy Counsel for the Respondent No. 6: Sri
Dantu Srinivas.
Counsel for the Respondent No. 8: Sri B. Chandrasen Reddy.
:ORDER:
Seeking to have respondents 1, 2, 4 to 9, punished under the Contempt of Courts Act, for wilful disobedience
and gross violation of the orders of the Company Law Board, Additional Principal Bench, Chennai dated
18.07.2005, this contempt case is filed.
Facts, to the extent relevant, are that C.P. No. 24 of 2004 was filed by the petitioner herein, before the
Company Law Board, under Sections 397, 398 and 402 read with Section 111 of the Companies Act, 1956.
Among the interim reliefs sought for included an order to prevent the sale or dispossession of the land of the
company and to prevent injury being caused to persons who were allotted flats in the project. Petitioner would
submit that, when the Company Petition was pending consideration before the Company Law Board,
respondents 1, 2, 4 to 9 had demolished the superstructure of the building necessitating his filing an
application, in C.A. No. 84 of 2005, requesting the Company Law Board to interfere and grant status quo with
regards the existing structure. The Company Law Board, by order dated 18.07.2005, granted status quo.
According to the petitioner, the respondents continued to demolish the building, in violation of the order of
"status quo", and when he brought these violations to its notice, the Company Law Board, by order in
C.A.No.87 of 2005 dated 22.07.2005, appointed an Advocate Commissioner to verify and submit a report on
the status of the superstructure and the physical features of the disputed property. The Advocate
Commissioner, in his report dated 31.07.2005, informed that he had visited/inspected the disputed site on
24.07.2005 and was assisted by the Counsel for the petitioner Mr. Dhanaraj and Mr. Rajnish Garje, the
Company Secretary representing the respondents, that at the disputed site a group of twenty persons had met
him and had represented that, though they had spent large sums of money for buying flats/houses, they were
cheated, that the flats/houses were never constructed/delivered, that Sri K. Umamaheswara Rao, who was
present at the site, was introduced to him by Mr. Rajnish Garje as one of the respondents, that Mr. Reddy,
who was also present along with the respondent, had introduced himself as the builder, that he had issued
memos to both the representatives of the petitioner and the respondents and had obtained attendance memos
from them, that he had shot several photographs of the disputed site/structure, that the site consisted of two
structures, one finished and the other partially demolished, that at the entrance of the site there were remains
of a completely damaged structure, that demolition was in progress and it appeared that almost 70% of
demolition had just been completed, that even the debris was not removed from the site, that steel rods were
still found lying, that the structure, located at the entrance of the disputed site adjoining the main road, had
already been demolished, that only some pillars were visible and it appeared as if the entire debris had just
been shifted, that he found tyre/wheel marks of some heavy vehicles on the ground, that he had taken
photographs of persons present at the site including Mr. Reddy and Mr. Umamaheswara Rao, that his overall
N. Venkata Swamy Naidu vs M/S. Sri Surya Teja Constructions ... on 21 September, 2007
Indian Kanoon - http://indiankanoon.org/doc/400488/ 1
Contempt Case No. 1370 OF 2005
21-09-2007
N. Venkata Swamy Naidu
M/s. Sri Surya Teja Constructions Pvt. Ltd, Gandhinagar, Sy. No. 151, Rayala Avenue Apartments,
Hyderabad and others.
Counsel for the petitioner: Sri K. Vasudeva Reddy.
Counsel for the Respondents 5 & 7: Sri K. Satyanarayana Murthy Counsel for the Respondent No. 6: Sri
Dantu Srinivas.
Counsel for the Respondent No. 8: Sri B. Chandrasen Reddy.
:ORDER:
Seeking to have respondents 1, 2, 4 to 9, punished under the Contempt of Courts Act, for wilful disobedience
and gross violation of the orders of the Company Law Board, Additional Principal Bench, Chennai dated
18.07.2005, this contempt case is filed.
Facts, to the extent relevant, are that C.P. No. 24 of 2004 was filed by the petitioner herein, before the
Company Law Board, under Sections 397, 398 and 402 read with Section 111 of the Companies Act, 1956.
Among the interim reliefs sought for included an order to prevent the sale or dispossession of the land of the
company and to prevent injury being caused to persons who were allotted flats in the project. Petitioner would
submit that, when the Company Petition was pending consideration before the Company Law Board,
respondents 1, 2, 4 to 9 had demolished the superstructure of the building necessitating his filing an
application, in C.A. No. 84 of 2005, requesting the Company Law Board to interfere and grant status quo with
regards the existing structure. The Company Law Board, by order dated 18.07.2005, granted status quo.
According to the petitioner, the respondents continued to demolish the building, in violation of the order of
"status quo", and when he brought these violations to its notice, the Company Law Board, by order in
C.A.No.87 of 2005 dated 22.07.2005, appointed an Advocate Commissioner to verify and submit a report on
the status of the superstructure and the physical features of the disputed property. The Advocate
Commissioner, in his report dated 31.07.2005, informed that he had visited/inspected the disputed site on
24.07.2005 and was assisted by the Counsel for the petitioner Mr. Dhanaraj and Mr. Rajnish Garje, the
Company Secretary representing the respondents, that at the disputed site a group of twenty persons had met
him and had represented that, though they had spent large sums of money for buying flats/houses, they were
cheated, that the flats/houses were never constructed/delivered, that Sri K. Umamaheswara Rao, who was
present at the site, was introduced to him by Mr. Rajnish Garje as one of the respondents, that Mr. Reddy,
who was also present along with the respondent, had introduced himself as the builder, that he had issued
memos to both the representatives of the petitioner and the respondents and had obtained attendance memos
from them, that he had shot several photographs of the disputed site/structure, that the site consisted of two
structures, one finished and the other partially demolished, that at the entrance of the site there were remains
of a completely damaged structure, that demolition was in progress and it appeared that almost 70% of
demolition had just been completed, that even the debris was not removed from the site, that steel rods were
still found lying, that the structure, located at the entrance of the disputed site adjoining the main road, had
already been demolished, that only some pillars were visible and it appeared as if the entire debris had just
been shifted, that he found tyre/wheel marks of some heavy vehicles on the ground, that he had taken
photographs of persons present at the site including Mr. Reddy and Mr. Umamaheswara Rao, that his overall
N. Venkata Swamy Naidu vs M/S. Sri Surya Teja Constructions ... on 21 September, 2007
Indian Kanoon - http://indiankanoon.org/doc/400488/ 1
Monday, May 3, 2010
abuse of discretion
Abuse of Judicial Discretion
Jon Roland
The essence of nomocracy, the rule of law, is limitation of the discretion of officials, and providing a process by which errors or abuse of discretion can be corrected. Some discretion is unavoidable, because law cannot anticipate every eventuality or how to decide which law may apply to a given situation. What guidance the law cannot provide is supposed to be provided by standard principles of justice and due process, reason, and the facts of each case. Ideally, officials should be mutually consistent and interchangeable, making similar decisions in similar cases, so that no one can gain an undue advantage by choosing the official or exercising undue influence on the official or on the process he operates. We trust officials to exercise such discretion as they have with wisdom, justice, and competence, to avoid government that is arbitrary, insolent, discriminatory, prejudiced, intrusive and corrupt.
Within the public sector, discretion can be exercised by legislative, executive, or judicial officials. Within the private sector, discretion may be exercised by private officials, such as agents, trustees or corporate officers, who are in principle subject to the supervision of the courts. The focus here is on judicial discretion, and the abuse of it. It will not discuss every area of judicial discretion.
The first major check on the discretion of judges was the jury. A judge, holding office over the course of multiple cases, and selected by appointment or election, is susceptible to undue influence. A jury, chosen by sortition, or lot, for a single case, just before the case, is less likely to be corrupted, and having multiple jurors render verdicts collectively provides a check by each on the others. What they might lack in knowledge of the law is offset by their connection to the nonlegal environment in which most people subject to the law must operate.
In courts that try to save time and money by not using juries, such as family courts in some states, complaints about abuse of judicial discretion have led to calls for juries to decide questions of custody, visitation, child support, and the distribution of marital property.
Judges who impose lenient sentences, to avoid prison overcrowding and the early release of violent offenders, often provoke demands for mandatory minimum sentences or sentencing guidelines that reduce their discretion to do things like impose reduced sentences on defendants thought to be remorseful or unlikely to commit another offense.
Most complaints of abuse of judicial discretion, and calls to limit it with more laws, concern questions of policy or equity. But there is another broad category, which concerns constitutional questions of due process and civil rights. This is too large a field to discuss adequately in a short article, so only a few of the more important kinds of judicial discretion that are often being abused will be presented.
Stare decisis
Stare decisis is the doctrine according to which a judge in a current case treats decisions in past similar cases as authoritative precedents, and refuses to make the decision in a way that departs from such precedents, regarding all of them as correctly decided. There is a place for giving weight to precedents, especially in civil cases and matters of equity, and to clarify ambiguities in the black letter law, but it is an abuse of judicial discretion to treat precedents as though they are law, equal or superior to black letter law, especially when that black letter law is a written constitution. Only the edict, the finding and the order, are law in a judicial decision, and only for the parties involved. The opinion concerning how the decision was reached may be persuasive on its merits, and indicative of how the same court might decide a similar case, but it is dictum, or commentary, not law, and it is an abuse of judicial discretion to fail to exhaust textual analysis and legislative history before considering precedent, and making sure that the chain of precedents has not wandered away from the bounds of the black letter law.
Deference to legislature and administration
While it is appropriate to defer to the legislative and executive branches on questions peculiar to those branches and their constitutional duties, all too often judges abuse their discretion by so deferring in cases where officials of those branches have clearly exceeded their authority. This is sometimes signaled in a decision that declares the matter a "political question". Sometimes it is, at least in part, but judges have a duty to act where constitutional bounds are clearly exceeded, and their failure to do so indicates a lack of true judicial independence of the other other branches and the pressures those branches can bring to bear. The result is the Administrative State, the result of failure to enforce the nondelegation doctrine. Part of the solution may be to select judges by sortition.
Habeas corpus and quo warranto
Any person has the right to petition for release of a prisoner if the official holding him does not prove sufficient authority to do so. A writ of habeas corpus is a subspecies of a writ of quo warranto, the right to have an official cease or refrain from some action unless he proves sufficient authority for it. Only the first is explicitly protected in the U.S. Constitution, but the latter is implied by the due process and nondelegation clauses and amendments. The principle involved is the presumption that an official lacks authority for an action unless he can prove he has it, so that a petition for either writ does not imply a right to both oyer (fair hearing) and terminer (decision on the merits) for the petitioner, but only terminer. The right of oyer belongs to the respondent for such a petition. If the response is inadequate, or the court does not have time for oyer, then its duty is to grant the writ. The problem is that judges, especially federal judges when the respondent is a federal official, are too often failing to act on habeas petitions, on various pretexts, thereby reversing the presumption in favor of the official and his actions. Petitions for writs of quo warranto are systematically ignored or dismissed, sometimes on the grounds of lack of legislative authority, but no legislative authority is needed. There is no appeal from such inaction. Law provides petitioners only the option of trying again with another judge, thereby encouraging forum shopping. Complaints of judicial misconduct for such denial or inaction are also being systematically ignored. This should not really be called an abuse of judicial discretion because by law a judge has no discretion on terminer, but it has emerged as a practice that undermines all the other protections of the Constitution.
Jury Selection
Both petit and grand juries are supposed to be selected at random from the community, a process called sortition, with some screening out of jurors who cannot be impartial or who have some hardships or critical duties. However, judges too often abuse their discretion to pack juries with persons who are partial in various ways. One way is to demand that jurors take an oath to "follow the law" as given by the judge. That enables the judge to misinstruct the jury as to what the law is.
Trial jury access
In the early Republic, the standard practice of due process was to argue all issues of law in the presence of the jury, which enabled them to learn what the legal issues were along with the judge, that is, the presiding magistrate, and we can presume that this practice was part of what the Founders meant by "due process" in the Constitution. However, judges have abused their discretion by adopting the practice of requiring pleadings to be submitted to them by the litigants in writing, and not allowing copies to be provided the jury, nor allowing the attorneys to make legal arguments in the presence of the jury. This has given judges control over the trial in ways that largely subverts the protections that the jury is supposed to provide, because it does not allow jurors to hear argument, in a criminal trial, that the court does not have jurisdiction, or that the charge is not authorized by a statute, or the statute by the state or federal constitution, or that the statute is misapplied to the facts of the case, or that the rights of the accused were infringed by investigatory, prosecutorial, or judicial misconduct.
Grand jury access
The problem is often revealed by the old prosecutor's joke that he could get the grand jury to "indict a ham sandwich". Originally, in the early Republic, there were no public prosecutors. Criminal prosecutions were conducted by private attorneys, either paid by the victims, by subscription, or appointed by the judge to serve pro bono. When public prosecutors began to be appointed, they soon assumed an undue influence over grand juries, with the support of abuse of judicial discretion by the judges. This is aided by a lack of civic education of the public concerning the duties of grand jurors, or by packing grand juries with cronies of the judicial establishment.
Prosecutor selection
In almost every state and in the federal courts it is within judicial discretion for the judge to grant access to the courts to any person to conduct a criminal prosecution, but except in Texas, such petitions are systematically ignored or dismissed. This is a special problem when the suspects are public officials, cronies of the prosecutor or judge. Barring private criminal prosecutions without just cause is an abuse of judicial discretion.
Private prosecution of public rights, Qui tam and ex relatione
There is a right for any person to seek declaratory or injunctive relief against any illegal action by government officials without having to have been personally injured, but since 1922 courts have been abusing their judicial discretion by denying standing to plaintiffs who cannot prove personal injury. There is a related right, qui tam, of any person to act in the place of the government, ex. rel., when the government will not do so, to protect the rights of persons and to enforce the law.
Contempt & coercive detention
There is no power delegated in the U.S. Constitution for a federal judge to prosecute anyone for contempt of court, except on federal territory, under Art. I Sec. 8 Cl. 17 or Art. IV Sec. 3 Cl. 2, or to imprison someone indefinitely to coerce him into doing something. It was anticipated by the Founders that all federal courthouses would be sited in federal enclaves, but not all of them are, and the orders and contempt actions are often extended beyond the territorial limits of such enclaves, where federal courts have no such jurisdiction.
Disbarment
Although the original stated purpose of licensing and delicensing lawyers was to protect the public from dishonest or incompetent ones, licensing and the influence judges have over disbarment is too often abused to suppress lawyers who might challenge their abuses.
Lawyer protection
The other side of controlling lawyers with threats of contempt or disbarment is systematic protection of them from being sued, by abusing judicial discretion to punish persons who might have the temerity to do so, and their lawyers if they can get any to represent them. Violators of this "unwritten law" find all their motions thereafter being ignored or denied, regardless of merit.
Absolute immunity
It is appropriate for judges to have a limited immunity from being sued for their judicial decisions if they are merely the result of error or incompetence. The remedy for that is appeal to a higher court. The problem is that judges abuse their judicial discretion to protect themselves and other judges from civil and criminal liability for being unduly influenced, such as by bribery, intimidation or cronyism.
Pro se litigants
Instead of accommodating to the lack of legal knowledge of lay persons who either cannot afford a lawyer, or who don't trust lawyers who are subject to the control of the courts, judges and court personnel systematically discriminate against litigants who appear pro se or in propria persona, often dismissing their petitions or motions out of hand, regardless of their merits. That is abuse of judicial discretion.
Affirmative defense
Judges have adopted the practice in criminal trials of requiring the defense to make a motion for affirmative defense, which could be a defense like self-defense that admits to the facts and argues the actions were justified, or which seeks to prove someone else committed the crime. The original rationale for this was to provide the prosecution due notice so they can prepare their response. It is normally granted, but in the 1994 Davidian trial it was denied, much to the surprise of defense attorneys, who planned to argue self-defense. To prevent the defense from submitting an offer of proof, which would be grounds for reversal on appeal, the judge agreed, if they would refrain from doing so, to include an instruction to the jury that they could consider self-defense, but he would not allow argument and evidence of self-defense during trial. Thinking their best chance lay in agreeing to that, the defense attorneys went along with this abuse of judicial discretion. However, other instructions misled the jury into convicting some of the defendants on sentencing enhancements, even though they acquitted all of them on the base offenses, and the judge sentenced them for the enhancements as though they had been found guilty of the base offenses.
Mens rea defense
In criminal cases, by original constitutional standards, the elements of proof of a criminal charge are mens rea, actus reus, concurrence, causation, and harm. The first, mens rea, is "criminal intent", and judges are allowing criminal prosecutions to proceed without proof of it, especially when the statutes prohibit acts that are malum prohibitum instead of malum in se. In this judges are aided by abuse of discretion by legislators, but it is still abuse of discretion.
Home » Abuses & Usurpations
Original URL: http://www.constitution.org/abus/discretion/judicial/judicial_discretion.htm
Maintained: Jon Roland of the Constitution Society
Original date: 2003 May 31 — Updated: 2003 June 1
What you can do to help
Jon Roland
The essence of nomocracy, the rule of law, is limitation of the discretion of officials, and providing a process by which errors or abuse of discretion can be corrected. Some discretion is unavoidable, because law cannot anticipate every eventuality or how to decide which law may apply to a given situation. What guidance the law cannot provide is supposed to be provided by standard principles of justice and due process, reason, and the facts of each case. Ideally, officials should be mutually consistent and interchangeable, making similar decisions in similar cases, so that no one can gain an undue advantage by choosing the official or exercising undue influence on the official or on the process he operates. We trust officials to exercise such discretion as they have with wisdom, justice, and competence, to avoid government that is arbitrary, insolent, discriminatory, prejudiced, intrusive and corrupt.
Within the public sector, discretion can be exercised by legislative, executive, or judicial officials. Within the private sector, discretion may be exercised by private officials, such as agents, trustees or corporate officers, who are in principle subject to the supervision of the courts. The focus here is on judicial discretion, and the abuse of it. It will not discuss every area of judicial discretion.
The first major check on the discretion of judges was the jury. A judge, holding office over the course of multiple cases, and selected by appointment or election, is susceptible to undue influence. A jury, chosen by sortition, or lot, for a single case, just before the case, is less likely to be corrupted, and having multiple jurors render verdicts collectively provides a check by each on the others. What they might lack in knowledge of the law is offset by their connection to the nonlegal environment in which most people subject to the law must operate.
In courts that try to save time and money by not using juries, such as family courts in some states, complaints about abuse of judicial discretion have led to calls for juries to decide questions of custody, visitation, child support, and the distribution of marital property.
Judges who impose lenient sentences, to avoid prison overcrowding and the early release of violent offenders, often provoke demands for mandatory minimum sentences or sentencing guidelines that reduce their discretion to do things like impose reduced sentences on defendants thought to be remorseful or unlikely to commit another offense.
Most complaints of abuse of judicial discretion, and calls to limit it with more laws, concern questions of policy or equity. But there is another broad category, which concerns constitutional questions of due process and civil rights. This is too large a field to discuss adequately in a short article, so only a few of the more important kinds of judicial discretion that are often being abused will be presented.
Stare decisis
Stare decisis is the doctrine according to which a judge in a current case treats decisions in past similar cases as authoritative precedents, and refuses to make the decision in a way that departs from such precedents, regarding all of them as correctly decided. There is a place for giving weight to precedents, especially in civil cases and matters of equity, and to clarify ambiguities in the black letter law, but it is an abuse of judicial discretion to treat precedents as though they are law, equal or superior to black letter law, especially when that black letter law is a written constitution. Only the edict, the finding and the order, are law in a judicial decision, and only for the parties involved. The opinion concerning how the decision was reached may be persuasive on its merits, and indicative of how the same court might decide a similar case, but it is dictum, or commentary, not law, and it is an abuse of judicial discretion to fail to exhaust textual analysis and legislative history before considering precedent, and making sure that the chain of precedents has not wandered away from the bounds of the black letter law.
Deference to legislature and administration
While it is appropriate to defer to the legislative and executive branches on questions peculiar to those branches and their constitutional duties, all too often judges abuse their discretion by so deferring in cases where officials of those branches have clearly exceeded their authority. This is sometimes signaled in a decision that declares the matter a "political question". Sometimes it is, at least in part, but judges have a duty to act where constitutional bounds are clearly exceeded, and their failure to do so indicates a lack of true judicial independence of the other other branches and the pressures those branches can bring to bear. The result is the Administrative State, the result of failure to enforce the nondelegation doctrine. Part of the solution may be to select judges by sortition.
Habeas corpus and quo warranto
Any person has the right to petition for release of a prisoner if the official holding him does not prove sufficient authority to do so. A writ of habeas corpus is a subspecies of a writ of quo warranto, the right to have an official cease or refrain from some action unless he proves sufficient authority for it. Only the first is explicitly protected in the U.S. Constitution, but the latter is implied by the due process and nondelegation clauses and amendments. The principle involved is the presumption that an official lacks authority for an action unless he can prove he has it, so that a petition for either writ does not imply a right to both oyer (fair hearing) and terminer (decision on the merits) for the petitioner, but only terminer. The right of oyer belongs to the respondent for such a petition. If the response is inadequate, or the court does not have time for oyer, then its duty is to grant the writ. The problem is that judges, especially federal judges when the respondent is a federal official, are too often failing to act on habeas petitions, on various pretexts, thereby reversing the presumption in favor of the official and his actions. Petitions for writs of quo warranto are systematically ignored or dismissed, sometimes on the grounds of lack of legislative authority, but no legislative authority is needed. There is no appeal from such inaction. Law provides petitioners only the option of trying again with another judge, thereby encouraging forum shopping. Complaints of judicial misconduct for such denial or inaction are also being systematically ignored. This should not really be called an abuse of judicial discretion because by law a judge has no discretion on terminer, but it has emerged as a practice that undermines all the other protections of the Constitution.
Jury Selection
Both petit and grand juries are supposed to be selected at random from the community, a process called sortition, with some screening out of jurors who cannot be impartial or who have some hardships or critical duties. However, judges too often abuse their discretion to pack juries with persons who are partial in various ways. One way is to demand that jurors take an oath to "follow the law" as given by the judge. That enables the judge to misinstruct the jury as to what the law is.
Trial jury access
In the early Republic, the standard practice of due process was to argue all issues of law in the presence of the jury, which enabled them to learn what the legal issues were along with the judge, that is, the presiding magistrate, and we can presume that this practice was part of what the Founders meant by "due process" in the Constitution. However, judges have abused their discretion by adopting the practice of requiring pleadings to be submitted to them by the litigants in writing, and not allowing copies to be provided the jury, nor allowing the attorneys to make legal arguments in the presence of the jury. This has given judges control over the trial in ways that largely subverts the protections that the jury is supposed to provide, because it does not allow jurors to hear argument, in a criminal trial, that the court does not have jurisdiction, or that the charge is not authorized by a statute, or the statute by the state or federal constitution, or that the statute is misapplied to the facts of the case, or that the rights of the accused were infringed by investigatory, prosecutorial, or judicial misconduct.
Grand jury access
The problem is often revealed by the old prosecutor's joke that he could get the grand jury to "indict a ham sandwich". Originally, in the early Republic, there were no public prosecutors. Criminal prosecutions were conducted by private attorneys, either paid by the victims, by subscription, or appointed by the judge to serve pro bono. When public prosecutors began to be appointed, they soon assumed an undue influence over grand juries, with the support of abuse of judicial discretion by the judges. This is aided by a lack of civic education of the public concerning the duties of grand jurors, or by packing grand juries with cronies of the judicial establishment.
Prosecutor selection
In almost every state and in the federal courts it is within judicial discretion for the judge to grant access to the courts to any person to conduct a criminal prosecution, but except in Texas, such petitions are systematically ignored or dismissed. This is a special problem when the suspects are public officials, cronies of the prosecutor or judge. Barring private criminal prosecutions without just cause is an abuse of judicial discretion.
Private prosecution of public rights, Qui tam and ex relatione
There is a right for any person to seek declaratory or injunctive relief against any illegal action by government officials without having to have been personally injured, but since 1922 courts have been abusing their judicial discretion by denying standing to plaintiffs who cannot prove personal injury. There is a related right, qui tam, of any person to act in the place of the government, ex. rel., when the government will not do so, to protect the rights of persons and to enforce the law.
Contempt & coercive detention
There is no power delegated in the U.S. Constitution for a federal judge to prosecute anyone for contempt of court, except on federal territory, under Art. I Sec. 8 Cl. 17 or Art. IV Sec. 3 Cl. 2, or to imprison someone indefinitely to coerce him into doing something. It was anticipated by the Founders that all federal courthouses would be sited in federal enclaves, but not all of them are, and the orders and contempt actions are often extended beyond the territorial limits of such enclaves, where federal courts have no such jurisdiction.
Disbarment
Although the original stated purpose of licensing and delicensing lawyers was to protect the public from dishonest or incompetent ones, licensing and the influence judges have over disbarment is too often abused to suppress lawyers who might challenge their abuses.
Lawyer protection
The other side of controlling lawyers with threats of contempt or disbarment is systematic protection of them from being sued, by abusing judicial discretion to punish persons who might have the temerity to do so, and their lawyers if they can get any to represent them. Violators of this "unwritten law" find all their motions thereafter being ignored or denied, regardless of merit.
Absolute immunity
It is appropriate for judges to have a limited immunity from being sued for their judicial decisions if they are merely the result of error or incompetence. The remedy for that is appeal to a higher court. The problem is that judges abuse their judicial discretion to protect themselves and other judges from civil and criminal liability for being unduly influenced, such as by bribery, intimidation or cronyism.
Pro se litigants
Instead of accommodating to the lack of legal knowledge of lay persons who either cannot afford a lawyer, or who don't trust lawyers who are subject to the control of the courts, judges and court personnel systematically discriminate against litigants who appear pro se or in propria persona, often dismissing their petitions or motions out of hand, regardless of their merits. That is abuse of judicial discretion.
Affirmative defense
Judges have adopted the practice in criminal trials of requiring the defense to make a motion for affirmative defense, which could be a defense like self-defense that admits to the facts and argues the actions were justified, or which seeks to prove someone else committed the crime. The original rationale for this was to provide the prosecution due notice so they can prepare their response. It is normally granted, but in the 1994 Davidian trial it was denied, much to the surprise of defense attorneys, who planned to argue self-defense. To prevent the defense from submitting an offer of proof, which would be grounds for reversal on appeal, the judge agreed, if they would refrain from doing so, to include an instruction to the jury that they could consider self-defense, but he would not allow argument and evidence of self-defense during trial. Thinking their best chance lay in agreeing to that, the defense attorneys went along with this abuse of judicial discretion. However, other instructions misled the jury into convicting some of the defendants on sentencing enhancements, even though they acquitted all of them on the base offenses, and the judge sentenced them for the enhancements as though they had been found guilty of the base offenses.
Mens rea defense
In criminal cases, by original constitutional standards, the elements of proof of a criminal charge are mens rea, actus reus, concurrence, causation, and harm. The first, mens rea, is "criminal intent", and judges are allowing criminal prosecutions to proceed without proof of it, especially when the statutes prohibit acts that are malum prohibitum instead of malum in se. In this judges are aided by abuse of discretion by legislators, but it is still abuse of discretion.
Home » Abuses & Usurpations
Original URL: http://www.constitution.org/abus/discretion/judicial/judicial_discretion.htm
Maintained: Jon Roland of the Constitution Society
Original date: 2003 May 31 — Updated: 2003 June 1
What you can do to help
Thursday, April 29, 2010
DEFAMATION COMPLAINT QUASHED
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G. Narayan Reddy vs P. Sitapathi, Advocate And ... on 28 June, 1991
Cites 9 docs - [View All]
Section 499 in The Indian Penal Code, 1860
The Indian Penal Code, 1860
Section 500 in The Indian Penal Code, 1860
Section 482 in The Code Of Criminal Procedure, 1973
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powered by
Andhra High Court
Equivalent citations: 1991 (2) ALT 683
Bench: D J Raju
G. Narayan Reddy vs P. Sitapathi, Advocate And Special Prosecutor And Anr. on
28/6/1991
ORDER
D.J. Jagaunadha Raju, J.
1. This criminal revision is filed by the complainant against the rejection
of complaint (S.R. N. 3735 of 1989) by order dated 29-12-1990 on the file of the
VI Metropolitan Magistrate, Hyderabad. The complainant Sri G. Narayan Reddy who
is advocate by profession, filed the complaint against an advocate Sri P.
Sitapathi alleging that in the course of conducting C.C. No. II of 1988 which
emanated on a complaint filed by the present comPlainant-petitioner and in the
course of arguing Criminal Appeal No. 359 of 1989 on the file of the Additional
Metropolitan Sessions Judge's court, the present accused Sri P. Sitapathi made
various defamatory imputations and thus he is guilty of an offence Under Section
500 I.P.C. The main alegations arc that in the course of cross-examination, the
advocate suggested that the present complainant is in impecunious circumstances
and he is cantankerous by nature and that the marriage proposals for his
daughters failed because of his cantankerous attitude and it was beyond his
capacity to think of having an alliance with an I.P.S. Officer because of his
poor financial position. It is also alleged that during the course of the
arguments in the criminal appeal, the advocate-accused went to the extent of
suggesting that the complainant is an insolvent and that all these things were
done with a view to forcing the complainant not to take interest in the
prosecution of the case and the criminal appeal and they were done with a view
to cow down the complaint and it is also alleged that the suggestion of
insolvency was made more due to malice and ill will against the complainant.
2. The learned Magistrate, after recording the statement of the com-plaint,
rejected the complaint relying upon exception (9) to Section 499 I.P.C. and he
also rejected the complaint on that ground that it is filed belatedly, The
relevant cross-examination of the complainant was done on 2-12-1988 and the
imputations made at the time of the arguments in the criminal appeal look place
on 9-12-1988 and then the complaint was filed after a long delay on 26-12-1990.
The Magistrate came to the conclusion that there is no sufficient material to
proceed further in the case and accordingly rejected the complaint. Aggrieved by
this order, the present revision is filed.
3. In this revision petition Mr. Narayan Reddy, who argued the case as a
party in person, contends that while he was forced to prosecute one S. Gopal
Reddy I.P.S. and his brother Panduranga Reddy in C.C. No. 11 of 1988, Sri. P.
Sitapathi. appearing as the defence advocate, did not follow the rules of
professional conduct and advocacy and he adopted a vilification and smear
campaign and carried on cross-examination of the present complainant making
defamatory statements. This is done with deliberate object of brow-beating the
complainant and to humiliate him. As the case ended in conviction inspite of all
those tactics, during the course of arguments in appeal, the advocate went on to
make further imputations and made damaging statements and he represented to the
court that the complainant is an insolvent and that he was not justified in
hoping to have a marriage alliance for his daughter with a highly qualified
I.P.S. Officer. Mr. Narayan Reddy submits that all these imputations were made
out of private vengeance and malice and with a view to prevent the complainant
from taking active interest in the prosecution of the criminal case and the
criminal appeal. He relics upon Chandra Deo v. Prokash Chandra, and contends
that when the scope of enquiry Under Section 202 Cr. P.C. is very limited and
it is confined to ascertaining the truth or falsehood of the complaint before
issuing the process, the Magistrate has only to sec whether any process is to be
issued or not and he should only satisfy himself as to whether there is
sufficient ground for proceeding further and not whether there is sufficient
ground for conviction. Mr. Reddy contends that the Magistrate dismissing the
complaint relying upon exception (9) to Section 499 I.P.C. is clearly an
illegality. The defence of Section 499 exception (9) is a thing which the
accused should plead and establish after process has been issued to him.. He
also contends that the order does not give reasons as to how the complaint and
the sworn statement and the copy of the written arguments tiled by the
complainant in the course of the argument of the criminal appeal do not, prima
facie, establish a case of defamation. He contends that the order dated
29-12-1990 should be set aside and the Magistrate should be directed to take the
complaint on file and proceed with the case as per law.
4. On behalf of the accused-advocate Sri P. Sitapathi, the learned counsel
Sri. C. Padmanabha Reddy contends that it is well-settled law that in a case of
this nature for imputations made in the course of defending an accused, when the
imputations are made for the purpose of protecting the case of the client and to
advance his cause, no action can be taken to prosecute the advocate for an
offence of defamation even if the words are per so defamatory. In such cases,
unless there is a positive allegation that out of private malice or private
vindictiveness the imputations are made, not with the object of advancing the
cause of the client, but purely to wreak vengeance or to settle old scores, then
alone a complaint would be maintainable. He relies upon Anwaruddin v. Fathim
Bai, ( A.I.R. 1927 Madras 378) in support of his arguments.
5. The point for consideration is whether the order dated 29-12-1990
rejecting the complaint is justified or whether it is liable to be modified.
6. The complainant-revision petitioner, who argued the case in person, took
me through the entire cross-examination portion of his evidence in C.C. No. 11
of 1988. One of the questions put to the witness is, "I suggest to, you that
because of your cantankerousness several alliances were broken." The petitioner-
complainant has taken me through the written arguments which he filed in Crl.
Appeal No. 359 of 1989 in his capacity as person who was permitted to assist the
prosecution, in these written arguments, the main imputation complained against
is that in the course of the arguments the advocate described the complainant as
a man of impecunious circumstances and described him as an insolvent, fn the
present case on hand, there is absolutely no allegation in the complaint that
Sri Sitapathi was acting beyond the instructions of his client and that he was
acting out of private vengeance or private malice against the complainant.
7. Mr. Padmanabha Reddy rightly contended that exception (9) to Section 499
I.P.C. provides a complete privilege and protects the advocate who made
imputations even if they arc per sc defamatory if they are meant to protect the
interests of the client and to advance his cause. He placed strong reliance on
Anwaruddin v. Fathim Bai (2 supra). In that decision which is binding on this
court, the entire law on this branch has been settled. In that decision, the
court upheld the dismissal of a complaint filed for defamation against a lawyer
for matters uttered in court in the course of his professional duties. The court
stated that such a complaint cannot be entertained and then traced the law on
the subject. It referred to one of the earliest decisions Sullivan v. Norton,(
(1887) 10 Mad. 28 (F.B.)) which laid down that such utterances by a lawyer in
the course of his professional duties and required by his duty to his client are
absolutely privileged. Then referring to Tirurangada Mudali v. Tripurasundari
Ammal,( A.I.R. 1926 Mad. 906) which doubted the correctness of the application
of the English common law principles to the criminal law in India regarding
doctrine of absolute privilege, the learned judge stated that the law has to be
applied purely on the provisions of the Indian Penal Code. The court obvserved
as follows:
"There is a course of such decisions which. interpreting the ninth
exception to Section 499 Indian Penal Code, definitely lays down that, when a
lawyer is acting in the course of his professional duties and is thus compelled,
subject to the disciplinary action of the Court, to put forward everything which
may assist his client, good faith is to be presumed, and bad faith is not to be
assumed, merely because the statement is prima facie defamatory, and that there
must be some independent allegation and proof of private malice from which in
the circumstances of the case the Court considers itself justified inferring
that the statement was not made because it was necessary in the interests of the
client but that the occasion was wantonly seized as an opportunity to vent
private malice. This is the general principle to be gathered from the decisions
of the High Court of Bombay"
Then the judge cited various decisions in support of his view. The learned
judge further observed :
"I take it that this principle implies and carries with it this other
principle that even the presence of malice will not override the presumption of
good faith where the statement made was obviously necessary in the interests of
the client and where the lawyer could not omit to make it without gravely
imperilling the interests of his client and would in fact not be discharging his
duty to his client unless he made it; that is, that, eventhough some private
malice is gratified by the publication of the statement, if such publication was
imperatively called for in the interests of his duty to his client, the presence
of such malice will not negative the presumption of good faith. That principles
seems to me to apply directly to the present case.............if counter-
petitioner's duty to his client imperatively demanded that the statement should
be made, good faith is present, sufficient good faith to remove the offence out
of the category of defamation. That the counter-petitioner's duty to his client
imperatively demanded that the statement should be made, seems to me
unquestionable."
8. This principle was followed by a later decision reported in Bashyam
Ayyangar v. Andal Ammal.( (1934) M.W.N. 481) In this particular decision various
questions were asked to the witness, a lady, as to whether she was living a
married life or whether she was living in concubinage and as to whether she was
kept by a washerman and a Mohammedan. When the lawyer was proceeded against for
defamation, the court referred to the law laid down in Sullivan v. Norton (3
supra) Tiruvangada Mudali v. Tripurasundari Ammal (4 supra) and the judgment of
Justice Wallace in Anwaruddin v. Fathim Bai (2 supra) and observed as follows:
"That learned judge however, has said in that decision that the effect of
the interpretations of the Indian Law of defamation in the various High Courts
with reference to exception 9 to Section 499 I.P.C. is that "When a lawyer is
acting in the course of his professional duties and is thus compelled subject to
the disciplinary action of the court, to put forward everything which may assist
his client, good faith is to be presumed and bad faith is not to be assumed
merely because the statement is prima facie defamatory, but there must be some
independent allegation and proof from which, in the circumstances of the case,
the court considers itself justified inferring that the statement was not made
because it was in the interest of the client, but that the occasion was wantonly
seized as an opportunity to vent private malice."
9. The above principle of law as laid down by Anwaruddin v. Fathim Bai (2
supra) was said to be attacked by Mr. Bushyam Ayyangar on the ground that
Justice Wallace has put the case too high. Referring to that argument the
learned judge observed that though it is claimed that the judge has put the case
too high, no other authority is shown which has taken a different view and hence
he would, with respect, agree with the view of Wallace. J. and decide the
petition with reference to it. The judge went on to observe as follows:
"Here there is no allegation, and much less proof, that the petitioner in
putting the questions to Andalammal as to her moral character was actuated by
any motive of private malice and was not acting in the interest of his client.
It follows then that he was acting in good faith and this brings him within the
ninth exception and so the charge, which imputes no illfaith but merely refers
to the questions as having been put unnecessarily cannot stand. It is,
therefore, quashed as are also the entire proceedings against the petitioner".
10. The decisions reported in Anwaruddin v. fathim Bai (2 supra) and Bashyam
Ayyungar v. Andal Ammal (5 supra) are the decisions which are binding on this
court. No authority expressing a contrary view is brought to my notice.
11. Sri Narayan Reddy relics upon two other decisions reported in Ayesha Bi
v. Peerkhan Sahib(1954 Cri. L.J.1239) and H. Singh v. State of Punjab and
contends that where there is no proof of instructions from the client and where
the counsel keeps mute or mum about his putting the defamatory imputations on
the basis of specific instructions of the client, the counsel could be liable to
be proceeded against for defamation. Mr. Narayan Reddy contends that defence of
Section 499 exception (9) is a thing which will come into consideration at the
time of trial and not at the stage of deciding whether a complaint shall be
entertained or not. Sri C. Padmanabha Reddy contends that the question of a
defence Under Section 499 exception (9) can be considered even at the stage of
entertaining a complaint. Mr. Padmanabha Reddy points out that the decisions
relied upon by Mr. Narayan Reddy do not lay down any proposition which is in
deviation of the decision rendered by Justice Wallace.
12. H. Singh v. State of Punjab (7) is a case dealing with exception (9) of
Section 499 I.P.C. The Supreme Court held that the question whether or not good
faith has been proved by an accused person who pleads in his defence the ninth
exception Under Section 499 to a charge of defamation Under Section 500 I.P.C.
is a question of fact and on such questions of fact or mixed questions of law
and fact, when there arc concurrent findings, the Supreme Court does not
generally re-examine the matter. The Supreme Court also laid down that failure
to prove good faith would exclude the applicability of ninth exception in favour
of the accused. The principle of this decision does not in any way, Apply to the
facts of our case. The Supreme Court decision dies not lay down that good faith
is not to be presunied(sic) as laid down by Justice Wallace. Ayesha Bi v.
Peerkhan Sahib (6 supra) actually reiterates the principle laid down in
Anwaruddin v. Fathim Bai (2 supra). A reading of the body of the judgment,
particularly, paragraph 17 clearly indicates that the judge is actually
reproducing the paragraph in Justice Wallace's judgment. There is absolutely
nothing to in indicate in these two decisions that the defence of Section 499
exception (9) cannot be taken at the singe of consideration of a complaint.
13. As to at what stage this defence can be raised has been considered by
this Honourable Court in T.R. Devarajan v. Del. Credere Bank of India (1988 APLJ
(Crl) 81). His Lordship Justice Jayachandra Reddy (as he then was) dealing with
a petition Under Section 482 Cr.P.C. observed that the court can examine the
question of the exception after examining the complaint and after recording the
sworn statement of the complainant. The learned judge observed as follows:
"It cannot universally be said that even in case of the applicability of
the 10th exception where the Court, after examining the complaint and its
contents and the contents of the sworn statement and in the context in which the
caution is made, is satisfied that it is prima facie made in good faith, it is
still prevented from exercising its inherent jurisdiction. In examining the
question of good faith, it is not in every case that a trial should go on and
the same to a great extent depends upon the facts. In the instant case, viewed
from any angle, it cannot be said that the caution given by the Reserve Bank is
not made in good faith and no further enquiry is necessary on this aspect.
Consequently, the 10th exception is squarely applicable to the facts of this
case and therefore even if the allegations made in the complaint and the sworn
statement are taken to be true no offence is made out and is laid down in
Kapur's case (1) supra the
proceedings arc liable to be quashed. Accordingly, the proceedings in C.C.
12 of 1987 on the file of the 11th Metropolitan Magistrate, Secunderabad are
quashed and the petition is allowed."
14. Apart from the decision in T.R. Devarajan v. Del Credere Bank of India (8
supra), even on a prior reasoning, it is common knowledge that an exception can
be pleaded even at the stage of initiation of the criminal proceedings. For
example, if a chargesheet is filed accusing a child of three years of committing
murder, can it be argued that the child should face the trial and only at the
time of the trial, the defence of general exceptions can be pleaded? Common
sense dictates that even at the stage of initiation of the proceedings, the
general exception provided under Chapter IV of the Indian Penal Code can be
raised and the accused is entitled to ask for quashing of the criminal
proceedings. It is a well established principle that the exceptions which go to
the root of the matter can always be pleaded even at the stage of mitration(sic)
of the criminal proceedings and parties are certainly entitled to seek relief on
that basis in Section 482 Cr.P.C. petitions.
15. Judging the present case in the light of those decisions it is clearly a
case where the action of the advocate is fully protected. There are absolutely
no allegations of private malice or private vengeance and there is nothing to
indicate that the advocate, who made the remarks and suggestions in the course
of the cross-examination and in the course of the arguments, was making them for
any ulterior purpose and not for the purpose of advancing the cause of his
client. The learned Magistrate is perfectly justified in rejecting the complaint
and not taking it on file.
16. In the result, the criminal revision is dismissed. The order of the
Magistrate dated 29-12-1990 is confirmed.
G. Narayan Reddy vs P. Sitapathi, Advocate And ... on 28 June, 1991
Cites 9 docs - [View All]
Section 499 in The Indian Penal Code, 1860
The Indian Penal Code, 1860
Section 500 in The Indian Penal Code, 1860
Section 482 in The Code Of Criminal Procedure, 1973
Blog Links
powered by
Andhra High Court
Equivalent citations: 1991 (2) ALT 683
Bench: D J Raju
G. Narayan Reddy vs P. Sitapathi, Advocate And Special Prosecutor And Anr. on
28/6/1991
ORDER
D.J. Jagaunadha Raju, J.
1. This criminal revision is filed by the complainant against the rejection
of complaint (S.R. N. 3735 of 1989) by order dated 29-12-1990 on the file of the
VI Metropolitan Magistrate, Hyderabad. The complainant Sri G. Narayan Reddy who
is advocate by profession, filed the complaint against an advocate Sri P.
Sitapathi alleging that in the course of conducting C.C. No. II of 1988 which
emanated on a complaint filed by the present comPlainant-petitioner and in the
course of arguing Criminal Appeal No. 359 of 1989 on the file of the Additional
Metropolitan Sessions Judge's court, the present accused Sri P. Sitapathi made
various defamatory imputations and thus he is guilty of an offence Under Section
500 I.P.C. The main alegations arc that in the course of cross-examination, the
advocate suggested that the present complainant is in impecunious circumstances
and he is cantankerous by nature and that the marriage proposals for his
daughters failed because of his cantankerous attitude and it was beyond his
capacity to think of having an alliance with an I.P.S. Officer because of his
poor financial position. It is also alleged that during the course of the
arguments in the criminal appeal, the advocate-accused went to the extent of
suggesting that the complainant is an insolvent and that all these things were
done with a view to forcing the complainant not to take interest in the
prosecution of the case and the criminal appeal and they were done with a view
to cow down the complaint and it is also alleged that the suggestion of
insolvency was made more due to malice and ill will against the complainant.
2. The learned Magistrate, after recording the statement of the com-plaint,
rejected the complaint relying upon exception (9) to Section 499 I.P.C. and he
also rejected the complaint on that ground that it is filed belatedly, The
relevant cross-examination of the complainant was done on 2-12-1988 and the
imputations made at the time of the arguments in the criminal appeal look place
on 9-12-1988 and then the complaint was filed after a long delay on 26-12-1990.
The Magistrate came to the conclusion that there is no sufficient material to
proceed further in the case and accordingly rejected the complaint. Aggrieved by
this order, the present revision is filed.
3. In this revision petition Mr. Narayan Reddy, who argued the case as a
party in person, contends that while he was forced to prosecute one S. Gopal
Reddy I.P.S. and his brother Panduranga Reddy in C.C. No. 11 of 1988, Sri. P.
Sitapathi. appearing as the defence advocate, did not follow the rules of
professional conduct and advocacy and he adopted a vilification and smear
campaign and carried on cross-examination of the present complainant making
defamatory statements. This is done with deliberate object of brow-beating the
complainant and to humiliate him. As the case ended in conviction inspite of all
those tactics, during the course of arguments in appeal, the advocate went on to
make further imputations and made damaging statements and he represented to the
court that the complainant is an insolvent and that he was not justified in
hoping to have a marriage alliance for his daughter with a highly qualified
I.P.S. Officer. Mr. Narayan Reddy submits that all these imputations were made
out of private vengeance and malice and with a view to prevent the complainant
from taking active interest in the prosecution of the criminal case and the
criminal appeal. He relics upon Chandra Deo v. Prokash Chandra, and contends
that when the scope of enquiry Under Section 202 Cr. P.C. is very limited and
it is confined to ascertaining the truth or falsehood of the complaint before
issuing the process, the Magistrate has only to sec whether any process is to be
issued or not and he should only satisfy himself as to whether there is
sufficient ground for proceeding further and not whether there is sufficient
ground for conviction. Mr. Reddy contends that the Magistrate dismissing the
complaint relying upon exception (9) to Section 499 I.P.C. is clearly an
illegality. The defence of Section 499 exception (9) is a thing which the
accused should plead and establish after process has been issued to him.. He
also contends that the order does not give reasons as to how the complaint and
the sworn statement and the copy of the written arguments tiled by the
complainant in the course of the argument of the criminal appeal do not, prima
facie, establish a case of defamation. He contends that the order dated
29-12-1990 should be set aside and the Magistrate should be directed to take the
complaint on file and proceed with the case as per law.
4. On behalf of the accused-advocate Sri P. Sitapathi, the learned counsel
Sri. C. Padmanabha Reddy contends that it is well-settled law that in a case of
this nature for imputations made in the course of defending an accused, when the
imputations are made for the purpose of protecting the case of the client and to
advance his cause, no action can be taken to prosecute the advocate for an
offence of defamation even if the words are per so defamatory. In such cases,
unless there is a positive allegation that out of private malice or private
vindictiveness the imputations are made, not with the object of advancing the
cause of the client, but purely to wreak vengeance or to settle old scores, then
alone a complaint would be maintainable. He relies upon Anwaruddin v. Fathim
Bai, ( A.I.R. 1927 Madras 378) in support of his arguments.
5. The point for consideration is whether the order dated 29-12-1990
rejecting the complaint is justified or whether it is liable to be modified.
6. The complainant-revision petitioner, who argued the case in person, took
me through the entire cross-examination portion of his evidence in C.C. No. 11
of 1988. One of the questions put to the witness is, "I suggest to, you that
because of your cantankerousness several alliances were broken." The petitioner-
complainant has taken me through the written arguments which he filed in Crl.
Appeal No. 359 of 1989 in his capacity as person who was permitted to assist the
prosecution, in these written arguments, the main imputation complained against
is that in the course of the arguments the advocate described the complainant as
a man of impecunious circumstances and described him as an insolvent, fn the
present case on hand, there is absolutely no allegation in the complaint that
Sri Sitapathi was acting beyond the instructions of his client and that he was
acting out of private vengeance or private malice against the complainant.
7. Mr. Padmanabha Reddy rightly contended that exception (9) to Section 499
I.P.C. provides a complete privilege and protects the advocate who made
imputations even if they arc per sc defamatory if they are meant to protect the
interests of the client and to advance his cause. He placed strong reliance on
Anwaruddin v. Fathim Bai (2 supra). In that decision which is binding on this
court, the entire law on this branch has been settled. In that decision, the
court upheld the dismissal of a complaint filed for defamation against a lawyer
for matters uttered in court in the course of his professional duties. The court
stated that such a complaint cannot be entertained and then traced the law on
the subject. It referred to one of the earliest decisions Sullivan v. Norton,(
(1887) 10 Mad. 28 (F.B.)) which laid down that such utterances by a lawyer in
the course of his professional duties and required by his duty to his client are
absolutely privileged. Then referring to Tirurangada Mudali v. Tripurasundari
Ammal,( A.I.R. 1926 Mad. 906) which doubted the correctness of the application
of the English common law principles to the criminal law in India regarding
doctrine of absolute privilege, the learned judge stated that the law has to be
applied purely on the provisions of the Indian Penal Code. The court obvserved
as follows:
"There is a course of such decisions which. interpreting the ninth
exception to Section 499 Indian Penal Code, definitely lays down that, when a
lawyer is acting in the course of his professional duties and is thus compelled,
subject to the disciplinary action of the Court, to put forward everything which
may assist his client, good faith is to be presumed, and bad faith is not to be
assumed, merely because the statement is prima facie defamatory, and that there
must be some independent allegation and proof of private malice from which in
the circumstances of the case the Court considers itself justified inferring
that the statement was not made because it was necessary in the interests of the
client but that the occasion was wantonly seized as an opportunity to vent
private malice. This is the general principle to be gathered from the decisions
of the High Court of Bombay"
Then the judge cited various decisions in support of his view. The learned
judge further observed :
"I take it that this principle implies and carries with it this other
principle that even the presence of malice will not override the presumption of
good faith where the statement made was obviously necessary in the interests of
the client and where the lawyer could not omit to make it without gravely
imperilling the interests of his client and would in fact not be discharging his
duty to his client unless he made it; that is, that, eventhough some private
malice is gratified by the publication of the statement, if such publication was
imperatively called for in the interests of his duty to his client, the presence
of such malice will not negative the presumption of good faith. That principles
seems to me to apply directly to the present case.............if counter-
petitioner's duty to his client imperatively demanded that the statement should
be made, good faith is present, sufficient good faith to remove the offence out
of the category of defamation. That the counter-petitioner's duty to his client
imperatively demanded that the statement should be made, seems to me
unquestionable."
8. This principle was followed by a later decision reported in Bashyam
Ayyangar v. Andal Ammal.( (1934) M.W.N. 481) In this particular decision various
questions were asked to the witness, a lady, as to whether she was living a
married life or whether she was living in concubinage and as to whether she was
kept by a washerman and a Mohammedan. When the lawyer was proceeded against for
defamation, the court referred to the law laid down in Sullivan v. Norton (3
supra) Tiruvangada Mudali v. Tripurasundari Ammal (4 supra) and the judgment of
Justice Wallace in Anwaruddin v. Fathim Bai (2 supra) and observed as follows:
"That learned judge however, has said in that decision that the effect of
the interpretations of the Indian Law of defamation in the various High Courts
with reference to exception 9 to Section 499 I.P.C. is that "When a lawyer is
acting in the course of his professional duties and is thus compelled subject to
the disciplinary action of the court, to put forward everything which may assist
his client, good faith is to be presumed and bad faith is not to be assumed
merely because the statement is prima facie defamatory, but there must be some
independent allegation and proof from which, in the circumstances of the case,
the court considers itself justified inferring that the statement was not made
because it was in the interest of the client, but that the occasion was wantonly
seized as an opportunity to vent private malice."
9. The above principle of law as laid down by Anwaruddin v. Fathim Bai (2
supra) was said to be attacked by Mr. Bushyam Ayyangar on the ground that
Justice Wallace has put the case too high. Referring to that argument the
learned judge observed that though it is claimed that the judge has put the case
too high, no other authority is shown which has taken a different view and hence
he would, with respect, agree with the view of Wallace. J. and decide the
petition with reference to it. The judge went on to observe as follows:
"Here there is no allegation, and much less proof, that the petitioner in
putting the questions to Andalammal as to her moral character was actuated by
any motive of private malice and was not acting in the interest of his client.
It follows then that he was acting in good faith and this brings him within the
ninth exception and so the charge, which imputes no illfaith but merely refers
to the questions as having been put unnecessarily cannot stand. It is,
therefore, quashed as are also the entire proceedings against the petitioner".
10. The decisions reported in Anwaruddin v. fathim Bai (2 supra) and Bashyam
Ayyungar v. Andal Ammal (5 supra) are the decisions which are binding on this
court. No authority expressing a contrary view is brought to my notice.
11. Sri Narayan Reddy relics upon two other decisions reported in Ayesha Bi
v. Peerkhan Sahib(1954 Cri. L.J.1239) and H. Singh v. State of Punjab and
contends that where there is no proof of instructions from the client and where
the counsel keeps mute or mum about his putting the defamatory imputations on
the basis of specific instructions of the client, the counsel could be liable to
be proceeded against for defamation. Mr. Narayan Reddy contends that defence of
Section 499 exception (9) is a thing which will come into consideration at the
time of trial and not at the stage of deciding whether a complaint shall be
entertained or not. Sri C. Padmanabha Reddy contends that the question of a
defence Under Section 499 exception (9) can be considered even at the stage of
entertaining a complaint. Mr. Padmanabha Reddy points out that the decisions
relied upon by Mr. Narayan Reddy do not lay down any proposition which is in
deviation of the decision rendered by Justice Wallace.
12. H. Singh v. State of Punjab (7) is a case dealing with exception (9) of
Section 499 I.P.C. The Supreme Court held that the question whether or not good
faith has been proved by an accused person who pleads in his defence the ninth
exception Under Section 499 to a charge of defamation Under Section 500 I.P.C.
is a question of fact and on such questions of fact or mixed questions of law
and fact, when there arc concurrent findings, the Supreme Court does not
generally re-examine the matter. The Supreme Court also laid down that failure
to prove good faith would exclude the applicability of ninth exception in favour
of the accused. The principle of this decision does not in any way, Apply to the
facts of our case. The Supreme Court decision dies not lay down that good faith
is not to be presunied(sic) as laid down by Justice Wallace. Ayesha Bi v.
Peerkhan Sahib (6 supra) actually reiterates the principle laid down in
Anwaruddin v. Fathim Bai (2 supra). A reading of the body of the judgment,
particularly, paragraph 17 clearly indicates that the judge is actually
reproducing the paragraph in Justice Wallace's judgment. There is absolutely
nothing to in indicate in these two decisions that the defence of Section 499
exception (9) cannot be taken at the singe of consideration of a complaint.
13. As to at what stage this defence can be raised has been considered by
this Honourable Court in T.R. Devarajan v. Del. Credere Bank of India (1988 APLJ
(Crl) 81). His Lordship Justice Jayachandra Reddy (as he then was) dealing with
a petition Under Section 482 Cr.P.C. observed that the court can examine the
question of the exception after examining the complaint and after recording the
sworn statement of the complainant. The learned judge observed as follows:
"It cannot universally be said that even in case of the applicability of
the 10th exception where the Court, after examining the complaint and its
contents and the contents of the sworn statement and in the context in which the
caution is made, is satisfied that it is prima facie made in good faith, it is
still prevented from exercising its inherent jurisdiction. In examining the
question of good faith, it is not in every case that a trial should go on and
the same to a great extent depends upon the facts. In the instant case, viewed
from any angle, it cannot be said that the caution given by the Reserve Bank is
not made in good faith and no further enquiry is necessary on this aspect.
Consequently, the 10th exception is squarely applicable to the facts of this
case and therefore even if the allegations made in the complaint and the sworn
statement are taken to be true no offence is made out and is laid down in
Kapur's case (1) supra the
proceedings arc liable to be quashed. Accordingly, the proceedings in C.C.
12 of 1987 on the file of the 11th Metropolitan Magistrate, Secunderabad are
quashed and the petition is allowed."
14. Apart from the decision in T.R. Devarajan v. Del Credere Bank of India (8
supra), even on a prior reasoning, it is common knowledge that an exception can
be pleaded even at the stage of initiation of the criminal proceedings. For
example, if a chargesheet is filed accusing a child of three years of committing
murder, can it be argued that the child should face the trial and only at the
time of the trial, the defence of general exceptions can be pleaded? Common
sense dictates that even at the stage of initiation of the proceedings, the
general exception provided under Chapter IV of the Indian Penal Code can be
raised and the accused is entitled to ask for quashing of the criminal
proceedings. It is a well established principle that the exceptions which go to
the root of the matter can always be pleaded even at the stage of mitration(sic)
of the criminal proceedings and parties are certainly entitled to seek relief on
that basis in Section 482 Cr.P.C. petitions.
15. Judging the present case in the light of those decisions it is clearly a
case where the action of the advocate is fully protected. There are absolutely
no allegations of private malice or private vengeance and there is nothing to
indicate that the advocate, who made the remarks and suggestions in the course
of the cross-examination and in the course of the arguments, was making them for
any ulterior purpose and not for the purpose of advancing the cause of his
client. The learned Magistrate is perfectly justified in rejecting the complaint
and not taking it on file.
16. In the result, the criminal revision is dismissed. The order of the
Magistrate dated 29-12-1990 is confirmed.
JUDGMENT ON CONTEMPT PETITION
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In Re : Ajay Kumar Pandey vs Date Of Judgment:20/09/1996 on 20 September, 1996
Cites 24 docs - [View All]
The Indian Penal Code, 1860
Section 167 in The Indian Penal Code, 1860
Section 504 in The Indian Penal Code, 1860
Section 506 in The Indian Penal Code, 1860
The Contempt Of Courts Act, 1971
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Supreme Court of India
Bench: K Ramaswamy, B Hansaria
PETITIONER:
IN RE : AJAY KUMAR PANDEY
Vs.
RESPONDENT:
DATE OF JUDGMENT: 20/09/1996
BENCH:
K. RAMASWAMY, B.L. HANSARIA
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
The contemner is a practising advocate. He filed Complaint Case No.451 of
1994 in the Court of VI Additional Chief Judicial Magistrate, Lucknow against
Shri Mahesh Giri, advocate and Ms. Saroj Bala, VII Additional District Judge,
Lucknow for offences under Section 499/500 IPC. Mr. Mahesh Giri, at the relevant
time, was the govt. counsel deputed to work for the prosecution in criminal
cases in the Court of VII Additional District Judge, Lucknow. It was alleged in
the complaint tread with notice which preceded it as also contemner's statement
recorded under Section 200 Cr. P.C.) that the accused namely, Mahesh Giri,
advocate and Ms. Saroj Bala, VII Additional District Judge, Lucknow had imputed
sexual relations between the contemner and Ms. Saroj Bala which had defamed the
contemner and, therefore, he prayed that the accused be tried for the said
offences. The statement of the contemner was recorded under Section 200 Cr. P.C.
on 21.9.94 but it remained inconclusive. The statement was finally record on
26.10.94 and, thereafter, the case was ajourned for enquiry under Section 202
Cr. P.C.. It was stated that the petitioner moved an application that the
witnesses whom the contemner wanted to examine under Section 202 Cr. P.C. may be
summoned by the Court as almost all of them were practising advocates and
influential persons but the complaint itself was dismissed by the Magistrate on
16.11.94. The petitioner. thereafter, filed a Criminal Revision against the
aforesaid order in the High Court but it was dismissed on 15.2.95. Hon'ble
Virendra Saran, J. of the Allahabad High Court who disposed of the Revision
observed, inter alia, under:- "It is well settled that if the veiled object of a
lame prosecution is to disgrace, humiliate or cause harassment to the accused,
the High Court must put an end to the mischief by quashing such
criminal proceedings. The facts of the record Of the instant case give a
horrendous account of a framed-up case against a responsible member of five
lower judiciary holding the post of an Additional Sessions
judge at Lucknow and hence, even if the order of the learned Magistrate
dismissing the compliant under S. 203 of the Code be not woolly justified in
law, it is not a fit case for the exercise of the discretionary revisioinal
jurisdiction. There can be no doubt that the prosecution case unfolded in
the complaint and the statement of the applicant is nothing but an intricate web
of perfidious fabric. It appears that the aim of the applicant is to malign the
learned judge (Smt. Saroj Bala) and hold her at ransom. The applicant
emphatically and repeatedly read out the lewd passages from his deposition while
arguing the revision, but the palpably
scurrilous, indecent and abominable recitals are not worth reproduction in
the judgment. Suffice it to observe that the arguments of the applicant, so
vehement and pungent, marked with sarcasm and sneer, do not impart any strength
to his case which in inherently unbelievable. They are submissions directed more
towards vilification than substantiation of the pivotal points of the case. I
was constrained to ask the applicant not to make savage additions to the
evidence and show restraint in his colloquy."
2. The contemner, thereafter, filed SLP (Crl.) Nos.819- 20 of 1996 against the
aforesaid Judgment and Order dated 15.2.95 of Hon'ble Virendra Saran, J. in this
Court in which he impleaded only State of U.P. as a proforma respondent.
3. A similar complaint under Sections 500 and 504 IPC was also filed by the
contemner against (1) Shri Prakash Narayan Awasthi, Advocate (2) Shri R.P.
Misra, Advocate (3) Shri Vishambhar Singh, Advocate (4) Shri T.N. Misra,
Advocate (5) Shri Srikant Verma, Advocate (6) Shri Pankaj Sinha, Advocate and
(7) Shri N.C. Pradhan, Advocate in which again it was alleged that similar
imputations were made by the aforesaid advocates between contemner and Ms. Saroj
Bala. This was registered as Complaint Case NO.101 of 1995 in which petitioner's
statement was recorded under Section 200 Cr. P.C. In order to produce witnesses
under Section 202 Cr. P.C., the contemner gave a list of 31 advocates,
practising at Lucknow, for being summoned by the Court as witnesses but the
application was rejected. It was against this Order that the petitioner filed
SLP (Crl.) No. 4114 of 1995 directly in this Court. The contemner also, in the
meantime, filed Contempt Petition (Crl.) Dy. No. 16199/95 against Hon'ble Mr.
Justice Virendra Saran of the Allahabad High court, Contempt Petition (Crl.) Dy.
No. 17021/95 against Ms. Saroj Bala, IV Addl. District Judge, Lucknow, Shri Udai
Raj, V A.C.J.M., Lucknow, Shri R.P. Mishra, VI Addl. C.J.M., Lucknow and
Contempt Petition (Crl.) Dy. No. 17022/95 against Shri J.C. Mishra. District
Judge, Lucknow (now Judge of the Allahabad High Court) Shri K.N. Ojha, II Addl.
District Judge. Lucknow, Shri Shailendra Saxena, III Addl. District judge,
Lucknow and Shri B.N. Pandey, Special Judge, Lucknow. All the above matters were
listed in Court No.9 before Hon'ble Dr. Justice A.S. Anand and Hon'ble Mr.
Justice M.K. Mukherjee on 15th December 1995 when the following Order was
passed:-
"In all these petitions, we
find that attack in indecent, wild, intemperate and even abusive language
on the named Judges has been made at various places in each one of the
petitions. The petitioner, who is an advocate, has permitted himself the liberty
of using such expressions, which prima-facie tend to scandlize the court in
relation to judicial matters and thus have the tendency to interfere with the
administration of justice. We are inclined to initiate contempt proceedings
against, the petitioner, but, on his request grant him six weeks time to delete
all the objectionable expressions used in the petitions and file fresh
petitions. He shall also remove the other defects as pointed out in the office
report when he files the fresh petitions. against the petitioner, after eight
weeks."
4. The contemner, however did not avail of the above opportunity and filed
Criminal Miscellaneous Petition No. 132/95 in paras 4, 5 and 6 whereof he stated
as under:- "4. That today, the matter was listed in Court No. 9 alongwith all
petitions at Sl. No. 28 and 42 and when the petitioner tried to start his
argument the court openly harrased him and compelled him to withdraw the
petition or remove all the facts but the petitioner refused to do so in view of
the facts that he has only written the facts according to section 167, 219 483
and 463 alongwith 120-B of the IPC and section 44 and 165 of the evidence act
alongwith section 2-C and Section 16 and 12 and 15 of the contempt of court act
and the Indian Constitution.
5. That the Court is not allowed the petitioner to submit his argument an
passed an order to remove the all facts from the petition and filed the fresh
petitions and also ordered for listing the matter after 8 weeks. Thereafter, the
petitioner mentioned and also tried to give in writing that he is not in a
position to remove anything and file fresh petitions in view of the fact that
the wrote only truth and the court is bound to hear the petition and decide the
same according to the constitution and contempt of Court Act and other laws as
challenged by the petitioner but the Court without saying anything retired to
its chamber.
6. That the petitioner is not in a position to remove anything and the
deliberate injustice, Fraud cheating etc. had been done by the contemnors for
concealing their nefarious acts and even they had gone to this extent to
destroyed the judicial records and fabricated some judicial papers.
5. This application was considered by the Court Hon'ble Dr. Justice A.S. Anand
and Hon'ble Mr. Justice M.K. Mukherjee on 20.2.96 and in the Order passed
thereon it was inter alia stated as under:-
"Inspite of the petitioner`s attention having beer, drawn to the above
noted passages on 15.12.1995, which we felt prima facie, tended to scandalise
the court Courts in relation to the judicial matters and had the tendency to
interfere with the administration of justice and that the attack against the
judges was indecent, wild, intemperate and abusive, the petitioner refused to
these objectionable passages and on the contrary, in his petition (Crl. M.P. No.
132 of 1996), he has asserted that he is not prepared to remove the
Objectionable
passages/sentences. On the other hand the petitioner asserts that this
Court is bound to hear the petitioner and decide the same "without the
petitioner being obliged to remove the objectionable passages. This clearly
discloses the adamant and defiant attitude of the petitioner.
We, therefore, direct that a Rule be issued against the petitioner asking
him to show cause why he should not be punished for committing criminal contempt
of Court for the use of the objectionable language in this petition and the
subsequent application. The petitioner should file his reply to the Rule within
eight weeks.
List on 26th April, 1996.
The petitioner-in-person has been informed of the date and has been bound
down to appear on the next date. No fresh notice, therefore, need be issued to
him.
A copy or the order issuing the Rule shall be handed over to the
petitioner-in-person.
We request the Solicitor General Shri Dipankar Gupta to assist the Court in
these proceeding either himself or by nominating some other law officer.
This record of case may be forwarded to the learned Solicitor General.
This special leave petition dismissed in vies of what we have noticed above
as also on merits. The contempt proceedings shall be separately numbered .
6. The contempt matter has since been registered as Contempt Petition (Crl.)
2/96. The contemner in the meantime, moved application for recall for
recall/review of the Order dated 20.2.96 but the application was rejected by
Order dated 9.8.96. The contemner also filed a Contempt Petition (CRL.) No.
13/96 against Hon'ble Dr. Justice A.S. Anand and Hon'ble Mr . Justice M.K.
Mukherjee which was rejected by this Court (Hon'ble Mr. Justice J.S. Verma and
Hon'ble Mr. Justice B.N. Kirpal) on 5.8.96 by the following Order:
"We regret to find that the petitioner who is a practicing lawyer of some
standing has chosen to such a proceeding which resort to such a proceeding which
in our view is misconceived. We find no merit in the same but before dictating
this order, we have tried to explain this position to the petitioner with the
hope that he will appreciate that as member of the Bar he is expected to utilise
his time in a better manner to assist in the administration of justice. The
contempt petition is dismissed."
7. The contemner has since filed an application for recall of the above order
and for deciding the criminal contempt petition On merits. In the affidavit
accompanying this application, it is stated that if all matters are not decided
on merits. the contemner would be compelled to observe continuous hunger strike
from 25.9.1996. A copy of the application to the President of India for
permission to prosecute Hon'ble Dr. Justice A.S. Anand and Hon'ble Mr. Justice
M.K. Mukherjee, for their behaviour in Court on 15.12.1995, as also two months
notice to the President, were filed with this application.
8. The Contempt Petition No. 2/96 in SLP (Crl.) No. 4114/96 was taken up on
9.8.96 in which the following order was passed by Hon'ble Dr. Justice A.S. Anand
and Hon'ble Mr. Justice Mukherjee.
"On 20.2.1996, we directed a rule to be issued to the applicant asking him
to show Cause why he Should not be punished for committing criminal contempt of
the court for use of objectionable language in the SLP and the application. He
was given eight weeks time to file his reply to the rule, through these two
applications, the applicant seeks recall/review of the order dated 20.2.1996
passed in SLP (Crl) 819- 820 of 1996 which were dismissed by this court and of
the rule issued to him. We do not find any reason to recall or review that
order. There is no merit in these applications which also bristle with
scandalous remarks and are couched in objectionable language. The criminal
miscellaneous petitions filed by the applicant on 24.2.96
are, there dismissed."
In our order dated 20.2.1996, we had directed issuance of rule and to
number the contempt proceedings against the applicant separately. Those have
since been numbered as criminal contempt petition No. 2 of 1996.
The prayer of the applicant to transfer the case to 'another bench' as he
does not "wish to appear before this Bench apart from being itself contumacious
is rejected because a litigant cannot be permitted forum shopping. The case
stands assigned to this Bench. Since the applicant has not filed his reply to
the notice to show cause why he should not be punished for committing criminal
contempt of court, we, as a matter of indulgence, grant him another opportunity
to file the reply if any, within six weeks. List the matter for further
proceedings and hearing on 27.9.1996. The alleged contemner Ajay Kumar Pandey,
who is present in court has been informed of the date of hearing is directed to
remain present on the Next date of hearing, i.e. 27.9.1996, whether or not he
files his reply to the show cause notice . No fresh notice shall be issued to
him for his appearance.
Since Shri Dipanker Gupta has resigned, the Solicitor General of India is
requested to assist the court in the contempt proceedings either himself or by
nominating any other law officer."
9. The petitioner subsequently moved an application dated 12.8.96 for recall of
the aforesaid order at the end of which he put a 'note' as under: "if this
Hon'ble court would not hear and decide the matter on their merits then the
petitioner will be compelled to observe the continuous hunger strike in Supreme
court premises since 25.9.96."
10. In this application he indicated that he had already given to the President
of India an application, dated 19.12.95 in which he, inter alia, stated as under
:- "Thereafter, they harassed, compelled and threatened me for withdrawing the
petitions or removing all things and filing the fresh petitions and also did not
allow me to submit the arguments although the matter was fresh and two petitions
had to dispose of finally according to the settled law and passed an order in
hasty manner to this effect, "The petitioner will remove all the allegations
from petitions and file the fresh petitions and thereafter the matter will, be
listed after 8 weeks otherwise the contempt proceedings be drawn against him
etc."
Thereafter I again mentioned the matter at 2 P.M. and clearly said, "I am
not in d position to remove anything and file the fresh petitions and my
petitions may be heard immediately as it is because I wrote only facts and made
the grounds according to the Indian penal Code, Contempt of Courts Act, Evidence
Act and Constitution, etc." but they without saying retired to their chambers.
Then I immediately moved an application in the Registry of the court and
clearly- said about each and everything and also said, "I am not in a position
to remove anything and the Court is bound to hear the same and decide the same
according to Law and settled norms of justice."
I am bringing the facts in the knowledge of your excellency that the
Supreme Court has heard the contempt petitions against many citizens of the
country i.e. Advocates. Bureaucrats, Leaders and Police officer, etc. and has
punished them but when I filed the contempt petitions against some corrupt
people who had defrauded and cheated me and destroyed/fabricated, some judicial
records to conceal their nefarious acts by exercising their Judicial powers then
Mr Justice A.S. Anand and Mr. justice M.K. Mukherjee harassed, compelled and
threatened me in open. Court and also did not allow me to submit the arguments
and even they had gone in saying that they would see me and forfeit my license
advocasy despite the fact that I have been appearing in person and the matter
had no connection with my profession or professional capacity.
I am saying with great sorrow and the matter is also very serious that the
above two Judges consider them selves the load paramount/ almighty and attacked
at a human being/litigant and also threatened a young advocate/boy although, the
god is one and only who makes everybody either he is king or ordinary man and
every human being is also equal along with equality before law and the court
bound (the paramount duty) to hear the case as it is despite the fact that who
is O.P. (King or judge or ordinary man), but it is very unfortunate and
horrendous that the above two judges have fully forgotten that the God is seeing
the acts of everybody by his spiritual eyes and almighty lives in every soul and
attacking on any people is amounted to insult the God.
I am also saying that the both judges broke the decorum of the court.
dismantled the temple of justice and thus embarrassed the goddess of justice.
Their hurling upon me is attack at the human dignity, and fundamental and legal
rights of a honest and genuine litigant and also restraining a poor litigant to
pursue his case and obstruction in the way of justice/holy streem of justice. I
am requesting to your excellency that being the head of the nation/the highest
constitutional authority, kindly suggest Mr. Justice A.S. Anand and Mr. justice
Mr. M.K. Mukherjee of the Supreme court to feel sorry before me for their highly
objectionable behaviour with me on 15-12-95 otherwise I will be at liberty to
take any action according to law and in that case the whole world will see the
power of truth/dharma and they will be responsible no I."
11. This application was given to the President of India for sanction to
prosecute the two Judges (Hon'ble Dr. justice A.S. Anand and Hon'ble Mr. justice
M.K. Mukherjee for offences under Section 167, 504 and 506 IPC with two months'
notice to the President indicating therein that if the sanction was not granted
within two months, it shall be deemed to have been granted.
12. He further stated in para 5 and 6 of the application as under:-
"5. That the petitioner had received the letter dt. 11-3-96 and no. P1-999
from the Rashtrapati Bhavan and according to that his excellency sought the
opinion of the ministry of the law and justice in the matter. The copy of letter
dt. 11-3-96 is annexed as annexure no.3 to this application for the perusal of
this hon'ble Court.
6. That on the expiry of two months from 1-3-96 i.e. from the date of
notice to his excellency, the petitioner had obtained the formal sanction under
section 197 to prosecute Mr. A.S. Anand and Mr. M.K. Mukherjee."
13. He ultimately prayed as under:- "It is, therefore, most respectfully prayed
that this hon'ble Court may graciously be pleased to recall the order dated
9-8-96 passed in the case mentioned above and hear all the matters immediately
by constituting a larger bench/Constitutional bench otherwise great injury would
be caused to the applicants.
14. The contemner, thereafter, filed on 23.9.96 Compalint Case No. 122/1 of 1996
in the Court of Shri Nepal Singh, A.C.M.M., New Delhi against Hon'ble Mr.
Justice A.S. Anand and Hon'ble Mr. Justice M.K. Mukherjee for offences under
Section 167, 504 and 506 IPC. In this complaint, it was stated by the contemner
as under: "l. That the Complainant had filed S.L.P. (Crl.) No. 4114/95 and Cr.
M.P.No. 6242-43/95 along with Cri. Contempt petitions/Diary No. 16199, 17021 and
17022/95 in the supreme court of India in the month of October/November, 95 and
they were first come up for hearing on 4.12.95 before the court No.2 of the apex
court and the bench concerned after some time hearing ordered ton this effect,
'List these matters before some other bench'.
2. That thereupon the petitions had come up for hearing on 15th day of
December, 95, before the Court No.9 at serial No.28 & 42 and on that day the
accuseds were on the bench there .
3. That on the calling of the matter on that day, the Complainant who
reached from Lucknow, stood before the Court but as soon as he stood the
accuseds without any authority, basis, immoraly and illegaly hurled upon him
with highly derogatory, insulting, offending and threatening remarks with the
following sentences:-
The accused No. 1 hurled, "You
filed the petitions against the high Court Judge etc. You will withdraw
your petitions otherwise we with take action against you and start the contempt
proceedings." The Complainant requested, 'Let me argue', then the accused No.1
again hurled, "we will send you in jail otherwise withdraw the petitions or
remove all thing for the petitions and file the first petitions." The
complainant refused to comply with their illegal and offending directions and
again said, Let me argue." Then the accused no.2 hurled upon the Complainant in
a highly objectionable manner, "You do the practise in Lucknow, you understand
yourself very competent and intelligent, you abused your professional privilege,
we will see you and forfeit your licence. the complaint again prayed, 'submit me
arguments'. "we will not allow you ton submit the arguments on the points which
you raised and give the chance to the audience to near some otherwise everybody
will know the matter".
15. In para 4 of the complaint, the contemner reproduced the Order passed by
Hon'ble Dr. justice A.S. Anand and Hon'ble Mr. justice M.K. Mukherjee as under:-
4. That thereafter the accuseds passed the followings order in a hasty
manner :-
"In all the petitions, we find
that attack in indecent, wild, intemperate, and even abusive language on
the name Judges has beer, made at various places in each one Of the petitions.
The petitioner, who is an advocate, has permitted himself the liberty of using
such expression, which prima facie tend to scandalize the Court in relation to
judicial matters and thus have the tendency to interfere with the administration
of the justice. We are inclined to initiate contempt proceedings against the
petitioner, but On his request grant him 6 weeks time to delete all the
objectionable expressions used in the petitions and file the fresh petitions. He
shall also remove other defects, as pointed out in the office report when he
file the fresh petitions. If the fresh petitions are filed, the same shall be
listed after eight weeks . Otherwise, these petitions shall be put UP for
drawing up contempt proceeding against the petitioner after eight weeks."
16. In paras 5, 6, 7, 8, 9, 10 and 11 of the complaint, it was stated:
"5. That on the such goondaism of the accuseds; the Complainant left the
Court room and again he gone there at 2 P.M. and mentioned and also tried to
give in writing, "I am not in a position, to remove and thing and file the fresh
petitions and my petitions be heard as it is immediately because I wrote only
the truth but the accuseds retired to their Chambers without saying anything. It
is the most important to mention here that the Complainant never prayed to grant
6 weeks time for removing any thing from the petitions, filing fresh case and
the accuseds dictated the orders in this regard by their own falsely, only with
the sole motive to waste the money and valuable time of the complainant; any how
harass him coupled with hide the sins/corruption of their
subordinate people.
6. That thereafter the complainant had immediately moved an application No.
132/95 in the registry of the apex Court and clearly said about his harassment
by the accuseds and their open goondaism and also prayed for hearing of his
petitions as it is and decide the same according to the settled norms of
justice.
7. That the complainant also informed the hon'ble President of India about
the goondaism of the accuseds through registered letter No. 162 and dt. 21.12.95
along with copies to Hon'ble the vice President of India/Chief justice of India
through the certificate of posting.
8. That since the acts of the accuseds were the offences as per the mandate
and by virtue of the Indian Penal Code so an application under section 197 of
Cr. P.C. along with two months specific notice to accord the sanction to
prosecute the accuseds under sections 167,500,504 and 506 of IPC had also been
sent to his excellency vide registered post receipt no. C-2174 and dated 2.3.96.
It is the most important to mention here again that although the offences as
stated in proceedings para don't come in money manner whatsoever within the
judicial acts/never did while the accuseds had been discharging their judicial
duties but inspite of this facts and for saving any future complication in the
matter, the complainant filed the application before Hon'ble the President and
requested his excellency to decide the matter in two months from the date of
notice.
9. That in response to the above notice/application the complainant had
received a letter dated 11.3.96 and no. P1-999 from the Rashtrapati Bhavan and
according to the contents of the same his excellency sought the opinion of the
Ministry of Law and Justice in the matter. The said letter was received I by the
complainant in the third week of March 1996 .
10. That the complainant had also given, registered notice to the accuseds
to tender unconditional, apology in writing to him for their misdeeds or,
15.,2.95 and gave him one month time for making the unconditional apology from
the date of notice. The registered notices were sent to both the accuseds on
10.8.96 vide registered letter no. 2888 and 2389 dt. 10.8.96 but they did not
think fit and proper/necessary to response the notices and tender the
unconditional apology
however served on 12.8.96.
11. That the accuseds committed the offences as contemplated in the Indian
Penal Code and liable to be dealt with strictly, and exemplory otherwise it will
be licensed to the judicial goondaism and the Courts/law would have become the
instrumentality of the people like the accuseds and so the interest of the
litigants will be jeopardised which is not permissible in law."
17. He made the following prayer in the complaint: "It is therefore, most
respectfully prayed that this Hon'ble Court may graciously be pleased to
take the cognizance of the above mentioned offences and punish the accuseds
deterrently and severely under the above stated circumstances and facts
alongwith pass other necessary orders in the matter and for which act of
kindness the complainant shall ever pray as in duty bound."
18. A copy of this complaint was filed by the petitioner himself on 24.9.96
before the Registrar in Criminal Contempt Case NO. 2/96. In his letter addressed
to the Registrar, he stated as under:
"I filed some papers in the
cases mentioned above and the same are the important documents. Since the
matter is listed in court on 27.9.96 so the papers be circulated for the perusal
of the hon'ble court and read as part of the petitions."
19. As stated by the contemner himself in his aforesaid complaint, he had issued
a notice dated 10.8.96 to both the learned judges in which he, inter alia,
stated as under:-
"2. That there after the above petitions had been listed before the court
No.9 on 15-12-95 and both of you were on the Bench. On the calling of the matter
on that day, i who reached form Lucknow, as soon as stood before the court to
argue, then both of you without any authority, basis immoraly and illegaly
hurled upon me with highly derogatory, insulting, offending and contemptuous
remarks with the following sentences:-
The addressee number 1 hurled, "you filed the petitions against the high
court judge etc. You will withdraw your petitions otherwise we will take action
against you and start the contempt proceedings." I requested, "Let me argue".
You addressee no.1 hurled, "we will send you in jail otherwise withdraw the
petitions or remove all things form the petitions and file fresh petitions." I
refused to do so and said, Let me argue." Then you the addressee no.2 hurled
upon me in a highly objectionable manner, "you do the practise in Lucknow, you
understand yourself very competent and intelligent, you abused your professional
privilege, we will see you and forfeit your licence," then I gain prayed,
"submit me arguments," then you addressee no.1 again hurled, we will not allow
you to submit the argument on the points which you raised and give the chance to
the audience to hear the same otherwise everybody will know matter."
4. That on the above happening I left the Court room and again had gone
there at 2 p.m. and mentioned and also tried to give in writing, I am not in a
position to remove any thing and file the fresh petitions and my petitions be
heard as it is immediately because I wrote only the truth but both of you
without saying anything retired to your chambers. It is the most important to
mention here that I had never prayed to grant six weeks time for removing
anything from the petitions, filing the fresh petitions and you dictated
absolutely false in your order in this regard only with the sole motive the
waste the money and valuable time of the petitioner and any how harass me
alongwith hide the corruption, fraud, cheating and forgery etc. in a short word,
'since' of the people who are the contemnors in the above said petitions."
20. In paras 5, 6 and 7 he, Inter alia, stated as under:
"5. But I am also warning you that the said application was moved before
his excellency. only to avoid any future complication in the matter otherwise
according to the settled law VIZ. judicial precedents, as you also know very
well, the acts mentioned in paras 2 and 3 of this notice were your personal acts
and neither come in the definition of the official acts nor were come in your
Judicial duties render- ed by you . As you know very well and according to the
Indian penal Code, your acts were offences according to Sections 167, 500, 504
and 506 and due to your falsity, I suffered from a heavy financial loss.
6. That it is not worthy that due to your Falsity I suffered from the loss
of Rupees two thousand (2000/- ) for appearing on that day in the case so I also
entitled for the compensation from you.
7. That I am warning you that from the date Of this notice, both of you
tender unconditional written apology to me for your offences on 15.12.1995 in
the Court No. 9 of the Supreme Court of India coupled with the compensation of
Rupees two thousand (2000/-) and a handsome amount for my mental harrassment.
The written apology alongwith compensation be paid by you in a month from the
date of this notice otherwise i will be compelled to initiate the criminal
proceedings against you in the competent criminal court and you will be
responsible for all cost and consequences.
21. The aforesaid notice constitutes the basis of Contempt Petition (Crl.) No.
55/96 while the complaint filed by the contemner against the two Hon'ble Judges
of this Court is the basis of Contempt Petition (Crl.) No. 56/96.
22. The notice issued to as also the complaint subsequently filed against the
two Hon'ble Judges of this Court were placed before Hon'ble the Chief Justice of
India who directed the same to be placed before the Court. That is how these
matters have come before us.
23. The aforesaid notice dated 10.8.96 issued by the contemner to the two
Hon'ble Judges calling upon them to tender unconditional written apology to him
and also to pay compensations was placed with the office report dated 12.9.96
before the Court when the following order was passed on 16.9.96:
"Mr. Ajay Kumar Pandey, Advocate, C-2230, Indira Nagar, Lucknow - 225016
has sent registered letters dated August 10, 1996 to the Hon'ble Judges of this
Court. The language and the tenor of the letter prima facie amounts to
scandalising and lowering the authority of this Court . We issue contempt notice
to Mr. Pandey, returnable on 30th September, 1996. He may show cause why he be
not held guilty of the contempt of court and punished suitably . Registry to
serve the respondent through the Additional Registrar of the Lucknow Bench of
Allahabad High Court . Mr. Pandey shall be personally present in Court on 30th
September, 1996 at 10.30 P.M."
24. When the matter was taken up on 30.9.1999, the following order was passed :
"Mr. Ajay Kumar Pandey,
advocate, the contemnor is present before us. Initially, he had refused to
accept summons of this Court but later on he himself contacted the Registry of
this Court on September 27, 1996 and obtained the summons. Apart from derogatory
and scandalous language written in the letter addressed to two Hon'ble Judges of
this Court he also threatened them that he would file criminal complaints
against them. He has as a matter of fact filed complaint case No. 122/1/96 on
September 23, 1996. The contents of the complaint in totality, relate to the
proceedings conducted in Court No. 9 or this Court. The complaint is full of
scandalous and abusive language. We issue notice to Ajay K. Pandey why he should
not be held guilty of contempt of court and be punished suitably tor filling
this
scandalous complaint before Mr. Nepal Singh, Additional Chief Metropolitan
Magistrate. We take suo moto. Notice of the complaint filed before the A.C.M.M.
The complaint is wholly frivolous and amounts to the abuse of the abuse of the
Court. We quash the complaint. We are told that the A.C.M.M. has further marked
that complaint to Ms. Renu Bhatnagar, Metropolitan Magistrate who has fixed the
date some time in March, 1997. We quash the complaint and the proceedings before
Ms. Renu Bhatnagar, M.M. Mr. Ajay K. Pandey, standing before us, has fairly
stated that he has no objection to the quashing of the complaint. We are further
of the view that A.C.M.M. and M.M. who have dealt with this complaint have acted
without any Application of mind. It seems that they have not even read the
contents of the complaint. We issue notice to both of them to show cause why
contempt proceedings be not initiated against them.
Mr. Pandey may file his reply
within one week from today in this Court in both the contempt petitions. He
may file all the documents affidavits of himself or of any other person he
wishes to file in support of his defence along with the reply. The contempt
petitions shall be heard on 10.10.96 at 10.30 A.M.
On our suggestion, Mr. Pandey
states that he would not mind having the assistance of a counsel. Mr. Mukul
Mudgal, learned counsel present in Court states that he would request Ms. Manju
Goel, Secretary, Supreme Court Legal Services Committee to assign a counsel to
assist this Court on behalf of the contemnor. We request Mr. G.L. Sanghi,
learned senior counsel to assist this Court. A sea of papers be sent to Mr. G.L.
Sanghi, learned counsel.
The matter regarding contempt
notice to Additional Chief Metropolitan Magistrate and Metropolitan
Magistrates be listed on 30.10.1996. They shall be personally present in Court.
25. Separate notices for contempt were issued to the two Magistrates, who are
being dealt with separately.
26. When the matter was taken up on 10.10.1936, the contemner filed unqualified
and unconditional apology to the following effect :
"I Ajay Kumar Pandey, Advocate the Respondent contemner herein do hereby
tender my unqualified and unconditional apology to this Hon'ble Court for
addressing registered letters dated 10.8.1996 to two Hon'ble Judges of this
Hon'ble Court for the language and contents the Said letters for filling a
criminal complaint dated 23.9.1996 in the court of Additional Chief Metropolitan
Magistrate New Delhi against two Hon'ble judges of this Hon'ble Court and for
the language and contents of the said complaint. I respectfully submit that
these actions of mine and the language used by me in relation to the Judges of
this Hon'ble Court were as a result of my losing control over myself for which I
am genuinely repentant. I humbly seek forgiveness from this Hon'ble Court and
pray to this Hon'ble Court to accept my apology and show mercy on me. I
undertake not to repeat such conduct in the future."
27. The Court, however, passed the following order on that date:
"we have heard Mr. Raju
Ramachandran. On our request he appearing for the contemnor, A.K. Pandey.
We have also heard Mr. G.L. Sanghi, who on our request is appearing to assist
the Court. We have also heard Mr. A.K. Pandey. Initially Mr. Pandey stated that
he could not file reply because tile Registry declined to permit him to inspect
all the records. We placed the records before him and permitted him to examine
the same. Mr. Pandey who is present in Court states that he does not want to
inspect the records. Mr. Pandey has filed unqualified and unconditional apology.
This may be taken on record.
We adjourn the hearing of this
case to October 30, 1996. Meanwhile, Mr. Pandey may file his reply to the
Contempt Petition if he so wish. The application and the apology Which are
already on the record shall be taken into consideration on the next date of
hearing. The contemnor to be present in Court on October 30 1996.
28. On 30.10.1996 when the case was next taken Up, the Court passed the
following order: "Mr. Arun Jaitley, Sr.
Advocate, represent Mr. Nepal Singh, Additional Chief
Metropolitan, Magistrate and Ms. Renu Bhatnagar, Metropolitan Magistrate is
represented by Mr. Rajiv Garg, Advocate. both the contemners are present in
Court. To enable them to file affidavits in reply to the contempt notice, we
adjourn the hearing to 4th November 1996. is meanwhile, we direct Registrar of
Delhi High Court to send the personal files of these two officers to this court.
We are told that Justice J.K. Mehra and Justice S.N. Kapoor are the inspecting
Judges so far as these two judicial officers are concerned. We would request
Hon'ble Judges to give their comments regarding these two offices. The earlier
orders of this Court in this case may also be sent to the Registry Of the Delhi
High Court. To come Up On 4th November, 1996 . Orders to be pronounced on 4th
November, 1996 in respect of Mr. Ajay Kumar Pandey."
29. The background facts set out above would indicate that the contemner is a
practising Advocate who himself had filed criminal complaint against a brother
advocate (Mr. Mahesh Giri) and Ms. Saroj Bala who was a member of the lower
judiciary posted as VII Addl. District Judge at Lucknow, after giving them a
notice demanding compensation for having defamed him by publicly saying that he
had sexual relations with one of them, namely, Ms. Saroj Bala. This complaint
was dismissed at the initial stage as indicated in the earlier part of this
judgment, but he raised a number of controversies, including a demand for
enquiry to be set up by the then District Judge, Lucknow, Mr. J.C. Mishra, who
is now a sitting Judge of the Allahabad High Court. The contemner filed a
Revision before the High Court against the order by which his complaint was
dismissed and the application for summoning the witnesses through court process
was rejected. This revision, as pointed out earlier, was dismissed by Mr.
Justice Virendra Saran. In the Special Leave Petition filed against that
judgment, the contemner has criticised Justice Virendra Saran in intemperate
language and termed his judgment as forged and fictitious, besides imputing bad
motive.
30. When this Court noticed the scandalous and even abusive language by the
contemner used against Mr. Virendra Saran and other officers of the judiciary,
it required the contemner to delete those sentences or portions and/or file a
fresh petition. Not satisfied, the contemner moved an application for recall of
the order and in that application he again used intemperate language and
thereafter started making efforts to avoid the Court (Hon'ble Anand and
Mukherjee,) and for this purpose, he adopted derogatory and bad tactics. He gave
notice to the two Hon'ble Judges seeking unconditional apology from them or
their conduct and behaviour in the Court and also demanded compensation from
them. He wrote to the President of India for sanction to prosecute the Hon'ble
judges for offences under sections
167. 500, 504 and 506 IPC giving two months time to the President to grant
sanction or else he would treat the sanction to have been granted to him. he
also threatened to go on hunger strike before the Supreme Court with effect from
25.9.1996. He then filed a complaint against the Hon'ble Judges branding their
conduct as "goondaism". He pleaded for his case to be listed before some other
Bench or to be referred to the Constitution Bench on the ground that both the
Hon'ble Judges were personally involved in the case and, therefore, they need
not hear the matter, but he was unsuccessful.
31. This Court, as the highest court of the land, has not only the right to
protect itself from being denigrated, but has also the right jurisdiction and
authority to protect the High Courts and the subordinate courts from being
insulted, abused or in any other way denigrated. All the courts, be they the
lower or the highest function for the noble cause of dispensing justice. Since
they have to decide litigation between two contesting parties. it is obvious
that they have to have full freedom and independence in settling the litigation.
The Presiding officers who run the courts and conduct the proceedings therein
have to act fearlessly. Any action on the part of any person or litigant or
lawyer, which tends to interfere or obstruct the process of justice, has to be
deprecated so that the proceeding may be held in an orderly fashion and everyone
who participates in those proceedings may have the feeling of liberty to address
the court for proper ad adjudication of his case.
32. An Advocate, as a citizen of this country, has the fundamental right of
freedom of expression and speech under Article 19 of the Constitution. This
right is also guaranteed to him under the Advocates Act. Apart from that the
legal profession has the inherent right to express itself in the best manner
possible in uninhibited language, but the right to express also carries with it
the duty to be dignified in the use of expression and to maintain decorum and
peace in the court proceedings.
33. In Dr. D.C. Saxena vs. Hon'ble the Chief Justice of India (1996) 5 SCC 216,
this court observed, inter alia, as under,:
" Advocacy touches and asserts
the primary value of freedom Of expression. It is practical manifestation
of the principle of freedom of speech. Freedom of expression in Arguments
encourages the development of judicial dignity, forensic skills of advocacy and
enable protection of fraternity, equality and justice. It plays its part in
helping to secure the protection of other fundamental human rights. freedom of
expression therefore is one of the basic conditions for the progress of advocacy
and for the development of every man including legal fraternity practising the
profession of law. Freedom of expression, therefore, is vital to the maintenance
of free society. It is essential to the rule of law and liberty of the citizens.
The advocate or the party appearing in person, therefore, is given liberty of
expression. But they equally owe countervailing duty to maintain dignity,
decorum and order in the court proceedings or judicial process. The liberty of
free expression is not to be confounded or confused with licence to make
unfounded allegations against any institution, much less the judiciary."
34. It was further observed in that above case as under : "Scandalising the
court would mean hostile criticism of judges as judges or judiciary. Any
personal attack on a judge in connection with the office he holds is dealt with
under law of libel or slander. Yet defamatory publication concerning the judge
as a judge brings the court or judges into contempt a serious impediment to
justice and an inroad on the majesty of justice. Any caricature of a judge
calculated to lower the dignity of court would destroy, undermine or tend to
undermine public confidence in the administration of justice or the majesty of
justice. It would, therefore , be scandalising the judge as a judge, in other
words, imputing partiality, corruption, bias, improper motives to a judge is
scandalisation of the court and would be contempt of the court. Even imputation
of lack of impartiality of fairness to a judge in the discharge of his official
duties amounts to contempt. The gravamen of the offence is that of lowering his
dignity or authority or an affront to the majesty of justice. When the contemnor
challenges the authority of the court, he interferes with the performance
of duties of judge's office or judicial process or administration of justice or
generation or production of tendency bringing the judge or judiciary into
contempt."
35. In the present case, we are concerned with the notice issued by the
contemner to the two Hon'ble judges demanding apology and compensation and the
subsequent complaint filed by him in the court of A.C.M.M., Delhi, and the
contents thereof. The notice relates to the proceedings Of The court on
15.12.1995. It is said that both the judges without any authority, basis,
immorally and illegally hurled upon "me" with highly derogatory, insulting,
offending and contemptuous remarks."
36. After setting out what the Judges allegedly said, it is mentioned in the
notice as under: "It is the most important to mention here that I had never
prayed to grant six weeks time for removing anything, from the petitions,
filling the fresh Petitions and you dictated
absolutely false in your order in this regard only with the sole motive to
waste the money and valuable time of the petitioner and any how harass me
alongwith hide the corruption, fraud, cheating and forgery etc. in a short word,
sins'.
37. The notice also mentions his application to the President of India for
sanction and in it he held out a threat to the two Hon'ble judges that if they
did not fender unconditional written apology to him he would initiate criminal
proceedings in the competent criminal court.
38. The criminal contempt is defined in Section 2(c) of the contempt of courts
act, 1971 as under : "2(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." According to
the definition reproduced above, the first pre- condition is the publication or
doing of any other act and the second is that the publication or doing of the
act has resulted in the consequences set out in Section 2(c) (i) (ii) and (iii),
namely :
(i) scandalizes of tends to scandalize, 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."
39. In view of the definition, the contemptuous conduct may be either due to the
publication or consist in the doing of any other act.
40. In Delhi Judicial Service Association vs. State of Gujarat & Ors. (1991) 4
SCC 406, it was observed by this Court that :
"....The definition of criminal contempt is wide enough to include any act
by a person which would tend to interfere with the administration of justice or
which would lower the authority of court. The public have a vital stake in
effective and orderly
administration of justice. The court has the duty of protecting the
interest of the community in the due administration of justice and, so, it is
entrusted with the power to commit for contempt of court, not to protect the
dignity of the court against insult or injury, but, to protect and to vindicate
the right of the public so that the administration justice is not perverted,
prejudiced, obstructed or interfered with."
41. In Dr. D.C. Saxena's case (supra), this Court has already laid down that if
a Judge, on account of the proceedings conducted by him in his court, is
threatened that he would be prosecuted in a court of law for the judicial act
done by him, it amounts to criminal contempt as it lowers and tends to lower the
dignity of the court.
42. We are also of the same opinion. We may observe that any threat of filing a
complaint against the Judge in respect of the judicial proceedings conducted by
him in his own court is a positive attempt to interfere with the due course of
administration of justice. In order that the Judges may fearlessly and
independently act in the discharge of their judicial functions, it is necessary
that they should have full liberty to act within the sphere of their activity.
If, however, litigants and their counsel start threatening the Judge or launch
prosecution against him for what he has honestly and bona fide done in his
court, the judicial independence would vanish eroding the very edifice on which
the institution of justice stands. It would also be in violation of the
statutory protection available to the Judges and Magistrates under the Judicial
Officers (Protection) Act as also the Judges (Protection) Act.
43. Having seen the entire record, we are fully satisfied that the contemner, by
questioning the conduct of the Judges through his notice and demanding apology
and compensation from them as also the complaint lodged against them especially
in the language employed by him, is guilty of the "criminal contempt" and is
liable to be punished therefor in both the case.
44. In relation to the quantum of punishment we may observe that the contemner,
who is a practising advocate and is young in age, had on 10.10.1996, tendered
before us an unconditional and unqualified apology in writing, withdrawing all
the Objectionable remarks sentences and words used by him in the application,
notice and complaint and had expressed his regrets. The Court, however, is not
bound to accept the apology unless there is real feeling of repentance in the
contemner. The contemner had already been given an opportunity at the initial
stage by both the learned Judges to withdraw his remarks against a Judge of the
Allahabad High Court and other officers or the lower judiciary, but he insisted
to proceed with the case. He even initiated contempt proceedings against both
the Hon'ble Judges. But this Court took a lenient view and instead of initiating
any other action against him, dismissed the criminal contempt petition by order
dated 5.8.1996, passed by Hon'ble J.S. Verma and hon'ble B.N. Kirpal, JJ.
45. The jurisdiction of this Court under Article 129 of the Constitution is
independent of the Contempt of Courts Act and the power under Article 129 cannot
be denuded restricted or limited by the Contempt of Courts Act, 1971. Thus there
is no restriction or limitation on the nature of punishment that this Court may
award while exercising its contempt jurisdiction. But we do not intend to travel
far and beyond.
46. Having convicted the contemner for obstructing the course of justice by
trying to threaten and overawe the Court by using insulting and disrespectful
language and issuing notices and also launching criminal prosecution when the
allotments were first made to them. Since we laid down the law for the first
time, we have not interfered with the direction of the High Court but suitably
was modified. This direction, therefore, will not be used as a precedent.
Appeals arising out of SLP (C) Nos. 20857/93, 20936/93 and CC No. 25107/94 are
disposed of accordingly. Appeals arising out of SLP (C) No. 2492/90, Which is by
Shanti Swaroop against the judgment of the High Court in A.K. Garg and connected
cases is, however, dismissed. There would be no order as to costs.
In Re : Ajay Kumar Pandey vs Date Of Judgment:20/09/1996 on 20 September, 1996
Cites 24 docs - [View All]
The Indian Penal Code, 1860
Section 167 in The Indian Penal Code, 1860
Section 504 in The Indian Penal Code, 1860
Section 506 in The Indian Penal Code, 1860
The Contempt Of Courts Act, 1971
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Supreme Court of India
Bench: K Ramaswamy, B Hansaria
PETITIONER:
IN RE : AJAY KUMAR PANDEY
Vs.
RESPONDENT:
DATE OF JUDGMENT: 20/09/1996
BENCH:
K. RAMASWAMY, B.L. HANSARIA
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
The contemner is a practising advocate. He filed Complaint Case No.451 of
1994 in the Court of VI Additional Chief Judicial Magistrate, Lucknow against
Shri Mahesh Giri, advocate and Ms. Saroj Bala, VII Additional District Judge,
Lucknow for offences under Section 499/500 IPC. Mr. Mahesh Giri, at the relevant
time, was the govt. counsel deputed to work for the prosecution in criminal
cases in the Court of VII Additional District Judge, Lucknow. It was alleged in
the complaint tread with notice which preceded it as also contemner's statement
recorded under Section 200 Cr. P.C.) that the accused namely, Mahesh Giri,
advocate and Ms. Saroj Bala, VII Additional District Judge, Lucknow had imputed
sexual relations between the contemner and Ms. Saroj Bala which had defamed the
contemner and, therefore, he prayed that the accused be tried for the said
offences. The statement of the contemner was recorded under Section 200 Cr. P.C.
on 21.9.94 but it remained inconclusive. The statement was finally record on
26.10.94 and, thereafter, the case was ajourned for enquiry under Section 202
Cr. P.C.. It was stated that the petitioner moved an application that the
witnesses whom the contemner wanted to examine under Section 202 Cr. P.C. may be
summoned by the Court as almost all of them were practising advocates and
influential persons but the complaint itself was dismissed by the Magistrate on
16.11.94. The petitioner. thereafter, filed a Criminal Revision against the
aforesaid order in the High Court but it was dismissed on 15.2.95. Hon'ble
Virendra Saran, J. of the Allahabad High Court who disposed of the Revision
observed, inter alia, under:- "It is well settled that if the veiled object of a
lame prosecution is to disgrace, humiliate or cause harassment to the accused,
the High Court must put an end to the mischief by quashing such
criminal proceedings. The facts of the record Of the instant case give a
horrendous account of a framed-up case against a responsible member of five
lower judiciary holding the post of an Additional Sessions
judge at Lucknow and hence, even if the order of the learned Magistrate
dismissing the compliant under S. 203 of the Code be not woolly justified in
law, it is not a fit case for the exercise of the discretionary revisioinal
jurisdiction. There can be no doubt that the prosecution case unfolded in
the complaint and the statement of the applicant is nothing but an intricate web
of perfidious fabric. It appears that the aim of the applicant is to malign the
learned judge (Smt. Saroj Bala) and hold her at ransom. The applicant
emphatically and repeatedly read out the lewd passages from his deposition while
arguing the revision, but the palpably
scurrilous, indecent and abominable recitals are not worth reproduction in
the judgment. Suffice it to observe that the arguments of the applicant, so
vehement and pungent, marked with sarcasm and sneer, do not impart any strength
to his case which in inherently unbelievable. They are submissions directed more
towards vilification than substantiation of the pivotal points of the case. I
was constrained to ask the applicant not to make savage additions to the
evidence and show restraint in his colloquy."
2. The contemner, thereafter, filed SLP (Crl.) Nos.819- 20 of 1996 against the
aforesaid Judgment and Order dated 15.2.95 of Hon'ble Virendra Saran, J. in this
Court in which he impleaded only State of U.P. as a proforma respondent.
3. A similar complaint under Sections 500 and 504 IPC was also filed by the
contemner against (1) Shri Prakash Narayan Awasthi, Advocate (2) Shri R.P.
Misra, Advocate (3) Shri Vishambhar Singh, Advocate (4) Shri T.N. Misra,
Advocate (5) Shri Srikant Verma, Advocate (6) Shri Pankaj Sinha, Advocate and
(7) Shri N.C. Pradhan, Advocate in which again it was alleged that similar
imputations were made by the aforesaid advocates between contemner and Ms. Saroj
Bala. This was registered as Complaint Case NO.101 of 1995 in which petitioner's
statement was recorded under Section 200 Cr. P.C. In order to produce witnesses
under Section 202 Cr. P.C., the contemner gave a list of 31 advocates,
practising at Lucknow, for being summoned by the Court as witnesses but the
application was rejected. It was against this Order that the petitioner filed
SLP (Crl.) No. 4114 of 1995 directly in this Court. The contemner also, in the
meantime, filed Contempt Petition (Crl.) Dy. No. 16199/95 against Hon'ble Mr.
Justice Virendra Saran of the Allahabad High court, Contempt Petition (Crl.) Dy.
No. 17021/95 against Ms. Saroj Bala, IV Addl. District Judge, Lucknow, Shri Udai
Raj, V A.C.J.M., Lucknow, Shri R.P. Mishra, VI Addl. C.J.M., Lucknow and
Contempt Petition (Crl.) Dy. No. 17022/95 against Shri J.C. Mishra. District
Judge, Lucknow (now Judge of the Allahabad High Court) Shri K.N. Ojha, II Addl.
District Judge. Lucknow, Shri Shailendra Saxena, III Addl. District judge,
Lucknow and Shri B.N. Pandey, Special Judge, Lucknow. All the above matters were
listed in Court No.9 before Hon'ble Dr. Justice A.S. Anand and Hon'ble Mr.
Justice M.K. Mukherjee on 15th December 1995 when the following Order was
passed:-
"In all these petitions, we
find that attack in indecent, wild, intemperate and even abusive language
on the named Judges has been made at various places in each one of the
petitions. The petitioner, who is an advocate, has permitted himself the liberty
of using such expressions, which prima-facie tend to scandlize the court in
relation to judicial matters and thus have the tendency to interfere with the
administration of justice. We are inclined to initiate contempt proceedings
against, the petitioner, but, on his request grant him six weeks time to delete
all the objectionable expressions used in the petitions and file fresh
petitions. He shall also remove the other defects as pointed out in the office
report when he files the fresh petitions. against the petitioner, after eight
weeks."
4. The contemner, however did not avail of the above opportunity and filed
Criminal Miscellaneous Petition No. 132/95 in paras 4, 5 and 6 whereof he stated
as under:- "4. That today, the matter was listed in Court No. 9 alongwith all
petitions at Sl. No. 28 and 42 and when the petitioner tried to start his
argument the court openly harrased him and compelled him to withdraw the
petition or remove all the facts but the petitioner refused to do so in view of
the facts that he has only written the facts according to section 167, 219 483
and 463 alongwith 120-B of the IPC and section 44 and 165 of the evidence act
alongwith section 2-C and Section 16 and 12 and 15 of the contempt of court act
and the Indian Constitution.
5. That the Court is not allowed the petitioner to submit his argument an
passed an order to remove the all facts from the petition and filed the fresh
petitions and also ordered for listing the matter after 8 weeks. Thereafter, the
petitioner mentioned and also tried to give in writing that he is not in a
position to remove anything and file fresh petitions in view of the fact that
the wrote only truth and the court is bound to hear the petition and decide the
same according to the constitution and contempt of Court Act and other laws as
challenged by the petitioner but the Court without saying anything retired to
its chamber.
6. That the petitioner is not in a position to remove anything and the
deliberate injustice, Fraud cheating etc. had been done by the contemnors for
concealing their nefarious acts and even they had gone to this extent to
destroyed the judicial records and fabricated some judicial papers.
5. This application was considered by the Court Hon'ble Dr. Justice A.S. Anand
and Hon'ble Mr. Justice M.K. Mukherjee on 20.2.96 and in the Order passed
thereon it was inter alia stated as under:-
"Inspite of the petitioner`s attention having beer, drawn to the above
noted passages on 15.12.1995, which we felt prima facie, tended to scandalise
the court Courts in relation to the judicial matters and had the tendency to
interfere with the administration of justice and that the attack against the
judges was indecent, wild, intemperate and abusive, the petitioner refused to
these objectionable passages and on the contrary, in his petition (Crl. M.P. No.
132 of 1996), he has asserted that he is not prepared to remove the
Objectionable
passages/sentences. On the other hand the petitioner asserts that this
Court is bound to hear the petitioner and decide the same "without the
petitioner being obliged to remove the objectionable passages. This clearly
discloses the adamant and defiant attitude of the petitioner.
We, therefore, direct that a Rule be issued against the petitioner asking
him to show cause why he should not be punished for committing criminal contempt
of Court for the use of the objectionable language in this petition and the
subsequent application. The petitioner should file his reply to the Rule within
eight weeks.
List on 26th April, 1996.
The petitioner-in-person has been informed of the date and has been bound
down to appear on the next date. No fresh notice, therefore, need be issued to
him.
A copy or the order issuing the Rule shall be handed over to the
petitioner-in-person.
We request the Solicitor General Shri Dipankar Gupta to assist the Court in
these proceeding either himself or by nominating some other law officer.
This record of case may be forwarded to the learned Solicitor General.
This special leave petition dismissed in vies of what we have noticed above
as also on merits. The contempt proceedings shall be separately numbered .
6. The contempt matter has since been registered as Contempt Petition (Crl.)
2/96. The contemner in the meantime, moved application for recall for
recall/review of the Order dated 20.2.96 but the application was rejected by
Order dated 9.8.96. The contemner also filed a Contempt Petition (CRL.) No.
13/96 against Hon'ble Dr. Justice A.S. Anand and Hon'ble Mr . Justice M.K.
Mukherjee which was rejected by this Court (Hon'ble Mr. Justice J.S. Verma and
Hon'ble Mr. Justice B.N. Kirpal) on 5.8.96 by the following Order:
"We regret to find that the petitioner who is a practicing lawyer of some
standing has chosen to such a proceeding which resort to such a proceeding which
in our view is misconceived. We find no merit in the same but before dictating
this order, we have tried to explain this position to the petitioner with the
hope that he will appreciate that as member of the Bar he is expected to utilise
his time in a better manner to assist in the administration of justice. The
contempt petition is dismissed."
7. The contemner has since filed an application for recall of the above order
and for deciding the criminal contempt petition On merits. In the affidavit
accompanying this application, it is stated that if all matters are not decided
on merits. the contemner would be compelled to observe continuous hunger strike
from 25.9.1996. A copy of the application to the President of India for
permission to prosecute Hon'ble Dr. Justice A.S. Anand and Hon'ble Mr. Justice
M.K. Mukherjee, for their behaviour in Court on 15.12.1995, as also two months
notice to the President, were filed with this application.
8. The Contempt Petition No. 2/96 in SLP (Crl.) No. 4114/96 was taken up on
9.8.96 in which the following order was passed by Hon'ble Dr. Justice A.S. Anand
and Hon'ble Mr. Justice Mukherjee.
"On 20.2.1996, we directed a rule to be issued to the applicant asking him
to show Cause why he Should not be punished for committing criminal contempt of
the court for use of objectionable language in the SLP and the application. He
was given eight weeks time to file his reply to the rule, through these two
applications, the applicant seeks recall/review of the order dated 20.2.1996
passed in SLP (Crl) 819- 820 of 1996 which were dismissed by this court and of
the rule issued to him. We do not find any reason to recall or review that
order. There is no merit in these applications which also bristle with
scandalous remarks and are couched in objectionable language. The criminal
miscellaneous petitions filed by the applicant on 24.2.96
are, there dismissed."
In our order dated 20.2.1996, we had directed issuance of rule and to
number the contempt proceedings against the applicant separately. Those have
since been numbered as criminal contempt petition No. 2 of 1996.
The prayer of the applicant to transfer the case to 'another bench' as he
does not "wish to appear before this Bench apart from being itself contumacious
is rejected because a litigant cannot be permitted forum shopping. The case
stands assigned to this Bench. Since the applicant has not filed his reply to
the notice to show cause why he should not be punished for committing criminal
contempt of court, we, as a matter of indulgence, grant him another opportunity
to file the reply if any, within six weeks. List the matter for further
proceedings and hearing on 27.9.1996. The alleged contemner Ajay Kumar Pandey,
who is present in court has been informed of the date of hearing is directed to
remain present on the Next date of hearing, i.e. 27.9.1996, whether or not he
files his reply to the show cause notice . No fresh notice shall be issued to
him for his appearance.
Since Shri Dipanker Gupta has resigned, the Solicitor General of India is
requested to assist the court in the contempt proceedings either himself or by
nominating any other law officer."
9. The petitioner subsequently moved an application dated 12.8.96 for recall of
the aforesaid order at the end of which he put a 'note' as under: "if this
Hon'ble court would not hear and decide the matter on their merits then the
petitioner will be compelled to observe the continuous hunger strike in Supreme
court premises since 25.9.96."
10. In this application he indicated that he had already given to the President
of India an application, dated 19.12.95 in which he, inter alia, stated as under
:- "Thereafter, they harassed, compelled and threatened me for withdrawing the
petitions or removing all things and filing the fresh petitions and also did not
allow me to submit the arguments although the matter was fresh and two petitions
had to dispose of finally according to the settled law and passed an order in
hasty manner to this effect, "The petitioner will remove all the allegations
from petitions and file the fresh petitions and thereafter the matter will, be
listed after 8 weeks otherwise the contempt proceedings be drawn against him
etc."
Thereafter I again mentioned the matter at 2 P.M. and clearly said, "I am
not in d position to remove anything and file the fresh petitions and my
petitions may be heard immediately as it is because I wrote only facts and made
the grounds according to the Indian penal Code, Contempt of Courts Act, Evidence
Act and Constitution, etc." but they without saying retired to their chambers.
Then I immediately moved an application in the Registry of the court and
clearly- said about each and everything and also said, "I am not in a position
to remove anything and the Court is bound to hear the same and decide the same
according to Law and settled norms of justice."
I am bringing the facts in the knowledge of your excellency that the
Supreme Court has heard the contempt petitions against many citizens of the
country i.e. Advocates. Bureaucrats, Leaders and Police officer, etc. and has
punished them but when I filed the contempt petitions against some corrupt
people who had defrauded and cheated me and destroyed/fabricated, some judicial
records to conceal their nefarious acts by exercising their Judicial powers then
Mr Justice A.S. Anand and Mr. justice M.K. Mukherjee harassed, compelled and
threatened me in open. Court and also did not allow me to submit the arguments
and even they had gone in saying that they would see me and forfeit my license
advocasy despite the fact that I have been appearing in person and the matter
had no connection with my profession or professional capacity.
I am saying with great sorrow and the matter is also very serious that the
above two Judges consider them selves the load paramount/ almighty and attacked
at a human being/litigant and also threatened a young advocate/boy although, the
god is one and only who makes everybody either he is king or ordinary man and
every human being is also equal along with equality before law and the court
bound (the paramount duty) to hear the case as it is despite the fact that who
is O.P. (King or judge or ordinary man), but it is very unfortunate and
horrendous that the above two judges have fully forgotten that the God is seeing
the acts of everybody by his spiritual eyes and almighty lives in every soul and
attacking on any people is amounted to insult the God.
I am also saying that the both judges broke the decorum of the court.
dismantled the temple of justice and thus embarrassed the goddess of justice.
Their hurling upon me is attack at the human dignity, and fundamental and legal
rights of a honest and genuine litigant and also restraining a poor litigant to
pursue his case and obstruction in the way of justice/holy streem of justice. I
am requesting to your excellency that being the head of the nation/the highest
constitutional authority, kindly suggest Mr. Justice A.S. Anand and Mr. justice
Mr. M.K. Mukherjee of the Supreme court to feel sorry before me for their highly
objectionable behaviour with me on 15-12-95 otherwise I will be at liberty to
take any action according to law and in that case the whole world will see the
power of truth/dharma and they will be responsible no I."
11. This application was given to the President of India for sanction to
prosecute the two Judges (Hon'ble Dr. justice A.S. Anand and Hon'ble Mr. justice
M.K. Mukherjee for offences under Section 167, 504 and 506 IPC with two months'
notice to the President indicating therein that if the sanction was not granted
within two months, it shall be deemed to have been granted.
12. He further stated in para 5 and 6 of the application as under:-
"5. That the petitioner had received the letter dt. 11-3-96 and no. P1-999
from the Rashtrapati Bhavan and according to that his excellency sought the
opinion of the ministry of the law and justice in the matter. The copy of letter
dt. 11-3-96 is annexed as annexure no.3 to this application for the perusal of
this hon'ble Court.
6. That on the expiry of two months from 1-3-96 i.e. from the date of
notice to his excellency, the petitioner had obtained the formal sanction under
section 197 to prosecute Mr. A.S. Anand and Mr. M.K. Mukherjee."
13. He ultimately prayed as under:- "It is, therefore, most respectfully prayed
that this hon'ble Court may graciously be pleased to recall the order dated
9-8-96 passed in the case mentioned above and hear all the matters immediately
by constituting a larger bench/Constitutional bench otherwise great injury would
be caused to the applicants.
14. The contemner, thereafter, filed on 23.9.96 Compalint Case No. 122/1 of 1996
in the Court of Shri Nepal Singh, A.C.M.M., New Delhi against Hon'ble Mr.
Justice A.S. Anand and Hon'ble Mr. Justice M.K. Mukherjee for offences under
Section 167, 504 and 506 IPC. In this complaint, it was stated by the contemner
as under: "l. That the Complainant had filed S.L.P. (Crl.) No. 4114/95 and Cr.
M.P.No. 6242-43/95 along with Cri. Contempt petitions/Diary No. 16199, 17021 and
17022/95 in the supreme court of India in the month of October/November, 95 and
they were first come up for hearing on 4.12.95 before the court No.2 of the apex
court and the bench concerned after some time hearing ordered ton this effect,
'List these matters before some other bench'.
2. That thereupon the petitions had come up for hearing on 15th day of
December, 95, before the Court No.9 at serial No.28 & 42 and on that day the
accuseds were on the bench there .
3. That on the calling of the matter on that day, the Complainant who
reached from Lucknow, stood before the Court but as soon as he stood the
accuseds without any authority, basis, immoraly and illegaly hurled upon him
with highly derogatory, insulting, offending and threatening remarks with the
following sentences:-
The accused No. 1 hurled, "You
filed the petitions against the high Court Judge etc. You will withdraw
your petitions otherwise we with take action against you and start the contempt
proceedings." The Complainant requested, 'Let me argue', then the accused No.1
again hurled, "we will send you in jail otherwise withdraw the petitions or
remove all thing for the petitions and file the first petitions." The
complainant refused to comply with their illegal and offending directions and
again said, Let me argue." Then the accused no.2 hurled upon the Complainant in
a highly objectionable manner, "You do the practise in Lucknow, you understand
yourself very competent and intelligent, you abused your professional privilege,
we will see you and forfeit your licence. the complaint again prayed, 'submit me
arguments'. "we will not allow you ton submit the arguments on the points which
you raised and give the chance to the audience to near some otherwise everybody
will know the matter".
15. In para 4 of the complaint, the contemner reproduced the Order passed by
Hon'ble Dr. justice A.S. Anand and Hon'ble Mr. justice M.K. Mukherjee as under:-
4. That thereafter the accuseds passed the followings order in a hasty
manner :-
"In all the petitions, we find
that attack in indecent, wild, intemperate, and even abusive language on
the name Judges has beer, made at various places in each one Of the petitions.
The petitioner, who is an advocate, has permitted himself the liberty of using
such expression, which prima facie tend to scandalize the Court in relation to
judicial matters and thus have the tendency to interfere with the administration
of the justice. We are inclined to initiate contempt proceedings against the
petitioner, but On his request grant him 6 weeks time to delete all the
objectionable expressions used in the petitions and file the fresh petitions. He
shall also remove other defects, as pointed out in the office report when he
file the fresh petitions. If the fresh petitions are filed, the same shall be
listed after eight weeks . Otherwise, these petitions shall be put UP for
drawing up contempt proceeding against the petitioner after eight weeks."
16. In paras 5, 6, 7, 8, 9, 10 and 11 of the complaint, it was stated:
"5. That on the such goondaism of the accuseds; the Complainant left the
Court room and again he gone there at 2 P.M. and mentioned and also tried to
give in writing, "I am not in a position, to remove and thing and file the fresh
petitions and my petitions be heard as it is immediately because I wrote only
the truth but the accuseds retired to their Chambers without saying anything. It
is the most important to mention here that the Complainant never prayed to grant
6 weeks time for removing any thing from the petitions, filing fresh case and
the accuseds dictated the orders in this regard by their own falsely, only with
the sole motive to waste the money and valuable time of the complainant; any how
harass him coupled with hide the sins/corruption of their
subordinate people.
6. That thereafter the complainant had immediately moved an application No.
132/95 in the registry of the apex Court and clearly said about his harassment
by the accuseds and their open goondaism and also prayed for hearing of his
petitions as it is and decide the same according to the settled norms of
justice.
7. That the complainant also informed the hon'ble President of India about
the goondaism of the accuseds through registered letter No. 162 and dt. 21.12.95
along with copies to Hon'ble the vice President of India/Chief justice of India
through the certificate of posting.
8. That since the acts of the accuseds were the offences as per the mandate
and by virtue of the Indian Penal Code so an application under section 197 of
Cr. P.C. along with two months specific notice to accord the sanction to
prosecute the accuseds under sections 167,500,504 and 506 of IPC had also been
sent to his excellency vide registered post receipt no. C-2174 and dated 2.3.96.
It is the most important to mention here again that although the offences as
stated in proceedings para don't come in money manner whatsoever within the
judicial acts/never did while the accuseds had been discharging their judicial
duties but inspite of this facts and for saving any future complication in the
matter, the complainant filed the application before Hon'ble the President and
requested his excellency to decide the matter in two months from the date of
notice.
9. That in response to the above notice/application the complainant had
received a letter dated 11.3.96 and no. P1-999 from the Rashtrapati Bhavan and
according to the contents of the same his excellency sought the opinion of the
Ministry of Law and Justice in the matter. The said letter was received I by the
complainant in the third week of March 1996 .
10. That the complainant had also given, registered notice to the accuseds
to tender unconditional, apology in writing to him for their misdeeds or,
15.,2.95 and gave him one month time for making the unconditional apology from
the date of notice. The registered notices were sent to both the accuseds on
10.8.96 vide registered letter no. 2888 and 2389 dt. 10.8.96 but they did not
think fit and proper/necessary to response the notices and tender the
unconditional apology
however served on 12.8.96.
11. That the accuseds committed the offences as contemplated in the Indian
Penal Code and liable to be dealt with strictly, and exemplory otherwise it will
be licensed to the judicial goondaism and the Courts/law would have become the
instrumentality of the people like the accuseds and so the interest of the
litigants will be jeopardised which is not permissible in law."
17. He made the following prayer in the complaint: "It is therefore, most
respectfully prayed that this Hon'ble Court may graciously be pleased to
take the cognizance of the above mentioned offences and punish the accuseds
deterrently and severely under the above stated circumstances and facts
alongwith pass other necessary orders in the matter and for which act of
kindness the complainant shall ever pray as in duty bound."
18. A copy of this complaint was filed by the petitioner himself on 24.9.96
before the Registrar in Criminal Contempt Case NO. 2/96. In his letter addressed
to the Registrar, he stated as under:
"I filed some papers in the
cases mentioned above and the same are the important documents. Since the
matter is listed in court on 27.9.96 so the papers be circulated for the perusal
of the hon'ble court and read as part of the petitions."
19. As stated by the contemner himself in his aforesaid complaint, he had issued
a notice dated 10.8.96 to both the learned judges in which he, inter alia,
stated as under:-
"2. That there after the above petitions had been listed before the court
No.9 on 15-12-95 and both of you were on the Bench. On the calling of the matter
on that day, i who reached form Lucknow, as soon as stood before the court to
argue, then both of you without any authority, basis immoraly and illegaly
hurled upon me with highly derogatory, insulting, offending and contemptuous
remarks with the following sentences:-
The addressee number 1 hurled, "you filed the petitions against the high
court judge etc. You will withdraw your petitions otherwise we will take action
against you and start the contempt proceedings." I requested, "Let me argue".
You addressee no.1 hurled, "we will send you in jail otherwise withdraw the
petitions or remove all things form the petitions and file fresh petitions." I
refused to do so and said, Let me argue." Then you the addressee no.2 hurled
upon me in a highly objectionable manner, "you do the practise in Lucknow, you
understand yourself very competent and intelligent, you abused your professional
privilege, we will see you and forfeit your licence," then I gain prayed,
"submit me arguments," then you addressee no.1 again hurled, we will not allow
you to submit the argument on the points which you raised and give the chance to
the audience to hear the same otherwise everybody will know matter."
4. That on the above happening I left the Court room and again had gone
there at 2 p.m. and mentioned and also tried to give in writing, I am not in a
position to remove any thing and file the fresh petitions and my petitions be
heard as it is immediately because I wrote only the truth but both of you
without saying anything retired to your chambers. It is the most important to
mention here that I had never prayed to grant six weeks time for removing
anything from the petitions, filing the fresh petitions and you dictated
absolutely false in your order in this regard only with the sole motive the
waste the money and valuable time of the petitioner and any how harass me
alongwith hide the corruption, fraud, cheating and forgery etc. in a short word,
'since' of the people who are the contemnors in the above said petitions."
20. In paras 5, 6 and 7 he, Inter alia, stated as under:
"5. But I am also warning you that the said application was moved before
his excellency. only to avoid any future complication in the matter otherwise
according to the settled law VIZ. judicial precedents, as you also know very
well, the acts mentioned in paras 2 and 3 of this notice were your personal acts
and neither come in the definition of the official acts nor were come in your
Judicial duties render- ed by you . As you know very well and according to the
Indian penal Code, your acts were offences according to Sections 167, 500, 504
and 506 and due to your falsity, I suffered from a heavy financial loss.
6. That it is not worthy that due to your Falsity I suffered from the loss
of Rupees two thousand (2000/- ) for appearing on that day in the case so I also
entitled for the compensation from you.
7. That I am warning you that from the date Of this notice, both of you
tender unconditional written apology to me for your offences on 15.12.1995 in
the Court No. 9 of the Supreme Court of India coupled with the compensation of
Rupees two thousand (2000/-) and a handsome amount for my mental harrassment.
The written apology alongwith compensation be paid by you in a month from the
date of this notice otherwise i will be compelled to initiate the criminal
proceedings against you in the competent criminal court and you will be
responsible for all cost and consequences.
21. The aforesaid notice constitutes the basis of Contempt Petition (Crl.) No.
55/96 while the complaint filed by the contemner against the two Hon'ble Judges
of this Court is the basis of Contempt Petition (Crl.) No. 56/96.
22. The notice issued to as also the complaint subsequently filed against the
two Hon'ble Judges of this Court were placed before Hon'ble the Chief Justice of
India who directed the same to be placed before the Court. That is how these
matters have come before us.
23. The aforesaid notice dated 10.8.96 issued by the contemner to the two
Hon'ble Judges calling upon them to tender unconditional written apology to him
and also to pay compensations was placed with the office report dated 12.9.96
before the Court when the following order was passed on 16.9.96:
"Mr. Ajay Kumar Pandey, Advocate, C-2230, Indira Nagar, Lucknow - 225016
has sent registered letters dated August 10, 1996 to the Hon'ble Judges of this
Court. The language and the tenor of the letter prima facie amounts to
scandalising and lowering the authority of this Court . We issue contempt notice
to Mr. Pandey, returnable on 30th September, 1996. He may show cause why he be
not held guilty of the contempt of court and punished suitably . Registry to
serve the respondent through the Additional Registrar of the Lucknow Bench of
Allahabad High Court . Mr. Pandey shall be personally present in Court on 30th
September, 1996 at 10.30 P.M."
24. When the matter was taken up on 30.9.1999, the following order was passed :
"Mr. Ajay Kumar Pandey,
advocate, the contemnor is present before us. Initially, he had refused to
accept summons of this Court but later on he himself contacted the Registry of
this Court on September 27, 1996 and obtained the summons. Apart from derogatory
and scandalous language written in the letter addressed to two Hon'ble Judges of
this Court he also threatened them that he would file criminal complaints
against them. He has as a matter of fact filed complaint case No. 122/1/96 on
September 23, 1996. The contents of the complaint in totality, relate to the
proceedings conducted in Court No. 9 or this Court. The complaint is full of
scandalous and abusive language. We issue notice to Ajay K. Pandey why he should
not be held guilty of contempt of court and be punished suitably tor filling
this
scandalous complaint before Mr. Nepal Singh, Additional Chief Metropolitan
Magistrate. We take suo moto. Notice of the complaint filed before the A.C.M.M.
The complaint is wholly frivolous and amounts to the abuse of the abuse of the
Court. We quash the complaint. We are told that the A.C.M.M. has further marked
that complaint to Ms. Renu Bhatnagar, Metropolitan Magistrate who has fixed the
date some time in March, 1997. We quash the complaint and the proceedings before
Ms. Renu Bhatnagar, M.M. Mr. Ajay K. Pandey, standing before us, has fairly
stated that he has no objection to the quashing of the complaint. We are further
of the view that A.C.M.M. and M.M. who have dealt with this complaint have acted
without any Application of mind. It seems that they have not even read the
contents of the complaint. We issue notice to both of them to show cause why
contempt proceedings be not initiated against them.
Mr. Pandey may file his reply
within one week from today in this Court in both the contempt petitions. He
may file all the documents affidavits of himself or of any other person he
wishes to file in support of his defence along with the reply. The contempt
petitions shall be heard on 10.10.96 at 10.30 A.M.
On our suggestion, Mr. Pandey
states that he would not mind having the assistance of a counsel. Mr. Mukul
Mudgal, learned counsel present in Court states that he would request Ms. Manju
Goel, Secretary, Supreme Court Legal Services Committee to assign a counsel to
assist this Court on behalf of the contemnor. We request Mr. G.L. Sanghi,
learned senior counsel to assist this Court. A sea of papers be sent to Mr. G.L.
Sanghi, learned counsel.
The matter regarding contempt
notice to Additional Chief Metropolitan Magistrate and Metropolitan
Magistrates be listed on 30.10.1996. They shall be personally present in Court.
25. Separate notices for contempt were issued to the two Magistrates, who are
being dealt with separately.
26. When the matter was taken up on 10.10.1936, the contemner filed unqualified
and unconditional apology to the following effect :
"I Ajay Kumar Pandey, Advocate the Respondent contemner herein do hereby
tender my unqualified and unconditional apology to this Hon'ble Court for
addressing registered letters dated 10.8.1996 to two Hon'ble Judges of this
Hon'ble Court for the language and contents the Said letters for filling a
criminal complaint dated 23.9.1996 in the court of Additional Chief Metropolitan
Magistrate New Delhi against two Hon'ble judges of this Hon'ble Court and for
the language and contents of the said complaint. I respectfully submit that
these actions of mine and the language used by me in relation to the Judges of
this Hon'ble Court were as a result of my losing control over myself for which I
am genuinely repentant. I humbly seek forgiveness from this Hon'ble Court and
pray to this Hon'ble Court to accept my apology and show mercy on me. I
undertake not to repeat such conduct in the future."
27. The Court, however, passed the following order on that date:
"we have heard Mr. Raju
Ramachandran. On our request he appearing for the contemnor, A.K. Pandey.
We have also heard Mr. G.L. Sanghi, who on our request is appearing to assist
the Court. We have also heard Mr. A.K. Pandey. Initially Mr. Pandey stated that
he could not file reply because tile Registry declined to permit him to inspect
all the records. We placed the records before him and permitted him to examine
the same. Mr. Pandey who is present in Court states that he does not want to
inspect the records. Mr. Pandey has filed unqualified and unconditional apology.
This may be taken on record.
We adjourn the hearing of this
case to October 30, 1996. Meanwhile, Mr. Pandey may file his reply to the
Contempt Petition if he so wish. The application and the apology Which are
already on the record shall be taken into consideration on the next date of
hearing. The contemnor to be present in Court on October 30 1996.
28. On 30.10.1996 when the case was next taken Up, the Court passed the
following order: "Mr. Arun Jaitley, Sr.
Advocate, represent Mr. Nepal Singh, Additional Chief
Metropolitan, Magistrate and Ms. Renu Bhatnagar, Metropolitan Magistrate is
represented by Mr. Rajiv Garg, Advocate. both the contemners are present in
Court. To enable them to file affidavits in reply to the contempt notice, we
adjourn the hearing to 4th November 1996. is meanwhile, we direct Registrar of
Delhi High Court to send the personal files of these two officers to this court.
We are told that Justice J.K. Mehra and Justice S.N. Kapoor are the inspecting
Judges so far as these two judicial officers are concerned. We would request
Hon'ble Judges to give their comments regarding these two offices. The earlier
orders of this Court in this case may also be sent to the Registry Of the Delhi
High Court. To come Up On 4th November, 1996 . Orders to be pronounced on 4th
November, 1996 in respect of Mr. Ajay Kumar Pandey."
29. The background facts set out above would indicate that the contemner is a
practising Advocate who himself had filed criminal complaint against a brother
advocate (Mr. Mahesh Giri) and Ms. Saroj Bala who was a member of the lower
judiciary posted as VII Addl. District Judge at Lucknow, after giving them a
notice demanding compensation for having defamed him by publicly saying that he
had sexual relations with one of them, namely, Ms. Saroj Bala. This complaint
was dismissed at the initial stage as indicated in the earlier part of this
judgment, but he raised a number of controversies, including a demand for
enquiry to be set up by the then District Judge, Lucknow, Mr. J.C. Mishra, who
is now a sitting Judge of the Allahabad High Court. The contemner filed a
Revision before the High Court against the order by which his complaint was
dismissed and the application for summoning the witnesses through court process
was rejected. This revision, as pointed out earlier, was dismissed by Mr.
Justice Virendra Saran. In the Special Leave Petition filed against that
judgment, the contemner has criticised Justice Virendra Saran in intemperate
language and termed his judgment as forged and fictitious, besides imputing bad
motive.
30. When this Court noticed the scandalous and even abusive language by the
contemner used against Mr. Virendra Saran and other officers of the judiciary,
it required the contemner to delete those sentences or portions and/or file a
fresh petition. Not satisfied, the contemner moved an application for recall of
the order and in that application he again used intemperate language and
thereafter started making efforts to avoid the Court (Hon'ble Anand and
Mukherjee,) and for this purpose, he adopted derogatory and bad tactics. He gave
notice to the two Hon'ble Judges seeking unconditional apology from them or
their conduct and behaviour in the Court and also demanded compensation from
them. He wrote to the President of India for sanction to prosecute the Hon'ble
judges for offences under sections
167. 500, 504 and 506 IPC giving two months time to the President to grant
sanction or else he would treat the sanction to have been granted to him. he
also threatened to go on hunger strike before the Supreme Court with effect from
25.9.1996. He then filed a complaint against the Hon'ble Judges branding their
conduct as "goondaism". He pleaded for his case to be listed before some other
Bench or to be referred to the Constitution Bench on the ground that both the
Hon'ble Judges were personally involved in the case and, therefore, they need
not hear the matter, but he was unsuccessful.
31. This Court, as the highest court of the land, has not only the right to
protect itself from being denigrated, but has also the right jurisdiction and
authority to protect the High Courts and the subordinate courts from being
insulted, abused or in any other way denigrated. All the courts, be they the
lower or the highest function for the noble cause of dispensing justice. Since
they have to decide litigation between two contesting parties. it is obvious
that they have to have full freedom and independence in settling the litigation.
The Presiding officers who run the courts and conduct the proceedings therein
have to act fearlessly. Any action on the part of any person or litigant or
lawyer, which tends to interfere or obstruct the process of justice, has to be
deprecated so that the proceeding may be held in an orderly fashion and everyone
who participates in those proceedings may have the feeling of liberty to address
the court for proper ad adjudication of his case.
32. An Advocate, as a citizen of this country, has the fundamental right of
freedom of expression and speech under Article 19 of the Constitution. This
right is also guaranteed to him under the Advocates Act. Apart from that the
legal profession has the inherent right to express itself in the best manner
possible in uninhibited language, but the right to express also carries with it
the duty to be dignified in the use of expression and to maintain decorum and
peace in the court proceedings.
33. In Dr. D.C. Saxena vs. Hon'ble the Chief Justice of India (1996) 5 SCC 216,
this court observed, inter alia, as under,:
" Advocacy touches and asserts
the primary value of freedom Of expression. It is practical manifestation
of the principle of freedom of speech. Freedom of expression in Arguments
encourages the development of judicial dignity, forensic skills of advocacy and
enable protection of fraternity, equality and justice. It plays its part in
helping to secure the protection of other fundamental human rights. freedom of
expression therefore is one of the basic conditions for the progress of advocacy
and for the development of every man including legal fraternity practising the
profession of law. Freedom of expression, therefore, is vital to the maintenance
of free society. It is essential to the rule of law and liberty of the citizens.
The advocate or the party appearing in person, therefore, is given liberty of
expression. But they equally owe countervailing duty to maintain dignity,
decorum and order in the court proceedings or judicial process. The liberty of
free expression is not to be confounded or confused with licence to make
unfounded allegations against any institution, much less the judiciary."
34. It was further observed in that above case as under : "Scandalising the
court would mean hostile criticism of judges as judges or judiciary. Any
personal attack on a judge in connection with the office he holds is dealt with
under law of libel or slander. Yet defamatory publication concerning the judge
as a judge brings the court or judges into contempt a serious impediment to
justice and an inroad on the majesty of justice. Any caricature of a judge
calculated to lower the dignity of court would destroy, undermine or tend to
undermine public confidence in the administration of justice or the majesty of
justice. It would, therefore , be scandalising the judge as a judge, in other
words, imputing partiality, corruption, bias, improper motives to a judge is
scandalisation of the court and would be contempt of the court. Even imputation
of lack of impartiality of fairness to a judge in the discharge of his official
duties amounts to contempt. The gravamen of the offence is that of lowering his
dignity or authority or an affront to the majesty of justice. When the contemnor
challenges the authority of the court, he interferes with the performance
of duties of judge's office or judicial process or administration of justice or
generation or production of tendency bringing the judge or judiciary into
contempt."
35. In the present case, we are concerned with the notice issued by the
contemner to the two Hon'ble judges demanding apology and compensation and the
subsequent complaint filed by him in the court of A.C.M.M., Delhi, and the
contents thereof. The notice relates to the proceedings Of The court on
15.12.1995. It is said that both the judges without any authority, basis,
immorally and illegally hurled upon "me" with highly derogatory, insulting,
offending and contemptuous remarks."
36. After setting out what the Judges allegedly said, it is mentioned in the
notice as under: "It is the most important to mention here that I had never
prayed to grant six weeks time for removing anything, from the petitions,
filling the fresh Petitions and you dictated
absolutely false in your order in this regard only with the sole motive to
waste the money and valuable time of the petitioner and any how harass me
alongwith hide the corruption, fraud, cheating and forgery etc. in a short word,
sins'.
37. The notice also mentions his application to the President of India for
sanction and in it he held out a threat to the two Hon'ble judges that if they
did not fender unconditional written apology to him he would initiate criminal
proceedings in the competent criminal court.
38. The criminal contempt is defined in Section 2(c) of the contempt of courts
act, 1971 as under : "2(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." According to
the definition reproduced above, the first pre- condition is the publication or
doing of any other act and the second is that the publication or doing of the
act has resulted in the consequences set out in Section 2(c) (i) (ii) and (iii),
namely :
(i) scandalizes of tends to scandalize, 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."
39. In view of the definition, the contemptuous conduct may be either due to the
publication or consist in the doing of any other act.
40. In Delhi Judicial Service Association vs. State of Gujarat & Ors. (1991) 4
SCC 406, it was observed by this Court that :
"....The definition of criminal contempt is wide enough to include any act
by a person which would tend to interfere with the administration of justice or
which would lower the authority of court. The public have a vital stake in
effective and orderly
administration of justice. The court has the duty of protecting the
interest of the community in the due administration of justice and, so, it is
entrusted with the power to commit for contempt of court, not to protect the
dignity of the court against insult or injury, but, to protect and to vindicate
the right of the public so that the administration justice is not perverted,
prejudiced, obstructed or interfered with."
41. In Dr. D.C. Saxena's case (supra), this Court has already laid down that if
a Judge, on account of the proceedings conducted by him in his court, is
threatened that he would be prosecuted in a court of law for the judicial act
done by him, it amounts to criminal contempt as it lowers and tends to lower the
dignity of the court.
42. We are also of the same opinion. We may observe that any threat of filing a
complaint against the Judge in respect of the judicial proceedings conducted by
him in his own court is a positive attempt to interfere with the due course of
administration of justice. In order that the Judges may fearlessly and
independently act in the discharge of their judicial functions, it is necessary
that they should have full liberty to act within the sphere of their activity.
If, however, litigants and their counsel start threatening the Judge or launch
prosecution against him for what he has honestly and bona fide done in his
court, the judicial independence would vanish eroding the very edifice on which
the institution of justice stands. It would also be in violation of the
statutory protection available to the Judges and Magistrates under the Judicial
Officers (Protection) Act as also the Judges (Protection) Act.
43. Having seen the entire record, we are fully satisfied that the contemner, by
questioning the conduct of the Judges through his notice and demanding apology
and compensation from them as also the complaint lodged against them especially
in the language employed by him, is guilty of the "criminal contempt" and is
liable to be punished therefor in both the case.
44. In relation to the quantum of punishment we may observe that the contemner,
who is a practising advocate and is young in age, had on 10.10.1996, tendered
before us an unconditional and unqualified apology in writing, withdrawing all
the Objectionable remarks sentences and words used by him in the application,
notice and complaint and had expressed his regrets. The Court, however, is not
bound to accept the apology unless there is real feeling of repentance in the
contemner. The contemner had already been given an opportunity at the initial
stage by both the learned Judges to withdraw his remarks against a Judge of the
Allahabad High Court and other officers or the lower judiciary, but he insisted
to proceed with the case. He even initiated contempt proceedings against both
the Hon'ble Judges. But this Court took a lenient view and instead of initiating
any other action against him, dismissed the criminal contempt petition by order
dated 5.8.1996, passed by Hon'ble J.S. Verma and hon'ble B.N. Kirpal, JJ.
45. The jurisdiction of this Court under Article 129 of the Constitution is
independent of the Contempt of Courts Act and the power under Article 129 cannot
be denuded restricted or limited by the Contempt of Courts Act, 1971. Thus there
is no restriction or limitation on the nature of punishment that this Court may
award while exercising its contempt jurisdiction. But we do not intend to travel
far and beyond.
46. Having convicted the contemner for obstructing the course of justice by
trying to threaten and overawe the Court by using insulting and disrespectful
language and issuing notices and also launching criminal prosecution when the
allotments were first made to them. Since we laid down the law for the first
time, we have not interfered with the direction of the High Court but suitably
was modified. This direction, therefore, will not be used as a precedent.
Appeals arising out of SLP (C) Nos. 20857/93, 20936/93 and CC No. 25107/94 are
disposed of accordingly. Appeals arising out of SLP (C) No. 2492/90, Which is by
Shanti Swaroop against the judgment of the High Court in A.K. Garg and connected
cases is, however, dismissed. There would be no order as to costs.
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