Showing posts with label News Analysis. Show all posts
Showing posts with label News Analysis. Show all posts
To begin with, it is most hurting and most shocking to learn that a top eminent former scientist of the Indian Space Research Organisation (ISRO) was harangued, humiliated and harassed not in Pakistan or China or any other foreign country but in his own motherland that is India where he worked tirelessly by traitors who laughed endlessly as India’s space programme suffered hugely and got behind by decades! Not just this, S Nambi Narayanan along with another former ISRO scientist D Sasikumar was arrested on November 30, 1994 and both spent 50 days in jail and were allegedly tortured in jail not by terrorists or dacoits but by police on charges of espionage. This was done at the behest of the State Intelligence Bureau Team in Thiruvananthapuram in Kerala. Neither the PM of India at that time nor the President of India at that time took any interest in this whole sordid saga which  witnessed the worst torture of our top scientists of ISRO for reasons known best to them! This should never have been allowed to happen but it happened in reality what was thought earlier as unfathomable!

                                             Needless to say, there can be no scintilla of doubt that the appellant who was a national top scientist having international reputation was compelled to undergo worst form of torture and false accusations which is a national shame! The Supreme Court, while ordering Rs 50 lakh compensation to former ISRO scientist Nambi Narayanan in this landmark judgment titled S. Nambi Narayanan v Siby Mathews & Others Etc In Civil Appeal Nos. 6637-6638 of 2018 delivered on September 14, 2018 by a  3 Judge Bench of Apex Court comprising of CJI Dipak Misra, Justice AM Khanwilkar and Dr DY Chandrachud minced absolutely no words in observing clearly, categorically and convincingly that, “Reputation of an individual is an insegregable facet of his right to life with dignity, and fundamental right of the scientist under Article 21 has been gravely affected.” The top court also very rightly constituted a committee headed by former Supreme Court Judge Justice DK Jain to inquire into the role of police officers in the diabolical conspiracy against him.  

                                    To be sure, the Bench of Apex Court headed by CJI Dipak Misra who delivered this landmark judgment noted right at the outset in para 1 that, “The appellant, a septuagenarian, a former Scientist of the Indian Space Research Organisation (ISRO), has assailed the judgment and order passed by the Division Bench of the High Court of Kerala whereby it has overturned the decision of the learned single Judge who had lacinated the order of the State Government declining to take appropriate action against the police officers on the grounds of delay and further remitted the matter to the Government. To say the least, the delineation by the Division Bench is too simplistic.” Rightly said! There can be no denying it!

                                          To recapitulate, para 2 goes on to illustrate saying: “The expose of facts very succinctly put is that on 20.1.1994, Crime No. 225/94 was registered at Vanchiyoor Police Station against one Mariam Rasheeda, a Maldivian National, under Section 14 of the Foreigners Act, 1946 and paragraph 7 of the Foreigners Order. The investigation of the case was conducted by one S. Vijayan, the respondent no. 6 herein, who was the then Inspector, Special Branch, Thiruvananthapuram.”

                                         It must be brought out here that para 3 then reveals that, “Mariam Rasheeda was arrested and sent to judicial custody on 21.10.1994. Her custody was obtained by the Police on 03.11.1994 and she was interrogated by Kerala Police and Intelligence Bureau (IB) officials. Allegedly, during interrogation, she, made certain ‘confessions’ which led to the registration of Crime No. 246/1994, Vanchiyoor Police Station on 13.11.1994 under Sections 3 and 4 of the Indian Official Secrets Act, 1923, alleging that certain official secrets and documents of Indian Space Research Organisation (ISRO) had been leaked out by scientists of ISRO.”

                                  It must also be brought out here that para 4 further reveals that, “Another Maldivian National Fousiya Hasan along with Mariam Rasheeda was arrested in Crime No. 246/1994. On 15.11.1994, investigation of both the cases was taken over by the Special Investigation Team (SIT) headed by one Mr. Siby Mathews, respondent no. 1 herein, who was the then DIG Crime of Kerala Police. On 21.11.1994, Sri D. Sarikumaran, a scientist at ISRO, was arrested and on 30.11.1994, S. Nambi Narayanan, the appellant herein, was arrested along with two other persons. Later, on 04.12.1994, consequent to the request of the Government of Kerala and the decision of the Government of India, the investigation was transferred to the Central Bureau of Investigation (CBI), the respondent no. 4 herein.”

                                      More importantly, para 5 vindicates that the allegations of espionage charges against these two ISRO scientists were false and not proved. It is disclosed in para 5 that, “After the investigation, the CBI submitted a report before the Chief Judicial Magistrate (CJM), Ernakulam, under Section 173(2) of Cr.P.C. stating that the evidence collected indicated that the allegations of espionage against the scientists at ISRO, including the appellant herein, were not proved and were found to be false. This report was accepted vide court’s order dated 02.05.1996 and all the accused were discharged.”

                                         To put things in perspective, what the CBI reveals in para 6 is that noner of the information against the ISRO scientists could be substantiated. It says that, “That apart, in the said report, addressed to the Chief Secretary, Government of Kerala, the CBI, the respondent no. 4 herein, had categorically mentioned: -

‘Notwithstanding the denial of the accused persons of their complicity, meticulous, sustain and painstaking investigations were launched by the CBI and every bit of information allegedly given by the accused in their earlier statement to Kerala Police/IB about the places of meetings for purposes of espionage activities, the possibility of passing on the drawing/documents of various technologies, receipt of money as a consideration thereof etc., were gone into, but none of the information could be substantiated’.”

                                   Truth be told, para 7 further throws unflattering light on the unbecoming conduct of SIT headed by Siby Mathew while probing this entire case as revealed by CBI in its report. It specifically points out that, “The CBI in its report, as regards the role of the respondent no. 1 herein, went on to state: -

1.           Sh. Siby Mathew was heading the Special Investigation Team and was, therefore, fully responsible for the conduct of investigation in the aforesaid two cases. Investigation conducted by the CBI has revealed that he did not take adequate steps either in regard to the thorough interrogations of the accused persons by Kerala Police or the verification of the so called disclosure made by the accused persons. In fact, he left the entire investigation to IB surrendering his duties. He ordered indiscriminate arrest of the ISRO scientist and others without adequate evidence being on record. It stressed that neither Sh. Siby Mathew and his team recovered any incriminating ISRO documents from the accused persons nor any monies alleged to have been paid to the accused persons by their foreign masters. It was unprofessional on his part to have ordered indiscriminate arrest to top ISRO scientists who played a key role in successful launching of satellite in the space and thereby caused avoidable mental and physical agony to them. It is surprising that he did not take any steps at his own level to conduct investigation on the points suggested by him. Since Sh. Mathew was based at Trivandrum, there was no justification for not having the searches conducted in the officials’ residential premises of the accused Nambi Narayanan was arrested by the Kerala Police on 30.11.1994.

          Vi Shri Siby Mathew and his team miserably failed even in conducting verification of the records of Hotels viz., Hotel Foret Manor, Hotel Pankaj, Hotel Luciya, etc., which were located at Trivandrum to ascertain the veracity of the statement of accused persons….            

               The above facts are being brought to the notice of the competent authority for their kind consideration and for such action as deemed fit.”

                                            [Emphasis added]      

                                      Moving ahead, para 8 states that, “On 27.06.1996, the State Government of Kerala being dissatisfied with the CBI report, issued a notification withdrawing the earlier notification issued to entrust the matter to CBI and decided to conduct re-investigation of the case by the State Police. This notification for re-investigation was challenged by the appellant herein, before the High Court of Kerala, in O.P. No. 14248/1996-U but the notification was upheld by the High Court of Kerala vide order dated 27.11.1996.”

                                    As things stand, we see how in para 9, it is further stated that, “Aggrieved by the aforesaid order of the Kerala High Court, the appellant herein, moved this Court by filing a special leave petition. This Court in K Chandrasekhar v State of Kerala and others (1998) 5 SCC 223 quashed the notification of the State of Kerala for re-investigation holding that the said notification was against good governance and consequently, all accused were freed of charges. The observations of this Court read thus:-

          ‘Even if we were to hold that State Government had the requisite power and authority to issue the impugned notification, still the same would be liable to be quashed on the ground of malafide exercise of power. Eloquent proof thereof is furnished by the following facts and circumstances as appearing on the record’….”

                  [ Emphasis added]

                                        It cannot be lost on us that in para 31, the Apex Court launched a scathing attack on the manner in which the Kerala State Police maliciously initiated the entire prosecution against the appellant. Para 31 says that, “As stated earlier, the entire prosecution initiated by the State police was malicious and it has caused tremendous harassment and immeasurable anguish to the appellant. It is not a case where the accused is kept under custody and, eventually, after trial, he is found not guilty. The State police was dealing with an extremely sensitive case and after arresting the appellant and some others, the State, on its own, transferred the case to the Central Bureau of Investigation. After comprehensive enquiry, the closure report was filed. An argument has been advanced by the learned counsel for the State of Kerala as well as by the other respondents that the fault should be found with the CBI but not with the State police, for it had transferred the case to the CBI. The said submission is to be noted only to be rejected. The criminal law was set in motion without any basis. It was initiated, if one is allowed to say, on some kind of fancy or notion. The liberty and dignity of the appellant which are basic to his human rights were jeopardized as he was taken into custody and eventually, despite all the glory of the past, he was compelled to face cynical abhorrence. This situation invites the public law remedy for grant of compensation for violation of the fundamental right envisaged under Article 21 of the Constitution. In such a situation, it springs to life with immediacy. It is because life commands self-respect and dignity.”  

                              It would be pertinent to mention here that para 32 then dwells on custodial torture. It stipulates that, “There has been some argument that there has been no complaint with regard to custodial torture. When such an argument is advanced, the concept of torture is viewed from a narrow perspective. What really matters is what has been stated in D.K. Basu v State of W.B. (1997) 1 SCC 416. The Court in the said case, while dealing with the aspect of torture, held: -

         “10. Torture has not been defined in the Constitution or in other penal laws. ‘Torture’ of a human being by another human being is essentially an instrument to impose the will of the ‘strong’ over the ‘weak’ by suffering. The word torture today has become synonymous with the darker side of human civilisation.

      ‘Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone, paralysing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself.’

                  - Adriana P Bartow 

                 11. No violation of any one of the human rights has been the subject of so many conventions and declarations as ‘torture’ – all aiming at total banning of it in all forms, but in spite of the commitments made to eliminate torture, the fact remains that torture is more widespread now than ever before. Custodial torture is a naked violation of human dignity and degradation which destroys to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward-flag of humanity must on each such occasion fly half-mast.

                  12. In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is physical assault or rape in police custody, the extent of trauma, a person experiences is beyond the purview of law.”

                                       Not stopping here, para 33 then further goes on to illustrate saying that, “From the aforesaid, it is quite vivid that emphasis has been laid on mental agony when a person is confined within the four walls of a police station or lock up. There may not be infliction of physical pain but definitely there is mental torment. In Joginder Kumar v State of U.P. and others (1994) 4 SCC 260, the Court ruled:-

          “8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?

            9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first – the criminal or society, the law violator or the law abider….”

           Right of good reputation

                                   Having said this, it is now time to dwell on the right to reputation. In this context, it would be useful to recollect first and foremost what para 34 says. It lays down that, “In Kiran Bedi v Committee of Inquiry and another (1989) 1 SCC 494, this Court reproduced an observation from the decision in D.F. Marion v Davis 217 Ala. 16 (Ala. 1927):-

       “25. …’The right to the enjoyment of a private reputation, unassailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property’.”    

                                         Now coming to para 35, it states that, “Reputation of an individual is an insegregable facet of his right to life with dignity. In a different context, a two Judge Bench of this Court in Vishwanath Agrawal v Sarla Vishwanath Agrawal (2012) 7 SCC 288 has observed:-

                 “55.  … reputation which is not only the salt of life, but also the purest treasure and the most precious perfume of life. It is extremely delicate and a cherished value this side of the grave. It is a revenue generator for the present as well as for the posterity.”

                                In essence, para 36 then goes on to put it succinctly saying that, “From the aforesaid analysis, it can be stated with certitude that the fundamental right of the appellant under Article 21 has been gravely affected. In this context, we may refer with profit how this Court had condemned the excessive use of force by the police. In Delhi Judicial Service Association v State of Gujarat and others (1991) 4 SCC 406, it said:-

     “39. The main objective of police is to apprehend offenders, to investigate crimes and to prosecute them before the courts and also to prevent commission of crime and above all to ensure law and order to protect the citizens’ life and property. The law enjoins the police to be scrupulously fair to the offender and the Magistracy is to ensure fair investigation and fair trial to an offender. The purpose and object of Magistracy and police are complementary to each other. It is unfortunate that these objectives have remained unfulfilled even after 40 years of our Constitution. Aberrations of police officers and police excesses in dealing with the law and order situation have been subject of adverse comments from this Court as well as from other courts but it has failed to have any corrective effect on it. The police has power to arrest a person even without obtaining a warrant of arrest from a court. The amplitude of this power casts an obligation on the police … [and it] must bear in mind, as held by this Court that if a person is arrested for a crime, his constitutional and fundamental rights must not be violated.”

                                To top it all, in para 37 of this landmark judgment, the 3 Judge Bench of Apex Court headed by CJI Dipak Misra clearly and convincingly held that, “If the obtaining factual matrix is adjudged on the aforesaid principles and parameters, there can be no scintilla of doubt that the appellant, a successful scientist having national reputation, has been compelled to undergo immense humiliation. The lackadaisical attitude of the State police to arrest anyone and put him in police custody has made the appellant to suffer the ignominy. The dignity of a person gets shocked when psycho-pathological treatment is meted out to him. A human being cries for justice when he feels that the insensible act has crucified his self-respect. That warrants grant of compensation under the public law remedy. We are absolutely conscious that a civil suit has been filed for grant of compensation. That will not debar the constitutional court to grant compensation taking recourse to public law. The Court cannot lose sight of the wrongful imprisonment, malicious prosecution, the humiliation and the defamation faced by the appellant. In Sube Singh v. State of Haryana and others (2006) 3 SCC 178, the three-Judge Bench, after referring to the earlier decisions, has opined:-

      “38. It is thus now well settled that the award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in the enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under Section 357 of the Code of Criminal Procedure.”                 

                            Finally and most importantly, it would be instructive to narrate what the last two important paras 39 and 40 of this landmark judgment have to say. Para 39 says that, “In the instant case, keeping in view the report of the CBI and the judgment rendered by this Court in K. Chandrasekhar (supra), suitable compensation has to be awarded, without any trace of doubt, to compensate the suffering, anxiety and the treatment by which the quintessence of life and liberty under Article 21 of the Constitution withers away. We think it appropriate to direct the State of Kerala to pay a sum of Rs 50 lakhs towards compensation to the appellant and, accordingly, it is so ordered. The said amount shall be paid within eight weeks by the State. We hasten to clarify that the appellant, if so advised, may proceed with the civil suit wherein he has claimed more compensation. We have not expressed any opinion on the merits of the suit.”

                                 No doubt, the last and one of the most important paras 40 too deserves to be mentioned in detail. It says that, “Mr Giri, learned senior counsel for the appellant and the appellant who also appeared in person on certain occasions have submitted that the grant of compensation is not the solution in a case of the present nature. It is urged by them that the authorities who have been responsible to cause such kind of harrowing effect on the mind of the appellant should face the legal consequences. It is suggested that a Committee should be constituted to take appropriate steps against the erring officials. Though the suggestion has been strenuously opposed, yet we really remain unimpressed by the said repugnation. We think that the obtaining factual scenario calls for constitution of a Committee to find out ways and means to take appropriate steps against the erring officials. For the said purpose, we constitute a Committee which shall be headed by Justice D.K. Jain, a former Judge of this Court. The Central Government and the State Government are directed to nominate one officer each so that apposite action can be taken. The Committee shall meet at Delhi and function from Delhi. However, it has option to hold meetings at appropriate place in the State of Kerala. Justice D.K. Jain shall be the Chairman and the Central Government is directed to bear the costs and provide perquisites as provided to a retired Judge when he heads a committee. The Committee shall be provided with all logistical facilities for the conduct of its business including the secretariat staff by the Central Government.”

                           Conclusion

                               On a concluding note, what all has happened with Nambi Narayanan should not happen again with anyone. Those cops and others who are guilty of wrongly framing baseless charges against him must be punished with the most severe punishment. They must be made to pay heavy costs also as compensation to Nambi Narayanan and D Sasikumar who were both eminent ISRO scientists and yet were falsely implicated and faced worst kind of mental torture and social humiliation for no fault of theirs! Not just this, they must be made to cool their heels in prison for the rest of their lives because not just these 2 ISRO scientists suffered after being wrongly framed but India’s national interests too suffered badly. Arun Ram very rightly points out in The Times Of India dated September 2018 in his editorial titled “No Rocket Science, This” that, “The third conspiracy – the one yet to be proved – may be international, and details of this episode could bring out some very dirty liaisons between some IB officers and foreign intelligence agencies. Pertinent to note is the timing of the spy case. India had just launched its first PSLV, for which Nambi was the project director for two of the four stages of the rocket. He was also heading the cryogenic engine which was to fuel India’s future projects including interplanetary and manned missions. It is well known that India can launch satellites at a fraction of the cost of what the US and the European Space Agency charge. India mastering satellite launches, especially with the cryogenic engine that can power bigger rockets, would mean a lot of money flow into the country that would otherwise have gone West. And someone was clearly not happy with that. They partly won, as the spy case slowed down India’s cryogenic project by at least a decade. In his book ‘Russia in Space: The Failed Frontier’, prolific space writer Brian Harvey details how when Russia was about to hand over cryogenic technology to India, the US clamped sanctions on the two countries. It is also little known history that India had, through a smart circumvention of sanctions, flown crucial parts of the cryogenic engine from Russia in the underbelly of three Ural Airways flights less than a year before the spycase broke out. And the man India entrusted with the operation answers to the name Nambi Narayanan.” It is well known that the ISRO spy case was nothing but a figment of imagination by people having vested interests and this stood vindicated when on May 2, 1996, the Chief Judicial Magistrate of Ernakulam accepted a CBI report that found the case to be a fabricated one! Those guilty no matter how powerful must be brought to book and should not be spared under any circumstances! Why the successive Congress and Left Front governments stoutly refused to proceed against the cops since 1996 when the CBI closed the case leading to Nambi’s discharge must also be investigated impartially and they too must be held accountable!  

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh. 
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It must be said right at the outset that in a landmark, exemplary and unprecedented decision which must be applauded by all, the Punjab and Haryana High Court in Nishan Singh v State of Punjab CRM No. 35406 of 2013 In CRA-D-781-DB of 2013 and CRM No. 34198 of 2013 IN CRA-D-722-DB of 2013 which was delivered on August 31, 2018 has ordered one Nishan Singh Brar, convicted of abduction and rape of a minor victim girl, and his mother Navjot Kaur to pay Rs 90 lakh towards compensation. This is truly laudable! Why should the rape victim and her parents not be compensated for such a heinous crime like rape which deserves the strictest punishment and zero tolerance because it completely ruins the reputation of victim and her family and leaves permanent scar on the mind of rape victim and her family from which it is very difficult to come out?

                                      It may be recalled here that Nishan Singh has already been convicted by the trial court and sentenced to life imprisonment. The Punjab and Haryana High Court ordered Nishan Singh to pay Rs 50 lakh to the victim whereas, Rs 20 lakh each to victim’s mother and father. The Bench of Punjab and Haryana High Court comprising of Justice AB Chaudhari and Justice Inderjit Singh was hearing an application filed by the rape victim’s father seeking compensation.

                                      Needless to say, by this common order, all the above noted both the applications for compensation are being disposed of. Para 2 of this landmark judgment reveals that, “These two applications arising out of different FIR No. 261 dated 24.09.2012 under Sections 452, 307, 363, 366-A, 376, 325, 323, 482, 420, 465, 467, 468, 471, 120-B, 212, 216 read with Section 149 of Indian Penal Code, 1860 (for short ‘IPC’) and FIR No. 166 dated 25.06.2012, under Sections 363, 366-A, 376, 120-B, 384, 328, 506, read with Section 34 IPC, registered at Police Station City Faridkot, have been field by the victim/complainant – Ashwani Kumar Sachdeva.” It is clarified in para 3 that, “Since the victims are same in both these matters wherein compensation has been claimed, it is necessary to pass common order regarding compensation in both these matters, though, separate applications for compensation have been made in separate matters.

                                  To be sure, para 4 further elaborates saying that, “In all, there are three victims in the present case. They are Ashwani Kumar Sachdeva, wife of the complainant and the prosecutrix ‘S’. This Court is convinced that the highest amount of compensation will have to be paid to the prosecutrix and thereafter, the remaining two victims also will have to be compensated by an order of compensation under Section 357 of Code of Criminal Procedure, 1973. This Court has referred to the facts, evidence as well as other aspects while deciding other connected appeals and in particular main appeal, i.e. CRA-D-781-DB of 2013, by common judgment. For the purposes of deciding these two applications for compensation, it would burden the record of the present order and therefore, reference to some facts etc. from the main judgment in main appeal, i.e. CRA-D-781-DB of 2013 may be made. However, for brevity, some of the facts are stated herein as under: -

                “On 24.09.2012, at about 9:45 A.M., Nishan Singh along with his some companions, barged their entry into the house of the complainant armed with pistol, kirches, kirpans and iron rods and tried to forcibly take away the prosecutrix ‘S’ with them. The complainant, his wife and other daughter Sakshi obstructed them, but they were subject to beatings. They dragged even the complainant in the courtyard and was assaulted with rods resulting into injuries on his left hand, left elbow and backside of neck. Prosecutrix ‘S’ was then forcibly taken away by them, though she was raising the alarm. Despite this, the complainant and his other daughter chased them when one of the companions of Nishan Singh fired from the pistol as a result of which, the complainant retracted. The complainant went ahead and found that they had bundled prosecutrix ‘S’ into Ford Ikon car of brown colour having tainted glass and fled away. Navjot Kaur mother of Nishan Singh and others had actively participated in the kidnapping and abduction of the prosecutrix minor girl.

            The complainant and his wife were admitted to the Hospital. Police recorded the statement of Ashwani Sachdeva, the complainant, on 24.09.2012 so also the supplementary statement. Since he was perplexed and in disturbed condition, he could not give the names and therefore, he stated again that along with Navjot Kaur, her relative Dimpy Samra had visited their house and threatened them to enter into compromise. He also stated that Ghali was armed with pistol and Dhalla and Poppy were having iron rods and it was Ghali who had fired from the pistol and others had caused injuries to them. Seema Arora, the wife of the complainant Ashwani Kumar, also stated on the same line……………….

              The Special Investigation Team, after thorough searches, on 21.10.2012, intercepted Nishan Singh in Goa and recovered victim prosecutrix ‘S’ from his custody. In the rented house that was taken by Nishan Singh in Goa, fake driving licences of Nishan Singh and prosecutrix ‘S’ were seized……………

               On 28.10.2012, prosecutrix ‘S’ expressed desire for medical examination and a medical board examined her and found that she was carrying intra uterine early pregnancy. After obtaining one Jar sample, pursuant to MTP of prosecutrix for DNA test, the same were sent. After making detailed investigation, the investigator prepared a challan and field in the competent Court. Charges were framed against all the accused persons. The prosecution examined as many as 52 witnesses, while the defence examined as many as 25 witnesses. Learned Trial Court, after hearing the evidence, recorded the conviction of all the accused persons as stated above.”

            “Now examining the evidence regarding rape as stated earlier by us, the question of consent is insignificant. Apart from the fact that the prosecutrix, in clear terms, deposed before the Court that despite resistance, the appellant – Nishan Singh had committed rape upon her. No other evidence is required to prove rape when there is a medical evidence on record that the prosecutrix had become pregnant and ultimately, when she was recovered from the custody of Nishan Singh, her MTP was performed and even DNA test was got conducted. The testimony of the prosecutrix on the aspect of the rape must be therefore, accepted as there is voluminous evidence for proof of the offence of rape. Our attention was drawn at the evidence of the prosecutrix to show her conduct namely, that, she was always willing and consenting from the inception till her recovery from Goa. We have also given serious thought to her evidence about her conduct to that effect. We do not want to describe that evidence lest it should occupy innumerable pages. Suffice it to say that the prosecutrix having been kidnapped on the strength of arms from her house with the episode of her family members being injured, the people being scared with firing taking place in the broad day light, and she being in custody of appellant – Nishan Singh throughout, what kind of consent/willingness is being propounded! Can one call this as consent? The minor girl herself was worried about her life. We reject the arguments in toto. That apart, we having held the girl being of the age of 15 years, 5 months, consent would be wholly irrelevant.”     

                                          Having said this, it would now deem appropriate to dwell on what para 5 says. It says that, “The portion quoted by us above throws light on the nature of the beastly actions on the part of the appellant – Nishan Singh and his family members in destroying the personality of minor girl prosecutrix ‘S’ and also subjecting her to pregnancy. The two incidents as stated in the facts above and the grisly acts committed by the appellant – Nishan Singh, his relative Maninderjit Singh alias Dimpy Samra and his mother Navjot Kaur clearly show as to what kind of mental torture/trauma, social stigma etc must have been undergone by the prosecutrix ‘S’ as well as her parents. The pregnancy was required to be terminated by medical termination of pregnancy and this fact became known to one and all in the city of Faridkot and also to the community of the complainant – Ashwani Kumar Sachdeva. Thus, the prosecutrix was completely ravaged because of the repeated beastly acts by the appellant – Nishan Singh, his relative Maninderjit Singh alias Dimpy Samra and his mother Navjot Kaur. We are thus fully convinced that, though, the victims have claimed compensation for prosecutrix and her parents in Para 5 (of the application, i.e. CRM No. 35406 of 2013) to the tune of Rs 20 lakhs, there is duty cast in this Court, in terms of decision of the Supreme Court in the case of Ankush Shivaji Gaikwad versus State of Maharashtra, (2013) 6 SCC 770, to award adequate compensation.”  

                                            Truth be told, in para 6 of this landmark judgment, the Court minced no words in stating it upfront that, “We think, we need not restrict ourselves to the amount of compensation mentioned by the victims in Para 5 (of the application, i.e. CRM No. 35406 of 2013) as it is for us to decide the adequate compensation. We have again recalled and revised the entire evidence which we have discussed in CRA-D-781-DB of 2013. We are aghast to see how a middle-class family of the complainant with two daughters was torn into due to rich rural and urban landholder Nishan Singh’s and his mother’s rowdy and cruel conduct.”  

                                     Finally and most importantly, para 7 which disposes of both the applications with operative order also runs as follows: “In our opinion, in the whole background, the prosecutrix ‘S’ would be entitled to the total compensation amount of Rs 50 lakh. The complainant – Ashwani Kumar Sachdeva and his wife-Seema shall be entitled to compensation in the sum of Rs 20 lakhs each, i.e. total Rs 40 lakhs from the appellant-Nishan Singh and his mother-Navjot Kaur. Thus, the total amount of compensation that is required to be recovered from the properties of the accused-Nishan Singh and his mother-Navjot Kaur themselves that they own and possess plenty of agricultural lands and urban properties. Not only that, the said statement has also been made in Para-4 (of the application, i.e. CRM No. 35406 of 2013). Obviously, the costs of properties in the State of Punjab is on pretty higher side. The appellant-Nishan Singh and his mother-Navjot Kaur own and possess large chunk of lands valued at far more than the amount of compensation that is being ordered to be paid by this Court. It is not difficult at all for both these accused to make good the compensation from the properties owned and possessed by them. We, therefore, think the total amount of compensation arrived at to be payable to the prosecutrix ‘S’, the complainant-Ashawani Kumar Sachdeva and his wife-Seema comes to Rs 90 lakhs. We thus, dispose of both these applications with following operative order: -

                                   ORDER  

(i)                         CRM No. 35406 of 2013 In CRA-D-781-DB of 2013 and CRM No. 34198 of 2013 IN CRA-D-722-DB of 2013 are disposed of;

(ii)                      The appellant-Nishan Singh (in CRA-D-781-DB of 2013) and Navjot Kaur (in CRA-D-722-DB of 2013) shall pay total compensation in the sum of Rs 90 lakhs (i.e. Rs 50 lakhs to the prosecutrix ‘S’ and Rs 20 lakh each to the complainant – Ashwani Kumar Sachdeva and his wife Seema);

(iii)                   The Collector of the District Faridkot is directed to attach the agricultural as well as urban properties of both Nishan Singh and his mother Navjot Kaur, forthwith, and proceed to recover from sale proceeds thereof the amount of compensation, i.e. Rs 90 lakhs as aforesaid and distribute the same as stated in the present order;

(iv)                   The entire procedure of attachment and sale of property of Nishan Singh and Navjot Kaur shall be commenced and completed within 10 weeks from today and the compliance shall be reported after 10 weeks to this Court about the payments having been made as aforesaid.”

       

                                    On a concluding note, it has to be said that it is an excellent and exemplary judgment which will send a very loud and stern message to all rapists and their helpers like mother in this case that, “You have to reap what you sow and you have to cough up a huge amount for committing or abetting a heinous crime like rape which under no circumstances can ever be condoned or compromised”. In this case, an unprecedented, laudable and landmark decision has been taken by the Division Bench of Punjab and Haryana High Court comprising of Justice AB Chaudhari and Justice Inderjit Singh who awarded a huge compensation of Rs 90 lakh to the victim and the complainant – Ashwani Kumar Sachdeva and his wife Seema even though the victim had just demanded Rs 20 lakh only! There can be no two opinions on this indisputable fact that this landmark and laudable judgment must be emulated by all courts and accused and all those helping him should similarly be not allowed to ever escape lightly under any circumstances!



Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.
0
To start with, in a landmark judgment with far reaching consequences, the Uttarakhand High Court Bench comprising of Justice Rajiv Sharma and Justice Sudhanshu Dhulia in Chhitij Kishore Sharma v Mr Justice Lok Pal Singh in Criminal Contempt Petition No. 18 of 2018 delivered on September 4, 2018 while holding that contempt proceedings cannot be initiated against a Judge of Court of Record, on allegations of committing a contempt of his own Court has dismissed as “not maintainable” the criminal contempt petition moved by an advocate against Justice Lok Pal Singh for allegedly losing his temper and using intemperate language against the petitioner in open court. Justice Sudhanshu Dhulia notes right at the outset of this landmark judgment that, “This petition before us has been filed by a practicing Advocate of this Court, bringing to our notice an alleged “Contempt of Court”, said to be committed by a sitting Judge of this Court, who is the present respondent.” The petition filed by Chhitij Kishore Sharma from Nainital came to be dismissed without going into the facts of the case as it was not accompanied by the statutory consent of the Advocate General.

                       Be it noted, in doing so, the Court answered two questions – first, whether a contempt petition is at all maintainable against a Judge of a High Court, where the allegations are that he has committed a contempt “of his own Court”. The second question was whether a contempt petition can be entertained by this Court under Section 15 of the Contempt of Courts Act, where the Advocate General of the State has not granted his “consent”, on a motion made by a person under sub-section (1)(b) of Section 15 of the Act. The Bench answered both the questions in negative as it held that “contempt proceedings cannot be initiated against a Judge of Court of Record, on allegations of committing a contempt of his own Court” and in para 45 held that, “this petition which is before us cannot be treated as a contempt petition, as in the absence of a consent of the learned Advocate General, it is only in the nature of an “information”.”

                                      To be sure, it was held that from now, such petitions to be placed before Chief Justice. The Bench also directed the Registry in para 45 that “If any other person (i.e., any other person except the Advocate General of the State), moves a petition under Section 15 of the Act or under Article 215 of the Constitution of India, alleging a case of criminal contempt against any person, and if such a petition is not accompanied by the consent of the Advocate General then the Registry shall not list the case as a criminal contempt petition, as at this stage the petition is only in the nature of an “information”.” It further said in para 45 that, “Such matters shall always be captioned as “in Re….. (the name of the alleged contemnor)”, and be placed before the Hon’ble Chief Justice in the chamber. The Chief Justice may either himself or in consultation with other Judges of the Court may take further steps in the case as deem to be necessary.”

                        Truth be told, in para 2 it is revealed that, “The allegations are that on 09.05.2018 and 11.05.2018, while the petitioner was in the Court of the learned Judge, the learned Judge lost his temper and used intemperate language against the petitioner, his client, and even made sarcastic comments against his brother Judges.” In para 3 it is further revealed that, “The petitioner states that the learned Judge commented that “unlike other Judges he is not in a habit of changing orders in his chamber”. The petitioner gives two references of dates where such unsavory innuendos were allegedly used. On 09.05.2018, the petitioner was intimidated and threatened, and warned that he would be sent to jail.”

                             Going forward, in para 4 it is brought out that, “There is also an allegation that the learned Judge passed similar remarks against a Senior Advocate, who was also a former Judge of a High Court. These remarks were made in “Hindi”, but if loosely translated would read “Yes, I know what kind of a lawyer he is, and what kind of a Judge he was”! Furthermore, in para 5 it is brought out that, “There are also allegations that the learned Judge had used strong language against a high government official and threatened to send him to jail.”

                                     As if this was not enough, it is further pointed out in para 6 that, “Lastly there is an allegation that the respondent had dismissed a writ petition on 25.01.2018, in which was arrayed as one of the respondents, a former client of the present respondent. Instead of recusing from the case, the matter was heard and dismissed. The argument of the petitioner is simply that the learned Judge should not have heard the matter but still he did.” Now moving on to para 7, it is pointed out that, “The alleged behaviour of the learned Judge, according to the petitioner, tends to scandalize this Court and at least lowers the authority of the Court, such utterances and behaviour of the learned Judge also amount to an obstruction in the administration of justice, says the petitioner.”

                                 As was being widely anticipated, the Bench of Uttarakhand High Court comprising of Acting Chief Justice Rajiv Sharma and Justice Sudhanshu Dhulia while noting its dismay in this whole sordid saga lamented in para 8 that, “We must record that this whole exercise has not been pleasant for us. It is a very unusual case, to say the least. Still we must give a decision and we do that “with malice towards none, with charity for all, we must strive to do the right, in the light given to us to determine that right.” [We found the reference of Abraham Lincoln’s speech in the seminal judgment of Justice Sabyaschi Mukherji in the case of P.N. Duda v P Shiv Shanker reported in (1988) 3 SCC 167, and that is to be taken as our source].” The Court also said that Justice CS Karnan’s case is not applicable in the instant petition as the charge against Justice Karnan was not of committing a contempt “of his own Court”.                

                                It is disclosed in para 9 that, “We have not sent any notice to the learned Judge, as before we do that, two questions must be answered. First question is whether a contempt petition is at all maintainable against a Judge of a High Court, where the allegations are that he has committed a contempt “of his own Court”. The second question, which is equally important, is whether a contempt petition can be entertained by this Court under Section 15 of the Contempt of Courts Act, where the learned Advocate General of the State has not granted his “consent”, on a motion made by a person under sub-section (1)(b) of Section 15 of the Act.”    

                                    As it turned out, the Uttarakhand High Court relied on a full Bench of Patna High Court decision in a case titled Shri Harish Chandra Mishra and others v The Hon’ble Mr Justice S Ali Ahmed wherein it was held that a criminal contempt would not lie against a judge of a Court of Record. The relevant para 11 pertaining to it elaborately explains this by disclosing that, “A Full Bench of Patna High Court has held that a criminal contempt would not lie against a Judge of a Court of Record. The reference here is of the majority opinion in Shri Harish Chandra Mishra and others v The Hon’ble Mr. Justice S. Ali Ahmed (AIR 1986 Patna 65 Full Bench). A similar view was taken later by a Division Bench of Rajasthan High Court in the case of Sikandar Khan v Ashok Kumar Mathur reported in 1991(3) SLR 236. This aspect was later settled by the Hon’ble Apex Court in the case of State of Rajasthan v Prakash Chand and others, (1998) 1 SCC 1, where a three-Judges Bench of Apex Court has held that a contempt petition does not lie against a Judge of Court of Record.” Going forward, in para 19, the Court further added that, “In our opinion, the reasoning given by the Full Bench of Patna High Court referred above, gives the correct position of law, and we wholly agree with it.”

                                    Needless to say, in para 20 while underscoring the need to protect Judges who have an onerous task to perform their duty without fear or favour from vexatious charges and malicious litigations, the Bench minced no words in stating clearly and convincingly that, “The duty of a Judge after all is to dispense justice – without fear or favour, affection or ill will, without passion or prejudice. It is not  a part of his duty to please litigants, or keep lawyers in good humour. The principal requirement for all Judges, and particularly for a Judge of Court of Record, is to maintain his independence. Often at times, he has to deal with cases having high stakes, which are fiercely contested by both sides. Lawyers and litigants sometimes can be cantankerous, even unruly. Unpleasant situations and angry exchange of words at the Bar, are not uncommon. A Judge can also be very helpless in situations like this. Irresponsible accusations may be thrown against a Judge by a disgruntled lawyer or litigant. Therefore, for the sake of the independence of judiciary, a Judge has to be protected, from vexatious charges and malicious litigations.”    

                             Now coming to para 21, it brilliantly cites pertinent case from other countries. It states that, “It is for this reason that common law also does not permit prosecution of a Judge of Court of Record for committing a contempt of his own Court. Oswald (Oswald’s contempt of court: Committal, attachment and arrest upon civil process: with an appendix of forms – James Francis Oswald.) refers to a case Anderson Vs Gorrie and others [Court of Appeal] (1895) 1 QB, 668 in order to elaborate this point. We must give a brief summary of the facts of this case.

                          It starts with an action which brought against three Judges of the Supreme Court of Trinidad and Tobago, which was then a British colony. The Court gave its decision in favour of the defendants on grounds that no action can lie against a judge of a Court of Record in respect of act done by him in his judicial capacity. Against this the plaintiff filed an appeal before the Court of Appeal in England, which was dismissed by a Three-Judges Bench, where the leading judgment is of Lord Esher M.R. It is a short order and the relevant portion of this needs to be stated:

              “The defendants were judges of a Supreme Court in a colony, and the first question is whether these matters were matters with which they had jurisdiction to deal. As to the contempt of Court, it cannot be denied that they had jurisdiction to inquire whether a contempt had been committed, and further, it cannot be denied that they had power to hold a person to bail in the cases provided for by the colonial statute which expressly gives that power. These two matters were obviously within the jurisdiction of the Court. No one can doubt that if any judge exercises his jurisdiction from malicious motives he has been guilty of a gross dereliction of duty; but the question that arises is what is to be done in such a case. In this country a judge can be removed from his office on an address by both Houses of Parliament to the Crown. In a colony such an address is not necessary. The governor of the colony represents the sovereign, and over him is the Secretary of State for the Colonies, who represents Her Majesty, and can direct the removal of the judge. But the existence of a remedy would not in either of these cases of itself prevent an action by a private person; so that the question arises whether there can be an action against a judge of a Court of Record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the common law of England it is the law that no such action will lie. The ground alleged from the earliest times as that on which this rule rests is that if such an action would lie the judges would lose their independence, and that the absolute freedom and independence of the judges is necessary for the administration of justice.”

                                              (Emphasis provided)

                    At another place in the order, Lord Esher emphasising the point further states as under:

                   “To my mind there is no doubt that the proposition is true to its fullest extent, that no action lies for acts done or words spoken by a judge in the exercise of his judicial office, although his motive is malicious and the acts or words are not done or spoken in the honest exercise of his office. If a judge goes beyond his jurisdiction a different set of considerations arise. The only difference between judges of the Superior Courts and other judges consists in the extent of their respective jurisdiction.”

                  (Emphasis provided)

                                   Having said this, it must also be revealed here that para 22 makes it clear that, “The underlying principle behind this “immunisation” of Judges, is the ‘independence of judiciary’. This independence, we must add, is absolutely essential in a constitutional democracy. It is for this reason then that the findings given in the majority opinion of Full Bench of Patna High Court (referred earlier), becomes even more relevant, and in our humble opinion these findings are well supported by strong reasoning and common law principles.”

                                  Simply put, while referring to the immunity provided to the Judges in India, para 23 specifically points out that, “The philosophy as referred above also lies at the root of the principle which gives immunity to the Judges in India, under the Judges (Protection) Act, 1985, which is an immunity from any civil or criminal action in the judicial work of a Judge. The Statement of Objects and Reasons for introducing the Bill, when introduced read as under:

                            “Judiciary is one of the main pillars of parliamentary democracy as envisaged by the Constitution. It is essential to provide for all immunities necessary to enable Judges to act fearlessly and impartially in the discharge of their judicial duties. It will be difficult for the Judges to function if their actions in court are made subject to legal proceedings either civil or criminal.”

                                 More importantly, it would be useful to now discuss about the pertinent question of whether a Judge of Court of Record is liable for contempt of his own record or not? In this context, it would be instructive to go through para 24 to 28 of this landmark judgment. Para 24 says that, “The question whether a Judge of Court of Record is liable for a contempt of his own court stands settled now by a Three Judge Bench decision of the Apex Court in State of Rajasthan v Prakash Chand & others (1998) 1 SCC, pg 1. The above judgment arose out of proceedings from the Rajasthan High Court. A learned Judge of the High Court had issued a contempt notice to his Chief Justice, as in his view the Chief Justice had committed a contempt of court as a writ petition, which was part heard before the learned Judge was assigned to a Division Bench, which finally decided the matter after its assignment. While issuing notices a detail order was passed by Justice Shethna, making certain remarks against the Chief Justice, the Judges of the Division Bench who had decided the case, as well as against former Chief Justice of the High Court.”

                                       To put things in perspective, para 25 then goes further to say that, “A special appeal was thus filed by the State of Rajasthan against this order. The Hon’ble Apex Court while deciding the case had set up the following four questions before itself.

                    Did Shethna, J. have any judicial or administrative authority to send for the record of a writ petition which had already been disposed of by a Division Bench – that too while hearing a wholly unconnected criminal revision petition and pass “comments” and make “aspersions” against the Chief Justice of the High Court and the Judges constituting the Division Bench regarding the merits of the writ petition and manner of its disposal?

                    Can a Single Judge of a High Court itself direct a particular roster for himself, contrary to the determination made by the Chief Justice of the High Court? Is not such an action of the Single Judge subversive of judicial discipline and decorum expected of a puisne Judge?

                    Could a notice to show cause as to why contempt proceedings be not initiated against the Chief Justice of the High Court for passing a judicial order on the application of the Additional Advocate General of the State in the presence of counsel for the parties transferring Writ Petition No. 2949 of 1996, heard in part by Shethna, J., for its disposal in accordance with law to a Division Bench be issued by the learned Single Judge?

                   Did Shethna, J. have any power or jurisdiction to cast “aspersions” on some of the former Chief Justices of that Court, including the present Chief Justice of India, Mr. Justice J.S. Verma, behind their backs and that too on half-baked facts and insinuate that they had “illegally” drawn daily allowances at the full rate of “Rs 250” per day, to which “they were not entitled”, and had thereby committed “criminal misappropriation of public funds” while making comments on the merits of the disposed of writ petition?”

                                  In essence, para 26 explicitly points out that, “For our purposes what was essential is the following observation of the Hon’ble Apex Court.

                   ‘Even otherwise it is a fundamental principle of our jurisprudence and it is in public interest also that no action can lie against a Judge of a Court of Record for a judicial act done by the Judge. The remedy of the aggrieved party against such an order is to approach the higher forum through appropriate proceedings. Their immunity is essential to enable the Judges of the Court of Record to discharge their duties without fear or favour, though remaining within the bounds of their jurisdiction. Immunity from any civil or criminal action or a charge of contempt of court is essential for maintaining independence of the judiciary and for the strength of the administration of justice’.”

                                    It must also be appreciated what is pointed out in para 27. It states that, “In arriving at the above findings, the Hon’ble Apex Court, inter alia, also referred to Salmond and Heuston [Salmond and Heuston on the Law of Torts, 21st Edn., 1996 in Chapter XIX]. The reference to Salmond and Heuston here would be relevant. It says: 

                     “A Judge of one of the superior courts is absolutely exempt from all civil liability for acts done by him in the execution of his judicial functions. His exemption from civil liability is absolute, extending not merely to errors of law and fact, but to the malicious, corrupt or oppressive exercise of his judicial powers. For it is better that occasional injustice should be done and remain unaddressed under the cover of this immunity than that the independence of the judicature and the strength of the administration of justice should be weakened by the liability of judges to unfounded and vexatious charges of errors, malice, or incompetence brought against them by disappointed litigants – ‘otherwise no man but a beggar, or a fool, would be a judge’.”

                                    No prizes for guessing the palpable conclusion drawn by the Division Bench of Uttarakhand High Court in para 28. It clearly and convincingly states that, “In view of the above position of law, we hold that contempt proceedings cannot be initiated against a Judge of Court of Record, on allegations of committing a contempt of his own Court.”  

     Approval of Advocate General a statutory requirement

                                It cannot be lost on us that the Court explicitly held in para 30 that in deciding the maintainability of the petition in such case where allegations are in the nature of obstruction to the administration of justice or of scandalizing the court, then the approval of the Advocate General is a statutory requirement. Para 30 says that, “In a case where allegations are in the nature of obstruction to the administration of justice, or of scandalizing the Court, then an approval of the Advocate General of the State is a statutory requirement under sub-section (1) of Section 15 of the Act. Though we may add that in exceptional cases, the Court may dispense with it, but till it is done i.e. until such a requirement is dispensed with and a suo motu cognizance is taken by the Court, what is there before the Court is strictly speaking not even a contempt petition. We can call it merely an “information”.”

                               What also cannot  be lost on us is what has been stipulated in para 35 of this landmark judgment. It states that, “It is a statutory requirement of getting the consent of the Advocate General in a motion made by “any other person”. Until then it cannot be treated as a contempt petition. The statute mandates the inclusion of such a provision in the interest of justice and fair play, for obvious reasons as a motion for criminal contempt is a serious matter. It has penal consequences. Therefore unless the motion is made by the Advocate General himself, or the matter is taken suo motu, (or an act is committed in its presence or during hearing, i.e. under Section 14 of the Act), it must be accompanied by the consent of the Advocate General. The Advocate General is a Constitutional Authority. He is the leader of the Bar and therefore Parliament in its wisdom thought it best that a motion of criminal contempt must be screened by a proper and unbiased authority, before it becomes a motion for criminal contempt.”  



 Registry not following the correct procedure

                                      Truly speaking, the Uttarakhand High Court rightly apportioned the blame on the Registry for not following the correct procedure in this peculiar case. Para 28 points out that, “Firstly for the peculiar facts of the case, and secondly to set the procedure right, as we are also of the view that in these matters (matters relating to criminal contempt), the Registry has not followed the correct procedure.”

        No approval of Advocate General     

                                 Interestingly enough, it is pointed out in para 31 that, “Referring again to the Full Bench decision of Patna High Court, we find that one of the grounds taken by the majority Judges of Patna High Court for rejecting the petition which was before it was that in that case too there was no approval of the Advocate General, and hence it was not maintainable.” In this case too there was no approval of the Advocate General! So obviously the petition was bound to get rejected!

    AG’s opinion neither here, nor there

                            As things stood, the Bench noted in para 32 that, “Since, the present ‘contempt petition’, has been filed before us by a person other than the Advocate General of the State, it had necessarily to be accompanied by the consent of the Advocate General. There is no clear consent of the Advocate General before us. For the records, though we have to state here that on 27.06.2018, when the matter was first taken up before this Court, a pointed question was put to the learned Advocate General who was present in the Court, about his consent, to which the reply of the learned Advocate General was that under peculiar facts and circumstances of the case he has not granted his consent. The reason for putting this question to the learned Advocate General Sri Babulkar was essential, as the letter of the Advocate General is not a clear statement as to his consent. Let us see the language of the letter which has been annexed to the petition by means of a supplementary affidavit by the petitioner, which is said to be written by the learned Advocate General in reply to the request for his consent. The letter dated 30.05.2018 states as under:

      ‘I have gone through the contents of the contempt petition and the affidavit and I find that the instance of 11th May, 2018 occurred with myself and consequently the Hon’ble Judge has passed an order against me and the Government Advocate, hence, although the facts as mentioned do make out a case of sanction, yet in order to avoid any allegations of bias, I am not in a position to accord formal sanction’.”

                                    Moving forward, in para 33, it is revealed that, “According to the learned Advocate General, he was a witness to the incident which occurred in the courtroom on 11.05.2018, as he was present in the courtroom of Justice Lok Pal Singh on that fateful day. Later he was not allowed to appear in the matter and the behaviour of the Court towards him was rude, even offensive. Under these circumstances he is not giving his consent in the matter in order to avoid any allegation of bias against him.”  

                                  As if this is not enough, it is further revealed in para 34 that, “Be that as it may, the nature of the opinion given by the learned Advocate General in any case does not make this task any easier for us. The opinion is neither here nor there. The Advocate General has chosen to vacillate in the matter, rather than give a clear opinion. We are of the view, that if under the facts and circumstances of the present case, the learned Advocate General had reached a conclusion that he should not give his consent, then he should have simply said so. He would have been perfectly justified in not giving his consent on the facts and circumstances of the case, as his apprehensions for any allegation of bias are not unreasonable. All the same, he has not done that, instead he has recused himself by saying that he is not giving his consent as the remarks of the learned Judge were addressed against him as well. Till this point he was right, but he does not stop here as he adds, that though he is not giving his consent, the facts of the case do make out a case for consent! What do we do with this!”

     Court unhappy with Advocate General

                                 Unhesitatingly, the Bench while noting its unhappiness with the manner in which the Advocate General gave his opinion said in para 36 in no uncertain terms that, “We do understand the compulsions of the learned Advocate General in the present matter, who is a senior and respected member of the Bar. Yet we are not very happy in the manner in which the opinion has been given to us. It would have been better if a clear opinion had come, one way or the other. An Advocate General may be justified in simply recusing himself, as there is no rule of necessity here, since the petitioner can always persuade the court to take the matter suo motu in absence of a consent of the learned Advocate General. But this has not happened.” The Bench in para 37 further records its unhappiness for Advocate General not giving his consent as required by law saying that, “The fact of the matter, however, is that the petition before us is not accompanied with the “consent” of the Advocate General, as is the requirement of law. We say this both from the language of the letter of the Advocate General and the statement of the learned Advocate General before us in the Court.”

                                            It is noteworthy that para 39 observes that, “The Hon’ble Apex Court in the case of Bal Thackrey v Harish Pimpalkhute and others reported in (2005) 1 SCC 254 has held that there are three channels for initiating proceedings of a criminal contempt under Section 15 of the Contempt of Courts Act – (a) either it can be done suo motu by a Court or (b) on a motion by the Advocate General or (c) by any other person with the consent in writing of the Advocate General. All three procedures have been clearly prescribed in law and though the earlier practice was that a Court of Record having the power to punish for its contempt under Article 215 of the Constitution of India could draw a procedure on its own, which had to be fair and reasonable, after the Contempt of Courts Act in the year 1971, a procedure has been laid down which has to be followed. This is not a case where a suo motu cognizance has been taken in the matter, nor is it a proceeding initiated by the learned Advocate General. Any other person, can only initiate a proceeding for a criminal contempt with the consent in writing of the Advocate General.”

                                        Attaching utmost importance to what the Supreme Court had held earlier in such cases, the Bench held in para 40 that, “In the case of S.K. Sarkar, Member, Board of Revenue, U.P. v Vinay Chandra Mishra, reported in (1981) 1 SCC 436, the Hon’ble Apex Court has held as follows:

                    ‘…Section 15 does not specify the basis or the sources of the information on which the High Court can act on its own motion. If the High Court acts on information derived from its own sources, the records of a subordinate court or on reading a report in a newspaper or hearing a public speech, without there being any reference from the subordinate court or the Advocate General, it can be said to have taken cognizance on its own motion. But if the High Court is directly moved by a petition by a private person feeling aggrieved, not being the Advocate General, can the High Court refuse to entertain same on the ground that it has been made without the consent in writing of the Advocate General? It appears to us that the High Court has, in such a situation, a discretion to refuse to entertain the petition, or to take cognizance on its own motion on the basis of the information supplied to it in that petition.”

            Suo motu cognizance by court

                                  Truly speaking, para 41 while dwelling on suo motu cognizance by court makes it clear that, “Therefore, though a petition moved by any other person, without the consent of the Advocate General, can still be treated as a contempt petition, depending upon the nature of the “information” and discretion of the Court, but till a suo motu cognizance is taken by the Court, the petition is merely in the nature of an “information”.”

  Chief Justice to decide on criminal contempt petition

                                     In retrospect, para 42 while referring to an earlier decision said that, “As far back as in the year 1973, a Division Bench of Delhi High Court in the case of Anil Kumar Gupta v K. Suba Rao and Ors. (Criminal Original Appeal No. 51 of 1973) (1974) ILR, Delhi, 1 had in fact directed that such matters (matter as we have before us), should not be listed as a criminal contempt straightway but should be placed first before the Chief Justice on the administrative side. The directions given by the Division Bench are as follows:

           ‘(10) The office is to take note that in future if any information is lodged even in the form of a petition inviting this Court to take action under the Contempt of Courts Act or Article 215 of the Constitution, where the informant is not one of the persons named in section 15 of the said Act, it should not be styled as a petition and should not be placed for admission on the judicial side. Such a petition should be placed before the Chief Justice for orders in Chambers and the Chief Justice may decide either by himself or in consultation with the other judges of the Court whether to take any cognizance of the information. The office is directed to strike off the information as “Criminal Original No. 51 of 1973” and to file it’.”   

As a corollary, we see that in para 43, it is observed that, “The above procedure was approved by the Hon’ble Apex Court in the Case of P.N. Dude v. P. Shiv Shanker reported in (1988) 3 SCC 167, and in Bal Thackrey (supra).”

                                      Now let us come to para 44 of this landmark judgment. It states that, “The whole object of prescribing a procedure in such matters, particularly in cases of criminal contempt is also to safeguard the valuable time of the Court from being wasted by frivolous contempt petitions.” [Bal Thackrey v Harish Pimpalkhute and others reported in (2005) 1 SCC 254]. Therefore, the requirement of obtaining consent in writing of the Advocate General for contempt proceeding by any person is necessary. A motion under Section 15 which is not in conformity with the requirement of that section is not maintainable [State of Kerala v. M.S. Mani reported in (2001) 8 SCC 22 and Bal Thackrey v Harish Pimpalkhute and others reported in (2005) 1 SCC 254]. In Bal Thackrey, therefore, it was held as follows:

                               ‘23. In these matters, the question is not about compliance or non-compliance of the principles of natural justice by granting adequate opportunity to the appellant but is about compliance with the mandatory requirements of Section 15 of the Act. As already noticed the procedure of Section 15 is required to be followed even when petition is filed by a party under Article 215 of the Constitution, though in these matters petitioners filed were under Section 15 of the Act. From the material on record, it is not possible to accept the contention of the respondents that the Court had taken suo motu action. Of course, the Court had the power and jurisdiction to initiate contempt proceedings suo motu and for that purpose consent of the Advocate General was not necessary. At the same time, it is also to be borne in mind that the Courts normally take suo motu action in rare cases. In the present case, it is evident that the proceedings before the High Court were initiated by the respondents by filing contempt petitions under Section 15. The petitions were vigorously pursued and strenuously argued as private petitions. The same were never treated as suo motu petitions. In absence of compliance with mandatory requirement of Section 15, the petitions were not maintainable’.”

                                      As we see, the Court also went on to consider a hypothetical situation. It is pointed out in para 46 that, “Hypothetically speaking therefore it is always open for a Court to proceed with the matter, even where the Advocate General has refused to grant his consent, since powers are given to the Court to take a suo motu cognizance, but this can be done only after the due procedure is first followed – procedure as referred above.” Para 47 further goes on to add saying that, “Although in the absence of a consent of the Advocate General, this Court can take action on its own motion, but presently this channel is not open to us here, as proceeding of contempt cannot be initiated against a Judge of a Court of Record, on a charge of “committing a contempt of his own court”.”

                                      Going ahead, para 48 makes the all important observation that, “We therefore dismiss the present petition, being not maintainable”. Para 49 which is no less important further goes on to say that, “We have made the above determination and dismissed the petition on pure question of law, without having to go in detail to the facts of the case. We say nothing on facts. We have, inter alia, held that henceforth a petition like the one at hand shall not be listed as a ‘contempt petition’, unless so ordered by the Hon’ble Chief Justice. This is so as it is easy to make baseless allegations against a Judge, who ironically due to the office he holds, does not enjoy the same liberty and freedom, as compared to the petitioner who is pointing fingers at him. In this case a practicing lawyer of this Court, of reasonable standing, has filed the present petition. In our considered opinion he should have shown more restrain and circumspection before resorting to this course; a course which is not open to him in any case, as clearly held by the Apex Court in State of Rajasthan v. Prakash Chand and others (supra).”        

                   Court’s word of caution

                                Finally and most importantly, the concluding paras 50 and 51 deserve utmost attention. Para 50 says that, “We have dismissed this petition, but we must end this case with a note of caution made by the Hon’ble Apex Court in a case arising out of a decision of Madhya Pradesh High Court. The case came to be known as “M.P. Liquor Case”. The subject was grant of new distilleries, which was being done under a policy decision of the Government of Madhya Pradesh. This decision was challenged before the High Court in several writ petitions. These writ petitions were allowed by the Division Bench. The two Hon’ble Judges, however, gave concurrent, but separate judgments. While allowing the writ petition, Justice B.M. Lal made certain observations attributing mala fide, corruption and underhand dealing against the State Government officials. The decision of the High Court was challenged by the State of Madhya Pradesh before the Hon’ble Apex Court in appeal (in State of M.P. and others v Nandlal Jaiswal and others, (1986) 4 SCC 566), which was allowed and the judgment of the High Court was set aside, and while doing so, Justice P.N. Bhagwati (C.J.) observed that the remarks made by B.M. Lal, J. “were clearly unjustified”. While doing so, the Hon’ble Apex Court observed:

                                     “We may observe in conclusion that judges should not use strong and carping language while criticizing the conduct of parties or their witnesses. They must act with sobriety, moderation and restraint. They must have the humility to recognise that they are not infallible and any harsh and disparaging strictures passed by them against any party may be mistaken and unjustified and if so, they may do considerable harm and mischief and result in injustice. Here, in the present case, the observations made and strictures passed by B.M. Lal, J. were totally unjustified and unwarranted and they ought not to have been made.”

                  The matter, however, did not end here. After the judgment of Hon’ble Apex Court and a delay of 738 days, one Mr. Pramod Kumar Gupta, Advocate, who had no connection with the earlier litigation, filed a review petition before the Madhya Pradesh High Court. The matter was listed for admission before the Division Bench on 29.10.1988 and one of the Hon’ble Judges dictated the order in open Court dismissing the review petition on grounds of locus standi as well as inordinate delay. The other Hon’ble Judge (B.M. Lal, J.) did not pass the order on 29.10.1988, but on a later date. Ultimately, Justice B.M. Lal also dismissed the review petition, but while doing so made certain comments on the Senior Advocate and the former Advocate General of Madhya Pradesh as follows:

                      “It is the moral duty of a lawyer, much less the Advocate General, to act faithfully for the cause of his client and to furnish information about the court’s proceedings correctly. In the past the chair of Advocate General was adorned by glorious and eminent lawyers who never showed any sycophancy and never suffered from mosaifi. As such, the action on the part of the Advocate General, was not befitting to the status of the high office.”

                    It was also remarked that the said Advocate General had “skillfully succeeded in his attempt to abstain himself from the case on August 28, 1988, presumably, he had no courage to face the situation”.

                    An appeal was filed before the Hon’ble Apex Court, which was allowed and all the remarks made by Justice B.M. Lal against the appellant were expunged from the impugned order. The Hon’ble Apex Court in A.M. Mathur v Pramod Kumar Gupta and others, (1990) 2 SCC 533 in para 13 and 14 said as follows:

                                 “13. Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be constant theme of our judges. This quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect, that is, respect by the judiciary. Respect to those who come before the court as well to other coordinate branches of the State, the executive and the legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge nor for the judicial process.

                                14. The Judge’s Bench is a seat of power. Not only do judges have power to make binding decision, their decisions legitimate the use of power by other officials. The judges have the absolute and unchallengeable control of the court domain. But they cannot misuse their authority by intemperate comments, undignified banter or scathing criticism of counsel, parties or witnesses. We concede that the court has the inherent power to act freely upon its own conviction on any matter coming before it for adjudication, but it is a general principle of the highest importance to the proper administration of justice that derogatory remarks ought not to be made against persons or authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case to animadvert on their conduct. [See (i) R.K. Lakshman v. A.K. Srinivasan, (1975) 2 SCC 466, (ii) Niranjan Patnaik v Sashibhusan Kar, (1986) 2 SCC 569).”             

                                  Now coming to the last and final para 51 of this landmark judgment by Uttarakhand High Court. It concludes by observing that, “Intemperate comments and undignified banter, as the Hon’ble Apex Court refers above, also undermines the public confidence in a judge. Public confidence, which is an absolutely essential condition for realizing the judicial role. (The Judge in a Democracy – Aharon Barak Princeton University Press). Public confidence does not mean being popular in the eyes of the public or being pleasant. “On the contrary, public confidence means ruling according to the law and according to the judge’s conscience, whatever the attitude of the public may be. Public confidence means giving expression to history, not to hysteria”. (Aharon Barak [supra] page 110). Public confidence is also the ultimate strength of a judge. Eugen Ehrlich, the noted sociologist had famously said “there is no guarantee of justice except the personality of the judge”. This personality we must remember, is always under a close watch of a litigant, who quietly sits in a corner of a courtroom, judging the justice!”

                                 Conclusion

                                          All said and done, it is one of the best judgment that I have ever read in my life till now! This landmark judgment must be read not just by every literate person but also more importantly by all the lawyers and all the judges alike of all courts right from the bottom to the top court! It will certainly be of immense help and a great learning experience from which a lot of invaluable lessons can be gained! Lawyers and Judges who don’t read this invaluable judgment are certainly missing something very important which can be considered as indispensable for all those who are in the legal profession and practicing in any court in India! This landmark judgment is the best source from which right lessons must be learnt which will enable both lawyers and judges to learn to refrain from indulging in all those acts which can tarnish their reputation in any manner and put them in a tight spot! No doubt, it is also a must read landmark judgment for all those who earnestly aspire to either become a lawyer or a Judge!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh. 
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