Allahabad High Court
Brijesh Sharma And 2 Ors. vs Ashutosh Shrotia And 5 Ors. on 24 July, 2019
Bench: Manoj Misra, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 42 Case :- CONTEMPT APPLICATION (CRIMINAL) No. - 3 of 2019 Applicant :- Brijesh Sharma And 2 Ors. Opposite Party :- Ashutosh Shrotia And 5 Ors. Counsel for Applicant :- Pankaj Kumar Shukla Counsel for Opposite Party :- Ravindra Sharma Hon'ble Manoj Misra,J.
Hon'ble Virendra Kumar Srivastava,J.
We have heard Sri Pankaj Kumar Shukla for the applicants; and Sri Ravindra Sharma for the opposite parties.
This contempt application filed under Section 15 of Contempt of Courts Act, 1971 makes multiple prayers including drawing of proceedings against contemnor opposite parties as also to punish them for creating hindrance in compliance of this court's order order dated 09.08.2018 passed in Crl. Misc. Application No. 25375 of 2018.
It appears from the record that the applicant no.3 - Mohan Dixit was made an accused in Case Crime No. 1124 of 2017 at P.S. New Agra, District Agra for offence punishable under Section 388 I.P.C. The matter was investigated and a charge-sheet was laid giving rise to Case No. 18146 of 2018 in the Court of Chief Judicial Magistrate, Agra. The applicant no.3 - Mohan Dixit filed an Application u/s 482 No. 25375 of 2018 before this Court for quashing the charge-sheet and the consequential proceedings. The prayer to quash the charge-sheet was rejected by this Court, vide order dated 09.08.2018, however, it was provided that if the applicant appears and surrender before the court concerned within a specified period, his bail prayer would be considered as per settled law and, in the meantime, for a specified period, no coercive action would be taken against the applicant.
The case of the applicants is that pursuant to the order of this Court dated 09.08.2018 the applicant Mohan Dixit appeared before the Court of Chief Judicial Magistrate, Agra on 12.09.2018 for obtaining bail. It is stated that Advocates Ashutosh Shrotia and Rajeev Singh @ Tata collected a number of advocates and assaulted the applicant no.2 (Dr. Harendra Sharma), who happens to be a relative of Mohan Dixit (applicant no.3). It is alleged in paragraph 15 that the incident was captured by CCTV cameras installed in the court premises. It is also stated that the incident disturbed the proceedings of the court of Chief Judicial Magistrate, Agra, as a consequence whereof, he had to rise. Therefore, the opposite parties who were all involved in that incident had interfered in the administration of justice and had thereby committed criminal contempt of court.
On the basis of the above averments, vide order dated 30.03.2019, report was called from District Judge, Agra in respect of the affidavit submitted. Pursuant to which, the District Judge, Agra, submitted report annexing para wise comments of the Officer-in-Charge (Litigation). In the para-wise comments it was specifically stated that CCTV cameras were not functional on that day. However, after perusing the comments, as there was no specific denial of the averments made in paragraph 7 of the affidavit, notice was issued to the opposite parties, vide order dated 30.04.2019. It may be observed that in paragraph 7 of the affidavit, it was stated that Ashutosh Shrotia and his associates had committed many such incidents in court premises, which were reported.
The opposite parties put in appearance through Shri Ravindra Sharma Advocate and raised a preliminary objection as regards maintainability of the contempt proceedings on the ground that neither there was motion from the Advocate General nor the consent of the Advocate General was obtained and there is no reference from the court concerned or the person authorized as contemplated by clause (c) of sub-section (1) of Section 15 of the Contempt of Courts Act, 1971 in respect of any incident. Hence, the contempt proceedings are not maintainable. In respect of taking suo-motu cognizance, it was urged by the learned counsel representing the opposite parties that the incidents earlier reported were not in respect of any act which may have taken place within a court hall or directly to the notice of presiding officer during the court proceedings. It was thus urged that the proceedings be dropped.
On the above objection, the learned counsel for the applicants submitted that the incident dated 12.09.2018 has been reported by the court concerned.
After considering the objections raised and the statement made by learned counsel for the applicants, this court on 03.07.2019 passed the following order:-
"On this contempt application, on 30th March, 2019, comments were invited from the District Judge, Agra in respect of the averments made in paragraph 7 of the affidavit.
Paragraph 7 of the affidavit filed in support of the contempt application gives detail of the criminal cases which are stated to be registered at police station New Agra, district Agra against Ashutosh Shrotia (opposite party no.1) and his associates. In paragraph 7 it is stated that in the court premises the occurrences had taken place which were reported and registered as separate criminal case detailed therein.
Pursuant to the order dated 30th March, 2019, the District Judge, Agra submitted a report dated 27th April, 2019. The report is, in fact, para-wise comment on the contempt application.
In paragraph 7 of the report it is stated that from a report received from the office of Chief Judicial Magistrate, it was found that the criminal cases that find mention in paragraph 7 of the affidavit are registered at police station New Agra, district Agra and the incidents concerned had allegedly occurred in the court premises.
The report does not specifically states that the incident occurred inside the court hall/court room while the concerned officer was holding the court. The report is silent in that regard although in paragraph 14 of the report it is stated that an incident dated 12th September, 2018 was intimated by the Chief Judicial Magistrate, Agra to the then District Judge, Agra and the same was in turn intimated to the High Court vide letter no.5162/XV dated 13th September, 2018 by the then District Judge, Agra and a copy whereof was also sent to the Private Secretary to the Hon'ble Administrative Judge, Agra.
After perusing the para-wise comments, submitted pursuant to the order dated 30th March, 2019, on 30th April, 2019 following order as passed:
"By the order dated 30.03.2019, a reply has been called for from District Judge, Agra in respect of para 7 of the affidavit filed in support of the contempt application.
Reply of para 7 of the affidavit has been sent by District Judge, Agra. In reply, the incident, as mentioned in para 7 of the affidavit, has not been denied. In view of the allegation, the opposite parties are habitually committing criminal act in the court room as well as court premises.
Issue notice to the opposite parties.
List on 3rd July, 2019. On that date, opposite parties shall appear in person before the court also."
Pursuant to the order dated 30th April, 2019, contemnors opposite parties (a) Ashutosh Shrotia; (b) Rajiv Singh; (c) Kamal Kumar Sindhi; (d) Shashi Prakash Bharadwaj; (e) Bhavtosh Shrotia and (f) Nitin Kumar Sharma are present before the court and are represented by Sri Ravindra Sharma, Advocate.
Sri Ravindra Sharma, Advocate has raised a preliminary objection as regards the maintainability of these proceedings by contending that under sub-section (2) of Section 15 of the Contempt of Courts Act, 1971, the High Court may take action in respect of criminal contempt of a subordinate court on a reference made to it by the subordinate court or on a motion made by the Advocate General or, in relation to a union territory, by such law officer as the Central Government may, by notification in the Official Gazette specify in this behalf. It has been submitted that there is no reference by the subordinate court or a motion by the Advocate General and therefore the action taken on a petition filed by private persons is not sustainable.
As we find from the report that in respect of an incident dated 12th September, 2018, a reference letter was sent to the High Court by the District Judge, Agra, which was dated 13th September, 2018, we deem it appropriate to call for a report from the Registrar General of this Court whether pursuant to the letter no.5162/XV, Agra, dated 13th September, 2018, sent by the District Judge, Agra proceedings of contempt were drawn or not and, in case proceedings were drawn, what was its fate.
Let therefore this matter be listed on 17th July, 2019, by which date report, as directed above, be submitted by the Registrar General of this Court.
The applicants as well as the opposite parties are also at liberty to file their affidavit in case they are aware about the status of any such proceedings that might have been drawn pursuant to the letter no.5162/XV, Agra dated 13th September, 2018 sent by the District Judge, Agra. On the next date, the opposite parties need not be present before the Court in person. "
Pursuant to the above order, the Registrar General, High Court, Allahabad has submitted his report dated 16.07.2019 in which it has been disclosed that letter dated 13.09.2018 was received from the District Judge, Agra upon which a report was called. Pursuant to which, the District Judge submitted a letter No. 4549/XV dated 09.07.2019, which has been placed before the Administrative Judge, Agra, under Office Note dated 10.07.2019. The report of the District Judge, Agra dated 09th July, 2019 has been placed before us.
A perusal of the letter dated 09th July, 2019 of the District Judge, Agra reveals that the then In-charge District Judge, Agra, vide letter dated 13.09.2018, had reported to the High Court about the scuffle between Mohan Dixit and supporters of the opposite parties while Mohan Dixit was to surrender in the Court of Chief Judicial Magistrate, Agra in connection with Case Crime No. 1124 of 2017. It is stated that this report dated 13.09.2018 was based on the report dated 12.09.2018 submitted by the Chief Judicial Magistrate, Agra. The relevant extract of the letter dated 09th July, 2019, written by the District Judge, Agra to the Joint Registrar (J) (Inspection), High Court, Allahabad is extracted below:-
"It is also pertinent to mention that one Dr. Abhipray Sharma moved a transfer application titled as T.A. (Criminal) No. 521 of 2018 for transfer of Criminal Case No. 4076 of 2018 (Case Crime No. 1007 of 2018) State Vs. Dr. Abhipray Sharma, under Section 27/30 Arms Act, P.S. New Agra, District Agra. Hon'ble Court vide order dated 20.12.2018 directed to the District Judge, Agra as well as S.S.P., Agra to give vivid report about the incident in question and on the factum of the case that no counsel is coming forward to give any legal assistance to the applicant. In compliance whereof, a report dated 04.01.2019 based on the report of the Officer Incharge/1st Additional District Judge, Agra dated 03.01.2019 vide letter No. 75/XV dated 04.01.2019 was submitted to the Hon'ble Court for kind perusal.
It reveals that enmity between Dr. Abhipray Sharma son of Sr H.S. Bairagi, Sri Mohan Dixit on one hand and Sri Ashutosh Shrotriya, Advocate, Sri Rajeev Singh @ Tata son of Sri Brijpal Singh exists.
It is also pertinent to mention that vide order dated 08.02.2019 passed in Transfer Application (Criminal) No. 521 of 2018 Dr. Abhipray Sharma Vs. State of U.P. and others, Hon'ble Court has transferred the Criminal Case No. 4076 of 2018 (Case Crime No. 1007 of 2018, State Vs. Dr. Abhipray Sharma, under Section 27/30 Arms Act, P.S. New Agra, District Agra to Noida."
A perusal of the letter dated 12.09.2018 of the Chief Judicial Magistrate, Agra would indicate that while he was doing his judicial work, post lunch, at about 3 pm, 30-40 advocates had collected outside his court room and they began shouting. They were not allowed to enter the court premises by the Court Nazir and the security guard. He has written that according to information received by him from the Court Nazir, the gathering was on account of the presence of the accused Mohan Dixit in the Court room. The Chief Judicial Magistrate reported that the court proceedings was disturbed. But he did not provide any information as regards the name and identity of the lawyers who had indulged in shouting outside the court hall resulting in disturbance in the court proceedings. He states that reportedly there was a gathering of 30-40 lawyers.
It appears from the record that on the basis of the report of the Chief Judicial Magistrate, Agra dated 12.09.2018, the District Judge, In-charge, Agra sent a letter to the Registrar General, High Court, Allahabad dated 13th September, 2018. In this letter dated 13th September 2018, there is no disclosure of the names of any of the lawyers who had shouted and had disturbed court proceedings.
During the course of arguments it transpired that the incident was reported as a criminal case. Sri Pankaj Kumar Shukla, learned counsel for the applicants, has informed us that a Crl. Misc. Writ Petition No. 30493 of 2018 was filed in this Court to ensure proper investigation by the police in respect of the above incident. He has also passed on copy of the order dated 20.02.2019 passed in Crl. Misc Writ Petition No. 30493 of 2018. The order dated 20.02.2019 passed in Crl. Misc. Writ Petition No. 30493 of 2018 is extracted below:-
"Heard learned counsel for the petitioner; learned A.G.A. for the respondents 1, 2 and 3; and perused the record.
The instant petition seeks command upon the respondent to conduct investigation of Case Crime No.1057 of 2018, under Sections 147, 148, 149, 307, 308, 323, 326, 506, 427 IPC, P.S. New Agra, District Agra, in fair and impartial manner.
By order dated 09.01.2019, we had directed the Senior Superintendent of Police, Agra to carry out the investigation himself and to take help of the CCTV footage available with the District Court, Agra as the incident reportedly occurred near/within the court premises.
The Senior Superintendent of Police, Agra has filed his affidavit today. In paragraph no.6 of the affidavit he has stated that the CCTV footage of the place where the incident had taken place could not be provided by the court officials as they had given a letter that on the date concerned, all six CCTV cameras that covered the court of Chief Judicial Magistrate, where the incident took place, were not in working condition. The letter of the Committee has been brought on record as Annexure No.2 to the affidavit which is at page 8 thereof. It has been stated by S.S.P., Agra that the investigation was carried out by him and that a charge sheet has been submitted against six named accused persons for offences punishable under Sections 147, 323, 506, 427 IPC.
The learned counsel for the petitioner states that the police has, till date, not arrested the accused persons and the offences were much more serious than for which charge sheet has been submitted.
Attention of the Court has been invited to the radiologist report, which is at page 49 of the paper book, to demonstrate that a fracture of 5th metacarpal bone was noticed.
Learned A.G.A. has pointed out that from the initial medical examination reports of the victim the fracture of metacarpal bone is not noticed although in the initial medical report, which is at page 24 of the paper book, swelling on the left hand was noticed with difficulty in moving finger. It has been submitted that the X-ray report on which reliance has been placed by the petitioner is of a much later date, that is about a month after the incident, and, therefore that could not be relied for the purposes of framing charge.
Be that as it may, as the police has already submitted a charge sheet, investigation is no longer pending and, therefore, no further direction need be issued to the investigating agency in this petition. If the petitioner has any grievance he may approach the court concerned. Otherwise also, in case of a trial, the court is free to form its opinion as regards the offences committed on the basis of evidence led. However, since the charge sheet has already been submitted by the police, no further action is required at this end.
The petition is disposed off. "
From a perusal of the above order, it appears that CCTV cameras that were installed in the court premises were not in a working condition on that day and therefore there appears no CCTV footage of the incident.
We have considered the rival submissions and have taken a conspectus of the facts. We find that the report submitted by the Chief Judicial Magistrate, Agra does not disclose the name of any of those 30-40 advocates who had gathered outside his court and had indulged in shouting. The follow up report of the District Judge also does not disclose the names of those advocates. From the order dated 20.02.2019 passed in Crl. Misc. Writ Petition No. 30493 of 2018 as also from the para-wise comments submitted pursuant to order dated 30.03.2019, it appears that CCTV footage of the incident is not available. Further, we find that in the report of the District Judge, Agra it has been mentioned that there exists enmity between the parties. Moreover, we find that there is no sufficient material available, at least shown to us, to enable us to conclude that the earlier reported incidents as well as the incident dated 12.09.2018 occurred inside a court hall. Though it seems to have taken place in court campus. Under the circumstances, we are of the view that it would not be appropriate for us to continue with these proceedings as the exercise may become a witch hunt and an instrument of oppression.
Consequently, the notices are discharged. The record shall be consigned.
Order Date :- 24.7.2019 Sunil Kr Tiwari