Delhi High Court
Court On Its Own Motion vs Moinuddin Khan And Anr. on 9 November, 1998
Equivalent citations: 76(1998)DLT788
Author: N.G. Nandi
Bench: N.G. Nandi
JUDGMENT Devinder Gupta, J.
1. On 18.9.1996 transfer application [Cr.M.(M).2246/96] along with application for stay [Cr.M.4171/96] came up before learned Single judge of this Court. Because of the allegations made therein against the learned Judge, the said petition was directed to be placed before Hon'ble the Chief Justice, who on going through the allegations considered it to be a fit case for taking up the same on judicial side for appropriate action under the Contempt of Courts Act as also under Article 215 of the Constitution of India. Accordingly, the case was posted before a Division Bench on 20.12.1996. The petition for transfer and application for stay were signed by Moinuddin Khan and his Counsel Shri S.K.Chaturvedi, Advocate. Prima facie finding the averments made in Sub-paras (xv), (xvi), (xviii) and (xxi) of pica 3 of the transfer application and those in para 3 of the application for stay accompanying the said application for transfer, as tending to scandalise and lower the authority of the Court besides tending to interfere in the administration of justice thereby amounting to Contempt of Court, the Bench observed that the same calls for action against both of them. The contemners were directed to be summoned through bailable warrants made returnable on 8.1.1997. The order dated 20.12.1996 reads:
"20.12.96 Present: None (Court on its own motion).Cr.C.P. No. 28/96
Averments made in sub-paras (xv), (xvi), (xviii) and (xxi) of para 3 of the application seeking transfer of Cr.M.(M).No. 1264/96, titled Moinuddin Khan v. State and Anr. pending before the Bench of Justice S.K.Mahajan, and the averments in para 3 of the application for stay, Cr.M.4171 /96, accompanying the said petition are to the following effect:
"That the Counsel for the petitioner was very much surprised to see the attitude and behaviour of Mr.Justice Mahajan taking favour of respondent No. 2 in open Court and said not to pass any order or orders and further said that matters may kindly be released and listed before other Bench for arguments."
"Mr.Justice S.K. Mahajan refused to either adjourn or release the matter and threatened the Counsel of petitioner Mr. S.K. Chaturvedi, Advocate to draw contempt proceedings against him."
"that an unholy and untruly atmosphere was created in Court by Mr. Justice S.K. Mahajan and his threat to Advocate Mr. S.K. Chaturvedi to draw contempt proceedings against him and expressing opinion to dismiss both the matters prior to arguments, compelled the petitioner to ask his Lawyer Mr. S.K. Chadurvedi, to withdraw vakalatnama."
"that the way and mode of fixing both the matters, the attitude of Mr. Justice S.K. Mahajan and his threat to S.K. Chaturvedi, Advocate to draw action against him compelled the petitioner to think and reach the conclusion that he will not get justice from the Bench of Mr. Justice S.K. Mahajan."
"That petitioner apprehends that he will not get justice in the Bench presided over by Mr.Justice S.K. Mahajan."
The aforementioned averments in the context of the application tend to scandalise and lower the Authority of the Court, besides tending to interfere in the administration of justice, and amount to committing Contempt of Court. The petitioner as well as the stay application are supported by affidavits of Moinuddin Khan. The applications are also filed under the signatures of Shri S.K. Chaturvedi, Advocate. Consequently, the same calls for an action against Mr. S.K. Chaturvedi, Advocate,as well as Mr. Moinuddin Khan Admit.
The contemners be summoned through bailable warrants in the sum of Rs. 5,000/ - each, returnable on 8th January, 1997, calling upon them to show cause as to why they be not punished under the Contempt of Courts Act. A copy of this order with complete copy of documents will be served upon the contemners."
The contemners were served for 8.1.1997 and appeared in person. They prayed for and were allowed time to file reply within two weeks. The case was adjourned to 5.2.1997. Moinuddin Khan, the first contemner filed his reply on 31.1.1997. Reply v/as not filed by the 2nd contemner S.K. Chaturvedi. Two weeks' further time, as prayed, was allowed. The case was adjourned to 4.3.1997, on which date one week's further time was sought, which was granted. The case was adjourned to 8.4.1997. Again there was a request for more time to filereply. Two weeks' further time wasallowed. The case was directed to be posted for 23.7.1997, on which date four weeks' further time was sought by S.K. Chaturvedi, which was again granted and the proceedings were adjourned to 29.8.1997, when last opportunity was granted to him to file reply within two weeks. Despite last opportunity S.K. Chaturvedi did not file reply and on 18.9.1997 prayed for one day's more time to file reply. Case was adjourned to 26.9.1997. Ultimately reply was filed on 23.9.1997 by S.K. Chaturvedi supported on his own affidavit, which is at pages 19 to 23 of the paper book. On 26.9.1997 the case was adjourned to 1.10.1997. Again it was adjourned to 20.10.1997, on which date contemners were not presnet. Case was adjourned to 27.10.1997, on which date on request of S.K. Chaturvedi, the case was adjourned to 11.11.1997.
3. On 10.11.1997 S.K. Chaturvedi filed another reply dated 6.11.1997 to the show cause notice. It is also supported on his own affidavit and is at pages 24 to 28 of the paper book.
4. Taking note of the contents of the reply dated 6.11.1997 of S.K. Chaturvedi, a copy of the same was directed to be supplied to Moinuddin Khan with an opportunity to him to place his version/reply thereon within a period of three weeks. Case was adjourned to 10.12.1997. On 9.12.1997 Moinuddin filed a reply to the additional reply dated 6.11.1997 of S.K.Chaturvedi. Case was taken up on 22.2.1998 when it was adjourned to 25.3.1998. S.K.Chaturvedi was not present on that date though a direction had been made that the contemners will remain present in Court. His presence was thus directed to be procured through bailable warrants for 23.4.1998.
5. On 23.4.1998 Mr. S.S. Gandhi, who had earlier been requested to assist the Court made his submissions. S.K. Chaturvedi and learned Counsel for Moinuddin also put forth their respective cases as pleaded in the replies to the show cause notice. On the request of S.K. Chaturvedi the case was adjourned to 30.4.1998 for further arguments. On 30.4.1998 S.K. Chaturvedi did not address further arguments. He sought further adjournment, which was allowed. On the adjourned date, namely, 18.5.1998 S.K. Chaturvedi again sought further time on the ground that he was not well. His prayer was allowed. The case was adjourned to 25.5.1998. Again adjournment was prayed on his behalf on medical grounds, which was allowed.
6. On 17.7.1998 when the case was taken up S.K. Chaturvedi instead of advancing any further arguments stated that he does not intend to make any submissions or defense in this case except to tender his unconditional apology. In view of the fact that the replies had been filed by S.K. Chaturvedi justifying his action, time was allowed to enable S.K. Chaturvedi to tender apology in writing. Accordingly, on 30.8.1998 Mr. S.K. Chaturvedi filed his affidavit stating:
"I tender unconditional apology on my behalf before this Hon'ble Court."
7. We heard Mr. S.S. Gandhi as well as S.K. Chaturvedi and learned Counsel for Moinuddin again.
8. Mr. Gandhi submitted that in the facts and circumstances of the case, apology of S.K. Chaturvedi was not liable to be accepted. It had not been tendered at the earliest opportunity. It is also not an act of contrition. It was offered only at the ti me when S.K. Chaturvedi found that there was no escape for him. To save him from punishment being inflicted that he had thought of tendering an apology, which was also not bona fide.
9. The circumstances leading to initiation of proceedings under the Contempt of Courts Act are that S.K. Chaturvedi was engaged by Moinuddin Khan to file a petition on his behalf in this Court under Section 482, Cr.P.C. seeking quashing of the proceedings in case titled Sheruddin v. Moinuddin Khan and Others under Section 125, Cr.P.C. pending in the Court of Shri L.K. Gaur, Metropolitan Magistrate, Karkardooma, Delhi. The said petition [Cr. Mis.(Main) 308/96] was posted on 12.9.1996 before learned Single Judge of this Court (S.K. Mahajan, J.). While declining request for adjournment, the petition was dismissed. Learned Single Judge made observations about the conduct of S.K. Chaturvedi, Counsel for Moinuddin in his order as under:
"When the order was being dictated, learned Counsel for the petitioner submitted that his name had not been shown in the cause list, therefore, not only that I should adjourn the case but I should also transfer the same, as I was favouring the respondent No. 2. In my opinion, the conduct of the Counsel appearing for the petitioner was most reprehensible. He did not ask for adjournment when the case was taken up for hearing and after hearing his arguments in details when I was dictating the order, he wanted the case not to be taken up by me.
In my opinion, there is no ground either for adjourning the case or for its transfer."
10. Though the above petition [Cr.M.(M).308/96] was dismissed on 12.9.1996, there was yet another petition, which had been preferred by S.K. Chaturvedi on behalf of Moinuddin, namely, Cr.Misc.(Main). No. 1264/96 titled as Moinuddin v. State, posted for same day i.e. 12.9.1996. On request made by S.K.Chaturvedi, the same was adjourned to 17.9.1996. With a view to have the proceedings in Cr.Misc.(Main) No. 1264/96 transferred from the Bench of Hon'ble Mr. Justice S.K. Mahajan to any other Bench a transfer petition [Cr.(M).2246/96] Moinuddin Khan v. State and Another under Section 407, Cr.P.C. dated 16.9.1996 was filed in the Registry on 17.9.1996. When it came up before learned Single Judge (Shri S.K. Mahajan, J.) on 18.9.1997, in view of the derogatory remarks made therein, as noticed above, the same was directed to be posted before Hon'ble the Chief Justice and that is how suo motu proceedings came to be initiated because of the averments made in the transfer application and in the stay application, which have already been quoted above, in the order of 20.12.1996.
11. Moinuddin Khan in his reply dated 30.1.1997, to the show cause, notice stated that he is a class IV employee in N.D.M.C. and is not educated enough. He could not understand the import of the arguments, which on 12.9.1996 were addressed in English language. However, his Counsel informed him that his petition bearing Cr.M.(M) No. 308/96 had been dismissed and the other petition bearing Cr.M.(Main) No. 1264/96 had been adjourned to 17.9.1996. His Counsel told him that he had to move some application to save Cr.M. (Main) No. 1264/96 from being dismissed for which purpose his Counsel called him the next day. Next day S.K. Chaturvedi obtained his signatures on some typed papers, which had already been got prepared by his Counsel. The first contemner has further stated that the entire drafting had been done by his Counsel. The same was neither read over, nor explained to him. His case is that he never intended to scandalise or lower the dignity and Authority of the Court. Had he known the true facts, namely, that what was stated in the application and the affidavit, he would not have signed the same. It is stated by him that even after dismissal of his petition [Cr.M.(M) 308/96] he asked his Counsel to argue the other petition [Cr.M(Main) 1264/96]. In nut shell Moinuddin states that he neither committed nor had any intention to commit Contempt of Court.
12. S.K. Chaturvedi filed his reply on 23.9.1997 i.e. after eight months of the first contemner filing his reply. In this reply he admits having moved the transfer application on 17.9.1996 vide D.No. 22443. According to him he contacted the Registry to ascertain about defects, if any, but the Registry informed him that the transfer petition had been lost misplaced and the same was being searched. According to S.K. Chaturvedi, despite regularly contacting the Registry, to have the transfer petition listed, the Registry informed him that the transfer petition was not maintainable and cannot be listed as only Supreme Court had powers to entertain the transfer petition. After getting this information he tried his best to withdraw the petition but as the same was not traceable in the Registry, therefore, it could not be taken back by him. The case of S.K. Chaturvedi has been that the transfer application itself was not maintainable and could not be listed in Court, how the same was seen and read by the Hon'ble Judge. Without listing the application in Court, learned Single Judge could not have gone through or read the application. The Registry was not authorised to place the transfer petition before the Judge. Even contempt notice could not have been issued by the Court on its own motion. Thus S.K Chaturvedi questioned the competence and maintainability of the contempt proceedings against him on the grounds; that the transfer application was not maintainable, it could not have been posted before the Court. This reply bears the date as 19.9.1997. Affidavit in support thereof is dated 23.9.1997. It was attested on 23.9.1997 and was filed in Court on the same day. A copy was also served on Mr.S.S.Gandhi, Advocate.
13. On 10.11.1997 another reply was filed by Mr. S.K. Chaturvedi stating that his earlier reply dated 19.9.1997 was not correct. He had not inspected the file when earlier reply was filed. Only on inspection of record he came to know of the true facts. Contrary to the earlier admission made by him that he had filed the transfer application in the Registry and had been making enquiries about the same, a new case was set up by him. In this reply he states that he has not signed the entire transfer application. According to him, Moinuddin approached him and brought a typed transfer application with a request to sign the same and file it in the High Court. When he started putting his signatures thereon a thought occurred to him to first read the petition. As such he did not sign the entire petition, as he was busy with other clients. Accordingly he asked Moinuddin to come again. His version is that his purported signatures at several places on the transfer application are forged by Moinuddin. His version is that Moinuddin after forging his signatures filed the same in the Registry. He came to know of the filing of the transfer application only when contempt notice was issued against him by the High Court. Otherwise, he was not aware of the filing of the transfer application.
14. S.K. Chaturvedi in the second reply has pleaded that on receiving notice in contempt proceedings he did put his appearance and sought time to file reply. Moinuddin was also present in Court and promised to come to his Chamber, the next day. Moinuddin met him in Supreme Court and had shown the reply to the show cause notice in contempt proceedings, which he had already got prepared. It has now been noticed by him that Moinuddin filed a totally different reply in the the contempt proceedings than what actually was shown to him in the Supreme Court premises. Thus Moinuddin had befooled him. S.K. Chaturvedi states that bond fide believing the version of Moinuddin Khan, as was stated in the reply, which Moinuddin had intended to file, to be true, he filed his reply on 23.9.1997, which is wrong. In this background S.K. Chaturvedi placed that he has always shown respect to the Chair and it was for the first time in 22 years of his practice at the Bar that a contempt notice has been issued against him.
15. Moinuddin, the first contmner, was supplied with the copies of the reply filed by S.K.Chaturvedi. His explanation was also sought thereupon. Moinuddin filed his reply dated 8.12.1997 reiterating his earlier stand that the transfer petition was prepared, signed and filed by his Advocate. The same had been drafted by S.K. Chaturvedi himself. It was filed on 17.9.1996. On that date he met S.K. Chaturvedi at about 9 a.m. in Supreme Court compound. S.K. Chaturvedi was in a great hurry and told that the list of the High Court had to be seen by him as also the Court Room number where Cr.M(M). 1264/96 was to be listed. A few lines were jotted down by S.K. Chaturvedi on a piece of paper requiring him (Moinuddin) to incorporate the same in the transfer application saying that it was lying in his Chamber. He accompanied S.K. Chaturvedi to High Court. S.K. Chaturvedi personally filed the transfer application in the Registry on the same day and also made a statement to that effect in the Court of Hon'ble Mr. Justice S.K. Mahajan before whom the said Cr.M(M)1260/96 was posted.
16. The aforementioned narration thus makes it clear that S.K. Chaturvedi in the two replies has taken contradictory stands, as regards the filing and drafting of the transfer application. During the course of arguments, after Mr. S.S. Gandhi had made his submission and pointed out that it was S.K. Chaturvedi, who deliberately moved the transfer application and after learned Counsel for Moinuddin also reasserted the stand of his client that it was S.K. Chaturvedi who drafted the transfer application and filed the same in the Registry and also made statement in the Court of S.K. Mahajan, J. that transfer application had been filed, that S.K. Chaturvedi frankly admitted that he did sign each and every page of the transfer application [Cr.M(M) 2446/96], namely, index, memo of parties, the transfer application and the accompanying application for stay. He also admitted that the transfer application was prepared and singed on 16.9.1996, but was filed in the Registry on 17.9.1996. (Endorsement on the affidavit also suggests that both the affidavits of Moinuddin, in support of the transfer application as also the application for stay are attested by the Oath Commissioner on 16.9.1996. The Oath Commissioner attested the affidavit on the identification of S.K. Chaturvedi). S.K. Chaturvedi during course of the arguments accepted the position that on 17.9.1996 Cr.M.(M) 1264/96 was posted before S.K. Mahajan, J. He did appear in the Court and made statement that he had filed an application for transfer of the case. The order passed in Cr.M(M) 1264/96 on 17.9.1996 reads:
"17.9.97 Present: Mr. S.K. Chaturvedi for the petitioner. Mr. Anil Soni for the State.
Cr.M.(M) 1264/96 Counsel for the petitioner states that he has filed an application for transfer of the case which is pending before Hon'ble the Chief Justice. In this case, notice was directed to be issued for 20th November, 1996.
Put up on 20th November, 1996.
September 17,1996 Sd/-
(S.K. Mahajan) JUDGE"
Thus during the course of arguments, drafting and signing of transfer application was not disputed by S.K. Chaturvedi. Filing of the same by him was also not disputed. This fact was also admitted by S.K. Chaturvedi in his first reply that he did file the transfer application but in the second reply he stated that the same was not filed by him. He also admitted having filed transfer application when he appeared before S.K. Mahajan, J. on 17.9.1996.
17. The aforequoted allegations made in the transfer application under the signatures of Moinuddin and S.K. Chaturvedi, his advocate on the face of it are nothing but sacandalisting the Court. As far back as in 1955 the decision of the Supreme Court in M.Y. Shareef and Anr. v. Hon'ble fudges of the Nagpur High Court and Ors., had set at rest the misconception, which existed till then about the Advocate's responsibility in the matters of signing transfer application by making it amply clear that the Counsel who sign applications or pleadings containing matter sacandalisting the Court, without reasonably satisfying themselves about the prima facie existence of adequate grounds therefor, with a view to prevent or delay the cause of justice, are themselves guilty of Contempt of Court and that it is no part of the duty of a Counsel to his client to take an interest in such applications. On the other hand, his duty is to advise his client for refraining from making allegations of this nature in such applications.
18. The allegations made in the transfer application quoted above, are reckless, highly offensive, vicious, intimidatory, malacious, without any foundation and beyond condonable limits. The same amounts to impairing the administration of justice.The same have also seriously sullied the image and dignity and high esteem, which the office of the Judge of the High Court carries with it and thus impeded the course of justice. The same amounts to committing the Contempt of Court for which act both Moinuddin and S.K. Chaturvedi are liable to be punished. The defense of Moinuddin that he had not read the contents or was not made known the contents of the application cannot be accepted for the very reason that the transfer application and the stay application are both supported on his affidavits, which are duly attested. As per the endorsement thereon the contents of the same were duly read over and explained to him. S.K. Chaturvedi after dismissal of Cr.M(M) 308/96, which he prosecuted on behalf of the condemner proceeded to sign the application for transfer containing libellous allegations against the same Judge before whom another petition of his client was pending.
19. The question now to be considered is whether the apology tendered by the contemners deserves to beaccepted. As noticed above, S.K. Chaturvedi in compliance to the show cause notice took adjournments to file reply whereas Moinuddin Khan filed his reply on 31.1.1997. It was only after six adjournments that reply to show cause notice was filed on 23.9.1997 by S.K.Chaturvedi. In the first reply he admitted having filed under his signatures the application for transfer containing the offending language used therein. No apology was tendered by him at that stage. Rather he justified in having made the allegations. Instead of showing any grace on 10.11.1997 additional reply was filed by him making a total somersault denying that he ever filed in the Registry the application for transfer. Even at that stage no apology was tendered. Copy of the reply filed by S.K.Chaturvedi was supplied to Moinuddin Khan, who was asked to file his reply thereto. He did so after serving a copy to S.K.Chaturvedi. Even at that stage S.K.Chaturvedi did not tender apology. On 27.2.1998 the case was adjourned to 25.3.1998 for hearing, on which date S.K.Chaturvedi was not present. His presence was procured by bailable warrants for 23.4.1998, on which date Mr. Gandhi in his submissions highlighted the conduct of the contemners along with their respective stand taken in their respective affidavits. Arguments were also addressed by learned Counsel for Moinuddin Khan. Thereafter S.K. Chaturvedi made his submissions justifying his action. He also prayed for adjournment to make further submissions. Accordingly, the case was adjourned to 30.4.1998 to enable S.K. Chaturvedi to complete his submissions. On 30.4.1998 further adjournment was sought by S.K. Chaturvedi, which was granted. Again on 18.5.1998 adjournment was sought by him on the ground that he was not well. The case was adjourned to 25.5.1998 on which date S.K. Chaturvedi did not appear but got the matter adjourned to 19.4.1998 on request made through some one else. The case was adjourned to 17.7.1998 on which date, finding no escape, S.K.Chaturvedi came up with the so called unconditional apology.
20. In M.Y. Shareef and Anr. v. Hon'ble Judges of the Nagpur High Court and Ors., , it was held that there cannot be both justification and an apology. Apology is not a weapon of defense to purge the guilty of their offence; nor is it intended to operate as a universal panacea but it is intended to be evidence of real con triteness.
21. As the apology is an act of contrition, in Mulkh Raj v. The State of Punjab, , it was held that if apology is offered at a time when the contemner finds that the Court is going to impose punishment, it ceases to be an apology and it becomes an act of a cringing coward. It was held that apology should be offered at the earliest and in good grace.
22. In L.D. Jaikwal v. State of U.P., , apology tendered by an Advocate found guilty for contempt was not accepted holding:
"We do not think that merely because the appellant had tendered his apology we should set aside the sentence and allow him to go unpunished. Otherwise, all that a person wanting to intimidate a Judge by making the grossest imputations against him has to do, is to go ahead and scandalize him, and later on tender a formal empty apology which costs him practically nothing. If such an apology were to be accepted, as a rule, and not as an exception, we would in fact be virtually issuing a 'licence' to scandalize Courts and commit Contempt of Court with impunity."
23. In the circumstances aforementioned and in the light of the quoted decisions, the apology offered by S.K. Chaturvedi cannot be accepted inasmuch as it was not offered at its earliest and in good grace and is shorn of penitence. It is also not unqualified apology. It is liable to be rejected. Moinuddin Khan came up with true facts and tendered unconditional and unqualified apology at the earliest opportunity, which we are inclined to accept.
24. We accept the apology of Moinuddin Khan and discharge the notice against him. S.K.Chaturvedi is convicted for having committed Contempt of Court and is sentenced to undergo simple imprisonment for a period of one month.