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Court on Its Own Motion Vs. Jai Bhagwan Khari - Court Judgment

LegalCrystal Citation
SubjectCriminal;Contempt of Court
CourtDelhi High Court
Decided On
Case NumberCriminal Contempt Petition No. 2 of 1980
Reported in1984(2)Crimes863; 27(1985)DLT82
ActsContempt of Court Act, 1971 - Sections 6; Indian Penal Code (IPC), 1860 - Sections 228
AppellantCourt on Its Own Motion
RespondentJai Bhagwan Khari
Cases ReferredHarbans Lal vs. Gurbachan Singh
.....commencement of both proceedings for over four years. the pending criminal proceedings against the alleged contemnor should not stand in the way to pronounce an order on the contempt committed by the alleged contemnor.;where a contemnor does not make an administrative complaint under section 6 of the act before the alleged contempt, the high court will prima facie assume that the complaint of the subordinate judge is correct. this assumption is also necessary because the power to punish for contempt immediately, even in case of grave contempt in the face of the court, is taken away from subordinate courts by the act. - - we had indicated clearly to the nephew that if the respondent does not appear we will have to take appropriate action. we are quite satisfied that now he is no more..........(civil misc. 61179) against shri gurbachan singh. while the judge was dictating the order, the alleged contemnor jai bhagwan khari appeared in the court. he filed a special power of attorney purportedly executed in his favor by gurbachan singh. the contemnor interfered with the proceedings and addressing the learned judge said 'you are in collusion with harbans lal and you have accepted money from harbans lal.' thereafter he left the court. the proceedings were initiated in 1980 and we are required to dispose it of after lapse of four years due to deliberate and willful obstacles created by the alleged contemnor in the disposal of these proceedings. this is a case of contempt in the face of the court. by its very nature the proceedings should be completed and the alleged contemnor.....

Wad, J.

(1) The contempt proceedings were initiated under S. 15 of the Contempt of Courts Act against Jai Bhagwan Khan on a reference made by Shri V. K. Jain, Sub Judge, First Class, Delhi. It was stated in the reference that on 4-1-1980 he was disposing of an application filed by one Shri Harbans Lal under Order Xxi, Rule 100. Civil Procedure Code (Civil Misc. 61179) against Shri Gurbachan Singh. While the Judge was dictating the order, the alleged contemnor Jai Bhagwan Khari appeared in the Court. He filed a special power of attorney purportedly executed in his favor by Gurbachan Singh. The contemnor interfered with the proceedings and addressing the learned Judge said 'you are in collusion with Harbans Lal and you have accepted money from Harbans Lal.' Thereafter he left the Court. The proceedings were initiated in 1980 and we are required to dispose it of after lapse of four years due to deliberate and willful obstacles created by the alleged contemnor in the disposal of these proceedings. This is a case of contempt in the face of the Court. By its very nature the proceedings should be completed and the alleged contemnor punished, if the misconduct is proved, at the earliest. Unfortunately, the subordinate courts are not able to take immediate and effective action, to save the dignity and honour of the court because of the new provisions of the Contempt of Courts Act, The subordinate courts are required to refer the matter to High Court under Section 15(2) of the Contempt of Courts Act 1971.

(2) This Court took the cognizance of the reference on 6-3-1980 and issued notice to the alleged contemnor. The Court could not proceed further as the alleged contemnor evaded service although the attempts were made to serve him through civil court and the police. thereforee, on 25-5-1982 proceedings were adjourned sine die. It was then reported to this Court that the contemnor was appearing in person before the Rent Controller and the next date fixed by the Rent Controller was 20-6-1982. The special attorney of the alleged contemnor appearing in that Court was served with the Court notice in which he was directed to appear before this Court on 20-8-1982. In spite of the service, the contemnor did not appear and thereforee this Court issued bailable warrants for the arrest and his production. He was arrested and brought before this Court on 5-11-1982. He was released on a personal bond of Rs. 5,000[- with one surety and cash security .of Rs. 1,000]- and in his presence the case was adjourned to 10-1-83. On 10-1-1983 the contemnor appeared and asked for a time to file reply. On the next date i.e. 11-2-1983 the contemnor filed his reply. Along with the reply he filed the affidavits of some of the persons who were allegedly persons in the Court on that date. The learned Judge in his reference has referred to some advocates who were present at the time of the incident in his Court. We thereforee directed those advocates to file their affidavits. The contemnor requested that the case be adjourned to 15-4-1983 as he was to go to Nagpur to attend court cases. His request was granted. It may thus be seen that for three years after making the reference by the learned Judge, this Court was prevented from taking any further proceedings because of the deliberate non-cooperation by the contemnor. He thereafter appeared and stated that he was not engaging any lawyer but would do his case himself. When he found that his presence could be secured by arresting him, he adopted dilatory tactics by filing large number of applications one after another. He moved two applications for initiating proceedings against the advocates who have filed the affidavits and against the police agencies tot arresting him. The application were dismissed by this Court on April 29, 1983 as being frivolous and misconceived. He also moved applications for the cross-examination of the said advocates and for leading evidence on his behalf. We directed that his applications would be taken up with the main petition. He was permitted to bring his evidence on his own responsibility on 4-5-1983. His application to lead evidence was against the learned Judge Shri V. K. Jain on the allegation that he had inmical relations with the learned Judge. He also wanted to cross-examine the learned Sub-Judge. In another application he wanted the proceedings for perjury to be taken against the learned Judge. All these applications were found to be frivolems. On 7-4-1983 the alleged contemnor had moved an application (Cri. Misc. 566183). In that application for the first time he brought to the notice of this Court that Shri V. K. Jain, the learned Sub Judge had made a criminal complaint in 1980 regarding the said incident under Section 228 of the I. P. C. and the criminal case was pending before Shri K. S. Khurana, Metropolitan Magistrate, Delhi. He had further prayed that the proceedings in this Court should be consigned to the record -room till the disposal of the said criminal case. The criminal proceedings were already started three years back and thee fore this Court did not find it necessary to consign these proceedings to the record room as the alleged contemnor had prayed. In his presence the matter was listed for 4th May 1983. He remained absent and a medical certificate was produced of his behalf staling that he was suffering from serious eye disease. The matter was thereforee adjourned to 23-5-1983. On 23-5-1983 the contemnor again absented. His nephew filed a medical certificate stating that he had been advised rest for 10 days but he also admitted that he alleged contemnor had gone to Gwalior. We found that the alleged contemnor was deliberately avoiding the process of this Court. We also directed Dr. Bansal, who had given the certificate, to state as to how on the one hand he had advised 10 days rest and on the other permitted the alleged contemnor to go to Gwalior. The case was then adjourned to 11th July 1983. On that date he moved an application (Crl. Misc. 1118183) stating that the matter be listed for 18-7-83 because he had moved an application for the transfer of the case to Supreme Court (Transfer Petition No. 25183). The case was thereforee adjourned to 20-7-1983. But before that date he moved five more applications. One application was that his Nagpur case was fixed for 18-7-1984 and he had to go to Nagpur. His prayer was that the case should not be taken up on 20-7-1983. It may be noted that on the earlier date he had himself required that this case should be fixed up for 18-7-83. The application was thereforee dismissed. Two applications were moved one after another on the ground that the criminal case referred to by Shri V. K. Jain, Sub Judge was pending. Similar applications' were disposed of earlier. On one more application he submitted that he wanted to move the Chief Justice for transferring these proceedings to the Full Bench of this Court. Apparently by this time the Supreme Court had dismissed his transfer application. Yet another application was moved for adjournment on the ground that he was suffering from low blood pressure, without any supporting medical certificate. This application was also dismissed and the Court directed the matter to be listed on July 20, 1983. It may be noted that on 29-4-1983 the Court had permitted the contemnor to bring whatever evidence (witnesses) he wanted to produce on his own On 4-5-1983 i.e. the next date of hearing. On 4-5-1983 he did not remain present nor was any evidence produced. Instead of producing the evidence as prayed by him and joining the main proceedings, he kept on making such frivolous applications.

(3) From 20th July 1983 the matter had to be adjourned six times as the alleged contemnor absented himself on medical grounds. His nephew used to appear every time and tell the stories of his being admitted in the hospital. On 12th August 1983 the Court had thereforee passed the following order :

'THE Court has been liberal in granting him the adjournments asked on one pretext or the other. On the last so many occasions we too have given him liberal adjournments with the hope that he will appear on the fixed date so that the matter could be disposed of. We find that our leniency has' been misused and this is a deliberate effort not to participate in the proceedings. We had indicated clearly to the nephew that if the respondent does not appear we will have to take appropriate action. There is no reason at all for the respondent for not appearing today. We would, thereforee, issue a non-bailable warrants' and direct the office to send the same to the Police Commissioner for being effected and for production of the respondent before us on 16th August 1983 so that the matter could be heard and disposed of on that date. The office will issue the non-bailable warrants today. The nephew of the respondent who is present in the court hag been explained the purport of this order'.

The non-bailable warrants issued by this Court were received back unserved with the report that he has gone to Chandigarh, But the contemnor appeared in the Court on 16-8-1983. The contemnor was examined on that date. His statement, in question and answer form is re-produced below :

'Q.: Are you aware that a ease Harbans Lal vs. Gurbachan Singh under Order 21 rule 100 being Civil Misc. No. 61179 was pending in the court of Shri V. K. Jain on 4-1-1980 Ans.: Yes. The application had been filed by Harbans Lal against Gurbachan Singh. Q. : Is it correct that you on that day filed special power of attorney on behalf of' Gurbachan Singh Ans. : Yes. Q. : Is it a fact that after the sub-judge Mr. V. K. Jain dictated the order you addressed him in the presence of the counsel staling 'you are in collusion with Harbans Lal and you have accepted money from Harbans Lal? Ans. : It is correct that notice was brought to me for attributed to me. I requested the court that witnesses be examined which have been called. The court, however, refused to examine the witnesses. I then said that I want to move for transfer of the case' from this court. I was told to go out and I went out. Q. : Is it not a fact that this notice was brought to you for the purpose of serving on you on 10th January 1980 but you refused to accept the notice Ans : It is correct that notice was brought to me for service by some official of the court. I told him to show his authority under which he was serving me. I also asked him to give me a copy of the- notice He said he would bring it. Then he went away but did not come back.'

The proceedings were thus commenced on 16-8-1983. But we did not want to go further as we were informed by the alleged contemnor that the criminal case under Section 228, Indian Penal Code pending against him in the Court of K. S. Khurana, Metropolitan Magistrate was' listed for 23-8-1983. The next date fixed for the proceedings was 28-8-1983. On that date the alleged contemn on moved two applications. In one application he again repeated that because of the criminal case pending we should not hear the matter. He had earlier adjourned the case for this very reason. The alleged contemnor did not tell us as to what happened on 23-8-1983 in the criminal case. We, thereforee, dismissed his application. In the second application he submitted that his presence was necessary in a Gurgaon court as a witness. The matter was thereforee adjourned to 26-8-1983. The alleged contemnor absented again and sent a telegram that his brother had expired. On 6-9-83 and 9-9-83 the alleged contemno: absented again but moved some additional applications. The alleged contemnor had claimed that we had not disposed some old applications. Some old and new applications were listed. As he absented himself on 9-9-83, his applications should have been dismissed far non-prosecution. But still we did not do so hoping that he will attend and join the proceedings. Because of his continued absence we were again-required to issue bailable warrants. Even thereafter did not appear and his nephew kept on appearing for five subsequent hearings'. He had submitted that the alleged contemnor was undergoing investigation and treatment in All lndia Institute of Medical Sciences. A certificate was produced from the Institute. As the duration for which he was required to be in the hospital and as to whether he was actually Undergoing the treatment as an indoor patient was not clear we directed his nephew to produce an appropriate certificate from the Institute. On 20-1-1984 the certificate was' produced. We, thereforee adjourned the matter to 27th April 1984. The contemnor again absented. We thereforee passed an order:

'THE contempt proceedings were initiated some time in 1980. It is almost after a number of years that he could be served that too through the lower court in some matter. We see no reason why he would not appear. Bailable warrants in the sum of Rs. 2000.00 be issued directing the respondent to appear before this Court on 27-7-1984.'

The warrants were not served and the matter was fixed for 1-8-1984. On 1-8-1984 the alleged contemnor again absented and his nephew appeared. He filed an application with a certificate dated 18th July 1984 from the All India Institute of Medical Sciences. It was only mentioned that the alleged contemnor was suffering from Slip Disc etc. The certificate did not mention that he was an indoor patient and was confined to bed and was medically advised not to move out. We ordered :

'IT appears that the respondent is deliberately misusing the leniency shown to him by avoiding to come to this Court. We are quite satisfied that now he is no more entitled to any future notice. For final orders, reserved'.

(4) It may thus be seen that the Court was forced to issue repeated warrants for the alleged cemtemnor's arrest as he was avoiding appearance, on one pretext or another. We had earlier passed an order permitting him to produce his own evidence. We had recorded his own statement. We had permitted him to cross examine the advocates who have filed their affidavits. We had also permitted him to raise the question of the maintainability of the proceedings in view of the criminal proceedings already started on the complaint of the learned Sub Judge but the alleged contemnor did not want to go through the trial and to avail of these stages In the regular contempt proceedings. We had. thereforee, no alternative but to call off further proceedings and reserve our final orders.

(5) After we reserved the orders, an application was moved by one M. S. Yadav, advocate for giving an opportunity to conduct the proceedings on behalf of the alleged contemnor and to argue the matter. As he wanted to obtain further instructions the matter was twice adjourned. On 31st of August 1984 in presence of Mr. Yadav, the advocate for the alleged contemnor, we directed that the alleged contemnor should be present and if he was unable to do so, a definite certificate from the Medical Superintendent of the All India Institute of Medical Sciences that the alleged contemnor was admitted in the hospital and that he was unable to attend the Court should be filed. For the hearing of the. case and for appearance of the alleged contemnor, we fixed the date on 21-9-1984. We were not obliged to do so since we had already reserved our final orders but the alleged contemnor was being represented by an advocate now we feel that we should hear the advocate in the interest of justice. We also informed the advocate that he will have to argue the entire matter, cm the legal submissions as well as on merits. We had also directed him to take inspection of the file and to acquaint himself with the various proceedings from time to time.

(6) On 21-9-84 the alleged contemnor again tried to practice a similar rule. He did not present himself in the court but moved an application stating that he had engaged advocate Mr. Yadav only to argue the question of law and not the me; its of the matter and thereforee for the preparation of his case the matter be adjourned for two months'. Advocate, Yadav also submitted that he was engaged only to argue the legal submission that in view of the pending criminal proceedings, the present contempt proceedings cannot go on. He sought our permission to withdraw from the case as according to him he had no instruction to argue the case on merits. On the earlier date we had made it clear to Advocate Yadav that he will have to argue the entire matter, both on legal submissions and on merits. He had filed his Vakalatnama to appear in the matter. It is shocking to find that an advocate, the officer of the court, takes such untenable pleas merely to help the contemnor. We rejected his plea and asked him to continue with the proceedings' and arguments. He expressed his inability. In these circumstances we could not permit advocate Yadav to withdraw himself from the- case. Although the alleged contemnor did not deserve any further indulgence from this Court we had permitted him to be represented through advocate, Yadav, only because of our anxiety that as far as possible the contempt matter Should not be decided without full opportunity of -being heard. The indulgence shown by us was again abused by the alleged contemnor. We, thereforee, proceeded to pass the final order.

(7) This is a case of the contempt of a subordinate court namely the court of a Sub Judge. The alleged contempt was committed- while the proceedings were going on and in an open court. The subordinate courts are required to conduct the proceedings in difficult and trying surroundings. Small court-room, disproportion artily large cases to be disposed of, over-crowding of the courts due to the presence of the litigants, witnesses and lawyers, add to their difficulties. To conduct orderly proceedings and to maintain discipline and decorum in the court is an uphill task to them. Besides this, one of the effective means of controlling proceedings, namely punishing a person for contempt of court, is taken away from them. Howsoever, grave the situation is and whatever the humiliation they are required to suffer, they cannot take immediate action to stop it. This Court, having an administrative and judicial superintendence on the subordinate courts, have thereforee a special duty to see that the subordinate courts and subordinate judges are not exposed to want on attacks and the dignity and decorum of the judicial process is maintained. For the sound administration of justice, it is, thereforee, necessary that we prima facie accept the version of the proceedings submitted by the subordinate courts in their reference to this Court. There is an additional reason why we should adopt this approach. Section 6 of the Contempt of Courts Act provides an independent remedy to aggrieved persons. They can complain to the Chief Justice of the High Court regarding the conduct or treatment by a subordinate judge. Take the present case. In Cmc of his applications the alleged contemnor had said that he had inimical relations with the learned sub judge. He has also charged him in an open court of accepting illegal gratification from one party to the litigation. If there was any truth in the matter he could have made an administrative complaint to the Chief Jutsice. But the alleged contemnor has not preferred to file such a complaint, but instead to interfere in the court proceedings and accuses the Sub- Judge, in the open court, of receiving illegal gratification. We have no hesitation in accepting the version of the Sub-Judge.

(8) The version of the learned Sub Judge is fully corroborated by the affidavit of Advocate H. N. Chaudhaiy. The affidavit of advocate N. K. Sharma, who was appearing for Gurbachan Singh states the way alleged contemnor interfered with the working of the Court although he did not remember the exact words used by the alleged contemnor. The alleged contemnor- has filed Ii affidavits as stated earlier. They are purported affidavits of the alleged witnesses of Gurbachan Singh prevent in the court on the date in question. They are stereo-type profound affidavits. Interestingly, there is an averment in all these affidavits slating that the alleged contemnor had not committed any contempt of court. Similar affidavits are filed by Gurbachan Singh and Harbans Lal who were the main parties before the court. It is surprising to find that the alleged contemnor has even managed to secure an affidavit from Harbans Lal. We prefer the affidavits of these advocates, appearing on both the sides to those of the parties and alleged witnesses.

(9) In his statement before this Court, the alleged contemnor has denied having made a statement alleging acceptance of illegal gratification by the learned Sub Judge. But from whatever facts he has admitted, there is' no doubt that he had interfered and obstructed the judicial proceedings before the learned Sub-Judge. It is clear from the various affidavits filed that Gurbachan Singh, the non-applicant in the execution proceedings, was, present in the Court. He was also represented by an advocate who was present in the Court. This was a proceeding under Order Xxi Rule 100 CPC. The learned Sub-Judge did not find it necessary to examine any witnesses at that stage. It is completely align to the established procedure of law to file a special power of attorney on behalf of a litigant who is personally present in the Court and is represented through a regular advocate. The alleged contemnor was an obvious intruder in .the proceedings as he had no legal right of being heard. He .had no tell the Court to examine the witnesses or otherwise. To threaten the Judge thereafter of moving a transfer application was a gross act of interference with the judicial proceedings and calculated attempt to lower down the dignity and prestige of the learned judge. The sequence of events given by the alleged contemnor himself raises a natural inference that at the time of threatening the court with a transfer application, the alleged contemnor must have used the words alleging bribe-taking from the other side. The contempt is more grave because the alleged contemnor was a complete stranger to the proceedings and had no legal right whatsoever to participate in the proceedings. This system of administration of justice, takes pride in the fact that the trial are open trials and we do not shut out the general public from watching us in addition. thereforee, something more than mere scandalising the court has taken place. The system of public trials is grossly abused.

(10) We have no hesitation in holding that the alleged contemnor has committed a gross contempt of court. He has not disclosed any contrition or repentance for his actions. Instead, be repeatedly disobeyed the directions of this Court and did not allow the proceedings to be concluded .according to the normal procedure. There are no mitigating circumstances and the alleged contemnor does not deserve any lenient treatment.

(11) It is three years after the original criminal complaint filed by the learned Sub-Judge that the alleged contemnor made us aware of the pendency of the criminal proceedings. We had not closed the issue. In fact when he was represented by an advocate he was again given an opportunity to argue the matter. At that stage we called the original record Of the criminal proceedings and found that the alleged contemnor had also avoided the commencement of the criminal proceedings against him in the same way as he had done before us. For four years after the commencement of the criminal proceeding and in spite of the non-bailable warrants he could not be arrested and proceeding could not be commenced. From numerous applications made by him in this court, it is seen that although he was avoiding to appear before the criminal court, he was keeping track of the various dates fixed by the criminal court and on the pretext of the pendency of the criminal case he was praying us to stay the contempt proceedings. No authority is needed for the proposition that where in relation to the same incident regarding contempt of court, regular criminal proceeding under various provisions of Indian Penal Code are initiated by a subordinate judge, the contempt proceedings shall stay. The reason is quite obvious. Contempt proceedings are summary proceedings. A person accused in a criminal case has a benefit of presumption of innocence and an opportunity of demolishing the prosecution case without exposing himself to cross-examination. In other words, his defense in the Criminal case would be in jeopardy if the contempt proceeding are concluded before the criminal proceedings. But it is the application of this sound principle which sometimes creates a difficulty. Here is a person, an intruder in a civil proceedings, obstructing the judicial proceedings and scandalising the court. He falsely represents this court that he is undergoing a criminal trial and participating in it. Actually he was not only not participating but had to be declared a proclaimed offender under Sections 82 and 83 of the Criminal Procedure Code. By his deliberate and calculated actions a person has thwarted the commencement of both the proceedings for over four years. Before us we had given him all the opportunities to defend himself. It is the alleged contemnor who had denied himself of these opportunities forcing us to pass a final order. On the facts of this case we do not think that the pending criminal proceedings against the alleged contemnor should stand in our way to pronounce our order on the contempt committed by the alleged contemnor.

(12) As stated earlier the alleged contemnor had been moving large number of applications in this Court from time to time without being personally present. These applications are not applications in the eye of law. A person moving an application should not only file an application but move it before a court either' himself or through his advocate. The alleged contemnor did not avail of this procedure. All the applications which remained on the file of this case (which were not expressly dismissed) are deemed to have been dismissed for non-prosecution.

(13) For the reasons stated above it is held that the contemnor Jai Bhagwan Khari has committed gross contempt of the court of Shri V. K. Jain, Sub-Judge Fast Class, Delhi. We sentence him to six months imprisonment and also direct him to pay a fine of. Rs. 2,0001-. The contemnor has been complaining of bad health in some of his applications'. We could not accept some of the medical certificates produced by him as they were not according to the directions given by us. We direct the jail authorities to render him medical aid in the jail hospital if the medical authorities in the hospital find it necessary after independent examination. We note with regret the failure of police machinery in arresting the contemnor who is moving regular applications in the Court giving his address and producing medical certificates from Government hospitals. He was even required to be declared as a proclaimed offender by the subordinate criminal court. A copy of this order may be sent to the Commissioner of Police, Delhi and he be directed to report compliance of the order.

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