Ashok B. Hinchigeri, J.
1. This contempt proceedings are initiated by this Court on its own motion. The petition is presented under Article 215 of the Constitution of India read with Section 15(1) of the Contempt of Courts Act, 1971. The subject matter of the complaint is that the accused have fabricated an interim order alleged to have been issued by this Court in W.A.No. 6282/2002 and produced the same in the proceedings before the Land Tribunal, Belthangadi.
2. The brief facts of the case are that the Accused No. 1 had a small piece of agricultural land for which a person claiming himself to be a tenant sought for occupancy rights. The accused filed W.P.No. 40893/2002 (LR) challenging the order dated 15-7-97 passed by the Land Tribunal, Belthangadi. This writ petition was dismissed by the learned Single Judge on 13-11-2002. That order was challenged in W.A.No. 6282/2002. The appeal papers were returned on 22-1-2003 to the Advocate for the Appellant (the Accused No. 1 herein) for complying with the Office objections. The papers were re-filed on 17-2-2003.
3. Meanwhile, the Accused No. 1 produced a fabricated interim order dated 5-12-2002 purported to have been passed by the Division Bench of this Court in W.A.No. 6282/2002. This production of the order was on 4-1-2003 in the Office of the Tahsildar-Cum-Secretary of the Land Tribunal, Belthangadi. As the Tahsildar did not find the seal of this Court on the fabricated interim order and some of the writings were by hand, the Tahsildar rightly doubted its genuineness. Therefore, he contacted the Advocate General's Office both by fax and by phone. The concerned Government Advocate verified the matter and informed the Tahsildar that the alleged interim order filed in his Office is a forged one.
4. When the above matter was brought to the notice of the Division Bench, it directed the Counsel for the Accused No. 1 to explain the forgery and to keep the Accused No. 1 to be present on 5-3-2003. The Accused No. 1 submitted that the copy of the alleged interim order was given to him by the Accused No. 2. In the wake of all these developments, the Accused No. 1 withdrew the Appeal which was dismissed as withdrawn. The Division Bench held that prima facie it is a case of forgery and that the concerned person should be punished after investigation and enquiry.
5. The contempt proceedings was initiated on 29-5-2003. This Court took cognizance and issued notices to the accused. Registrar General of this Court has presented this Petition on 29-5-2003. The Accused Nos. 1 and 2 have filed their elaborate written statements. The sum and substance of the defence of the first Accused is that it is the Accused No. 2 who gave him the copy of the fabricated. It is his case that he acted on it bonafide and filed it with the Land Tribunal, Belthangadi. For this defence, he relies on the letter of Accused No. 2 dated 5-2-2003. We would dissect this letter a little later in the course of the reasoning.
6. The defence of the Accused No. 2 is that he neither he created the alleged interim order nor he handed it over to Accused No. 1. He states that he issued the letter dated 5-2-2003 as per the request of the Accused No. 1 and that the said letter refers only to the copies of the Appeal Memo, Applications and Presentation Form. He further objects to the Accused No. 1 misusing his letter to fix the Accused No. 2 and bail out himself (Accused No. 1).
7. This Court framed the following Charge on 21 -7-2003: 'That the first of you filed W.P.No. 40893/2002(LR) challenging an order dated 15-7-1997 passed by the Land Tribunal, Belthangadi. The said writ petition was dismissed by this Court on 13-11-2002. As against the dismissal of the said writ petition, the first of you by engaging a counsel filed an appeal in Writ Appeal No. 6282/2002 (LR) on 5-12-2002. That on 17-2-2003 when the said appeal came up for consideration before the Division Bench, it was brought to the notice of the Bench by the office of the Advocate General that the first of you had produced a xerox stay order purporting to have been issued by this Court on 5-12-2002 before the Tahsildar, Belthangadi as if the said order has been issued by the Division Bench of this Court consisting of the Hon'ble Chief Justice Sri N.K. Jain and the Hon'ble Justice V.G. Sabhahit. On the information furnished by the Tahsildar to the Advocate General about the said forged stay order, the Advocate General Office on verification found it to be forged and the same was brought to the notice of the Registrar (Judicial) of this Court and the said information was placed before the Division Bench which considered the appeal when it came for the first time. After verification, the alleged xerox interim order copy produced by you before the Tahsildar, Benthangadi is found to be a forged order.
While considering the matter, the Court found from the materials on record and on the statement made by the first respondent that you the Second Respondent was also responsible for forging the alleged stay order which was never passed by this Court. It appears that both Respondents 1 and 2 conspired to commit the forgery by fabricating the alleged stay order which was never issued by this Court and producing the same before the Tahsildar, Belthangadi.
The act of forgery of the alleged interim order committed by you amounts to criminal contempt as defined Under Section 2(C)(iii) of the Contempt of Courts Act, 1971 and punishable Under Section 12 of the Contempt of Courts Act.
And, we hereby direct that you be tried on the said charge'. Both the respondents denied the charge and claim to be tried.
8. This Court directed that both the accused be tried on the above Charge as their act amounts to Criminal Contempt as defined under Section 2(c)(iii) of the Contempt of Court's Act, 1971, and punishable under Section 12 of the Contempt of Courts Act.
9. The trial began on 21-8-2003 with the Examination-in-Chief of Sri V. Shivarudra Swamy, Tahsildar, Belthangadi, (C.W. 1) by the learned Additional S.P.P. Sri Muddappa. He has deposed that the Accused No. 1 is working in the office of the Land Tribunal as a Second Division Assistant. There was pressure to start the proceedings for the change of khatha in respect of the land in question pursuant to the Land Tribunal's order passed in 1994. At the said juncture the Accused No. 1 produced a copy of the alleged interim order (Ex.P.1). He suspected its genuineness, as it was different from the usual orders issued by this Court. It did not bear the seal of the Court and some of the writings were by hand. That he therefore got in touch with Sri Krishnappa, the Administrative Officer, in the Advocate General's Office on phone as well as by fax message. On verification he was informed by the Government Advocate, Sri Sathish Doddamani that the interim order under reference is a concocted and forged document.
10. The Accused No. 1 is examined as D.W. 1, The Accused No. 1 has deposed that Ex.P. 1 was given to him by Accused No. 2. He has further deposed that the Accused No. 2 thereafter went on postponing the promised act of giving the certified copy of the alleged interim order. In the course of cross-examination, he has admitted that the interim order at Ex.P.1 is a fabricated order. He has also admitted that he has produced Ex.P.1 for the purpose of postponement of change of khatha in respect of the land involved in the Land Reforms proceedings. He has also admitted that he is well aware and acquainted with the Land Tribunal proceedings. He has also agreed with the suggestion that in many matters he has seen the orders of the High Court issued in other cases and that he was coming to Bangalore to instruct the Government Advocate at the High Court in respect of the cases pertaining to Land Tribunal.
11. The evidence of Accused No. 2 (D. W.2) is that the accused No. 1 informed him of the passing of the alleged interim order in question on 5-2-2003. He has further stated that the Accused No. 1 has done his Law Course at Mangalore and that he was working as a Bench Clerk at the Land Tribunal's Office, Belthangadi, till March, 2003. Based on the representation and at the instance of Accused No. 1, the letter at Ex.D.2, is issued, so deposes Accused No. 2.
12. The Accused No. 2 has also adduced evidence of an independent witness, namely, Sri Diwana Narayana Bhat (D.W.3). DW 3 testified that the Accused No. 2 was present in his (second Accused's) house from 2-1-2003 to 4-1-2003 on account of the observance of the Shradda ceremony of his father.
13. On behalf of the prosecution, two documents are marked-the alleged interim order copy and the Government Advocate's letter Exs.P1 and P2 respectively. On behalf of the accused, five documents are marked as Exs. D1 to D5. They are:
(1) The first Accused's letter dated 26-2-2003 addressed to the Tahsildar(Ex.D1)
(2) The letter dated 5-2-2003 issued by the Accused No. 2 to Accused No. 1 (Ex.D2)
(3) The second Accused's legal notice dated 28-12-2002 addressed to the Tahsildar (Ex.D3)
(4) Counter Affidavit, dated 18-12-97 filed in O.S.No. 206/2002 (Ex.D4)
(5) The memo filed in O.S.No. 121/1998. (Ex.D5)
14. Sri Muddappa, the learned Additional SPP submitted that the oral and documentary evidence placed on record of this Court proves beyond any reasonable doubt that both the Accused are guilty of committing the Contempt of the Court and therefore be dealt with sternly.
15. Sri Keshava Bhat, the learned Counsel for the Accused No. 1 advanced a number of legal and factual contentions. At the end of his elaborate oral submissions, he has also filed his written submissions.
16. He contended that the charge against the Accused No. 1 is vague, unspecific and ambiguous. To buttress his submissions, he has cited the Judgment of the Hon'ble Supreme Court reported in : 1999CriLJ1134 . There is no substance in this contention. The evidence adduced by the Accused No. 1, more particularly the cross-examination, clearly shows that the Accused No. 1 has understood the charge fully. The Hon'ble Supreme Court has also held that the error or omission, if any, in framing the charge cannot be a ground for the acquittal of the accused unless he demonstrates that he was put to any prejudice on account of any such error or omission. In the instant case, there are no errors or omission in framing the charge, much less misunderstanding of the charge by the Accused No. 1.
17. Sri Bhat strenuously argues that the prosecution has not established that the Accused No. 1 has fabricated the alleged interim order at Ex.P. 1. When the Accused No. 1 is found to have utilised the alleged order which he knows to be false for the purpose of preventing the mutation of entries in the revenue records, the very utilisation of the fabricated order by the person concerned would be sufficient to hold him guilty of contempt, irrespective of the fact whether he himself is the author of the fabrication. More over it has to be kept in mind that he (A1) produced the same in his personal matter. These parameters are laid by the Hon'ble Supreme Court in the case of BINEET KUMAR SINGH'S, : 2001CriLJ2575
18. The Hon'ble Supreme Court in the case of AFZAL v. STATE OF HARYANA, : 1996CriLJ1679 is pleased to hold that a false or misleading or a wrong statement deliberately and wilfully made by a party in the proceedings amounts to contempt of judicial proceedings.
19. In more or less identical case a Division Bench of the Hon'ble High Court of Andhra Pradesh found the accused guilty when they had produced a fake order in appending proceeding before the municipal authorities. This was done to keep the administration of justice clean and clear. This is in the case of MUNICIPAL CORPORATION OF HYDERABAD AND ORS. v. MIRZA YASEEN ALI BAIG AND ORS., 1996 Criminal Law Journal 3024
20. Sri Bhat pointedly and repeated brought to our notice the fact of Accused No. 1 deposing that the Accused No. 2 gave the interim order copy and that he only acted on it in good faith. This version is untenable, men may lie, but not the circumstances. The circumstances which merit our serious consideration are as follows:
(i) The Accused No. 1 was working as a Clerk in the Office of the Land Tribunal, Belthangadi. He has been working as a Bench Clerk. Admittedly he is very well versed with all Court proceedings. Admittedly he has been handling the interim orders passed by this Court in other such cases. The present case where he produced the alleged fabricated order is his personal matter. It is he alone who benefits. He himself produced the fabricated interim order. He is well-versed in the matters before the Land Tribunal, he was conducting his matter before the Tribunal on his own i.e. without the assistance of any Counsel.
(ii) As is further evident from his cross-examination, he has admitted that he used to come to Bangalore frequently to brief the Government Advocate in the cases pertaining to the Land Tribunal matters. He has also admitted that in many matters he has seen the orders of the High Court in many cases. What inescapably emerges from his evidentiary appreciation is that he could have effortlessly realised that the interim order copy in question did not bear the official seal of this Court.
(iii) Accused No. 1 is not a layman; he has completed his law course.
(iv) The concerned Tahsildar (C. W. 1) has stated when the mutation proceedings were about to be started, the alleged interim order copy was filed.
(v) The version that the order copy was given by the Accused No. 2 only, as the Accused No. 1 had no direct contact with his Advocate in Bangalore, is lacking in credibility. Sri N.J. Baliga, the advocate for the first Accused in the Writ Appeal in his affidavit filed before this Court has stated, that the Accused No. 2 introduced Accused No. 1 to him and he filed the Writ Appeal as per the instructions given by Accused No. 1.
(vi) Both in his reply statement and in his examination-in-chief, the Accused No. 1 has taken the stand that on the detection of the production of the fabricated interim order copy, the Accused No. 1 withdrew his writ Appeal.
(vii) Accused No. 2 has examined Diwana Narayan Bhat, an independent witness. He is a Gurikar and he is an elderly man of 64 years. He is a disinterested witness and there is no reason for us to disbelieve his evidence. He has deposed that on account of his father's Sharadda ceremony, Accused No. 2 was present in his (Accused No. 2's) house of Sarov of Vittala Padanur village. This evidence demolishes the first accused's attempted version that the interim order copy was given to him by the Accused No. 2 on 4-1-2003;
(viii) Accused No. 1 agrees to a suggestion put to him in the course of cross examination on the material point. 'It is true that Ex.P1, the alleged interim order is a fabricated order. It is true that I have produced the stay order Ex.P1 for the purpose of postponement of change of katha in respect of the land involved in the land reforms proceedings'.
(ix) The note on the overleaf of Ex.D2 virtually informs that Accused No. 2 would go to Bangalore, obtain all the papers including the alleged interim order copy and would give them to the Accused No. 1. This exhibit bears the date 5-2-2003. This being the position, the possibility of Accused No. 2 giving the interim order copy on 4-1-2003 does not arise at all.
(x) Further Accused No. 2 has also stated that he has sent the legal notice dated 28-12-2002 to the Tahsildar on behalf of Accused No. 1. In the said notice also, there is no reference to the interim order dated 5-12-2002.
(xi) The hand writing in the fabricated order is such that it requires no jurist or legal luminary to state that it is fabricated. Even a cursory glance at it would unmistakably reveal that it is a fabricated document. It is impossible to believe that Accused No. 1, who-
(a) had completed his law course;
(b) has been working as a clerk in the Land Tribunal;
(c) who has been coming to Bangalore to instruct the Government Advocate in the land reforms matters; (d) who has seen any number of interim order copies is similar matters did not suspect the interim order copy to be fake.
21. In the written submissions, Accused No. 1 draws our attention to his statement in his reply, wherein he has expressed apology for not verifying the interim order properly and producing it without verification. Tendering of such apologies only shows that it is a case of too little and too late. We also find that this apology is not a product of remorse or contrition. The conduct of contemner is beyond the condonable limit. In forming this view, we are guided by the law laid down by the Hon'ble Supreme Court in the case of M.C. MEHTA v. UNION OF INDIA, : 2003CriLJ2045 . Under the circumstances of the case, we hold that he produced the fabricated interim order not merely without verification but knowing fully well that it is not genuine.
22. The learned counsel appearing for Accused No. 1 submits that these proceedings are hit by the proviso to Section 10 of the Contempt of Courts Act, 1971, which reads as follows:
'Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of court subordinate to it where such contempt is an offence punishable under the Indian Penal Code, 1860 (45 of 1860)'.
23. Building his argument that the offence of fabrication in the instant case does not attract the contempt jurisdiction of this Court and that it has to be tried by criminal court only for the offence under Section 192 of IPC, he has relied on the judgments reported in : 1952CriLJ832 ; : 1981CriLJ283 and : 1964CriLJ590 .
24. This argument holds no water since Accused No. 1 has produced a fabricated interim order during the pendency of the writ appeal. The contempt committed is of this Court. That one can be tried under the specific provisions of Indian Penal Code is no ground for not proceeding under the contempt jurisdiction too. While examining the application of proviso to Section 10, the Hon'ble Supreme Court has ruled that the said bar would not apply for the alleged conduct if it impairs the administration of justice. The position is made clear by the apex court in the case of ARUN PASWAN v. STATE OF BIHAR, : (2004)5SCC53 and DAROGA SINGH v. B.K. PANDEY, : 2004CriLJ2084 . A harmonious construction of Sections 2C, 10 and 15 would reveal that the contempt jurisdiction of this Court is not ousted in a situation where the administration of justice is impaired.
25. The learned counsel appearing for Accused No. 1 submits that the standard of proof required in contempt proceedings is the same as required in criminal cases. In support of this argument, the following judgments are relied upon.
(i) M.R. PARASHAR AND ORS. v. DR. FAROOQ ABDULLIAH AND ORS., : 1984CriLJ337 .
(ii) S. ABDUL KARIM v. M.K. PRAKASH AND ORS., : 1976CriLJ641 .
(iii) ANIL RATAN SARKAR AND ORS. v. HIRAK GHOSH AND ORS., : 2002CriLJ1814 .
(iv) CHOTU RAM v. URVASHI GULATI, : 2001CriLJ4204
26. Nobody can have dispute with the proposition and the question of law laid down by the Hon'ble Supreme Court in the above cited cases. But the subject matter of the reported cases and the case on hand are entirely different. The issues involved in the reported cases were scandalising the judiciary, the judicial officer who is discharging his official duties, disobedience of compromise decree, promotion of a employee, disobedience of order, etc., But in the instant case, what is involved is the production of a fabricated interim order knowing fully well that it is not genuine. In other words, the question involved here is not the breach of any order, but producing disastrous impediments in administration of justice. Producing a fabricated interim order is an affront to the majesty of justice. It is a fraud on judiciary.
27. The Hon'ble Supreme Court in the case of M.C. Mehta referred to supra, is pleased to hold that if a false affidavit or statement is filed, it amounts to criminal contempt. More recently the Apex Court has restated the same position in the case of U.P. PRESIDENTS EMPLOYEES' CO-OPERATIVE HOUSE BUILDING SOCIETY v. NOIDA, : 2003CriLJ3533 . But in the instant case much worse that merely filing a false statement or affidavit has taken place.
28. It is also profitable to refer to a judgment of the Hon'ble Supreme Court in the case of ARUNDHATI ROY. IN RE (SUO MOTU CONTEMPT PETITION, : 2002CriLJ1792 wherein it is held that the undermining of the dignity of the courts cannot be permitted when found to have crossed the limits and has to be punished. The law of contempt has been enacted to secure public respect and confidence in the judicial process. If such confidence is shaken or broken, the confidence of the common man in the institution of judiciary and democratic set up is likely to be eroded which, if not changed, is sure to be disastrous for the society itself. The same sentiments are also expressed by the Hon'ble Supreme Court in the case of PREMA SURANA v. ADDITIONAL MUNSIFF AND JUDICIAL MAGISTRATE, : 2002CriLJ4092 . We cannot shut our eyes to what the accused No. 1 had done. If we do so, it amounts to 'angelic silence', an expression used by the Hon'ble Supreme Court in the said PREM SURANA's case.
29. On the minute scrutiny of the materials on record, the depositions of witnesses and in consideration of the law laid down by the Hon'ble Supreme Court, we hold that Accused No. 1 is guilty of the production of the fabricated interim order before the Land Tribunal. As we are not convinced of the involvement of Accused No. 2 in the production and / or in the fabrication of the interim order, we are exonerating him from the charge giving him the benefit of doubt.
30. As regards the sentence, the facts of the case show that the First Accused in order to see that the revenue authorities does not pass an order in his personal case produced the fabricated interim order. He is not only a graduate, he has been doing law course. He has been a Bench Clerk in the Land Tribunal. He admittedly had been dealing with the interim orders issued by this Court and as such he produced a manipulated order before the revenue authorities. He therefore deserves no leniency. We hereby sentence the Accused No. 1 to undergo simple imprisonment for a period of three months and to pay a fine of Rs. 1000/- in default of payment of fine, to undergo simple imprisonment for three months.
31. The office of this Court is directed to prepare a warrant of contempt and detention in Form No. 3 as per Rule 16 of the Contempt of Court Rules.