Full Judgment Text
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CASE NO.:
Contempt Petition (civil) 378 of 1998
PETITIONER:
MURRAY AND CO.
RESPONDENT:
ASHOK KR. NEWATIA AND ANR.
DATE OF JUDGMENT: 25/01/2000
BENCH:
G.B. PATTANAIK & UMESH C. BANERJEE
JUDGMENT:
JUDGMENT
IN
Transfer Petition(c) 745 of 1993
2000 (1) SCR 367
The Judgment of the Court was delivered by
BANERJEE, J. Though judicial hypersensitiveness is not warranted but
angelic silence on the part of a Judge is also not expected vis-a-vis an
infraction of majesty of law. The Contempt of Courts Act, 1971 has been
engrafted in the Statute Book for the purpose of bringing in a feeling of
confidence of the people in general for due and proper administration of
justice in the country. It is undoubtedly a powerful weapon in the hands of
the Courts and as such, it must be exercised with due care and caution and
in cases of larger interest for due administration of justice.
In this matter, this Court by its Order dated 7th September, 1998, issued
notice to the respondents for wrong assertion of facts pertaining to the
sale of immovable property in an affidavit filed before this Court,
Incidentally, the affidavit spoken of earlier, was filed by Respondent No.
1 in an interlocutory application (IA No. 1/94) in a Transfer Petition
being Civil No. 745/93, by way of an objection, on behalf of the respondent
herein an application for clarification moved by the petitioners herein.
The factual backdrop not strictly relevant but is being noticed herein
below for the purposes of assessment of the situation in its proper
perspective.
The litigation between the parties has a chequered career. Proceed-ings
both at Calcutta and at Kanpur in Uttar Pradesh have been initiated by the
parties and diverse orders were obtained including an order of injunction
passed on 14th May, 1993 by the Calcutta High Court restraining the
respondents herein from transferring or alienating or encumbering or
dealing with immovable properties standing in the names as mentioned in
paragraph 34 of the Petition (the High Court Petition) without the leave of
the Calcutta High Court. The factual matrix further depict that the
respondents herein, how-ever moved this Court for transfer of the original
suit from Calcutta to Kanpur in which an application for clarification was
filed by the petitioners herein and it is in connection therewith that the
respondents have averred in the petition of objection verified by an
affidavit on 9th February, 1994 to the following effect.
".........it is further incorrect to say that the petitioner in any manner
has committed disobedience of the order passed by the Court or sold away
the property or in any manner taking any steps to sell the property. The
contentions to the contrary are false and fic-titious.........’’
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This statement is stated to be a deliberate falsehood and the said false
statement was made wantonly as the respondent knew that the property was
sold long prior thereto.
Mr. Ray, the learned Senior Advocate, appearing in support of the petition
for contempt contended that the statement as above cannot but be termed to
be a motivated falsehood and thus has to be dealt with utmost seriousness
as otherwise it will not be possible for any Court to administer justice in
the true sense of the term and to the satisfaction of those who approach
the Courts with a firm hope that the truth will ultimately prevail. Mr. Ray
contended that anyone who takes recourse to fraud or falsehood deflects the
Courts of judicial proceedings and amounts to interference with the
administration of justice. Before however, adverting to the contentions
raised as above, it will be worthwhile to note the order as passed in the
transfer petition by this Court on 1st October, 1993. The order is set out
as below:
"This petition is to seek transfer of OS 166/93 titled Ajanta Services Pvt,
Ltd, & Ors. v. V. Murray and Co. Pvt. Ltd & Ors. pending in the Calcutta
High Court. The aforesaid suit was said to have been filed on May 12,1993.
Before hand Murray & Co. and a few others had filed suit No. 649/93 in the
Court of Civil Judge, Nagar Kanpur, seeking relief of permanent injunction
against the defendants restraining them from acting as Directors of the
plaintiff company, i.e. Murray & Co. and also from selling the properties
of the company situated at Calcutta and Kanpur and of their personal
properties in any manner and from operating the bank accounts in India and
also from making any settlement on behalf of the company in matters pending
in the Courts, Besides, a decree for mandatory injunction was also prayed
for directing the defendants to hand over all the papers and documents
regarding the affairs of the company in their possession to the plaintiff
company and Ashok Kumar Nevatia, the second plaintiff, at Kanpur. The suit
at Calcutta is in the nature of a cross-suit filed by the some shareholders
seeking almost the identical relief against the defen-dants who are
Directors of the company. It appears that two rival groups in the company
are engaged in this continuous litigation trying to score over each others.
It is seen that not only is the suit filed in Kanpur eariier in time but
the registered office of the company is also at Kanpur. We are told at the
Bar the income-tax returns of the company are also filed at Kanpur. It goes
without saying that the two suits otherwise deserve to be decided by one
and the same Court. For what has been said earlier, the balance of
convenience also suggests that the Court at Kanpur should be the most
convenient Court to try these two suits. Therefore, we allow this transfer
petition and direct that the file of OS 166/93 titled Ajanta Service P.
Ltd. & Ors, v. Murray & Co. P. Ltd pending in the Calcutta High Court be
transferred to the file of the Civil Judge, Nagar Kanpur so that the same
is tried along with the suit No. 649/93 Murray & Co. Pvt. Ltd. & Co. v,
Madanlal Poddar & Ors.. Transfer Petition is allowed accordingly.’’
Needless to record here that the clarification was sought for by the
petitioner herein by way of an interlocutory application only after the
passing of the order as above.
This Court itself thus recognised the litigations spirit of the parties and
an attempt to score over each other. Obviously, this application for
contempt is also no exception to that - but that by itself, however, would
not prompt this Court to come to a conclusion as regards the merits of the
contentions raised in the matter. The issue, therefore, before this Court
is as to whether the statement as above has, in fact, lowered the authority
of the Court or there is any obstruction to the administration of justice
by this Court bringing it within the purview of Section 2(c)(iii) of the
Act of 1971 and in the event the answer to the above issue is in the
affirmative, then and in that event to what result. The right to inflict
punishment for contempt of court in terms of the Act of 1971 on to the law
Courts has been for the purposes of ensuring the rule of law and orderly
administration of justice. The purpose of contempt jurisdiction is to
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uphold the majesty and dignity of the Courts of law since the image of such
a majesty in the minds of the people cannot be led to be distorted. The
respect and authority commanded by Courts of Law are the greatest guarantee
to an ordinary citizen and the entire democratic fabric of the society will
crumble down if the respect for the judiciary is undermined. It is true
that the Judiciary will be judged by the people for what the judiciary
does, but in the event of any indulgence which even can remotely be termed
to affect the majesty of law, the society is bound to lose confidence and
faith in the judiciary and the Jaw courts thus, would forfeit the trust and
confidence of the people in general.
Mr, Ray placed strong reliance on the decision of this Court in the cause
of Afzal v. State of Haryana, [1995] Supp. 2 SCC 388, wherein this Court
observed :
’’It cannot be lightly brushed aside and the tendency to file false
affidavits or fabricated documents or forgery of the document and placing
them as part of the record of the Court are matters of grave and serious
concern."
This observation, however, ought to be read in the facts of the matter
under consideration in Afzal’s case. The Judgement itself starts with the
following observation :
"The facts in these cases bring to focus the mixed blend of efficacy of
pragmatic procedure under Section 32; absolute disregard for truth; rank
indiscipline among the so-called disciplined police force, despite
scientific advancement persistence of crude methods of investigation;
depraved conduct of the official to forge signa-tures of higher official
and the complicity of persons who moved this Court in callous compromise
with the officials to speak con-trary to the facts placed before the Court.
A.practicing advocate is no exception. He had sworn to an affidavit but had
not even the slightest hesitation to make a somersault and deny his
averments made in the sworn affidavit filed in this Court. These disturbing
trends cause not only a deep anguish to this Court of the degenera-tion in
the moral and official conduct but also make it difficult to place absolute
reliance on affidavit evidence placed on record."
This Court further in paragraph 7 of the report observed :
"7. The report of the District Judge exposes the so-called disciplined
police officials are rank undisciplined not only audacious enough to forge
the signature of respondent- Superintendent of Police but also have no
compunction to justify that no forgery was committed. The affidavit of
Ahlawat dated 5.9.93, his evidence before the District Judge and the report
of the latter do establish that the signature of Ahlawat was forged on the
affidavit dated 30.9.93 and it is a "crude forgery which needs thorough
investiga-tion and deterrent action."
The punishment inflicted in the matter in issue in Afzal’s case (supra)
however would appear from paragraph 33 of the judgment wherein Ramas-wamy,
J. directed the punishment to be inflicted on to the contemnors in the
manner as below :
"From the above discussion and conclusions the question is : what
punishment is to be imposed on Randhir Singh (ASI), Ishwar Singh (SI) and
M.S. Ahlawat (Superintendent of Police)? None of them made any candid
admission nor tendered unqualified contrite apology. Police officers, who
are supposed to be the so-called disciplined force, have deliberately
fabricated false records placed before this Court without any compunction.
It is, therefore, of utmost importance to curb this tendency, particularly,
when they have the temerity to fabricate the records with fake affidavit
and place the same before the highest Court of the land. Their depravity of
conduct is writ large. M.S. Ahlawat is unworthy to hold any office of
responsibility. Therefore, Randhir Singh (ASI) and Ishwar Singh (SI) shaE
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be punishable under Section 193 IPC and accordingly they are convicted and
sentenced to undergo rigorous imprisonment for a term of three months and
six months respectively. Ahlawat, the Superintendent of Police, is
punishable under Section 193 IPC. He also committed contempt of the
proceedings of this Court punishable under Article 129 of the Constitution.
Accordingly, he is convicted and sentenced under Section 193 IPC to undergo
rigorous imprisonment for a term of one year. He is convicted and sentenced
to undergo rigorous imprisonment for a term of six months under Article 129
of the Constitution, Both the sentences are directed to run concurrently,
Krishan Kumar, Head Constable is exonerated of the charge under Section 193
IPC with warning to show exemplary conduct hereafter. His bail bonds are
discharged."
It is on the factual backdrop as above that Ramaswamy, J. speaking for the
Bench observed as above. The situations, however, are not as critical or
endangering in the present context. There is an order of injunction passed
by the Calcutta High Court which operate as a binding order inter parties
and while the operation of the order was in force, some properties have
been alienated, but in an affidavit affirmed before this Court, there is an
averment to the effect that no property has been disposed of neither there
is any intention even to sell or dispose of any of the properties.
Undoubtedly, if the factum of the sale deed as annexed to the petition for
contempt is otherwise correct, there is thus a definite averment which runs
counter to the actual state of affairs - a serious matter indeed. But
probably not so serious, a matter, as was dealt with by this Court in
Afzal’s case. As such the observations of this Court as above ought not to
be made use of in the facts of the matter under consideration. It depends
upon facts of each individual case and this cannot have universal
application in ail possible situations. The decision thus lands no
assistance to Mr. Ray in the contextual facts.
Mr. Ray next relied upon the decision of this Court in Rita Markand v.
Surjit Singh Arora, [1996] 6 SCC 14, wherein in paragraph 14 of the report,
this Court observed that there cannot be any manner of doubt that by filing
false affidavits, the respondent had not only made deliberate attempts to
impede the administration of justice but succeeded in his attempt in
delaying the delivery of possession, and by reason, therefore this Court
held the respondent guilty of criminal contempt of Court. This Court
however, while considering the issue of punishment, came to a conclusion
that not only the respondent had made deliberate attempt to impede
administration of justice but succeeded in his attempt in delaying the
delivery of possession and as such this Court held the respondent guilty of
criminal contempt and observed as below as regards the question of
punishment. In paragraph 15 of the Report, this Court observed :
"Though the respondent had tendered unconditional apology before the Court,
the apology appeared to be not genuine and bona fide for, in his earlier
affidavit, he had also offered a similar unconditional apology but falsely
reiterated that he had vacated the premises. The record, however, shows
that following his arrest pursuant to the non-bailable warrant issued by
the Court, the respondent was in custody for some days till he was released
on bail under orders of the Court. Considering this aspect of the matter
and the fact that he has now handed over vacant possession of the suit
premises, it is not necessary to send him behind the bars again by imposing
substantive sentence. At the same time, he should be punished with fine not
only for the wrong done by him but also to deter others from filing such
false affidavits. He is, therefore, sentenced to pay a fine of Rs, 2000, in
default of payment of which he will suffer simple imprisonment for one
month. The fine, if realised, shall be paid to the petitioner as
compensation. The rule is thus made absolute."
It, therefore, appears that this Court took a serious exception by reason
of the peculiar facts of the matter in issue and particularly for the
reason that contemnor did in fact had taken an advantage. The case is thus
also distinguishable on facts and the same also does not lend any
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assistance to the contentions raised.
Similar is the situation in regard to the case of the Secretary, Hailakandi
Bar Association v. State of Assam & Anr., [1996] 9 SCC 74 wherein this
Court held that the contemnor deliberately forwarded the inaccurate report
with a view to mislead the Court and thus thereby interfered with the due
course justice by attempting to obstruct this Court from reaching to a
correct conclusion.
Incidentally, in the matter under consideration, there is no plea of
justification and the learned advocate appearing for the respondents
without any reservation, whatsoever, pleaded unconditional apology before
this Court and it is on this perspective that this apology is to be
considered as to whether the same is otherwise proper and sufficient remedy
in the matter under consideration. Undoubtedly, the matter is rather
serious and there is not an iota of doubt as regards the falsity of the
averments by reason of the preponderance of the documentary evidence. But
since the matter is pending in the Civil Court, we are not expressing any
opinion insofar as the document of sales is concerned and as such further
proceed-ing in the matter will have to be only on the assumption of
correctness and not on its falsity, though, however, subject to further
orders of the Civil Court. But the fact remains as to whether this
particular statement has in any way impeded the course of justice by reason
of which certain definite advantage has been gained by the respondents. The
transfer order has been passed and it is only in connection with the
clarification application that such a statement has been made in an
affidavit. As noticed above, hyper-sensitiveness on the part of the law
Courts, if it does not obstruct or impede the course of justice, as such
cannot be appreciated. This is a special jurisdiction conferred on to the
law courts to punish an offender for his contemptuous conduct or
obstruction to majesty of law. Needless to record that to violate the order
of the court or to obstruct or tend to obstruct is a quasi-criminal offence
as such the courts, in the matter of award of punishment ought to be rather
cautious in its approach even if the court is otherwise satisfied as to the
act or conduct of the party. The approach of the Court is thus different in
the matter of imposition of punishment against a contemnor - the same being
totally dependent on the facts and circumstances of each individual case.
No generalised guidelines can be had nor a set of general principles in the
matter of award of punishment can be formulated. The Court must otherwise
come to a conclusion that on facts the act tantamounts to obstruction of
justice which, if allowed, would even permeate into our society - it is
only then that this power ought to be exercised. While, it is true that the
statement made in the affidavit has been introduced as and by way of a
denial but the fact remains such a statement has in fact been made in an
affidavit before this Court. Litigant public ought to be extremely careful
and cautious in the matter of making statements before Courts of Law.
Whether, however, the respondent has obtained a definite advantage or not
is wholly immaterial in the matter of commission of offence under the Act,
though the same would be a relevant factor in the context of punishment to
be imposed against a contemnor. It is on this score, the learned senior
Advocate appearing for the respon-dents, submitted that there cannot be any
defence neither the respondents desires to put forth any excepting however,
pleading unconditional apology before the Court. This pleading of
unconditional apology obviously is at the instance of the respondents since
Respondent No. 1 was present in the Court.
Having a conspectus of the whole issue and the facts, we do feel it
inclined to hold that the respondents cannot escape the liability of being
held guilty of contempt by reason of a definite and deliberate false
statement. The statement on oath is a fabricated one and contrary to the
facts and there exists no extenuating circumstances to come to any other
conclusions than as above.
As regards the question of punishment, be it noted that punishment in one
matter cannot be the guiding factor for punishment in another. Punishment
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has a co-relation with facts and in each case where punishment is imposed,
the same must be resultant effect of the acts complained of -more serious
the violation, more severe is the punishment - and that has been the
accepted norm, in matters though, however, within the prescribed limits.
Incidentally, Section 13 of the Act of 1971 postulates no punishment for
contemptuous conduct on certain cases and the language used therein seems
to be with utmost care and caution when it records that unless the court is
satisfied that contempt is of such a nature that the act complained of
substantially interferes with the due course of justice, question of any
punishment would not arise. It is not enough that there should be some
technical contempt of court, but it must be shown that the act of contempt
would otherwise substantially interfere with the due course of justice,
which has been equated with "due administration of justice". Jenkins, CJ.
in an old Calcutta High Court decision in the case of Legal Remembrancer v.
Martial Ghose & Ors.r ILR 41 Calcutta 173 observed :
"Then this motion raises a question of high importance, which it would not
be right for me to pass by without remark. I allude to the question-what
circumstances ordinarily justify recourse to this summary process of
contempt.
It is not enough that there should be a technical contempt of court: it
must be shown that it was probable the publication would substantially
interfere with the due administration of justice," In this context,
reference may also be made to the observations of Lord Diplock in Attorney-
General v. Times Newspapers Ltd., (1973) 3 All ER 54 Lord Diplock observed
:
"Since the Court’s discretion in dealing with a motion for committal is
wide enough to entitle it to dismiss the motion with costs despite the fact
that a contempt has been committed, if it thinks that the contempt was too
venial to justify its being brought to the attention of the Court at all,
the distinction between conduct which is within the general concept of
’contempt of court’ and conduct included within that general concept, which
a court regards as deserving of punishment in the particular circumstance
of the case, is often blurred in the judgments in the reported cases. The
expression ’technical contempt’ is a convenient expression which has
sometimes been used to describe conduct which falls into the former but
outside the latter category; and I agree with my noble and learned friend,
Lord Reid, that given conduct which presents a real risk as opposed to a
mere possibility of interference with due administration of justice this is
at very least a technical contempt."
Substantial interference with the course of justice is the requirement of
the statute for imposition of punishment. There is no manner of doubt that
the words "due course of justice’ used in Section 13 is wider in scope than
the words ’due course of any judicial proceeding or administration of
justice’ used in sub-clause (ii) or (iii) of Section 2(c). In this context
reference may be made to the decision of this Court in R. Subba Rao’s case
(Rachapudi Subba Rao v. Advocate General, Andhra Pradesh, [1981] 2 SCC 577.
For proper appreciation of the intent of legislation, Section 13 as also
Section 2(c) are set out hereinbelow. Section 13 reads as under :
"13. Contempts not punishable in certain cases- Notwithstanding anything
contained in any law for the time being in force, 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 interfere, or tends
substantially to interfere with the due course of justice."
Section 2 (c) is noted as below :
1. Definitions ; In this Act, unless the context otherwise re-quires;
c "Criminal Contempt" means the publication (whether by words, spoken or
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written, or by signs, or by visible representations, or otherwise) of any
matter or the doing of any other act whatsoever which
(i) scandalizes or tends to scandalize, or lowers or tends to lower
the authority of any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course
of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to
obstruct, the administration of justice in any other manner.’’
Statute therefore, puts an obligation on to the court to assess the
situation itself as regards the factum of any interference with the course
of justice or due process of law.
While it is true that contextual facts do not depict of drawing any
advantage or even any attempt to gain any advantage through the statement
as made in the affidavit noted hereinbefore, but there is no dispute as
such on the factum of a false and fabricated statement finding its place in
the affidavit. The statement cannot be termed to be a mere denial though
reflected in the affidavit as such. Positive assertion of a fact in an
affidavit known to be false cannot just be ignored. It is a deliberate act.
The learned Advocate appearing for the respondents, made a frantic bid to
contend that the statement has been made without realising the purport of
the same. We are, however, not impressed with the submission and thus
unable to record our concurrence therewith. It is not a mere denial of fact
but a positive assertion and as such made with definite intent to pass off
a falsity and if possible to gain advantage. This practice of having a
false statement incorporated in an affidavit filed before a Court should
always be depre-cated and we do hereby record the same. The fact that the
deponent has in fact affirmed a false affidavit before this Court is rather
serious in nature and thereby rendered himself guilty of contempt of this
Court as noticed hereinbefore. This Court in our view, would be failing in
its duties, if the matter in question is not dealt with in a manner proper
and effective for maintenance of magesty of Courts as otherwise the Law
Courts would lose its efficacy to the litigant public. It is in this
perspective that we do feel it expedient to record that by mere tendering
of unconditional apology to this Court would not exonerate the contemnor in
the contextual facts but having regard to the nature of the act of
contempt, we do deem it fit to impose a fine of Rs. 2,500 each so as to
sub-serve the ends of justice against the respondent-contemnors in default
of payment of which they (each of them) will suffer simple imprisonment for
one month. The fine, be realised within a period of four weeks form the
date of this order and shall be paid to the (Legal Service Authority of
this Court) Supreme Court Legal Services Committee.
The Contempt Petition is disposed of, accordingly. No order as to costs.
As regards the second petition for direction to the Central Bureau of
Investigation for examination of documents, we do not feel it inclined to
pass any order. As such, the said application stands rejected without any
order for cost.