Delhi District Court
Ms. A.M. Sajida D/O Shri A.A. Moideen ... vs Sh. Sanjay Kumar Pandey S/O Sh. R.G. ... on 3 June, 2013
1
IN THE COURT OF SH. J.R. ARYAN : DISTRICT & SESSIONS JUDGE :
NORTHEAST DISTRICT : KARKARDOOMA COURTS : DELHI :
M11/12
Unique Case ID No. 02402C0079192012
Ms. A.M. Sajida D/o Shri A.A. Moideen Kutty,
R/o 172C, PocketE, GTM Enclave,
Dilshad Garden,
Delhi110 095. ........Petitioner.
vs.
Sh. Sanjay Kumar Pandey S/o Sh. R.G. Pandey,
R/o 87B, PocketE,
Dilshad Garden,
Delhi110 095. ......Respondent.
Date of Institution : 17.03.2012
Date of Reserving for Order : 16.05.2013
Date of Pronouncement : 03.06.2013
O R D E R :
1. Respondent Sh. Sanjay Kumar Pandey, Advocate by profession, is sought to be prosecuted for offences under sections 191/193/196/199/200/209 IPC and for that applicant Ms. A.M. Sajida moved a petition under section 340 Cr.P.C. It is averred in the petition that respondent Mr. Pandey moved an application u/s 24 CPC before this Court seeking transfer of this civil suit No. 114/2011 titled Ms. A.M. Sajida vs. Sanjay Kumar Pandey, which was pending trial before ld. Sr. Civil Judge Sh. Anil Kumar Sisodia, Karkardooma Courts, Delhi, and that transfer petition bearing No. M45/11 contained false and contemptuous averments and the same was M11/2012 Page 1/10 2 dismissed by this Court on 03.01.2012. It is further pleaded in the present application that respondent again filed a second transfer application bearing No. M1/2012 and this second transfer application contained absolutely false averments supported by affidavit sworn by the respondent. It was deliberate and willful false averments made in the application only with a motive to get the suit transferred and accordingly respondent indulged in immoral and illegal acts of perjury and object was to get the suit transferred and delay the disposal of the case. Applicant has then quoted the alleged false averments in para 5 of the present application. In para 3 of the transfer application respondent pleaded and stated that earlier transfer application M45/11 pending on 04.01.2013, whereas the same had already been decided by this Court on 03.01.2012. Another false fact pleaded in the application was that concerned Civil Judge repeated the same behaviour and it was a false averment. Applicant has then quoted the plea made by the respondent in the transfer application and that plea is quoted as follows : "The Judge again misbehaved by speaking that applicant has to face now music of the consequences of moving application for transfer of the case after its dismissal."
2. Another pleadings/facts mentioned in the transfer application quoted in the present application are : "It is necessary to bring into the notice of this Court that the applicant avoided any unexpected scene in the Court room during M11/2012 Page 2/10 3 the course of arguments when judge concerned during the course of arguments by the applicant spoken openly that the Court has to dismiss all the applications at any cost. It was also stated by the judge concerned that as per the order of this Hon'ble Court dated 03.01.2012, now the judge concerned will reply by passing orders."
3. It is argued that respondent in those transfer applications intentionally made these false averments and he deserved to be prosecuted for perjury. Those false averments were supported by affidavit sworn by the respondent. It is also pleaded in the present application that conduct of the respondent amounted to a criminal contempt when respondent disgraced the magesty of the Court by pleading and mentioning that Judge had misbehaved and on another occasion respondent having pleaded that to avoid any unexpected scene in the Court room during the course of arguments, the respondent had to restrain and behave accordingly. ld. counsel appearing for the applicant submitted that such a kind of conduct and behaviour of the respondent that he avoided any unexpected scene in the Court was a direct threat to the functioning by the Court and amounted to disgracing the majesty of the Court. ld. counsel submitted that when respondent failed to achieve his object of getting the suit transferred from the Court of ld. Sr. Civil Judge, Sh. Anil Kumar Sisodia, and when his two transfer applications were rejected by this Court, he ultimately succeeded in getting the suit transferred by malicious and mischievous means in a manner that an M11/2012 Page 3/10 4 anonymous letter purported to have been addressed to Court by Ms. A.M. Sajida was got delivered through the courier in the Court of ld. Sr. Civil Judge, Sh. Anil Kumar Sisodia and that letter contained allegations against the Judge and that ld. Judge had to place the file before this Court with a request to pass appropriate order and this Court had to transfer the civil suit titled A.M. Sajida vs. S.K. Pandey from the Court of ld. Senior Civil Judge, Sh. Anil Kumar Sisodia, to another Court, but then this Court sent a report to the concerned police station for registration of the criminal case. Counsel argued that where the respondent failed to succeed in his two transfer applications to get the suit transferred, he succeeded in getting the suit transferred by the above said malicious act and he deserves to be prosecuted and punished for the offence and also for committing serious contempt of Court. ld. counsel further argued that civil suit filed by A.M. Sajida for possession and mesne profits (Civil Suit No. 114/2011) was still at the stage of crossexamination of the plaintiff where it had been got stuck by the defendant in November, 2011. She argued that respondent taking advantage of his status as an advocate had been indulging in all possible tactics to delay the disposal of the suit and the transfer applications with false allegations and averments were part of his malicious strategy and it deserved to be curbed and suitably dealt with in law. ld. counsel relied upon the Supreme Court judgement reported as JT 1994 (7) SC 459 and submitted that if a recourse to falsehood was taken with M11/2012 Page 4/10 5 motive, it was bound to hamper and impede the flow of justice and would prevent the Courts from performing their legal duties. False affidavit with oblique motive would amount to intention to deceive the Court and would amount to interfere with administration of justice. Counsel further relied upon another Supreme Court judgement 2001 (5) SCC 289 that filing of false affidavit with pleadings amounts to giving false evidence as defined u/s 191 IPC. Another Supreme Court judgement reported as AIR 2001 SC 2028 is being relied on the point that seeking repeated adjourments for postponing examination of witnesses present in the Court was a professional misconduct within the meaning of section 35 of the Advocates Act. Counsel also referred to Delhi High Court judgement reported as 2010 DLT 214 where it has been held that false averments and pleadings is an attempt to invite the Court into the passing a wrong judgement and it must be treated as an offence u/s 191 IPC.
4. Respondent Sh. S. K. Pandey, Advocate appeared pursuant to notice in this application and he filed reply whereby the application has been strongly contested. It is submitted and argued by respondent that averments made in the transfer application and affidavit sworn by him in support may not be taken and treated a false plea and thereby constituting an offence of perjury. It is submitted that unless the averments were tested on the touch stone of its truthfulness, applicant's contention that there were false allegations in the transfer petition and thereby respondent was liable M11/2012 Page 5/10 6 to be prosecuted for perjury would amount to breach of basic principle of natural justice. It is contended that application seeking prosecution for offences under Indian Penal Code as mentioned in the petition was misconceived. It is submitted that even otherwise it would not be expedient in the interest of justice to initiate prosecution by resorting to proceeding under Section 340 CrPC. Respondent accordingly prayed for dismissal of the application.
5. As regards the initiation of "criminal contempt" proceedings, respondent argued that a private party could file a contempt petition under Section 15(1) of the Contempt of Court Act subject to the condition provided in the provisions. A private party is not entitled to take recourse to Section 15(2) of the Act. It is submitted that if contempt reference as "Court on its own motion" was allowed to be made at the instance of the private party under Section 15(2) of the Act, it would deprive other party the benefit of statutory protections provided under the Act and those statutory protection provisions are Section 8,9 and 13 of the Act and any such contempt reference at the instance of a party would be a departure from due procedure provided under Section 10 and 12 of the Contempt of Court Act. It is submitted that when this Court had dismissed transfer application on 17.02.2012, Court could have made a reference of contempt as Court on its own motion under Section 15(2) of the Act but it is not permissible now at the instance of party by moving an application. Respondent took further plea that his pleadings and averments in M11/2012 Page 6/10 7 the transfer application was bonafide and under good faith and thereby protection under Section 6 of the Contempt of Court Act was available and finally it is contended that since transfer application stood disposed of in February, 2012 then such proceeding for initiation of contempt being beyond period of limitation prescribed under Section 20 of the Contempt of Court Act would be barred and application praying contempt proceedings deserved to be disposed of. I have given due consideration to both sides contentions.
6. Offence of perjury defined under Section 191 IPC is a statement which is false and person making such statement knows or believe it to be false or does not believe it to be true. It appears to be an acceptable contention that averments and pleadings in the transfer application though supported by an affidavit may not be termed perse a false evidence sworn by the respondent with knowledge or belief that these were false averments. I do agree with the contentions raised by respondent that prosecution for perjury has to be on the basis of material perse false statement and the present case may not be the one where perse false statement is to be attributed to the respondent. As regards the criminal contempt which is defined under Section 2(c) of the Contempt of Court Act, it constitutes any publication spoken or written or by any visible representation or otherwise being any other act which scandalises or tends to scandalise or lowers or tends to lower the authority of any Court or interferes or tends to interfere with due course of judicial M11/2012 Page 7/10 8 proceeding or administration of justice in any other manner. The respondent's plea is that even if it was to be found that any act or conduct of the respondent amounted to "criminal contempt" then the alleged incident being of February, 2012, Section 20 of the Contempt of Court Act created bar in initiation of any such contempt proceedings. Section 20 of the Act provides that no Court shall initiate any proceedings of contempt either on its own motion or otherwise after the expiry of period of one year from the date on which contempt is alleged to have been committed. Ld. Counsel Ms. Inderjeet Swaroop for the applicant argued and tried to impress upon this Court that limitation of one year for contempt proceedings would start only where Court found that prima facie act and conduct of the respondent constituted criminal contempt and when show cause was given to him. Respondent on the other hand submitted that if Court on its own motion was to make reference for contempt then proceedings in the transfer application having terminated in February, 2012, the bar of limitation would apply and limitation cannot be extended in any situation. Having appreciated these contentions though this Court considers the act and behaviour of the respondent condemnable when in the transfer application respondent pleaded and to quote it: "Judge again misbehaved by speaking that the applicant has to face now the music and consequences of moving the application for transfer of the case after its dismissal". M11/2012 Page 8/10
9 Another quote in the transfer application pleaded by respondent is: "It is necessary to bring into the notice of this Court that applicant avoided any unexpected scene in the Court room during the course of arguments when judge concerned during the course of arguments by the applicant spoken openly that the Court has to dismiss all the applications at any cost _ _ _ _ _ _ _ _.
7. It is rightly submitted from plaintiffapplicant Ms. A. M. Sajida's side that such language and behaviour did suggest and indicate as if respondent would have indulged in any behaviour in the Court which would have created a scene in the Court room. Certainly such an act and conduct of the respondent would have amounted to interference with due course of judicial proceedings and obstruction in administration of justice. But then this Court is examining that respondent restricted his plea that he restrained from creating any unacceptable scene in Court room and thereby very strictly did not indulge in commission of criminal contempt. Respondent is an Advocate by profession and needs to be reminded that being part of the system for administration of justice, he was not expected to indulge in any such act or behaviour, more so when being Advocate he himself was defended party in the litigation. Probably it is rightly being contended and argued by the plaintiffapplicant Ms. A. M. Sajida that undue advantage appears to have been taken by the M11/2012 Page 9/10 10 defendant, who was an Advocate by profession.
8. The proceeding to my view needs to be closed but then this Court must make reference to the grievance of applicant Ms. A. M. Sajida that her crossexamination as a plaintiff having began in November, 2011 was stuck on the same stage till the present application was heard on the previous date on 16.05.2013. The civil litigation between the parties is suit for possession pending before the ld. Senior Civil Judge. It is therefore requested and impressed upon the ld. Senior Civil Judge to expedite the adjudication of civil suit and ld. Senior Civil Judge may not hesitate in dealing with stern action in delay by any kind of adjournment in the matter.
9. Application is disposed of. Copy of this order be sent to ld.
Senior Civil Judge where suit is pending adjudication.
Announced in the Open Court (J.R. Aryan)
rd
On this 3 day of June, 2013. District & Sessions Judge, NE, Karkardooma Courts, Delhi.
M11/2012 Page
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