Legal RoundUpWeekly Rewind


TOP STORY OF THE WEEK


Anganwadi Workers/Helpers entitled to payment of gratuity; ‘Time to take serious note of their plight’ 

In a relief to the Anganwadi workers and helpers working tirelessly at the grassroot level, the Supreme Court has held that the Anganwadi Workers and Helpers are employed by the State Government for wages in the establishments to which the Gratuity Act applies, hence, they are entitled to payment of Gratuity.  

The Court also observed that the Anganwadi Workers/Helpers have been entrusted with the important tasks of providing food security to children in the age group of 6 months to 6 years, pregnant women as well as lactating mothers, apart from rendering pre-school education. And for all this, they are being paid very meagre remuneration and paltry benefits. 

Therefore, it is high time that the Central Government and State Governments take serious note of the plight of Anganwadi Workers/Helpers who are expected to render such important services to the society. 

Read more… 


SUPREME COURT


Producing false/fake certificate is a grave misconduct; Dismissal of service justified in such cases 

In a case where an employee had produced a fake certificate for seeking employment, the Supreme Court has held that producing the false/fake certificate is a grave misconduct and dismissal of service is a justified punishment in such cases. 

In the case at hand, while the disciplinary authority had imposed a punishment of dismissal from service on the delinquent, the Bombay High Court had directed reinstatement of the respondent without any back wages and other benefits.  

The Supreme Court, however, agreed with the disciplinary authority’s decision and observed:  

“The question is one of a TRUST. How can an employee who has produced a fake and forged marksheet/certificate, that too, at the initial stage of appointment be trusted by the employer? Whether such a certificate was material or not and/or had any bearing on the employment or not is immaterial. The question is not of having an intention or mens rea. The question is producing the fake/forged certificate.” 

Read more… 


‘Can’t allow mass absorption of over 11,000 workers based on a flawed Report’. SC forms new Committee to put an end to the long drawn LIC versus temporary employees’ battle  

In a long drawn battle between Life Insurance Corporation of India (LIC) and its temporary/badli/part-time employees over claim for absorption, a 3-judge bench of Supreme Court has appointed a two-member committee to carry out fresh verification of the claims of workers who were working between 20 May 1985 and 4 March 1991 and who claim to have been employed for at least 70 days in Class IV posts over a period of three years or 85 days in Class III posts over a period of two years shall be carried out. 

Finding the report of the previous committee faulty, the Supreme Court observed, 

“A public employer such as LIC cannot be directed to carry out a mass absorption of over 11,000 workers on such flawed premises without following a recruitment process which is consistent with the principles of equality of opportunity governed by Articles 14 and 16 of the Constitution. Such an absorption would provide the very back-door entry, which negates the principle of equal opportunity and fairness in public employment.” 

Read all about the newly formed committee and its tasks and timelines on the SCC Online Blog.  

Read more… 


High Courts


Madras High Court| Ban the practice of two-finger test on victims of sexual offences by medical professionals

Stating that two-finger test cannot be permitted to be continued, the Division Bench of Madras High Court directed the State Government to ban the practice of two-finger test on victims of sexual offences by the medical professionals. 

Court observed that, 

“…it is necessary for us to put an end to the practice of the two-finger test. We find that the two-finger test is being used in cases involving sexual offences particularly, on minor victims.” 

Read more… 


Bombay High Court| Advocate to maintain dignity & decorum of Court, no room for arrogance and no license to intimidate Court

In a matter wherein an Advocate alleged that the Court was giving priority to certain matters and to certain advocates, the Court observed that an advocate as an Officer of the Court is under an obligation to maintain the dignity and decorum of the Court. There is no room for arrogance and there is no license to intimidate the Court, make reckless accusations and allegations against a Judge and pollute the very fountain of justice. 

Bench also expressed that, “It has to be borne in mind that casting scurrilous aspersions not only has the inevitable effect of undermining the confidence of the public in the judiciary but also has the tendency to interfere with the administration of justice.” 

Read more… 


Bombay High Court| Declaration of reciting religious verses at someone’s residence: Act of breaching personal liberty of another person?

Stating that, “Great power comes with greater responsibility”, the Division Bench of Bombay HC expressed that, the expectation of responsible behaviour or responsible conduct from those persons who are active in public life cannot be an extra expectation but would be a basic one. 

High Court stated that the declaration of the petitioners that they would recite religious verses either in the personal residence of another person or even at a public place is firstly,  encroachment upon another person’s personal liberty and secondly, if a declaration is made with particular religious verses would be recited on the public street, the State government is justified in carrying an apprehension that such act would result in disturbance of law and Order. 

Read more… 


Delhi High Court| Whether absence of rule of law or utter disregard for the same propels a country towards inevitable ruin? 

Expressing that, attempts to circumvent or undermine judicial decisions need to be viewed seriously in order to ensure that the functioning of our country is unhindered, especially during turbulent times, Delhi High Court held that, 

“It is only the rule of law which not only cements the civilised functioning of a country, but also drives a country towards progress and development.” 

With regard to contempt, the Court observed that, 

“The underlying purpose of the law of contempt is meant to serve public interest and build confidence in the judicial process. This flows from how the functioning of a democratic society is sustained by the rule of law and wilful violation of the same would enable anarchy.” 

Read more… 


Legislation Updates 


IFSCA issues framework for FinTech entity in IFSCs 

The International Financial Services Centres Authority (IFSCA) has issued a detailed “Framework for FinTech Entity in the IFSCs” in order to develop and regulate financial products, financial services and financial institutions in the International Financial Services Centres (IFSC) and to encourage promotion of financial technologies (‘FinTech’) across the spectrum of banking, insurance, securities, and fund management in IFS. 

Read more… 


SEBI (Custodian) (Amendment) Regulations, 2022 

The Securities and Exchange Board of India has issued the Securities and Exchange Board of India (Custodian) (Amendment) Regulations, 2022 to amend Securities and Exchange Board of India (Custodian) Regulations, 1996. 

The amendment modifies Regulation 8 dealing with Procedure and grant of certificate and inserts clause (7) to provide that a custodian holding a certificate of registration as on the date of commencement of the Securities and Exchange Board of India (Custodian) (Amendment) Regulations, 2022, may provide custodial services in respect of silver or silver related instruments held by a mutual fund only after taking prior approval of the Board. 

Read more…  


Income-tax (Ninth Amendment) Rules, 2022 

On April 21, 2022, the Central Board of Direct Taxes (CBDT) has issued the Income-tax (Ninth Amendment) Rules, 2022 to amend Income-tax Rules, 1962 and introduces Conditions for furnishing return of income by persons referred in section 139 (1) of the Act.  

Read more … 


 

 

Case BriefsHigh Courts

Delhi High Court: Najmi Waziri, J., observed that “Arrest and incarceration destroys a person and collaterally affects many other innocent relatives. Subsequent release or acquittal of an innocent, is of no solace and offers no reparation to the loss of reputation or for the temporary loss of precious personal liberty.”

High Court had already held R-3 guilty of committing Contempt of Court.

R-3 had arrested the petitioner in breach of directions passed by the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273,  The requisite notice was not served upon the petitioner and there were mere allegations of criminal breach of trust against the petitioner which entailed a maximum sentence of three years, and it did not warrant the arrest of a person in the manner in which it was done.

The highhandedness of the police officer, in specific breach of the Supreme Court’s directions, was evident.

Further, it was stated that the decision of Arnesh Kumar v. State of Bihar,(2014) 8 SCC 273 holds that in the event of non-service of notice under Section 41A of the CrPC, contempt proceedings would be initiated.

The Constitution of India ensures the right to personal liberty of the petitioner. The said right can only be curtained by a procedure prescribed established by law.

In the decision referred, it has been said that notice under Section 41A CrPC is requisite.

In the present matter, notice was not sent served and the law was breached.

Bench added that the petitioner is not the only one who suffered the humiliation and the indignity of being arrested; the ordeal would have affected the reputation of his family i.e. his children, wife and parents. No amount of explanation to the neighbours or those who may have seen the arrest, would undo the embarrassment and indignity suffered by the petitioner and his relatives.

High Court expressed that,

Arrest and incarceration destroys a person and collaterally affects many other innocent relatives. Subsequent release or acquittal of an innocent, is of no solace and offers no reparation to the loss of reputation or for the temporary loss of precious personal liberty.

Later, R-3 filed an affidavit tendering his unqualified/unreserved apology for arresting the petitioner. The said apology was a matter of last resort, therefore it cannot be accepted.

 “…petitioner has suffered incarceration for 11 days and presently he is out on bail.”

 As R-3 was a serving police officer with Delhi Police and had served for 7 years and also has a long career ahead of him, he was sentenced to undergo simple imprisonment of 1 day alongwith a fine of Rs 2,000 as well as nominal costs of Rs 15,000.

The aforesaid sentence shall be kept in abeyance for a period of two months from receipt of the order, so as to accord R-3 sufficient opportunity to assail this order, should he so choose to.

 [Rakesh Kumar v. Vijayanta Arya (DCP), 2021 SCC OnLine Del 5574, decided on 7-12-2021]


Advocates before the Court:

For the petitioner:

Mr Ajay Kumar Pipania, Mr Aaksh Sethi, Ms Madhurima Soni, Mr Aditya Sharma, Mr Parcco Puniyani, Ms Nikita Garg, Mr Imtiaz Hussain and Mr Lakshay, Advocate.

For the respondents:

Mr. Shadan Farasat, ASC (GNCTD) with Mr Bharat Gupta along with S.I. Kuldeep.

High Court Round UpLegal RoundUp

Allahabad High Court


POCSO

Putting penis into mouth will fall under which category – Aggravated Sexual Assault or Penetrative Sexual Assault?

 Anil Kumar Ojha, J., while addressing a matter of child sexual assault, expressed that,

Putting penis into the mouth does not fall in the category of aggravated sexual assault or sexual assault. It comes into the category of penetrative sexual assault which is punishable under Section 4 of POCSO Act.

Read more…

Workman

Can workman who was employed for particular project be considered employee of the company and given permanent status after project is over?

Siddhartha Verma, J. reiterated the law laid down by the Supreme Court in Lal Mohammad v. Indian Railway Construction Co. Ltd.(2007) 2 SCC 513, wherein it was decided that when a workman is employed for a particular project then the services of that employee came to an end as soon as the project was over and he could not be given permanent status. It was also held that shortfall of period of notice or compensation, after completion of the project would not render the termination bad on that count.

Read more…

Arbitration

If arbitrator becomes functus officio, can provisions under Ss. 14 and 15 of the A&C Act to appoint substitute arbitrator be invoked?

Noting the significance of Sections 14 and 15 of the Arbitration and Conciliation Act, 1996, Jayant Banerji, J., expressed that,

If the arbitrator had been rendered functus officio, there existed no occasion to invoke the provisions of Sections 14 and 15 of the Act for appointing a substitute arbitrator.

Read more…

 Guardianship Rights v. Welfare of Minor 

What is more significant: Competing rights of guardianship or Welfare of minor?

Dr Y.K. Srivastava, J., expressed that, in a matter of custody of a minor child, the paramount consideration is the “welfare of the minor” and not rights of the parents or relatives under a statute which are in force.

A claim for guardianship or custody, in a writ of habeas corpus, may not be held to be an absolute right, and would yield to what would appear to be in the interest of the child. In such cases, it is not a question of liberty but of nurture and care. 

Read more…

Auction

Property of dead person sold in auction: Is it bad in law?

Siddhartha Varma, J., while deciding a matter with regard to the auction of the property of a dead person held that the proceeding conducted against a dead person is bad in law.

Read more…


Bombay High Court


 NDPS

Whether the blotter paper forms an integral part of the LSD drug when put on a blotter paper for consumption?

Addressing a very crucial question having relevance with the Narcotics Drugs and Psychotropic Substances cases, Revati Mohite Dere, J., decided whether blotter paper forms an integral part of the LSD Drug when put on blotter paper for consumption.

Read more…

Did Aryan Khan with other two accused hatch a conspiracy to commit offence under NDPS Act?

Merely because of Applicants were travelling on the cruise, that by itself cannot be termed as satisfying foundation for invoking provisions of Section 29 against the Applicants.

Read more…

Documents

Does accused has right to demand production of documents withheld by investigator at framing of charge? Does S. 91 CrPC include witness statement?

Sandeep K. Shinde, J., expressed that it is settled law that at the stage of framing the charge, the trial court is required to consider whether there are sufficient grounds to proceed against the accused and at that time, trial court is required to consider only police report referred to under Section 173 of the Code and documents sent with.  

Read more…

Rape & Murder

‘Hang by neck till dead’: Bom HC confirms death sentence in a rarest of rare cases for committing rape and murder of a 3-years 9-months old child

 While confirming the death sentence in this rarest of rare cases, the High Court observed:    

“The act of the accused is gruesome and is committed in a diabolic manner. It is a heinous offence. It is unimaginable that a cheerful, frolicking child enjoying with her pet would provoke the feelings of lust in a man who is a father of two daughters and a son. The perversity in the mind of the accused is apparent and therefore, we are of the opinion that the aggravating circumstances in the present case outweigh the mitigating circumstances placed before the court in the course of hearing of the appeal.”

Read more…

Abetment of Suicide

Is it possible to frame a charge against accused for abetment of suicide and in the alternative for committing murder?

Sandeep K. Shinde, J., explained as to when a charge in the alternative can be framed against an accused and when it is not permissible to do so.

Read more…

Bail

Bom HC discusses law where accused already granted bail but further non-bailable offences are added by prosecution

Sandeep K. Shinde, J., reiterated the law laid down by the Supreme Court in the case of Pradip Ram v. State of Jharkhand(2019) 17 SCC 326 wherein it was held:

“where the accused is bailed out under orders of the Court and new offences are added including the offences of serious nature, it is not necessary that in all cases earlier bail should be cancelled by the Court before granting permission to arrest an accused on the basis of new offences. The Powers under Sections 437(5) and 439(2) are wide powers granted to the Courts by the legislature under which Court can permit an accused to be arrested and commit him to custody without even cancelling the bail with regard to the earlier offences.”

Read more…


Calcutta High Court


 Anticipatory Bail

‘Citizens must refrain from taking law in their own hands’: Cal HC observes while granting anticipatory bail to petitioners apprehending arrest for rioting, vandalism, etc.

 Expressing that, “Time has come that every dutiful citizen of the country must realize their duties and accountability to the society and must refrain from taking the law in their own hands”, Division Bench of Harish Tandon and Rabindranath Samanta, JJ., held that,

Destruction of public property has a ramification on society and the taxpayers are burdened for no fault on their part. The charging sections would evince that not only the Public Officers but the public properties have also been destroyed.

Read more…

Rape

Court explains “Intelligible testimony” and “reverse burden of proof”; dismisses appeal of accused charged for raping 3 year old girl under S. 6, POCSO Act

The Division Bench of Soumen Sen and Rabindranath Samanta, JJ., dismissed a criminal appeal which was filed against the judgment and order of conviction and sentence passed by Additional Sessions Judge–cum-Special Judge under POCSO Act, 2012 whereby the appellant had been convicted for commission of offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 read with Section 376 (2) (i), Indian Penal Code and sentenced to suffer rigorous imprisonment for life without remission and to pay a fine of Rs. 2,000,00.

Read more…

Fundamental Rights

Festival of lights would spread joy, but few are deprived of basic necessities: Is Aadhaar the only criteria for identification of beneficiaries under National Food Security Act?

The Division Bench of Prasanna B. Varale and Madhav J. Jamdar, JJ., while addressing a petition expressed that,

It is disheartening situation for us when we the fortunates are eagerly awaiting as the festive season is approaching and the festival of lights would spread joy and happiness in the society throughout the State or the whole nation, here are the few petitioners who are the members of the marginalised section in general and tribals in particular who have approached this Court on a grievance that they are deprived of the basic requirement of human life, i.e., food, only on account that the State machinery is not technically equipped to give them the benefits flowing from the scheme formulated and floated by the Union of India and to be implemented and executed by the respective States.

Read more…

State Machinery 

13-years of long fight, yet State’s investigation unsatisfactory: Whether exemplary costs to a wife fighting for a decade to secure her missing husband’s presence would be granted or not?

 While noting the failure of State Machinery in securing the presence of a person for 13 years, Division Bench of V.K. Jadhav and Shrikant D. Kulkarni, JJ., expressed that,

Article 21 of the Constitution of India guarantees that no person shall be deprived of his life or personal liberty except according to a procedure established by law. Right to life and personal liberty is the primordial right which every human being everywhere at all times ought to have it.

Read more…


Delhi High Court


 Contempt of Court

Husband stubbornly and obstinately refused to comply with the orders of the Court; No full disclosure of income

While addressing an issue of non-compliance of Court’s order with regard to paying maintenance to wife, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., held that,

The actions/ omissions of the Respondent in choosing to show complete disregard to the orders of the Court cannot be countenanced. If such action is permitted, it will lead to anarchy and the Rule of Law would become a casualty. The orders of the Courts would be taken lightly and breached at the own sweet will of the individual concerned.

Read more…

Role of Advocate 

An advocate engaged by a client, can he also act as his power of attorney in the proceedings and verify pleadings?

Prathiba M. Singh, J., observed that an advocate who is engaged by a client has to play only one role, either of the advocate in the proceedings or the power of attorney holder.

Read more…

Kalkaji Temple

Del HC issues directions for removal of unauthorized shopkeepers, Sanitation facilities, Potable Drinking Water, Garbage Disposal, etc.

The shopkeepers or their families also cannot reside in the Mandir complex. The same is impermissible and is nothing but unauthorized encroachment and trespass into the Mandir’s premises.

Read more…

Right to demand Respect & Inter Cadre Transfers

Significance of ‘cogent reason’ while declining inter-cadre transfer

Addressing a grievance with regard to the denial of inter-cadre transfer Division Bench of Rajiv Shakdher and Talwant Singh, JJ., held that, denial with no cogent reasons impinges upon such person’s right to demand respect for her/his family life.

Read more…

Territorial Jurisdiction

Where can a petition under S. 125 CrPC be filed?

Subramonium Prasad, J., reiterated the law relating to the territorial jurisdiction of the court to entertain a petition under Section 125 CrPC.

Read more…

Section 125 CrPC

Can wife claim maintenance under S. 125 CrPC where she as well as husband had spouses living at the time of alleged marriage?

A second wife whose marriage is void on account of survival of the first marriage would not be a legally wedded wife, and therefore would not be entitled to maintenance under this provision.

Read more…

Maintenance can be claimed under DV Act even if already granted under S. 125 CrPC: Del HC reiterates

Amit Bansal, J., reversed the order of the trial court as it dismissed the application filed by the petitioner under Section 26 of the Protection of Women from Domestic Violence Act only on the basis that it had been filed towards execution of maintenance already granted.

Read more…

Cruelty

Wife made serious criminal allegations against husband and his parents but couldn’t prove: Would this amount to cruelty against husband to grant divorce?

While addressing a matrimonial matter wherein a wife caused cruelty to husband, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., expressed that,

For a man to see his parents to be taken into custody and being incarcerated even for a single day would have caused immense and untold pain and agony to him.

Read more…

Can allegations of demand of dowry and alcohol consumption made by wife amount to ‘cruelty’?

Expressing that, allegations made by the wife with regard to the husband demanding dowry and indulging in alcohol consumption, do not tantamount to making serious allegations impinging on the character of the husband, to such an extent, that they would be the cause of immense mental agony and cruelty, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., dismissed the petition.

Read more…

INX Media Case

Can accused be allowed to inspect documents kept in “malkhana”?

Mukta Gupta, J., expressed that,

“…while passing an order of inspection of unrelied upon documents, the Court is bound to strike a balance between the competing interest of ensuring a fair trial to the accused as also maintaining the sanctity of further investigation, in case further investigation is to be carried on.”

Read more…

Arbitration

What happens if parties fail to agree on arbitrator within 30 days from receipt of request by one party?

Sanjeev Narula, J., allowed an arbitration petition by appointing a sole arbitrator to adjudicate the disputes between the contesting parties.

Read more…

What is the remedy against an order allowing application under S. 8 of Arbitration Act, where existence of arbitration clause is not disputed?

Amit Bansal, J., dismissed a petition challenging the order passed by the lower court whereby respondent’s application under Section 8 of Arbitration and Conciliation Act, 1996 was admitted.

Read more…

Assault by Policemen

Law does not permit people to be beaten-up in police custody or during interrogation

While addressing a very unfortunate incident of police assault, Najmi Waziri, J., expressed that

Let no one have to repeat the tragic last words like George Perry Floyd, Jr.: “I can’t breathe”.

Read more…

Law on Offences against property

While committing the act of robbery, if revolver is brandished, would that be an offence under S. 397 IPC?

Subramonium Prasad, J., addressed a very pertinent question of whether brandishing a revolver during the act of robbery be covered under Section 397 of Penal Code, 1860.

Read more…

Dissolution of Marriage

Materialistic attitude of husband considering wife as cash cow: Is it a ground to dissolve marriage?

The Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., noted in a matrimonial matter that the wife was being viewed as a cash cow and the husband became interested in her only after she got a job with Delhi Police.

Read more…


Jammu and Kashmir and Ladakh High Court


Preventive Detention

“No Court should tune out terrorist activities”; HC refuses to interfere with preventive detention of man involved in Pulwama conspiracy

While dismissing the petition seeking release from preventive detention to the detenu involved in Pulwama conspiracy, Tashi Rabstan, J., remarked,

“Acts or activities of individual or a group of individuals, prejudicial to the security of the State or public order, has magnitude of across-the boarder disfigurement of societies. No court should tune out such activities, being swayed by passion of mercy.”

Read more…

Selection

“Neither irrational, unreasonable nor arbitrary”; HC holds higher qualification than the maximum qualification prescribed is not suitable qualification

The Division Bench of Ali Mohammad Magrey, Sanjay Dhar, JJ., held that in case of appointments to Class-IV posts, higher qualification than the prescribed 10+2 may not be suitable for many reasons.

Read more...

Run Away Couple

No law or religion gives a license to a father to harass his daughter”

“No law or religion gives a license to a father to harass or intimidate his major daughter just because she does not accede to wishes of her father to marry a particular person.”

Read more…


Jharkhand High Court


Specific ingredients must clearly asserted in the notice so that the noticee has an opportunity to explain and defend himself in accordance with S. 74 of JGST Act, 2007

A Division Bench of Aparesh Kumar Singh and Anubha Rawat Choudhary, JJ., allowed the petition and directed the respondents to initiate fresh proceedings from the same stage in accordance with law.

Read more…

“Petitioner cannot be treated as a consumer of bulk supply of electricity”; Term “bulk supply” is confined to energy supplied to industrial units and consumers engaged in mining only

A Division Bench of Aparesh Kumar Singh and Anubha Rawat Choudhary, JJ., allowed the petition and sets aside the impugned assessment orders as well as demand notices arising therefrom, which has been passed by treating the petitioner as a consumer of bulk supply of electricity.

Read more…


Karnataka High Court


Value Added Tax

‘Common parlance test, ‘Marketability test’ are tools for interpretation to arrive at a decision on proper classification of a tariff entry

A Division Bench of S. Sujatha and Ravi V Hosmani, JJ., allowed the revision petition and set aside the impugned judgment by the Tribunal.

Read more…


Kerala High Court


Rape

Being in love isn’t synonymous to consent for sexual intercourse; HC upholds conviction for rape

While clarifying the difference between consent and submission, the Bench expressed,

“Merely for the reason that the victim was in love with the accused, it cannot be presumed that she had given consent for sexual intercourse.”

Read more…

Duty of Police Officer

“Mere abusive, humiliating or defamative words by itself cannot attract an offence of obscenity under Section 294 (b) of IPC”; HC quashes proceedings against person who allegedly harassed the Police

Rejecting the allegation of obscenity against the petitioner for abusing and using humiliating words against the Police officer, the Bench clarified,

“It is to be noted that the test of obscenity under Section 294 (b) of the Indian Penal Code is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences.”

Read more…

Kidney Transplant

Swap Kidney Transplantation between non-relatives; HC removes legal hurdles

Nagaresh, J., allowed swap kidney transplant between non-relatives. Opining that any law prescribing procedure for organ transplantation should satisfy the test of reasonableness, the Bench remarked,

“When Section 9(3) permits transplant of organs to persons not being a near relative, with the prior approval of the Authorisation Committee, there is no logic or rationale to say that swap transaction will not be allowed when members of each pair are not near relatives, even if the Authorisation Committee approves such transaction.”

Read more…

Influence of Alcohol

Presence at a Police Station while being under influence of alcohol; will it attract any offence?

Sophy Thomas, J., quashed proceedings against the petitioner who was charge sheeted for being under the influence of alcohol during his visit to police station for identifying an accused. The Bench stated,

“Consuming liquor in a private place without causing nuisance or annoyance to anybody will not attract any offence”

Read more…

Child Molestation

“Child molestation is a shame on society; but if the allegations are false, it is lethal to the life of the accused”

The Division Bench of K.Vinod Chandran and C. Jayachandran, JJ., acquitted the father accused of raping his own minor daughter. Considering the contention that the allegation was raised due to instigation by the stepmother, observing discrepancies in statements of victim and her stepmother and failure to prove age of the victim by the prosecution, the Bench remarked,

“Forensic and semantics apart, child molestation is a shame on society; but if the allegations are false, it is lethal to the life of the accused, more so if the accused is a parent; even if he is eventually acquitted.”

Read more…

Public Space

Ensure no new flag masts and posts be permitted to be brought on to the roads and public spaces; HC directs Kerala government

“This is an extremely unfortunate situation and it prevents a complete breakdown of law, because there can be no doubt that any such installation can be made on any public space or road only after obtaining necessary permission from the Local Self Government Institution or such other competent Authority.”

Read more…

Interim Orders

No appeals will lie against ad interim orders in a pending case

P.B. Suresh Kumar and C.S. Sudha, JJ., held that ad interim orders cannot be impugned in an appeal under Section 5(i) of the Act. The Bench stated,

 “If appeals against such orders are entertained, the appellate court would be usurping the original jurisdiction of the Court under Article 226 of the Constitution.”

Read more…

Animal Rights

“Illegal and Unconstitutional”; HC declares stipulations prohibiting residents from keeping pets void and unenforceable

The High Court of Kerala has once again advocated for animal rights and welfare as the Division Bench of A. K. Jayasankaran Nambiar and Gopinath P. JJ., held that stipulations in resident agreements prohibiting the residents from keeping pets of their choice in their individual apartments are unreasonable and unconstitutional. The Bench remarked,

“We believe the time has indeed come to nudge our citizenry into respecting the claims of other living beings that too have rights in our shared ecosystem. Compassion and empathy are the very essence of civilization and we must strive to preserve these values as part of our culture.”

Read more…


Madhya Pradesh High Court


Minor Wife

Does physical relationship with a minor wife come within the category of rape?

G.S. Ahluwalia J., rejected a bail application under Section 439 of CrPC. The appellant was arrested on 31-01-2021 in connection for offence under Sections 363, 376, 366 of IPC and Section 5/6 of POCSO Act.

Read more…

Contempt

“To err is human and to forgive is divine”; Court directs advocate to plant and take care of 20 saplings as punishment for contempt of female judge after unconditional apology

The Division Bench of Sheel Nagu and Anand Pathak, JJ., decided upon a petition which was in reference under Section 15(2) of The Contempt of Courts Act, 1971 sent by Judicial Magistrate First Class, Datia in respect of the conduct of respondent.

Read more


Meghalaya High Court


Bail

“Bail and not Jail” Court grants bail to accused charge sheeted for raping own mother

Diengdoh, J., allowed a bail application which was filed under Section 439 CrPC with a prayer for grant of bail wherein the petitioner was accused of raping his own mother.

Read more…

Public Interest Litigation

Court allows PIL highlighting delay in establishing comprehensive and modern cancer care facilities in the State

Read more…


Orissa High Court


Termination of Pregnancy

Infringement of fundamental right to life of the victim heavily outweighs the right to life of the child in womb; Ori HC refuses to terminate 24+ week pregnancy of a rape victim

K. Panigrahi, J. disposed of the petition and refused to terminate 24+ week pregnancy of a rape victim.

Read more…

Government Health Facilities

Ori HC issued directions regarding doctors being attached to Government Health Facilities and carrying on private practice without attending their duties at the Government Health Facilities

A Division Bench of S. Muralidhar, CJ and A. K Mohapatra, J., issued directions regarding Doctors being attached to Government Health Facilities and carrying on private practice without attending to their duties at the Government Health Facilities.

Read more…

Firecrackers

Burst only ‘green fireworks’, for 2 hrs only on Diwali

The Division Bench of Dr S. Muralidhar, CJ and B.P. Routray, J. disposed of a writ petition while noting with approval the directions issued by Special Relief Commissioner relating to bursting of green fireworks for a limited period on Diwali day.

Read more…


Patna High Court


Breach of Trust and Misappropriation of Client’s money; HC denies bail to Advocate booked for enchasing compensation granted to his client by Railway Claims Tribunal

Rajeev Ranjan Prasad, J., denied bail to the advocate booked for allegedly misappropriating his client’s money and committing breach of trust being an attorney. The Bench stated,

“Despite repeated caution made to learned counsel for the appellant that the appellant being an Advocate must come out with a fair stand even at this stage, there is no change of stand.”

Read more…


Punjab and Haryana High Court


Child Marriage

Marriage with a minor is valid if no attempt is made to declare it invalid once the child turns major

The Division Bench of Ritu Bahri and Arun Monga, JJ., held that marriage with minor is valid if no attempt is made to declare the same invalid once the child turns 18.

Read more…

NDPS

Challan filled without FSL report is not a complete challan under NDPS Act; HC grants bail to the man in alleged possession of 1.6 kg ganja

Anupinder Singh Grewal, J., granted bail to the person accused of carrying 1.6 kg of ganja on the ground that the challan filled without FSL report would not be a complete challan.

Read more…


Rajasthan High Court


Encroachment

Raj HC issued directions to provide a pan-Rajasthan solution for persisting problem of encroachment on the land of public way, johar paitan, river bed etc.

A Division Bench of Vinit Kumar Mathur and Sangeet Lodha, JJ., disposed of the petition and issued directions to the respondents to remove encroachments made over the land in question.

Read more…


Sikkim High Court


Rape

Prosecution not able to establish beyond a reasonable doubt that the Appellant was the perpetrator of rape of the minor; acquits accused

The Division Bench of Meenakshi Madan Rai and Bhaskar Raj Pradhan, JJ., allowed an appeal which was filed in order for the Court to determine as to whether the Appellant was the perpetrator of the offence of rape.

Read more…


Telangana High Court


Education Institution

Educational Institution: Is it an ‘establishment’ under Telangana Shops and Establishments Act?

The Division Bench of Satish Chandra Sharma, CJ and B. Vijaysen Reddy, J. decides whether an educational institution is covered within the meaning and definition ‘establishment’ under the Telangana Shops and Establishments Act, 1988.

Read more…

Influence of Alcohol

Know the 9 directions that Police Officers have to follow on finding vehicle being driven under influence of alcohol

Lakshman, J., while addressing a very pertinent issue expressed that,

Intention of the Legislature is to reduce the accidents and deaths that may be caused due to driving of vehicles in intoxicated condition, and it is not the intention to harass the owners of the vehicles by detaining the vehicles for days together.

Read more…


Uttaranchal High Court


Judicial Order

Judicial order necessarily has to be a reasoned one; Court finds reasoning by the Single Judge cryptic, remands the case back

The Division Bench of Raghvendra Singh Chauhan, CJ. and Narayan Singh Dhanik, J. decided on a petition which was filed challenging the validity of the order passed by the Single Judge whereby the respondent-writ petitioner, M/s Kohli Enterprises, was not only blacklisted, but even its registration was cancelled by the appellants.

Read more…

Arbitration Agreement

Relief under S. 9 of the Arbitration and Conciliation Act: Can it be granted to a party who is not party to arbitration agreement?

Emphasizing on the purpose and object of Section 9 of the Arbitration and Conciliation Act, 1996, Division bench of Raghvendra Singh Chauhan, CJ and Alok Kumar Verma, J., held that,

A person not a party to an arbitration agreement cannot invoke jurisdiction of the Court for interim relief under Section 9 of the Act, 1996.

Read more…

Arrears

State directed to release the arrears of the deceased-in harness in the favour of the family along with interest

The Division Bench of Raghvendra Singh Chauhan, CJ. and Sanjaya Kumar Mishra, J., allowed a petition which was filed by the widowed wife of Mr. Babu Ram, who had died-in harness on 26-08-2020 for the release of gratuity, leave encashment, arrears of ACPs’, and the arrears of the 7th Pay Commission of her late husband in her favour.

Read more…

Case BriefsHigh Courts

Delhi High Court: While addressing an issue of non-compliance of Court’s order with regard to paying maintenance to wife, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., held that,

The actions/ omissions of the Respondent in choosing to show complete disregard to the orders of the Court cannot be countenanced. If such action is permitted, it will lead to anarchy and the Rule of Law would become a casualty. The orders of the Courts would be taken lightly and breached at the own sweet will of the individual concerned.

Instant contempt petition was filed under Sections 10,11 and 12 of the Contempt of Courts Act, 1971 alleging contempt of order passed by the family court and another order passed by this Court.

Background

Respondent had filed a divorce petition under Section 13(1)(ia) and (ib) of the Hindu Marriage Act and the said petition was still pending adjudication.

Further, the petitioner filed an application under Section 24 of the Hindu Marriage Act, 1955 alongwith her financial affidavit seeking interim maintenance pendente lite at the rate of Rs 1,02,000 per month and a sum of Rs 1,00,000 towards litigation expenses. In addition to this, the petitioner claimed a sum of Rs 2,50,000 towards furnishing the individual household and an independent car.

The above-stated application of the petitioner was allowed.

Respondent failed to comply with family court’s direction with respect to interim maintenance, after which the petitioner preferred the present contempt case.

On being sent notice, the respondent was given two weeks’ time to file a reply to make a full and complete disclosure of his income and expenditure in the last 12 months from all sources.

Respondent was asked to be present in Court, but he made excuses for his absence.

This Court on noting the violations, found the respondent guilty of contempt, and issued show cause notice to him requiring him to show cause why he should not be punished. Hence, he was directed to file an affidavit making a complete and full disclosure of his bank accounts including those highlighted by the petitioner having not been disclosed.

Respondent submitted that he had taken a home loan for his father amounting to Rs 1 Crore and 50 lakhs in his own name and another one for a sum of Rs 1 Crore on his father’s. It was stated that the said loan amounts were entirely repaid by his father through his own personal funds and through his personal bank accounts.

The respondent has also stated that he has outstanding loan liability of Rs 8 lakhs (approx.) to be repaid to various banks and has also stated to have a balance of Rs 1,10,000/- (Rupees One Lakh and Ten Thousand only) cumulatively in all his bank accounts.

Bench took note of the stand of the respondent/his father – that he/his father were not obliged to disclose their bank accounts statements from which such large amounts of the loan – taken by the respondent, had been repaid.

Analysis, Law and Decision

Bench cited the Supreme Court decision in T. Sudhakar Prasad v Govt. of A.P., (2001) 1 SCC 516 wherein it was held that the powers of contempt are inherent in nature. The Supreme Court and the High Courts are courts of record and by virtue of being courts of record have inherent jurisdiction to punish for contempt of themselves, and the provisions of the Constitution Article 129 and Article 215 only recognise the said pre-existing situations. The Supreme Court has also made similar observations in Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409 and recently in Suraz India Trust v. Union of India, 2021 SCC OnLine SC 833.

In the present matter, respondent stubbornly and obstinately refused to comply with the orders of the Court on a completely false premise of his financial inability, Despite the Court’s repeated orders, he failed to make a clean breast of all his accounts, incomes and expenditures.

Loan document from Citi bank, in which the respondent was shown as to be the applicant and his father to be the co-applicant, and another loan document from the Axis Bank, disclosed that the loan had been taken on the behalf of the father of the respondent.

There was no document on record to rebut the presumption that the loan was primarily taken by the respondent and therefore, he repaid the same.

“…in the past transactions disclosed by the respondent, he claims to have advanced large amounts of loans to his parents. Thus, it cannot be accepted that his father had repaid the loans taken by him from the above two banks. He has flatly refused to place on record the bank account details of himself/ his father to substantiate his plea that his father had repaid these loans from his own resources.”

Therefore, it was concluded that the respondent acquired the properties with his own funds with a view to evade his liability towards the petitioner and used the name of his father.

Respondent had chosen to give precedence to his business over the compliance with the orders passed by the family court as well as this Court.

Hence, in Court’s opinion, the respondent suppressed his true income to evade compliance with the orders requiring him to pay maintenance to the petitioner of entire arrears of maintenance.

The judiciary as an institution has garnered faith of the common masses as a trusted institution only because judicial orders are enforced, in an appropriate case, even at the pain of contempt. The faith posed by the people in the judiciary has to be protected in the interest of society, and also to meet the ends of justice.

 Contempt of Court

 If there is wilful disobedience to any judgment, decree direction, order writ or other process of a court, or wilful breach of undertaking given to the court, the contempt court shall take note of such violation, that needs to be punished. The wilful disobedience by the contemnor undermines the dignity and authority of the Courts and outrages the majesty of law.

Therefore, the Bench imposed a fine of Rs 2,000 along with simple imprisonment for a term of 3 months. [Sonali Bhatia v. Abhivansh Narang, 2021 SCC OnLine Del 5114, decided on 25-11-2021]


Advocates before the Court:

For the Petitioner:

Ms Priya Hingorani, Senior Advocate with Mr Himanshu Yadav & Mr Anirudh Jamwal, Advs.

For the Respondent:

Respondent-in-person

Case BriefsSupreme Court

Supreme Court: The bench of Sanjay Kishan Kaul* and R. Subhash Reddy, JJ has temporarily restored the senior designation of Advocate Yatin Narendra Oza who was stripped off this designation after he levelled charges of corruption against the registry of the Gujarat High Court.

What is the case about?

On 21.03.2020, Oza wrote a letter to the Chief Justice of India making serious allegations against a senior-most Judge of the Gujarat High Court in his capacity as President of the Bar Association. He then transgressed all limits by circulating the letter in the Bar Association’s WhatsApp group after calling the High Court a “Gamblers Den” in a Press Conference.

Oza was then stripped off his Senior Advocate designation. The Court cited Rule 26 of the High Court of Gujarat (Designation of Senior Advocates) Rules 2018, which states “In the event a Senior Advocate is found guilty of conduct which according to the Full Court disentitles the Senior Advocate concerned to be worthy of the designation, the Full Court may review its decision to designate the person concerned and recall the same”. Read more

High Court’s line of arguments

The High Court labelled the apology rendered by Oza as a repeated behaviour of what would amount to “slap, say sorry, and forget”. The High Court objected to the Writ Petition filed before the Supreme Court on the ground that what has been withdrawn is a ‘privilege’ and not a ‘right’. It was further argued that the conferment of this privilege weighs not only on the existence of certain legal acumen but a much higher standard of behaviour and if such presupposition disappears, the authority is empowered to withdraw the privilege. Hence, re-conferment of this right on the petitioner through a writ of mandamus would be de hors the exercise of powers under statutory rules.

Oza’s line of arguments

Oza’s case on the other hand was that the Supreme Court should show compassion. The withdrawal of designation is not limited by time and is disproportionately harsh as the petitioner is not being given an opportunity to redeem himself. The filing of an application afresh for designation after the specified time bar is stated to not really be a redemption.

It was argued that he has bona fidely raised issues within the institution regarding non-circulation of matters, based on a large number of complaints received from the members of the Bar by him by reason of his holding the position of the President. He endeavoured to resolve the grievances within the system by writing several letters and making many representations which were in a sober and restrained language and that the grievance was stated to be not one against the Judges, but against the manner of working of the Registry. The Press Conference was stated to be the culmination of his inability to resolve the disputes, as a last resort where he got emotionally overwhelmed and made utterances of which he has been very apologetic from the very beginning.

Supreme Court’s ruling

While the Court found little ground to interfere with the High Court’s decision, it still thought it proper to give one more and last chance to Oza and hence, temporarily restored Oza’s Senior designation for a period of two years from 1.1.2022.

“It is the High Court which will watch and can best decide how the petitioner behaves and conducts himself as a senior counsel without any further opportunity. It will be for the High Court to take a final call whether his behaviour is acceptable in which case the High Court can decide to continue with his designation temporarily or restore it permanently.”

The Court made clear that if there is any infraction in the conduct of the petitioner within this period of two years, the High Court would be well within its rights to withdraw the indulgence.

“In effect, the fate of the petitioner is dependent on his appropriate conduct as a senior counsel before his own High Court, which will have the final say. All we are seeking to do is to  give him a chance by providing a window of two years to show that he truly means what he has assured us. We can only hope that the petitioner abides by his assurances and does not give any cause for the High Court or for us to think otherwise.”

[Yatin Narendra Oza v. High Court of Gujarat, 2021 SCC OnLine SC 1004, decided on 28.10.2021]


Counsels:

For Petitioner: Senior Advocate Dr. Abhishek Manu Singhvi


*Judgment by: Justice Sanjay Kishan Kaul

Know Thy Judge| Justice Sanjay Kishan Kaul

Case BriefsSupreme Court

Supreme Court: In the case dealing with willful disobedience of the order passed by the Supreme Court in the year 2008 with respect to the levy made while upholding Section 21 of the Assam Agricultural Produce Market Act, 1972, the bench of Sanjay Kishan Kaul and MM Sundresh*,JJ has held that vicarious liability as a principle cannot be applied to a case of contempt and that the appellants cannot be implicated for alleged action of their subordinates.

The Court noticed that in the present case, it was the specific case of the appellants that they did not violate the directives of the court. Also, there was no material to either establish their knowledge on the action of their subordinates, or that they acted in collusion with each other.

In Ram Kishan v. Tarun Bajaj, (2014) 16 SCC 204, the Court explained that in order to punish a contemnor, it has to be established that disobedience of the order is “wilful”.

“The word “wilful” introduces a mental element and hence, requires looking into the mind of a person/contemnor by gauging his actions, which is an indication of one’s state of mind. “Wilful” means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bona fide or unintentional acts or genuine inability. Wilful acts does not encompass involuntarily or negligent actions. The act has to be done with a “bad purpose or 9 without justifiable excuse or stubbornly, obstinately or perversely”. Wilful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part. Even if there is a disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished.”

Taking note of the aforementioned ruling and also the facts of the case at hand, the Court explained that the Contempt of Courts Act, 1971 explains a civil contempt to mean a willful disobedience of a decision of the Court. Therefore, what is relevant is the “willful” disobedience. Knowledge acquires substantial importance qua a contempt order.

“Merely because a subordinate official acted in disregard of an order passed by the Court, a liability cannot be fastened on a higher official in the absence of knowledge.”

Further, when two views are possible, the element of willfulness vanishes as it involves a mental element. It is a deliberate, conscious and intentional act. What is required is a proof beyond reasonable doubt since the proceedings are quasi-criminal in nature.

Similarly, when a distinct mechanism is provided and that too, in the same judgment alleged to have been violated, a party has to exhaust the same before approaching the court in exercise of its jurisdiction under the Contempt of Courts Act, 1971. It is well open to the said party to contend that the benefit of the order passed has not been actually given, through separate proceedings while seeking appropriate relief but certainly not by way of a contempt proceeding. While dealing with a contempt petition, the Court is not expected to conduct a roving inquiry and go beyond the very judgment which was allegedly violated. The said principle has to be applied with more vigor when disputed questions of facts are involved and they were raised earlier but consciously not dealt with by creating a specific forum to decide the original proceedings.

[DR. U.N. BORA, EX. CHIEF EXECUTIVE OFFICER v. ASSAM ROLLER FLOUR MILLS ASSOCIATION, 2021 SCC OnLine SC 968, decided on 26.10.2021]


*Judgment by: Justice MM Sundresh

Op EdsOP. ED.

“Democracy is a ceaseless endeavour. Democracy is a work in progress.”

— Nani Palkhivala

Introduction

Lawyers are frontline defenders of the Constitution of India and, more than anyone else, require the protection as whistleblowers in court. A contempt is to protect the institution and to prevent interference in the course of justice. Undermining the majesty of the institution or undermining the authority that is vested in Judges is a very important take away. I think that crosses a line from legitimate criticism of a ruling and goes into whole different area. Legitimate criticism of ruling is permissible but on the other hand we must draw the line where it becomes abusive, irrational, personal attacks on Judges that undermines the entire integrity of the institution.

Lord Denning, in 1968, Britain’s former master of rolls, had this to say to the law of contempt: “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity nor we will use it to suppress those who speak against us. We do not fear criticism, nor do we resent it.  For there is something far more important at stake. It is no less than freedom of speech itself.” It is the right of every man, in Parliament or out of it, in press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. We must rely on our own conduct itself to be its own vindication[1].

Brief history

The origin of the law of contempt of courts in India can be traced back from the period of Ramayana and Mahabharata, where the courts were called as sabha and the king was called as sabhapati. Here the judicial function was administered by the sabhapati and justice has to be delivered as per the dharma. And at that time whosoever vilify the decision of sabhapati, would be liable for punishment. In ancient times the said law of contempt was used to maintain the dignity and integrity of the sabha and sabhapati and is not in codified form. It varies from empire to empire and king to king. As it is not codified, the meaning of contempt carries different meanings and interpretations as per religion and dharma.

As today, we call it that the origin of contempt of courts in India can be traced from England law but India has developed this concept and can be traced back from history. In England the Supreme Courts of Record from early times exercising the power to punish the contemnors who scandalises the Courts or Judges. This right was first recognised by the judicial committee of the Privy Council which observed that the offence of the contempt of court and the powers of the Indian High Courts to punish it are same as in the Supreme Court in England. The first Indian statute on the law of contempt i.e. the Contempt of Courts Act was passed in 1926.

Contempt and its objective

The Contempt of Courts Act, 1971 comes into existence on 24-12-1971 with an objective to define and limit the powers of certain courts in punishing contempt of court and to regulate their procedure in relation thereto. Which means contempt jurisdiction enjoyed by the courts is only for the purpose of upholding the majesty of the judicial system that exists. While exercising this power, the court must not be hypersensitive or swung by emotions, but must act judiciously[2].

Contempt is defined under Section 2(a)[3] of the Contempt of Courts Act, 1971 which says “contempt of court” means civil contempt or criminal contempt. Whereas “civil contempt” is defined under Section 2(b) which means wilful disobedience to any judgment decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to court. And on the other hand, “criminal contempt” is defined under Section 2(c) which 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 which:

  1. Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
  2. Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
  3. Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner[4].

Any wilful disobedience of court order to do or abstain from doing any act is a civil contempt. Civil contempt arises when the power of the court is invoked or exercised to enforce obedience to court orders.[5] On the other hand, criminal contempt is criminal in nature. It includes defiant disobedience to the Judges in the court, outrages of Judges in open court, libels on Judges or courts or interfering with the course of justice or an act which tends to prejudice the course of justice.

A person is guilty of a criminal contempt when his conduct tends to bring the authority and administration of law into disrespect or tends to interfere with or prejudice litigants during litigation[6].

Let’s take an example for better understanding the concept of contempt of court. Let’s assume a situation where the impact of contempt is of that nature, where a common man lost his faith in the judiciary. Let’s say, otherwise for a common man, if the local MLA came and getup and abuse the court, what respect the common man will have for the institution because the said MLA effectively taken away one important pillar of democracy.

As per the observations of Justice Wilmot in R. v. Almon[7] made as early as in 1765:

“… And whenever men’s allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice, and, in my opinion, calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of Judges, as apricate individuals, but because they are the channels by which the King’s justice is conveyed to the people.”

Constitution of India and contempt of court

It is very conflicting in nature and difficult to understand that whether the law relating to the contempt of court is somewhere touches two important fundamental rights of the citizen, namely, the right to personal liberty and the right to freedom of speech and expression or not?

There is a very thin line between criticism and vilification. One of the basic principles of independence is that you are free to do anything which does not intervene in my independence. The same goes to determine whether it is a contempt or not? If you are criticising, it is valid but if you are vilifying or tried to degrade the integrity of the institution then it is a contempt.

  1. Article 129[8] – Grants Supreme Court of India, the power to punish for contempt of itself.
  2. Article 142(2)[9] – Enables the Supreme Court of India, to investigate and punish any person for its contempt.
  3. Article 215[10] – Grants every High Court the power to punish for contempt of itself.

Note: That the source of power of Supreme Court of India, to punish for its contempt is not from Section 15[11] of the Contempt of Courts Act, 1971 but it flows from Articles 129 and 142(2) of the Constitution of India.

The Supreme Court has emphasised upon the need for the contempt of court in the following words:

Availability of an independent judiciary and an atmosphere wherein Judges may act independently and fearless is the source of existence of civilisation in society. The writ issued by the court must be obeyed. It is the binding efficacy attaching with the commands of the court and the respect for the orders of the court which deter the aggrieved persons from taking the law into their own hands because they are assured of an efficacious civilised method of settlement of disputes being available to them wherein, they shall be heard and their legitimate grievances redeemed. Any act or omission which undermines the dignity of the court is therefore viewed with the concern of the society and the court treats it as an obligation to zealously guard against any onslaught on its dignity.[12]

The Supreme Court exercises this power to punish an act which tends to interfere with the course of administration of justice. The following inter alia have been held to constitute contempt of court: [13]

  1. Insinuations derogatory to the dignity of the court which are calculated to undermine the confidence of the people in the integrity of the Judges.
  2. An attempt by one party to prejudice the court against the other party to the action.
  3. To stir up public feelings on the question pending for decision before court and to try to influence the Judge in favour of himself.
  4. An attempt to affect the minds of the Judges and to deflect them from performing their duty by flattery or veiled threat.
  5. An act or publication which scandalises the court attributing dishonesty to a Judge in the discharge of his functions.
  6. Wilful disobedience or non-compliance of the court’s order.[14]

In several cases, private parties violating or flouting the Supreme Court orders have been held guilty of contempt of court:

  1. Gomti River water was being polluted due to discharge of effluents from the distillery of a company. The Supreme Court ordered the company to remove deficiencies in the effluent treatment plant by a certain due date. The company failed to do so and yet kept on running its plant. The Court ruled that violation of the court order by the company was deliberate and pre-planned indicating a defiant attitude on its part. The Court imposed a fine of Rs 5 lakhs on the company which amount was to be utilised for cleaning of the Gomti River.[15]
  2. An article in a newspaper, criticising a Supreme Court decision, attributing improper motives to the Judges and seeking to create an impression in the public mind that the Supreme Court Judges act on extraneous considerations in dealing cases has been held to constitute court’s contempt. The Court has stated that if an impression were created in public mind that the Judges in the highest court act on extraneous considerations in deciding cases, public confidence in the administration of justice would be undermined and no greater mischief than that could possibly be imagined.[16]

Note: Contempt of court is a matter between the court and contemnor and hence, held, third parties cannot intervene. Intervention applications are thus not maintainable.[17]

Supreme Court and the Contempt of Courts Act, 1971

As per the Rule 3 of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975[18]. In case of contempt other than the contempt referred to in Rule 2, the Court may take action:

  1. Suo motu; or
  2. On a petition made by Attorney General, or Solicitor General; or
  3. On a petition made by a person, and in the case of a criminal contempt with the consent in writing of the Attorney General or the Solicitor General.

A bare reading of Rule 3 helps us understand that there are 3 ways for initiating contempt proceedings. The first is suo motu, the second is the petition made by the Attorney General or the Solicitor General, and the third is on the basis of a petition made by any person and where criminal contempt is involved then the consent of the Attorney General or the Solicitor General is necessary.

As in necessary to understand that the Supreme Court of India is the supreme authority and the powers for the contempt of itself is a constitutional power vested to this Court, such power cannot be abridged or taken away even by legislative enactment. Whereas on the other side the Contempt of Courts Act, 1971 is a legislative enactment.

Although the law of contempt is largely governed by the Contempt of Courts Act, 1971. It is now settled law in India that the Supreme Court and the High Courts derive their jurisdiction and power from Articles 129 and 215 of the Constitution of India. This situation results in giving scope to “judicial self-dealing”.

It is the saying of the Supreme Court of India that a scurrilous attack on a Judge, in respect of a judgment or past conduct has in our country the inevitable effect on undermining the confidence of the public in the judiciary; and if confidence in judiciary goes administration of justice will definitely suffers[19].

Permissible limit in the eyes of law

 Scandalising a Judge as a Judge is different from scandalising a Judge as an individual. The abovementioned assertions bring both freedom of speech and expression and contempt of court, in conflict, on one side of the coin, freedom of fairly and reasonably criticising judiciary increases its accountability but on the other side of the coin, the power of punishing contempt of court ensures free and non-obstructed administration of justice. When the proceedings are taken for vilification of the Judge, the question which the Court has to determine is whether the vilification is of the Judge as a Judge or it is a vilification of a Judge as an individual. That if the vilification of the Judge is as an individual, then he is left to his private remedies and the Court has no power to punish for contempt. In the former case, the Court will proceed to exercise the jurisdiction with scrupulous care and in cases which are clear and beyond reasonable doubt.[20]

A distinction is drawn between a mere libel or defamation of a Judge personally and what amounts to a contempt of court. A mere defamatory attack on a Judge is not actionable but it becomes punishable when it is calculated to interfere with the due course of justice, or the proper administration of law by the Court. Alternatively, the test is whether the wrong is done to the Judge personally, or it is done to the public.[21]

A fair, reasonable, temperate and legitimate criticism of the judiciary, or of the conduct of a Judge in his judicial capacity is permissible. A contempt is to protect the institution and to prevent interference in the course of justice. Undermining the majesty of the institution or undermining the authority vested in Judges is a very important take away. I think that crosses a line from legitimate criticism of a ruling and goes into a whole different area. Legitimate criticism of a ruling is permissible and on the other hand we must draw the line where it becomes abusive, irrational, personal attacks on Judges that undermines the entire integrity of the institution. That has to be where we stop, that is where the freedom of speech ends. Anything that/which undermines the institution rather than criticises the institution that is where you cross the bounds of legitimacy.

In Andre Paul Terence Ambard v. Attorney General of Trinidad and Tobago[22], the court said “… no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way: the wrongheaded are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.

Although Section 5 of the said Act states that fair and reasonable criticism is not to be termed as a contempt of court. A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided[23]. Judgments are open to criticism that must be done without casting aspersions on the Judges and the courts and without adverse comments amounting to scandalising the courts[24]. Actual interference with the course of administration of justice is not necessary, it is enough if the offending publication is likely on if it tends in any way to interfere with the proper administration of law[25].

Note: That a contempt petition cannot be withdrawn by the petitioner as a matter of right. The matter is primarily between the court and the contemnor. It is, therefore, for the court to allow or to refuse withdrawal in the light of the broad facts of the case and more particularly whether respect for judicial process would be enhanced or reduced by the grant or refusal of withdrawal. It is for the court to determine whether the act complained of tending to scandalise the court if viewed with certain severity with a view to punishing the person would in the larger interest of the society enhance respect for the judicial process, or too sensitive attitude in such matter may even become counterproductive. The power to commit for contempt of court has to be exercised with greatest caution.

Conclusion

At last, I would like to conclude from the golden words of Lord Atkin in Andre Paul Terence Ambard v. Attoney General of Trinidad and Tobago[26] “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”

In the free market place of ideas criticisms about the judicial system or the Judges should be welcomed, so long as criticisms do not impair or hamper the administration of justice. As one should know where to stop and when to stop, as there is a very thin line difference between criticism and vilification. If one has the right to freedom of speech and expression as their fundamental right on one side then he has the duty/obligation to maintain dignity and integrity of the institution on the other side, as the freedom of speech and expression is not an absolute right it can be taken away in case someone tries to cross the justifiable limit permitted by the law of land.

For instance, if I fight a case and I loose, I should have the confidence to accept that I tried my case but it went wrong. I should not go home thinking the Judge was worried about what newspaper would say and that is why he decided against me. The day I get that feeling you have eroded my faith in judiciary.


Advocate, e-mail: adv.nihitsinghal@gmail.com.

[1] Lord Denning in Reg. v. Commr. of Police of the Metropolis, ex p, Blackburn, (1968) 2 QB 150.

[2] W.B. Administrative Tribunal  v. S.K. Monobbor Hossain, (2012) 11 SCC 761.

[3] <http://www.scconline.com/DocumentLink/IB5rg5rZ>.

[4] The Contempt of Courts Act, 1971.

[5] DDA v. Skipper Construction, (1995) 3 SCC 507.

[6] DDA v. Skipper Construction, (1995) 3 SCC 507.

[7] 1765 Wilm 243 : 97 ER 94.

[8] <http://www.scconline.com/DocumentLink/aMeb67Y3>.

[9] <http://www.scconline.com/DocumentLink/z3Hfxsu4>.

[10] <http://www.scconline.com/DocumentLink/z3Hfxsu4>.

[11] <http://www.scconline.com/DocumentLink/Pu75QPE4>.

[12] Om Prakash Jaiswal v. D.K. Mittal, (2000) 3 SCC 171.

[13] Pritam Pal v. High Court of M.P., 1993 Supp (1) SCC 529.

[14] Rajiv Choudhary v. Jagdish Narain Khanna, (1996) 1 SCC 508.

[15] Vineet Kumar Mathur v. Union of India, (1996) 7 SCC 714.

[16] Aswini Kumar Ghose, In re v. Arabinda Bose, 1953 SCR 215.

[17] Bhushan Power and Steel Ltd. v. Rajesh Verma, (2014) 5 SCC 551.

[18] Vide G.S.R. 368(E), dated 27-5-2014, published in the Gazette of India, Extra., Pt. II, S. 3(i), No. 287, dated 29-5-2014 <http://www.scconline.com/DocumentLink/zMvdG5rb>.

[19] C.K. Daphtary v. O.P. Gupta, (1971) 1 SCC 626.

[20] Baradakanta Mishra v. Registrar of the Orissa High Court, (1974) 1 SCC 374.

[21] Rustom Cowasjee Cooper v. Union of India, (1970) 2 SCC 298.

[22] 1936 SCC OnLine PC 15 : (1936) All ER 704.

[23] S. 5, The Contempt of Courts Act, 1971.

[24] Advocate General v. Abraham George, 1975 SCC OnLine Ker 83 : 1976 Cri LJ 158, 161.

[25] Hira Lal Dixit v. State of U.P., (1955) 1 SCR 677.

[26] 1936 SCC OnLine PC 15 : (1936) All ER 704.

Case BriefsSupreme Court

“The raison d’etre of contempt jurisdiction is to maintain the dignity of the institution of judicial forums. It is not a vindictive exercise nor are inappropriate statements by themselves capable of lowering the dignity of a Judge. These are often ignored but where despite all latitude a perennial litigant seeks to justify his existence by throwing mud at all and sundry, the Court has to step in.”

Supreme Court: Coming down heavily upon a contemnor, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has held that the power to punish for contempt is a constitutional power vested in this Court which cannot be abridged or taken away even by legislative enactment.

Brief background

  • Exemplary costs of Rs. 25 lakhs were imposed on one Rajiv Daiya, the chairman of an NGO Suraz India Trust, for filing a series of frivolous petitions against judges, judicial officers and court staff. The Court had held that extremely important matters are taken up for consideration on a daily basis and judicial time gets wasted because individuals not competent to assist the Court insist without due cause to be granted a prolonged hearing.
  • The costs were not deposited and Daiya sought to submit unconditional apology with a prayer that the costs imposed on him be waived and that he be pardoned against charges of contempt.
  • Stating that he had no sufficient funds to make payment of the costs, he claimed to have regularly taken loans for meeting various requirements, which were being deducted from his emoluments. In the liabilities he sought to put forth the expenses towards his daughter’s study apart from the liability of marriage of his daughter.
  • The same was declined while permitting the Registry to take action for recovery. Since the recovery did not take place, the Registry had placed the matter before the Court.
  • The Court, however, noted that,
  • “The so-called unconditional apology is again a recital of his alleged grievances in the earlier proceedings. It seeks to canvas that the proceedings for recovery of costs had actually come to an end, which was factually not so as it was his endeavour to seek modification of the order of costs.”
  • Not only this, on 26.03.2021, an e-mail was addressed to the Assistant Registrar (PIL Section) stating that Justice Sanjay Kishan Kaul should recuse himself as he had moved for sanction of prosecution before the President of India against him.
  • On 02.04.2021, Daiya addressed a letter to the Chief Justice of India requesting information to take suo motu cognizance of the criminal complaint against the Assistant Registrar and officers/officials of the PIL (Writ) Section.
  • He also had not complied with the orders and was seeking to wriggle out of the proceedings by raising all kinds of objections, i.e., that the matter should not be heard by the Bench but by a bench headed by the Chief Justice of India.
  • Since Daiya was found to be bent upon violating the directions of the Court, the Court deemed it appropriate to issue notice of contempt to Daiya returnable on 12.04.2021.
  • The affidavit filed by the State of Rajasthan informed that Daiya was working in the office of the Government Advocate-cum-Additional Advocate General at Jodhpur, which was an office separate from the office of the Advocate General of the State. He had been issued show cause notice under relevant service rules applicable and had been suspended and transferred since his conduct before various courts as the Chairman of the Trust was in violation of the relevant service rules.

Analysis

“… the easier path is to recuse or give up the matter instead of inviting so much trouble. But then that is not the course for which the Judges have taken oath. Sometimes the task is unenviable and difficult but it must be performed for the larger good of the institution. Such litigants cannot be permitted to have their way only because they can plead and write anything they feel like and keep on approbating by sometimes apologising and then again bringing forth those allegations. We have thus chosen the more difficult path.”

Taking note of the fact that all kinds of pleadings were being made in an issue of what was simply of recovery of costs from the Trust/ Daiya and that letters were also written to scandalise the Court and prevent the Court from taking action to ensure recovery of costs, the Court noticed that it was clearly an endeavour to browbeat the Court which the Court would not countenance.

Noticing that the contemnor has apparently made a profession of filing public interest petitions of subjects of which he may not know much and then seeking to scandalise the Court to grant him relief failing which he will continue to scandalise the Court, the Court held that,

“… there is no absolute licence when appearing in person to indulge in making aspersions as a tendency to scandalise the Court in relation to judicial matters. Motivated and calculated attempts to bring down the image of the judiciary in estimation of public and impair the administration of justice must bester themselves to uphold their dignity and the majesty of law.”

It was held that the contemnor has apparently made a profession of filing public interest petitions of subjects of which he may not know much and then seeking to scandalise the Court to grant him relief failing which he will continue to scandalise the Court.

The Court further said that the contemnor’s actions to scandalise the Court cannot be countenanced. He continues with his contumacious behaviour. The apologies submitted by him are only endeavours to get out of the consequences again followed by another set of allegations, thus, a charade. The last apology can hardly be called an apology seeing the contents.

“We have little doubt that what the contemnor has been endeavouring is to have his way or, alternatively, I will throw mud at all and sundry, whether it be the Court, its administrative staff or the State Government so that people, apprehensive of this mud thrown, may back off. We refuse to back off and are clear in our view that we must take it to its logical conclusion.”

On the question of right to be heard on sentence, the Court said that though it is a contempt on the face of the Court by the reason of the pleadings filed by him and the Court is not mandated to give him a hearing on the issue of sentence, it would still give him one more chance and, thus, consider it appropriate to list the petition to hear the contemnor on the question of final sentence.

[Suraz India Trust v. Union of India, 2021 SCC OnLine SC 833, decided on 29.09.2021]


*Judgment by: Justice Sanjay Kishan Kaul

Know Thy Judge| Justice Sanjay Kishan Kaul

Case BriefsSupreme Court

Supreme Court: The Division Bench of Indira Banerjee and V. Ramasubramanian, JJ., observed that,

an undertaking given by a party should be seen in the context in which it was made and (i) the benefits that accrued to the undertaking party; and (ii) the detriment/injury suffered by the counter party.

Petitioners husband and wife were sentenced by Delhi High Court on being found guilty of committing – Contempt of Court.

The said Order having been confirmed by the Division Bench of the High Court in an appeal under Section 19 of the Contempt of Courts Act, 1971, the petitioners came up with the Special Leave Petition.

Wilful and Deliberate Breach of Undertaking

Respondent­Bank filed a petition under Sections 10 and 12 of the Contempt of Courts Act, 1971 for punishing the petitioners for wilful and deliberate breach of their undertaking. Petitioners resisted the contempt petition on the ground that breach of an undertaking, made with a view to secure a conditional order of stay may not tantamount to contempt, especially when the consequences of breach of such undertaking are spelt out in the Court order itself, the Judge was not convinced.

Hence, the High Court held the petitioners guilty.

Analysis, Law and Decision

Petitioners have already served simple imprisonment of 11 days out of the penalty of simple imprisonment for 3 months and along with that fine has also been paid.

What was the undertaking that led to the contempt proceedings?

“Statement of Mr. Suman Chadha S/o Jangi Lal Chadha R/o H­3/50 Sector­18, Rohini, Delhi

I am the petitioner and the director of the third petitioner in this case. I am duly authorised to make a statement on its behalf. I have also filed an affidavit in support of the petition and have taken advice from my lawyer who is present with me in Court.

I hereby state and confirm that the sum of Rs.28,82,25,942.24 (Twenty Eight Crores Two Lakh Twenty Five thousand Nine Hundred Forty Two and Paise Twenty Four only) as on 18.8.2014 is due and payable to the respondent i.e. the Central Bank of India as per notice u/s 13(2) of SARFAESI Act. I request that in view of the demand I may be granted relief of some deferment with regard to the repayment of the loan liability. I hereby agree on behalf of self and other petitioners to deposit a total amount of Rs.7 (seven) crores with respondent –Bank on or before 30.6.2015. An amount of Rs. 2(two) crores of the said amount shall be paid on or before 30.04.2015; the balance would be paid in equal instalments i.e. Rs.2.5 (Two and a half) crores on or before 31.5.2015 and 30.06.2015.

I also agree and affirm that in the event of default, the Bank is free to initiate any such proceedings and avail of legal remedies as are available.”

It is true that this Court has held in a series of decisions that the wilful breach of the undertaking given to the Court amounts to contempt of Court under Section 2(b) of the Act.

But the Court has always seen:

  • the nature of the undertaking made;

  • the benefit if any, reaped by the party giving the undertaking; and

  • whether the filing of the undertaking was with a view to play fraud upon the court or to hoodwink the opposite party.

Further, the Court adds that, the distinction between an order passed on consent terms and order passed solely on the basis of an undertaking given to the court and the distinction between a person playing fraud on the court thereby obstructing the course of justice and a person playing fraud on one of the parties, was brought out by this Court in Babu Ram Gupta v. Sudhir Bhasin, (1980) 3 SCC 47.

Bench added that in Rama Narang v. Ramesh Narang, (2006) 11 SCC 114, this Court pointed out the distinction between two categories of cases covered by Section 2(b) of the Act namely

  • wilful disobedience to a process of court; and
  • wilful breach of an undertaking given to a court.

In Court’s opinion, this Court in the above-stated case went to the extent of holding that it would neither be in consonance with the statute, judicial authority, principle or logic to draw any distinction between the wilful violation of the terms of a consent decree and wilful violation of a decree passed on adjudication.

We have our own doubts whether the first category of cases covered by Section 2(b) can be stretched so far. Anyway, that question does not arise in this case and hence we leave it at that.

In compliance to the undertakings given to the Court and the order passed thereon, the petitioners issued 4 cheques and the said cheques were handed over to the Bank but all the cheques were post-dated bearing the date 06.05.2015, though the undertaking given to the Court was to deposit the amount on or before 30.04.2015.

In view of the above conduct of the petitioner, Bench held that conduct of the petitioners first in issuing post­dated cheques and then in allowing them to be dishonoured, showed the petitioners in poor light. The petitioners could have at least mend their ways thereafter. However, they did not.

It is also true that normally the question whether a party is guilty of contempt is to be seen in the specific context of the disobedience and the wilful nature of the same and not on the basis of the conduct subsequent thereto. While it is open to the court to see whether the subsequent conduct of the alleged contemnor would tantamount to an aggravation of the contempt already committed, the very determination of an act of contempt cannot simply be based upon the subsequent conduct.

Reason why this Court upheld the decision of Delhi High Court

The series of acts committed by the petitioners

  • in issuing post­dated cheques, which were dated beyond the date within which they had agreed to make payment;
  • in allowing those cheques to be dishonoured;
  • in not appearing before the Court on the first date of hearing with an excuse that was found to be false;
  • in coming up with an explanation about their own debtors committing default; and
  • in getting exposed through the report of the SFIO, convinced the High Court to believe that the undertaking given by the petitioners on 08-04-2015 was not based upon good faith but intended to hoodwink the Court.

While upholding the finding of the Delhi High Court that the petitioners were guilty of contempt of court, but reducing the period of sentence from 3 months to the period of imprisonment already suffered by the petitioners, the SLP was disposed of. [Suman Chadha v. Central Bank of India, 2021 SCC OnLine SC 564, decided on 9-08-2021]

Case BriefsHigh Courts

Madras High Court: The Division Bench of P.N. Prakash and R. Pongiappan, JJ., addressed a contempt petition filed under Section 10 of the Contempt of Courts Act.

Petitioner aged 87 years old was blessed with 5 children. He was in service when his children were young and was allotted a plot by the Tamil Nadu Housing Board, wherein he built a two-storeyed house. After his retirement, he started living peacefully with his wife and 4th son viz. Laxmi Rajah on the first floor. Apart from this he also owned a few more properties in and around Chennai.

After the death of his wife, petitioners’ children started demanding their shares in the properties and two of his sons Vijay and Suraj took possession of the ground floor and after a year started giving him trouble.

Due to the fear of being dispossessed from the house, a settlement deed in favour of the 4th son was executed.

On being infuriated with the above stated, the 4th son’s wife assaulted the petitioner and the other three daughter-in-law lodged a police complaint against the petitioner based on which an enquiry was conducted and the case as closeld as the same was a ‘civil dispute’.

The disgruntled sons gave a complaint of cheating and fraudulent transaction against their father. Again, the same was closed as “family quarrel”.

Vijay and Suraj filed a suit before the VII Additional City Civil Court for partition alleging that their father the petitioner did not have any means to purchase the Anna Nagar house property and it was bought with the funds of their grandfather and hence, they have a share in it.

The above mentioned two sons also assaulted their father, after which the petitioner sought protection under the Tamil Nadu Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

Police filed an FIR against the two sons for the offences under Sections 294(b), 352 and 506(I) Penal Code, 1860 and Section 24 of the Tamil Nadu Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

Two sons pleaded to Murthi at Metropolitan Magistrate’s house to withdraw the complaint and they will vacate the premises and show the bonafide they filed a written memo of undertaking before the Metropolitan Magistrate.

Reason for filing the present petition

After earning freedom, the two sons turned turtle, reneged from their undertaking and refused to vacate the premises and therefore, Murthi/ Petitioner was before this Court with the instant contempt petition.

Analysis, Law and Decision

Whether the undertaking given by Vijay and Suraj before the Metropolitan Magistrate was under coercion when they were in police custody or they gave it voluntarily?

Bench noted that when Vijay and Suraj’s counsel submitted before the Court that if some more time would be granted, they would vacate the house, the duo refused to toe their counsel’s line as well. Mainly they stuck on to the issue that their father did not give any share to them in his property.

Order passed by the V MM stated that the advocate for the accused pleaded to the V MM not to remand the accused and only thereafter, Murthi came into the picture, resulting in the duo filing a memo of undertaking to vacate the house, followed by Murthi filing a memo accepting the undertaking given by his sons.

Court expressed that the accused were represented by an advocate at the time of remand, and he would not have been so guile to make his clients file a memo of undertaking had the V MM been disinclined to remand them in judicial custody.

In view of the above, it is limpid that the alleged contemnors had filed an undertaking into the Court, which they had no intention of honouring, and had successfully extricated themselves from remand proceedings and their contention that the undertaking was given by them under coercion defies credulity.

Power of High Court to punish for Contempt of Courts subordinate to it, is recognized in Section 10 of the Contempt of Courts Act and it is well settled that a wilful breach of an undertaking given to the Court would constitute civil contempt.

Therefore, the subsequent act of deliberately reneging from the terms of the undertaking by the alleged contemnors constitutes a serious interference in the administration of justice, and the respondents were held to be guilty of Section 2(b) of the Contempt of Courts Act, 1971.

The contempt petition was allowed.[P.S. Murthi v. P.S. Vijay, 2021 SCC OnLine Mad 2052, decided on 04-06-2021]


Advocates before the Court:

For petitioner:  Mr. T. Arun Kumar for M/s. Tamizh Law Firm

For respondents: Mr. V. Krishnamoorthy

Case BriefsHigh Courts

Orissa High Court: S. K. Sahoo J., ordered the petitioner to be detained in judicial custody and rejected the prayer sought.

The present application was filed by the petitioner for interim bail on the ground that his wife is suffering from multiple types of diseases and the doctor advised her to take complete rest due to COVID-19 pandemic.  A medical prescription and medical fitness certificate certifying the medical condition of one patient namely Santosini Kanhar, who is aged about twenty-five years and she is a female and wife of the petitioner.

Counsel for the State raised doubts about the authenticity of the certificates, pursuant to which vide order dated 09-12-2020 the Deputy Commissioner of Police, Cuttack was directed to depute a responsible Senior Police Officer in the rank of Deputy Superintendent of Police to enquire into the matter by examining the doctor concerned, the O.P.D. register etc. and furnish a report to this Court regarding the authenticity of such documents.

The report stated that the medical documents enclosed with the interim application have been forged and fabricated.

The Court thus observed that as per Section 2(c) of the Contempt of Courts Act, 1971, ‘criminal contempt’ means, inter alia, “the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.”

The Court further observed that law is well settled that anyone who takes recourse to fraud deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. If a forged and fabricated document is filed in Court to get some relief, the same may amount to interference with the administration of justice and the conduct is punishable as contempt of Court. The fabrication and production of false document can be held to be interference with the due course of justice. Any interference in the course of justice, any obstruction caused in the path of those seeking justice are an affront to the majesty of law and therefore, the conduct is punishable as contempt of Court. Law of contempt is only one of many ways in which the due process of law are prevented to be perverted, hindered or thwarted to further the cause of justice. Due course of justice means not only any particular proceeding but a broad stream of administration of justice. Therefore, due course of justice used in section 2(c) or section 13 of the Contempt of Courts Act, 1971 are of wide import and are not limited to any particular judicial proceeding.

The Court held that Gumesh Mallik has committed contempt of Court and hence has to file show cause as to why necessary action shall not be taken against him for committing criminal contempt of Court under the provisions of the Contempt of Courts Act, 1971.

In view of the above, petition was dismissed.[Chandramani Kanhar v. State of Odisha,  2020 SCC OnLine Ori 930, decided on 21-12-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Andhra Pradesh High Court:  Taking a stern stand against several instances of abuse of power by the Andhra Pradesh State Government, the Division Bench of Rakesh Kumar and D. Ramesh, JJ., reprimanded the Government for its high- handedness in dealing with matters concerning the rights of the people of Andhra Pradesh and making attempts at subduing the constitutional bodies such as the Legislative Council, State Election Commission and the Andhra Pradesh High Court itself. Rakesh Kumar, J., who authored the instant Order, minced no words while berating the State Government’s arbitrary actions- “The State by way of filing the interlocutory application, has ventured to malign the image of one of the Members of this Bench (Hon’ble Sri Justice Rakesh Kumar). It is very difficult for me to swallow the allegation of deviating from the principle of impartiality. With a view to uphold the majesty of law and repose the confidence of citizen in the judicial system, such endeavour made by the State is considered as malicious and cannot be approved. If such petitions are entertained, it will amount to allowing the party for hunting the Bench…. the Court cannot be frightened by any such action of the State”.

 Background and Trajectory of the Issue: The writ petition WP (PIL) 127/2020 was filed with a prayer to declare the action of the Government of Andhra Pradesh/ Municipal Administration and Urban Development Department in issuing Notice Inviting Offer to an outright sale of land/land assets available at Guntur and Visakhapatnam for Mission Build AP on “as is where is” basis through E-auction, as illegal and arbitrary. The writ was first taken up by the Division Bench comprising A.V. Sesha Sai and B. Krishna Mohan, JJ., and while granting time for filing a counter-affidavit, passed an interim order restraining finalization of the bidding process. In the meanwhile, other similar writ petitions were filed questioning the act of the State regarding selling/transferring of the Government land through auction. On 16-12-2020, Sudhakar Reddy, A.A.G., filed a petition for recusal of Rakesh Kumar, J., from the case on the ground that the Judge had made an observation while hearing the matter which implied that he will ‘declare a break down of constitutional machinery in the State and hand over the administration to the Central Government’.

Observations: While denying that the aforementioned observation was ever made by him, Rakesh Kumar, J., sternly noted that the instant application is a derogatory and contemptuous act by the State Government. The function of the High Court while exercising jurisdiction under Art. 226 of the Constitution, is to protect and enforce the fundamental right of a citizen if it is infringed or taken away by the State. This is the main protection lying in the hands of the citizen against the unauthorized or illegal act of a State. If the Court has doubts over any issue, then it is its right to ask certain questions. “Honesty, integrity, sincerity, fearlessness and impartiality all are essence of judicial system in general and Judges in particular. If any question is raised without any reasonable basis, the Judge has every right to refer to any undisputed fact even not on record of the said proceeding in his defence”.

Rakesh Kumar, J., went on to make some specific and scathing observations regarding the current attitude of maligning the Judiciary, and the Andhra Govt.’s malicious intent towards the constitutional bodies, especially the A.P. HC. Some of the notable observations are as follows-

  • The Court noted that how a Judge never has a media platform to showcase their impartiality and fearless. “We cannot even go to media for our defence.”
  • The Court also noted “A very disturbing trend has developed in our system. If one is influential, powerful, i.e., both in money and muscle, he feels that he is having every privilege to do anything as per his convenience and to the peril of system or poor citizen”.
  • Regarding the protection of a citizen’s fundamental rights, the Court observed that, “being a Judge of a High Court, it is our primary duty to come forward and examine the right of citizen in which cause of action even partly arose within the jurisdiction of such High Court, and endeavour to get such right enforced”.
  • Justice Kumar further noted the instance wherein the CM had proposed to abolish the Legislative Council itself when they did not agree to proceed with the tune of the Legislative Assembly’s decision regarding the establishment of three capitals in one State
  • Rakesh Kumar, J., also considered whether the letter to Chief Justice of India by the Andhra CM containing allegations against Chief Justices of Telangana and AP HC may have given undue advantage to the CM and people may deduce that the recent transfers of the Chief Justices may have resulted due to the letter. The Court emphasized on the need of transparency in the judicial transfers.
  • Following up on the abovementioned observation, Justice Kumar also noted a plethora of cases against the Chief Minister filed by the CBI and Enforcement Directorate. The Judge noted that the recent transfers are sure to give undue relief to the CM by way of causing delay in hearing of the matters.

With the aforementioned observations, Justice Kumar stated that,It appears that in the aforesaid background, now in the present proceeding, the State by way of filing the interlocutory application, has ventured to malign the image of one of the Members of this Bench”. Accordingly, the prayer for recusal was rejected as, “such prayer is totally untenable and malicious. If Court starts entertaining such petitions; in no case, the Court can be allowed to dispense justice”. In the concluding remarks, the Court stated that the above observations are specifically for considering the prayer for recusal made in this interlocutory application and not on the merits of the case.[Special Officer v. Thota Suresh Babu,2020 SCC OnLine AP 2143, decided on 30-12-2020]


Sucheta Sarkar, Editorial Assistant has put this story together

Case BriefsHigh Courts

Andhra Pradesh High Court: Lalitha Kanneganti, J., addressed a matter wherein the accused was arrested without warrant alleged to have posted certain material amounting to promote enmity, hatred and ill-will.

The instant criminal petition was filed to quash the FIR wherein the petitioner was accused 1 was alleged to have committed the offences punishable under Sections 120-B, 153-A, 505(2) of Penal Code, 1860.

Respondent 2 who is the Social Media Coordinator of MLA of Mangalagiri Constituency lodged a complaint alleging that the petitioner who belonged to Telugu Desam Party and Admin of Neti Andhra.com posted certain material on the website by promoting enmity, hatred and ill-will between different groups on the ground of political propaganda with a conspiracy by using the name of Alla Ramkrishna Reddy, MLA of Mangalagiri Assembly Constituency and Advisor to Government Ajay Kallam and requested to take action against the petitioner.

In light of the above complaint, the present crime was registered.

Petitioners Counsel submitted that the investigation was politically motivated and has been conducted with a pre-determined and pre-meditated objective to arm-twist, harass and humiliate the petitioner by depriving of his right to free speech and expression.

The said crime was registered without issuing any notice under Section 41-A CrPC, since all the offences were punishable below 7 years and remanded to judicial custody.

Counsel further added that the act of the police in arresting the accused is in clear violation of the guidelines issued by the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

This Court and Supreme Court in catena of cases held that in order to constitute the ingredients of Section 153-A of IPC, it is necessary that at least two such groups or communities should be involved. Merely enticing the feelings of one community or group without any reference to any other group cannot attract the offence under Section 153-A IPC.

In the instant case, there were no two groups involved as per Section 153-A IPC. The Advisor to the Government and the MLA group cannot be construed as two groups.

Section 505(2) of IPC: Statements creating or promoting enmity, hatred or ill-will between classes.

The counsel for the petitioner submitted that in light of the law laid down by Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 that allegations in the complaint prima facie do not constitute the offences punishable under Section 505(2), 153A and 120B of IPC.

Supreme Court in Arnesh Kumar’s case observed that arrest brings humiliation, curtails freedom and cast scars forever. Lawmakers as well as the police must know about this. The need for caution in exercising the drastic power of arrest has been emphasized time and again.

High Court observed that, in light of the law laid down in Arnesh Kumar’s case, even though the punishment for the offence is below 7 years, the discretion is with the police officer either to arrest the accused or to issue notice contemplated under Section 41-A CrPC.

Further, the Bench noted that, while authorising the detention the magistrate shall record reasons and failure to comply with the directions shall apart from rendering the police officer concerned for departmental action, he shall also be liable for Contempt of Court to be instituted before the High Court.

Even the magistrate will be liable for departmental action by the High Court. 

“Who will police the police” when the police are giving go-by to all guidelines while arresting the accused and producing for remand, the Magistrate shall not mechanically authorise the remand, but shall satisfy that there are sufficient grounds supported by material on which the accused need to be remanded. 

— Justice Krishna Ayyar

In spite of the clear guidelines by the Supreme court, some of the police officials continue to make indiscriminate arrests, immediately after registering the complaint without proper investigation.

Prima Facie, the Court opined that the reasons stated in the remand report were not in consonance with the guidelines issued by the Supreme Court, therefore Bench invited a report along with the record from the magistrate on what basis Section 41A of CrPC was dispensed with and the accused was remanded.

All the further proceedings shall stay in view of the above discussion.

Matter to be posted on 26-11-2020.[Jangala Sambasiva Rao v. State of A.P., IA No. 2 of 2020, decided on 28-10-2020]

OP. ED.SCC Journal Section Archives

Abstract

The internet is one of the most used and innovative additions in the lives of people in this modern world. With the arrival of social media, the internet took socialising to a whole new level because initially it became the medium of sharing thoughts and soon grew into a medium of official communication between people and people, government and government and government and people. With all sorts of information on the social media, humour is one of the biggest user-generated and shared content. The internet brought the expression of humour in the form of satire, sarcasm, and wit with social media posts on the fingertips and memes all over the place, bringing out the dark sense of humour hidden in people as well. Getting in trouble for humour isn’t new, but with the vast reach of the internet, people posting from one corner of the country and someone getting immediately offended from another corner of the country has become common. This opens room for debate on the questions like ‘How can someone be arrested for a joke?’, ‘How can a joke be criminal?’, ‘Should law take social media seriously?’, ‘Is arresting for a social media post a violation of free speech?’ and ‘Do we really need laws to monitor everything on social media?’

The present elaborated discussion is a study of various cases in India related to humour and social media and observes how humour is used as a tool to commit crimes, and how laws are used against them, reasonably and unreasonably. It also observes the nature of people over the internet and how it affects their real lives. It also studies the laws present in India to analyse what the country requires in order to prevent the misuse of both, the laws and the social media, and in the end, concludes with a suggestion of separate Media Law and why it is necessary.

INTRODUCTION

Humour is to speech what salt is to food”.1

The internet is “a cooperative message-forwarding system linking computer networks all over the world”.2 The rise of the internet has given a new platform to the people and has grown enough to become a part of reality. From a common citizen’s social media profile to official government notifications being released on websites, with the passage of time, the internet not only remains a source of information and education, but also of global trade & commerce, of personal and professional connection, and of charity & crime.

The swiftness with which the internet has integrated into the lives of people, it would not be wrong to state that it is now an extension of their own personality. Due to the degree of anonymity and vast reach it provides, it brings out the untamed selves of people, which can be closely associated with what Sigmund Freud referred to as the Id,3 making the internet the “Wild West”.4 “Researchers assume that analysis of comic texts provides us with important insights about what is lurking in the social mind behind the façade of platitudes, conventions, and political correctness”.5 One of the basic reasons behind this is that, over the internet, there exists a very low chance of face to face backlash. Even though countries across the world have taken steps to counter it,6 a complete success in preventing Cybercrime is nowhere in sight.

Along with all types of content, the internet has now also become a platform for sharing humour in an electronic form, which can be done in the form of texts, images, videos or other formats. “Rather than light-hearted entertainment, jokes are in fact important arenas in which sensitive and troubling issues are processed and negotiated”.7 Sigmund Freud happens to be the most important authority on jokes and he called them “a combination of [comic] technique and [humorous] thought”.8 Another popular term on the internet in terms of humour is ‘Memes’. The term meme was coined by Richard Dawkins in his book ‘The Selfish Gene’. The Oxford Dictionary defines meme as “An element of a culture that may be considered to be passed on by non-genetic means, especially, imitation”.9 The term is basically associated with pictorial or video jokes, perhaps because they (as a form of presentation of humour or idea), grew on the internet the most, where they spread, most of the times as a trend, through immediate sharing or imitation.

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Note: This Article was first published in RMLNLU CMET Law Journal 6 CMET (2019) 77.  The extract has been reproduced with the kind permission of RMLNLU.

* Student, BA LLB (Hons), KIIT School of Law Bhubaneswar, Odisha.

1 ‘Political Satire in Modern India’ (The Hindu, 6 April 2018) <https : //thehindu.com/thehindu/lr/2003/04/06/stories/2003040600010100.htm.> accessed 14 January 2019.

2 Douglas A Downing and others, Dictionary of Computer and Internet Terms (10th edn, Barron’s Educational Series Inc US 2009) 256.

3 Sigmund Freud, The Ego and the Id (first Published 1923, Courier Dover Publication 2018) 8.

4 Megan Carpentier, ‘Online Abuse : How Different Countries Deal with It’ (The Guardian, 12 April 2016) <https : //theguardian.com/technology/2016/apr/12/online-abuse-how-harrassment-revenge-pornography-different-countries-deal-with-it.> accessed 15 January 2019.

5 Limor Shifman and Dafna Lemish, ‘“Mars and Venus” in Virtual Space : Post-feminist Humor and the Internet’ (2011) 28 (3) Critical Studies in Media Law 253, 254.

6 The Guardian (n 257).

Op EdsOP. ED.

  1. Section 13-B of the Hindu Marriage Act, 1955[1] (‘HMA’) states as under:

13-B. Divorce by mutual consent.—(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”

2. Section 13-B of HMA contemplates two stages. The first stage is of Section 13-B(1) that lays down the essential requirements to be fulfilled by the parties as detailed below:

(i) The petition for divorce must be presented to the District Court;

(ii) The said petition must be presented jointly, by both the parties to a marriage whether such a marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976;

(iii) The parties have been living separately for a period of one year;

(iv) The parties have not been able to live together; and

(v) The parties mutually agreed that the marriage should be dissolved.

3. The second stage is of Section 13-B(2) that relates to the manner in which the court exercises its jurisdiction, provides that both the parties must again appear in the Second Motion before the court. The parties are also required to make a joint motion not less than six months after the date of presentation of the First Motion and not later than 18 months after the said date. The period of waiting ranging from six to eighteen months is intended to give an opportunity to the parties to reflect/renege and if one of the parties does not wish to proceed ahead with the divorce during this period, then divorce cannot be granted. The said principle has been explained by the Supreme Court in  Sureshta Devi v. Om Prakash[2],  as under:

“13. From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that “on the motion of both the parties. … if the petition is not withdrawn in the meantime, the court shall … pass a decree of divorce …”. What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.”

The aforesaid view has been reiterated by the Supreme Court in Hitesh Bhatnagar v. Deepa Bhatnagar[3].

Thus, the object of the cooling-off period is to safeguard both the parties against a hurried decision if there is otherwise a possibility of their differences being reconciled.

4. Now, the issue arises whether this cooling-off period can be waived in law by either of the parties or not. In Krishna Bahadur v. Purna Theatre[4], the Supreme Court inter alia held that a right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein, discussing the principles of waiver as follows:

“10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct.”

5. In Shri Lachoo Mal v. Radhey Shyam[5], the Supreme Court has explained that everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy.

6. The aforesaid principle of waiver has also been elucidated in Union of India v. Pramod Gupta[6], wherein the Supreme Court has observed as:

“111. It is, therefore, not correct to contend that there cannot be any waiver of the right to claim interest. Statutory provisions are made for payment of interest with a view to compensate a party which had suffered damages owing to a positive action or inaction of the other resulting in blockade of money which he would otherwise have received. A party which itself represents before the court of law that it would not claim interest with a view to obtain an order of stay which would be for its own benefit, in our opinion, could not be permitted to take advantage of its own wrong.”

7. In view of the above, it may be concluded that waiver is ordinarily contractual in nature inasmuch as two parties can enter into a contract in their private capacity and agree that one of them being well aware of its rights, will not assert the said right, for a consideration. However, where the statute prohibits contracting out, then the parties cannot enter into such a contract as it would be opposed to public policy.

8. The Kerala High Court in V. Janardhanan v. N.P. Syamala Kumari[7] , observed that an agreement to dissolve a marriage in derogation of the provisions of the 1955 Act is violative of the public policy of India.

9. The aforementioned cooling-off period cannot be waived off by the parties, as it gives an opportunity to both to reconsider reconciliation. The Supreme Court in Anil Kumar Jain v. Maya Jain[8],  has also held that the period of six months between filing a petition of divorce by mutual consent under Section 13-B(1)  and grant of decree of divorce under Section 13-B(2) of the 1955 Act cannot be waived off by the parties or by any civil court or High Court.

10. However, in Amardeep Singh v. Harveen Kaur[9], the abovementioned cooling-off period of six months has been held to be directory and not mandatory. The Supreme Court also interpreted Section 13-B(2) to be procedural in nature and highlighted that where the marriage has irretrievably broken down, the waiting period can be waived off by the court to enable the parties to rehabilitate themselves and start their lives afresh. It is the underlying object of the said provision that has prevailed on the Supreme Court to hold that where a court is satisfied that a case for waiver of the statutory “cooling period” under Section 13-B(2) of the Act is made out, it may waive the said period in certain circumstances. The above view has been expressed as follows:

“17. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling-off  period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option. 

  1. In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision.

  1. Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B(2), it can do so after considering the following:

i) the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B(1) of separation of parties is already over before the First Motion itself;

ii) all efforts for mediation/conciliation including efforts in terms of Order XXXII-A Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

iv) the waiting period will only prolong their agony.

The waiver application can be filed one week after the First Motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the Second Motion will be in the discretion of the Court concerned.

  1. Since we are of the view that the period mentioned in Section 13-B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.”

Therefore, in Amardeep Singh, the Supreme Court acknowledged the change in public policy by permitting waiver of the statutory period of six months, contemplated in Section 13-B of the Act, with the object of preventing a forcible perpetuation of the status of matrimony between unwilling partners. Thus, the cooling-off period of six months has an element of public policy inbuilt therein, for emphasising the sanctity and importance of sustenance of marriage, as opposed to its dissolution.

11. It is noted that a situation may also arise where despite the undertaking(s) given by the couple or either of them before the court of law in obtaining the settlement, one of the partners unilaterally withdraws the consent earlier given to the petition to be filed under Section 13-B of the Act. As already noted hereinabove, the said party may have a right to renege, more so during the cooling-off period meant for the said purpose, however, whether such a withdrawal of consent contrary to the undertaking given shall make the defaulting party liable for contempt under the relevant law, if the said party fails to file or appear in the petition or motion or both to obtain divorce in view of the option to reconsider/renege the decision of taking divorce by mutual consent under Section 13-B(2) of the Act?

12. In this regard, it is pertinent to reproduce the relevant provisions of the Contempt of Courts Act, 1971:

2. Definitions.— In this Act, unless the context otherwise requires, –

a) “contempt of court” means civil contempt or criminal contempt;

b) “civil contempt” means wilful disobedience to any judgement, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;..

*                                 *                       *

  1. Power of High Court to punish contempt of subordinate courts.— Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempt of courts subordinate to it as it has and exercises in respect of contempt of itself:

Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code.

*                          *                *

  1. Punishment for contempt of court.— Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both:

Provided that the accused may be discharged or the  punishment awarded may be remitted on apology being made to the satisfaction of the court.

Explanation.—An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.

  1. Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it.
  2. Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.
  3. Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of each such person:

Provided that nothing contained in this sub-section shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission.

4. Notwithstanding anything contained in sub-section (4), where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer.

  1. Contempts not punishable in certain cases.—

Notwithstanding anything contained in any law for the time being in force:

a) no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice;

b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoicing the said defence is bona fide.”

13. In Sudhakar Prasad v. Govt. of A.P.[10], the Supreme Court declared that the powers of contempt are inherent in nature and the provisions of the Constitution only recognise the said pre-existing situation. The relevant observations are reproduced below:

“9. Articles 129 and 215 of the Constitution of India declare Supreme Court and every High Court to be a Court of Record having all the powers of such a court including the power to punish for contempt of itself. These articles do not confer any new jurisdiction or status on the Supreme Court and the High Courts. They merely recognise a pre-existing situation that the Supreme Court and the High Courts are courts of record and by virtue of being courts of record have inherent jurisdiction to punish for contempt of themselves. Such inherent power to punish for contempt is summary. It is not governed or limited by any rules of procedure excepting the principles of natural justice. The jurisdiction contemplated by Articles 129 and 215 is inalienable. It cannot be taken away or whittled down by any legislative enactment subordinate to the Constitution. The provisions of the Contempt of Courts Act, 1971 are in addition to and not in derogation of Articles 129 and 215 of the Constitution. The provisions of the Contempt of Courts Act, 1971 cannot be used for limiting or regulating the exercise of jurisdiction contemplated by the said two articles. 

10…..This Court held that courts of record enjoy power to punish for contempt as a part of their inherent jurisdiction; the existence and availability of such power being essential to enable the courts to administer justice according to law in a regular, orderly and effective manner and to uphold the majesty of law and prevent interference in the due administration of justice (para 12). No Act of Parliament can take away that inherent jurisdiction of the Court of Record to punish for contempt and Parliamen’ts power of legislation on the subject cannot be so exercised as to stultify the status and dignity of the Supreme Court and/or the High Courts though such a legislation may serve as a guide for their determination of the nature of punishment which a Court of Record may impose in the case of established contempt. Power to investigate and punish for contempt of itself vesting in Supreme Court flows from Articles 129 and 142(2) of the Constitution independent of Section 15 of the Contempt of Courts Act, 1971 (para 21). Section 12 of the Contempt of Courts Act, 1971 provides for the punishment which shall ordinarily be imposed by the High Court in the case of an established contempt. This section does not deal with the powers of the Supreme Court to try or punish a contemnor in committing contempt of the Supreme Court or the courts subordinate to it (paras 28, 29, 37). Though the  inherent power of the High Court under Article 215 has not been impinged upon by the provisions of the Contempt of Courts Act, the Act does provide for the nature and types of punishments which the High Court may award. The High Court cannot create or assume power to inflict a new type of punishment other than the one recognised and accepted by Section 12 of the Contempt of Courts Act, 1971.

Similar observation has also been made by the  Supreme Court in Supreme Court Bar Association v. Union of India[11] .

4. The principle of civil contempt has been dealt with in Ashok Paper Kamgar Union v. Dharam Godha[12], wherein the Supreme Court observed as under:

“17. Section 2(b) of Contempt of Courts Act defines ‘civil contempt’ and it means wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of undertaking given to a Court. ‘Wilful’ means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the Court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extra ordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case……”

5. In Balasubramaniyam v. P. Janakaraju[13], the High Court of Karnataka has explained the principle of contempt as follows:

“19. Orders of Courts have to be obeyed unless and until they are set aside in appeal/revision. Alternatively in any proceedings for execution or in a collateral proceedings where an order is sought to be enforced or relied on, it is possible for a party to establish that the order is null and void. Then the Court considering the matter, if satisfied, will hold that the order is null and void and therefore not executable or enforceable. In this case, the order of eviction dated 6-8-1996 has been confirmed by the Revisional Court by order dated 18-11-1996  which in turn has been confirmed by order dated 18-12-1996 of this Court. These orders are not set aside. They have not been declared or held to be null and void in any proceedings. Therefore, the respondents cannot assume for themselves that the undertaking given by them is not valid or that therefore they need not comply with it.

  1. The principles relating to contempt are clear. The definition ‘Civil Contempt’ includes wilful breach of an undertaking given to a Court. Public interest requires that solemn undertakings given to a Court with the intention of obtaining any benefit should not be breached wilfully. No litigant can be allowed to wriggle away from a solemn undertaking given to the Court, as it will open dangerous trends and defeat the very purpose of giving undertakings to Court. While Courts will not be vindictive, Courts cannot also allow themselves to be trifled with by violating the solemn undertakings given to them. Litigants ought to understand that once they give an undertaking to a Court, they should comply with it in all circumstances, the only exceptions being fraud or statutory bar. They cannot break an undertaking with impunity and then attempt to justify it. The breach of solemn undertaking given to a Court is a serious matter and will have to be dealt with seriously. Further, while execution ofa decree is a matter between the decree-holder and the judgment- debtor, an undertaking to a Court is a matter between the Court and the person who gives the undertaking to the Court. The right of a landlord to get his tenant vacated in terms of an order of eviction has nothing to do with the solemn undertaking given by a tenant to the Court to vacate the premises to obtain the benefit of grant of time for vacating the premises. It therefore follows that even if the order of eviction becomes inececutable for any reason, that will not absolve the person giving the undertaking to Court, from acting in terms of it.”

16. Similar principles regarding contempt have been reiterated and reemphasised in several pronouncements, including in Rama Narang v. Ramesh Narang[14] , and Shailesh Dhairyawan v. Mohan Balkrishna Lulla[15].

17. In Shikha Bhatia v. Gaurav Bhatia[16], during the pendency of the petition for anticipatory bail in a FIR registered against him and his parents, the respondent husband entered into an agreement with the petitioner wife to pay a quantified amount to her in full and final satisfaction of all her claims and in consideration thereof, the wife agreed to sign the First Motion for grant of divorce by mutual consent and then the petition under Section 13-B(2) of the Act. The wife also agreed not to object to quashing of the FIR. On refusal of the husband to abide by the undertaking given to the wife over making the payments, she initiated contempt proceedings. The Delhi High Court observed that the husband having taken advantage of the agreement entered into with the wife in terms of the settlement, he could not withdraw the same to her detriment. It was thus held that the husband had wilfully and deliberately disregarded the settlement recorded in court on his own representation and accordingly declared him guilty of contempt.

18. In Avneesh Sood v. Tithi Sood[17], disputes had arisen between the parties after a decade of their marriage and they had executed a Memorandum of Understanding (MoU) agreeing inter alia to seek divorce by mutual consent. As per the terms thereof, the husband had agreed to pay a quantified amount to the wife, in instalments. After execution of the MoU, the parties filed a joint petition for dissolution of marriage by mutual consent under Section 13-B(1) of the Act and incorporated therein the terms and conditions of settlement, which were duly accepted by the court during the First Motion proceedings. Later on, when the wife refused to cooperate with the husband for moving the Second Motion petition under Section 13-B(2) of the Act, he filed a contempt petition against the wife on the ground that she had withdrawn from the undertaking given by her to the court at the time of filing the petition for mutual divorce under Section 13-B(1) of the Act before the Family Court. The Court held the wife guilty of contempt of court for having breached the undertaking given to the learned ADJ in the First Motion divorce proceedings under Section 13-B(1) of the Act and issued a notice to show cause  as to why she should not be punished for contempt of court, particularly when she had derived benefits from the husband in terms of the MoU.

19. In view of the above, it thus follows that the Supreme Court and the High Courts, by virtue of being courts of record, have the inherent jurisdiction to punish for contempt of court. Further, Section 2(b) of the 1971 Act encompasses wilful disobedience to any judgment, decree, direction, order etc. of a court, as well as a wilful breach of an undertaking given to the court. Therefore, even though a party who has given an undertaking to the Court withdraws the same exercising the legal right under Section 13-B of the Act, the said party has nonetheless knowingly by his/her undertaking to the Court wilfully breached the same, thus making the said party guilty of civil contempt of court under the 1971 Act.

10. The Division Bench of the Delhi High Court in Rajat Gupta Rupali Gupta[18] answered the following two questions, besides others, referred to it in the following terms:

Q. 1: Whether a party, which has under a settlement agreement decreed by a Court undertaken to file a petition under Section 13-B(1) or a motion under Section 13-B(2) of the 1955 Act or both and has also undertaken to appear before the said Court for obtaining divorce can be held liable for contempt, if the said party fails to file or appear in the petition or motion or both to obtain divorce in view of the option to reconsider/renege the decision of taking divorce by mutual consent under Section 13-B(2) of the Act?

Ans.: The distinguishing feature of Section 13-B of the 1955 Act is that it recognises the unqualified and unfettered right of a party to unilaterally withdraw the consent or reconsider/renege from a decision to apply for divorce by mutual consent, notwithstanding any undertaking given in any legal proceeding or recorded in any settlement/joint statement, in or outside the court, resulting in a consent order/decree, to cooperate with the other spouse to file a petition under Section 13-B(1) or a Second Motion under Section 13-B(2) of the Act, or both. Withdrawal of the consent even at the stage of the enquiry, as contemplated under Section 13-B(2), is also in exercise of the right available to a party under the very same provision. Any other view will not only impinge on the jurisdiction of the court which has an obligation under the statute to undertake an independent enquiry before passing a decree of divorce by mutual consent, it will also encroach upon a statutory right vested in a party under Section 13-B(2) of the Act and go against the very spirit of the provision. However, at the same time, a defaulting party can be held liable for civil contempt on the ground of breaching the terms and conditions incorporated in an undertaking given to the court or made a part of a consent order/decree. In the event the aggrieved party approaches the court for initiation of contempt proceedings against the defaulting party for wilful/deliberate breach of any of the terms and conditions of an undertaking/settlement agreement/consent order or a decree and takes a plea that as a consequence thereof, he/she has been placed in a disadvantageous position or has suffered an irreversible/grave prejudice, the court in exercise of its inherent powers of contempt, supplemented by the 1971 Act has the requisite jurisdiction to entertain the petition and direct restoration of status quo ante in every possible way. Thus, contempt jurisdiction operates in a different field and is uninfluenced by the fetters imposed on a court under the Act of 1955. The only rider to the above is that no direction can be issued even in contempt proceedings to compel the defaulting party to give its consent for a decree of divorce by mutual consent, as it is opposed to the object, policy and intent of Section 13-B of HMA.

 Q. 2: Whether by undertaking before a Court to file a Second Motion under Section 13-B(2) of the Act, 1955 at Section 13-B(1) stage or by giving an undertaking to a Court to that effect in a separate court proceeding, a party waives its right to rethink/renege under Section 13-B(2) of the Act, 1955? If yes, whether such right can be waived by a party under Section 13-B(2) of the Act, 1955?

Ans.: Notwithstanding any undertaking given by a party before a court to file a Second Motion under Section13-B(2) or at the Section 13-B(1) stage or in any separate court proceedings, its right to rethink/renege under Section 13-B(2) of the Act, cannot be waived for the reason that such a waiver is proscribed by the statute that keeps a window open for the parties to withdraw their consent at any stage till the decree of divorce is finally granted. The right of withdrawal of consent in the above proceedings can be exercised at any stage and exercise of such a discretion cannot be treated as being opposed to public policy. Any other interpretation given to the aforesaid provision would negate the underlying aim, object and intent of the said provision. Once a party decides to have a second thought and on reflection, backs off, the court concerned cannot compel the defaulting party to give its consent on the basis of an earlier settlement/undertaking.


* Advocate and a qualified Chartered Accountant. Author is currently a Senior Associate in the Dispute Resolution Practice at L&L Partners Law Offices, New Delhi. Author’s views are personal.

[1] The Hindu Marriage Act, 1955

[2] (1991) 2 SCC 25

[3] (2011) 5 SCC 234

[4] (2004) 8 SCC 229 

[5] (1971) 1 SCC 619

[6] (2005) 12 SCC 1

[7] 1990 SCC OnLine Ker 13 

[8] (2009) 10 SCC 415

[9] (2017) 8 SCC 746

[10] (2001) 1 SCC 516

[11] (1998) 4 SCC 409  

[12] (2003) 11 SCC 1

[13] 2004 SCC OnLine Kar 226

[14] (2006) 11 SCC 114

[15] (2016) 3 SCC 619

[16] 2010 SCC OnLine Del 1962

[17] 2012 SCC OnLine Del 2445

[18] 2018 SCC OnLine Del 9005

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Administrative Tribunal (CAT): A Division Bench of Justice L. Narasimha Reddy (Chairman) and A.K. Bishnoi (Administrative Member) took Suo Motu cognizance of the behaviour of an Advocate who made attempts to hoodwink the tribunal.

Background

Sanjiv Chaturvedi an IFS officer of Uttarakhand Cadre was on deputation to the All India Institute of Medical Sciences (AIIMS) Delhi for some period who filed different Applications with regard to recording of ACRs and was represented by Mehmood Paracha, Advocate.

On completion of his deputation, he was repatriated to his parent cadre.

Advocate stated that the Supreme Court dismissed the SLP filed by the AIIMS, by imposing the cost of Rs 25,000. He was also informed that the adjudication before the Uttarakhand High Court and the Supreme Court was only about the power of the Chairman under Section 25 of the Administrative Tribunals Act, 1985 to stay the proceedings while dealing with an application for transfer and that issue no longer subsists, with the adjudication by the Courts.

Sanjiv Chaturvedi was flamboyant in his approach and was in fact exhibiting triumphalism in getting the order of stay passed in the transfer petition, set aside.

Adjournment | Contempt of Court

Further, the applicant i.e. Sanjiv Chaturvedi was also informed that he can argue the PTs themselves so that the issue can be given a quietus. That did not appeal to him and he went on almost browbeating the Chairman and trying to explain as to how the Tribunal should function.

At that stage, he was informed that his conduct before the Tribunal touched the border of the Contempt of Court and it is for him to choose the course of action. Thereupon, he sought adjournment.

Counsel for the respondent, Mehmood Pracha, stated that the Supreme Court dismissed the SLP filed by the AIIMS. Taking note of the said fact, he was asked to proceed with the PTs and advance the arguments which did not appeal to him.

Humiliation

Instead, Counsel Mehmood Parcha who is the respondent in the present matter, started humiliating the other side’s counsel saying that the Supreme Court has shown them their place by the imposition of Rs 25,000 costs and hence they have no right to plead before the Tribunal.

Browbeating the Chairman | Personal attack on Chairman

He created an unfortunate situation in the Court and was browbeating the Chairman through his gestures and dramatics. Seeing that his provocation was not yielding the expected results, Advocate went on to make a personal attack on the Chairman.

Further, he went on to say that he has a lot to be said about the Chairman and the proceedings should be held in camera.

Scandalising the Chairman

He was informed that he can say in the open Court whatever he intends and if that is not done, it would amount to scandalizing the Chairman. His behaviour continued in the same manner and he did not reveal anything.

The Court was full of Advocates of different standings and repeated requests were made by them to pacify the respondent but nothing affected him.

Section 25 of the Administrative Tribunals Act

It was also informed that the PTs are heard only the Chairman under Section 25 of the Act and if he i.e. the Advocate has any other suggestion, he could make it.

Yet, he continued his tirade.

In view of the above occurrence, Advocate was sent a notice requiring him to explain as to why contempt proceedings should not be initiated against him.

Delhi High Court took up the matter of contempt and referring to the Supreme Court decision in T. Sudhakar Prasad v. Government of Andhra Pradesh (2001) 1 SCC 516, and held that the tribunal alone has jurisdiction to hear and decide the contempt case.

The Supreme Court affirmed order in the contempt matter by rejecting SLP (Crl) No. 7850 of 2019 after the draft charge as provided by the Contempt of Courts (CAT) Rules, 1992 were framed on 19-07-2019 on the basis of the remarks and statements made by the respondent herein, in his capacity as an Advocate.

The respondent filed MA. No. 2471/2019 with three prayers viz., (i) to decide certain MAs filed in PT. No. 288/2017; (ii) to decide whether the Chairman has jurisdiction to hear the contempt case; and (iii) to pass orders in respect of draft charge dated 19-07-2019. The MAs were disposed of on 02-08-2019.

Vikramjit Banerjee, Additional Solicitor General appeared to assist the Tribunal.

Decision

Tribunal expressed that the matter falls under Rule 13(b) of the Contempt of Courts (CAT) Rules, 1992.

Criminal Contempt

Solicitor General, Vikramjit Banerjee, stated that even where an Advocate becomes emotional, during the course of hearing, there is a method of setting the things right and persistent behaviour of challenging the very authority of the Tribunal or attempting to denigrate the Chairman would clearly amount to criminal contempt.

To the suggestion made by the learned Additional Solicitor General that the matter can be given a quietus in case the respondent expresses regrets, the latter stated that he will stand by whatever he said in the Tribunal and during the course of proceedings and that there is no question of expressing regrets.

It is not uncommon that a party or his counsel whose view point is not being accepted by the Court gets agitated. Howsoever strong such feeling may be, they have to stop at a particular stage, even while making effort to drive home, their point.

Upholding the dignity of the Institution

Attacking an adjudicator or attributing motives would cut at the very root of the system.

Once the dignity and status of the Institution are compromised, it loses its relevance. The concept of Contempt of Court is evolved inter alia to protect the dignity of the Institution.

Further, the bench stated that in all respects, result in the PTs was poised in favour of the applicant himself. However, what is discerned from the beginning is that his effort was to exhibit the IFS Officer’s personality than to get the relief in accordance with the law.

Tone & Tenor of pleas

The tone and tenor of the pleas are such that the target was certainly highly placed officers and authorities. In an application for transfer, all the above-stated was totally irrelevant.

The matter reached its pinnacle when in the Open Court counsel said that the proceedings be heard in the Chamber because he has to say something about the Chairman.

Though when he was asked to say whatever he wanted to in the Open Court, he went beating around the bush and did not spell out anything.

Hoodwinked the Tribunal

Counsel and his client have hoodwinked the Tribunal at every stage and in all possible manners.

Soon after the contempt notice was issued, a contempt case was filed against the Chairman, in the Uttarakhand High Court. A Single Judge bench entertaining it issued notice. The Supreme Court stayed it.

Tribunal noted that, the attempt in the present case made to add to the personality of the applicant and his counsel and for that purpose, Tribunal became an easy target.

Further, the bench stated that it may take decades of dedicated service for an officer to be recognised for his efficiency or honesty.

For a hardworking Advocate, it would take quite some time to get recognition or fame. Unfortunately, recourse is taken by some, to short cuts, without realising that the one who prefers short cuts is bound to be cut short.The only unfortunate part of it is that severe damage is done to the Institutions, in the meanwhile

In view of the above, the tribunal held the counsel i.e. respondent herein to be guilty of Contempt of Court under Section 14 of the Contempt of Court Act, 1971.

However, there would have been every justification for the tribunal, to impose the sentence, proportionate to the acts of contempt held proved against the respondent.

However, by treating this as a first instance, he has been let off with a severe warning to the effect that if he repeats such acts in future in the Tribunal, the finding that he is guilty of Contempt of Court, in this case, shall be treated as one of the factors in the proceedings, if any, that may ensue. [Tribunal on its own motion v. Mehmood Pracha, Cr. CP No. 290 of 2019, decided on 23-09-2020]

Case BriefsHigh Courts

Bombay High Court: A.S. Kilor, J., held that contravention of the provision of Section 15 of the Hindu Marriage Act, 1955 does not amount to willful disobedience of ‘other process of a Court’ under the provisions of the Contempt of Court Act, 1971.

Willful Disobedience

The petitioner sought action under Section 12(3) of the Contempt of Court Act, 1971 against the respondent for alleged willful disobedience of ‘other process of a Court’ by performing marriage in contravention of the provision of Section 15 of the Hindu Marriage Act, 1955.

Facts 

Respondent preferred a petition under Section 13 of the Act, 1955 against the petitioner for dissolution of marriage on the ground of cruelty and desertion.

Civil Judge had dismissed the petition holding that the respondent failed to prove cruelty and desertion.

Decree of Divorce

The respondent questioned the Judgment and decree which was allowed and thereby declared the marriage between the petitioner and respondent stands dissolved by a decree of divorce.

Petitioner filed the second appeal which is pending before the Court.

While the appeal was in pendency, the contempt petition had been filed alleging that the respondent had performed second marriage in contravention of the mandate of the provision of Section 15 of the Act, 1995 which is willful disobedience of ‘other process of a Court’ as provided by Section 1(b) of the Act, 1971.

Counsel for the petitioner, T.G. Bansod and S.S. Jagtap Counsel for the respondent.

Bench considered the following questions:

“(i) Whether the performance of second marriage by the respondent on 20-03-2016 during the pendency of appeal is unlawful in view of prohibition stipulated under Section 15 of the Act, 1955, and if yes ?

(ii) Whether contravention of Section 15 of the Act, 1955 amounts to willful disobedience of ‘other process of a Court’ as provided in Section 2(b) of the Act of 1971 ?”

Court referred to Section 15 of the Hindu Marriage Act, 1955, which reads as follows:

“Divorced persons when may marry again — When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.”

High Court noted that the respondent ignored the prohibition and performed the second marriage under an incapacity to marry, stipulated under Section 15 of the Act, 1955.

Ejusdem Generis

Further, to find out the import of the expression ‘other process of a court’ which is a general term, the principle of Ejusdem Generis would be helpful to apply, in the present matter.

Civil Contempt — Section 2(b) of the Contempt Act, 1971

“Civil contempt means willful disobedience to any judgments, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a Court.”

The expression ‘willful disobedience of process of a Court’ used under Section 2 (b) of the Act, 1971, must also be related to the disobedience of some command issued by the Court during the process of a Court which includes various stages between the filing of any proceeding to a final decision by the Court.

Bench stated that at any stretch of imagination it cannot be said that contravention of the provision of Section 15, amounts to willful disobedience of ‘other process of a Court’ under the provisions of the Act, 1971.

High Court in view of the above held that during the pendency of the appeal, the performance of second marriage would be a breach of prohibition stipulated under Section 15 of the Act, 1955, but in any case, it would not amount to disobedience of any command of the Court consequently such act would not fall within the ambit of the expression ‘willful disobedience of other process of a Court’ under Clause (b) of Section 2 of the Act, 1971.

No Civil Contempt

In view of the observations laid above, Court stated that the second marriage performed by the respondent in contravention of Section 15 of the Act, 1955 would not fall within the purview of clause (b) of Section 2 of the Act, 1971 and hence no civil contempt has been committed.

Accordingly, the contempt petition was dismissed. [Kanchan v. Prashant Manikrao Bagade, 2020 SCC OnLine Bom 911, decided on 08-09-2020]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of Sonia Gokani and N.V. Anjaria, JJ., held that there may not be an actual interference with the course of administration of justice but it is enough if the offending publishing or act is likely or tends in any way to interfere with the administration of law.

Contempt Proceedings

Suo Motu contempt proceedings were initiated under Article 215 of the Constitution of India read with Section 15 of the Contempt of Courts Act, 1971 where this Court issued a notice under Section 17 of the Contempt of Courts Act to respondents/alleged contemner.

Since every case of criminal contempt under Section 15 is required to be heard and determined by the bench of not less than two judges which is as per Section 18 of the said Act, the matter was placed before the Chief Justice and the same has been placed before this Court by way of a roster.

Factual Matrix

Contemner-Respondent 1 filed an anticipatory bail under Section 438 of the Code of Criminal Procedure for the offences punishable under Sections 143, 145, 332, 504, 186, 147, 153, 269 of the Penal Code and Section 13(1) of the Gujarat Epidemic Disease-19 Regulations, 2020 and Section 3 of the Epidemic Diseases Act, 1897.

On 22-06-2020, a phone call was received by the Judge on her official mobile phone from a person who introduced himself as Niranjan Patel, MLA.

Phone Call

Further, the person inquired as to why he made a phone call, he said there was one criminal case listed before the Court on that day and the Judge immediately stopped him from talking further and clearly told him that he should not have called a Presiding Judge in the manner it was done and disconnected the phone.

The said person called thrice but the Judge did not answer the calls and laters it was noticed that the number belongs to Taufik Faiz Xerox having Vodafone number.

Bench was of the opinion that,

“…it was an act meant to prejudice or interfere with due course of Judicial proceeding, or an act which interfered or tended to interfere with the administration of Justice which would amount to criminal contempt with the meaning of Section 2(c) of Contempt of Courts Act, 1974.”

However, to ascertain as to who in fact was in the custody of the mobile phone number at those hours and who had called and sent the messages, the Superintendent of Police was directed to record the statement of Niranjan Patel, MLA and Tosif Vohra.

Malicious

Niranjan Patel indicated that he had no family relations with respondent 1. With regard to the call in question, he stated that he never had made any such call nor would he ever think to make any such call on behalf of anyone. His name is dragged maliciously.

Decision

In the present matter, on perusal of the submissions, High Court stated that the apology as may be tendered by the parties, the alleged contemners shall need to be regarded by the Court, where it is also to regard as to whether the apology tendered is at the first point of time without attempting to justify the actions and creating the defence or is it being used as an escape route.

Court also needs to regard, “Whether the same is in a case which has been committed the first time.”

The law is also clear that it is not necessary for the Court to accept such an apology, even if found to be unconditional and unqualified when the parameter of genuineness is not found satisfying.

Administration of Law

Further, the Court added that what is also required to be considered is that there may not be an actual interference with the course of administration of justice but it is enough if the offending publishing or act is likely or tends in any way to interfere with the administration of law.

If the Act if is so derogatory to the very dignity of the justice delivery system so as to undermine the confidence of the people, Court would not choose to overlook such a serious dimension.

Even an apology which is conditional but inspiring confidence, being full of contrition and remorse and which is also meant to be sincere, demonstrating clearly that the person concerned has out of repentance and remorse tendered the same and is not a design or manner to overreach the process, can also be accepted.

Section 12 of the Contempt of Court provides for the punishment of contempt.

Supreme Court’s decision in Bal Kishan Giri v. State of U.P., (2014) 7 SCC 280 considered as to when can an apology be considered, where the following was held:

”…apology cannot be a defence, justification or calculated strategy to avoid punishment for an act which tantamount to contempt of court, and is not to be accepted as a matter of course. However, apology can be accepted where conduct for which apology given is such that it can be ignored without compromising dignity of court, or evidences real contrition, and is sincere. Apology cannot be accepted where it is hollow, there is no remorse, no regret, no repentance, or if it is only a device to escape rigour of law that is it is merely paper apology.” On facts, it had been held that the High Court was justified in not accepting apology which was not bonafide.“ It also held that casting of bald, oblique unsubstantiated aspersions not only causes agony and anguish to judges concerned but also shakes confidence of public in judiciary.”

Decision rendered in case of Vishram Singh Raghubanshi v. State of U.P., (2011) 7 SCC 776  also reiterated that not necessarily, apology even if unconditional and unqualified needs acceptance.

Apart from being bonafide, if the conduct is serious which has caused damage to the dignity of the institution, the same need not be accepted.

High Court stated that when the conduct of both alleged respondent 1 and 2 are considered, it can be noticed that both tendered apology which they insisted to be unconditional and unqualified and at the first given opportunity.

Compromising with the dignity of the institution

Present case being an extremely gross case where there is a direct attempt to contact the Presiding Judge of the Court with a clear design to obtain an order in favour of the respondent 1 by camouflage and all possible efforts have been made to interfere with the administration of justice, even if the apology is termed as a qualified and unconditional, accepting the same would amount to compromising with the dignity of the institution.

Prima facie, it appears that with an intent to get the order in his favour, he had hired alleged contemner 2 who in his opinion was having all resources and was having more contact and he made arrangement in his meeting to get the number of Judge.

Apology

It is a very serious case and, in a time, where many litigants harbour a notion to win over and manoeuvre anything and everything by adopting even extra-legal means and whose only goal is the end result which they desire, regardless of the means adopted, the Court is of the clear opinion that acceptance of apology would vindicate such notion that one can get away with any outrageous conduct by merely tendering an apology.

It appears largely a design to procure liberty by an ill design and unpalatable means of contacting the sitting Judge of this Court right on the day when the matter is scheduled to get the order by hook or crook and the means adopted, as can be noticed, prima facie are such which would shake the edifice if permitted to go scot-free.

The glaring facts of the instant case would not permit this Court to accept the apology and discharge the notice as requested by the Counsels appearing for the parties as the Court cannot overlook the vital and fundamental aspect that such acceptance can mean this Court compromising the dignity of the institution and interference with the administration of justice.

Hence, Court is not persuaded in the totality of facts and circumstances, to accept such apology so tendered. [Suo Motu v. Vijay Arvindbhai Shah, 2020 SCC OnLine Guj 1274, decided on 31-08-2020]

Case BriefsSupreme Court

Supreme Court: In the case where the Supreme Court Registry refused to register the application seeking recall of the order dated 04.05.2020 by which the Court sentenced advocates Vijay Kurle, Nilesh Ojha and Rashid Khan Pathan  to undergo simple imprisonment for a period of 3 months each with a fine of Rs. 2000/-, the bench of L/ Nageswara Rao and Aniruddha Bose, JJ dismissed the appeal and imposed an exemplary cost of Rs. 25, 000 on advocate Rashid Khan. While doing so the Court said,

“If the Appellant continues to file such repetitive applications in this litigation which are not maintainable, he will be visited with deterrent actions referred above such as initiation of criminal contempt proceedings or a direction to the Registry that no further applications in this litigation will be received.”

The bench of Deepak Gupta and Aniruddha Bose, JJ had on, 27.04.2020, found the 3 advocates guilty of contempt of court in the light of scandalous allegations levelled by them against Justice RF Nariman and Justice Vineet Saran.

“In a country governed by the rule of law, finality of the judgment is absolutely imperative and great sanctity is attached to the finality of the judgment. Permitting the parties to reopen the concluded judgments of this Court by filing repeated interlocutory applications is clearly an abuse of the process of law and would have far-reaching adverse impact on the administration of justice.”

It is worth noting that earlier an application was filed by the contemnors seeking recall of the judgment dated 27.04.2020. This Court was, however, of the opinion that the recall applications were not maintainable and the only proper remedy available to the contemnors is to file a Review Petition.

Hence, calling the present application an abuse of process of court, the bench said,

“The application for recall of an order by which an earlier application for recall of the judgment was dismissed is not maintainable. The only remedy open to the Appellant was to have filed a Review Petition as suggested by this Court in the order dated 04.05.2020.”

The Court held that the order dated 04.05.2020 neither suffered from the vice of lack of jurisdiction nor did it violate the principles of natural justice.

“A perusal of the order dated 04.05.2020 discloses that the Appellant and the other contemnors were heard before the applications were dismissed. Therefore, the contention of the Appellant is without any substance.”

Background of the Contempt proceedings

The basis of the contempt proceedings was two letters dated 20.03.2019 and 19.03.2019 received by Chief Justice of India Ranjan Gogoi and other judges of the Court, admittedly signed by Vijay Kurle (State President of Maharashtra and Goa of the Indian Bar Association) and Rashid Khan Pathan (National Secretary of the Human Right Security Council) respectively. The Court had already discharged Mathews Nedumpara last year in September, after he denied any role in sending those complaints.

It is pertinent to note that the bench of RF Nariman and Vineet Saran, JJ had barred Nedumpara from practicing as an advocate in the Supreme Court for one year, after he had argued before the Court during a proceeding :

“Judges of the Court are wholly unfit to designate persons as Senior Advocates, as they only designate Judges’ relatives as Senior Advocates.”

He was referring to the judgment where with the intent to make the exercise of senior designation more objective, fair and transparent so as to give full effect to consideration of merit and ability, standing at the bar and specialized knowledge or exposure in any field of law, the 3-judge bench of Ranjan Gogoi, RF Nariman and Navin Sinha, JJ laid down elaborate guidelines for the system of designation of Senior Advocates in the Supreme Court as well as all the High Courts of India.

He also took the name of Senior Advocate Fali S. Nariman. When cautioned by the Court, he took his name again. Thereafter, on being questioned by the Court as to what the relevance of taking the name of Fali S. Nariman was, he promptly denied having done so.

In it’s order dated 27.04.2020, the Court found all 3 advocates guilty of contempt and said,

 “When we read both the complaints together it is obvious that the alleged contemnors are fighting a proxy battle for Shri Nedumpara. They are raking up certain issues which could have been raised only by Shri Nedumpara and not by the alleged contemnors.”

On 04.05.2020, the Court sentenced all 3 to undergo simple imprisonment for a period of 3 months each with a fine of Rs. 2000/-. It further said that in default of payment of fine, each of the defaulting contemnors shall undergo further simple imprisonment for a period of 15 days.

All 3 of the advocates were not willing to argue on sentence on the ground that according to them the judgment was per incuriam and they had a right to challenge the same. The Court, hence, noticed that there was not an iota of remorse or any semblance of apology on behalf of the contemnors.

[In re Vijay Kurle, 2020 SCC OnLine SC 711, decided on 03.09.2020]


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Fact ChecksNews

Screenshots of a tweet by a journalist has been doing the rounds on social media that the Supreme Court Bar Association headed by president Dushyant Dave has passed a resolution not to give farewell to Arun Mishra, J. when he retires on September 2. Along with the screenshot of the tweet, a pdf titled ‘Proposed Resolution of SCBA’ is also circulating. The pdf states that the executive committee of the Supreme Court Bar Association has resolved not to hold any farewell for Justice Mishra upon his retirement. Two points have been mentioned in the pdf which state that he was extremely unpleasant to the members of the Bar and have misbehaved with him on several occasions and that all important matters of the government where assigned to him, and  therefore other judges were relegated to an inferior position. The note ends with the statement that Justice Mishra had caused immense damage to the Supreme Court as an institution and that the Bar registers its protest by not giving any farewell to Justice Mishra. The points can be read in detail in the pdf image given below. 

Now let us test the veracity of the claims in the pdf. We checked the official website of the Supreme Court Bar Association and found that there is a notification published there which states that circulating pdf with respect to the statement tissued by the Executive Committee of the Supreme Court Bar Association on the issue of Farewell to Hon’ble Mr. Justice Arun Mishra on his retirement next month is false. The  notification further states that no such statement had been issued by the Executive Committee and that in fact this matter had not been considered by the EC in any meeting. The Press release being attributed to the EC was not genuine and is strongly denied by Mr Dave on behalf of the EC. Mr Dave strongly condemned the same as being mischievous and an attempt to malign the SCBA. 

The notification uploaded on the SCBA website can be seen below:

Therefore, we can safely say that the circulating message is false and no resolution has been passed by the SCBA to not give a farewell to Justice Mishra.