Bombay High Court
Housing Development Finance ... vs Sureshchandra V. Parekh And 2 Others on 31 January, 2019
Equivalent citations: AIRONLINE 2019 BOM 70
Author: N.J. Jamadar
Bench: K.K. Tated, N. J. Jamadar
1 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CONTEMPT PETITION (CRIMINAL ) NO. 1 OF 2014
Housing Development Finance ]
Corporation Limited ]
Incorporated under the provisions ]
of the Companies Act, 1956 and ]
having its registered office at ]
Ramon House, H.T. Parekh Marg, ]
169, Backbay Reclamation, ]
Churchgate, Mumbai- 400 020. ].. Petitioner
Versus
1. Sureshchandra V. Parekh ] Respondents
of Ahmedabad, Indian ]
Inhabitant, residing at 6, Abhisajni ]
Society, Khanpur, Ahmedabad, ]
Gujarat 380 001. ]
]
2. Nila S. Parekh, ]
of Ahmedabad, Indian Inhabitant, ]
residing at 6, Abhisajni Society, ]
Khanpur, Ahmedabad, ]
Gujarat 380 001- Discharged ]
]
3. State of Maharashtra ]
Through the Ministry of Law and ]
Judiciary having his office at ]
Mantralaya, Mumbai - 400 020. ].. Respondents
Mr. Vineet Naik, Senior Advocate a/w. Ms. Madhupreetha Elango and
Mr. Aayesh Gandhi I/b Wadia Ghandy & Co. for petitioner.
Mr.Sureshchandra Parekh, respondent No.1 in-person.
Mr.Uday Warunjikar, Amicus Curiae.
CORAM : K.K. TATED &
N. J. JAMADAR, JJ
Shraddha Talekar PS 1
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2 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc
ARGUMENTS WERE HEARD ON : 13TH DECEMBER 2018
JUDGMENT PRONOUNCED ON : 31ST JANUARY 2019
JUDGMENT (PER N.J. JAMADAR, J.) :
1 The petitioner has invoked the contempt jurisdiction of this Court. 2 The substance of the petition is as under :-
a] The petitioner is a public limited company registered under the Companies Act, 1956. Respondent Nos.1 and 2, the husband wife-duo, hold equity shares of the petitioner.
Respondent Nos.1 and 2, by taking undue advantage of their capacity of a miniscule equity shareholders of the petitioner-
company, have been harassing the petitioner and its office bearers by instituting false, vexatious and frivolous proceedings, before various Courts/Tribunals, containing untrue, reckless, wanton and scandalous allegations therein.
One of such cases was Criminal Case No.86/SW/2010, lodged by respondent No.1 before the learned Additional Chief Metropolitan Magistrate, 86th Court, Esplanade against the petitioner and 19 others. The petitioner preferred Criminal Application No. 30 of 2013 under Section 482 of the Code of Criminal Procedure, 1973 seeking quashment of Criminal Case No.86/SW/2010. A learned Single Judge of Shraddha Talekar PS 2 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 :::
3 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc this Court, by order dated 6 th February 2013, was pleased to admit the said Criminal Application and grant ad-interim relief.
b] Respondent No.1 filed an application on 13 th April 2013 in the said Criminal Application No. 30 of 2013 to vacate the said ad-interim relief. In the said application, it is alleged that, the petitioner made scandalous allegations against the Hon'ble Judges of this Court. Likewise, in the written submissions filed in the said application on 29 th April 2013 by respondent Nos.1 and 2, again allegedly attributed motives to the Hon'ble Judges of this Court for passing orders in favour of the petitioner. Thirdly, respondent Nos.1 and 2, in connection with the another Contempt Petition No.334 of 2012 and Contempt Petition No.287 of 2013, in CLB Company Petition No.10 of 2010, between the same parties, submitted an application to the Hon'ble the Chief Justice, Bombay High Court and therein made allegations against the learned Single Judge, who had passed the order of ad-interim relief in the aforesaid Criminal Application No. 30 of 2013, and sought transfer of the said Contempt Petition from the Court presided over by the said learned Single Judge. Lastly, Shraddha Talekar PS 3 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 4 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc it is stated that the respondent Nos.1 and 2 have not even spared the Advocates who represented the petitioner and its office bearers and made reckless and scandalous allegations against them by addressing false and frivolous communication to various authorities including the Bar Council of India, on 1st March 2013.
c] In the light of the aforesaid alleged contemptuous conduct on the part of respondent Nos.1 and 2, the petitioner sought the consent of the learned Advocate General, State of Maharashtra, vide letter dated 4th February 2014. The learned Advocate General, by his communication dated 15 th April 2014, gave consent for initiation of the contempt proceedings under Section 15(1)(b) of the Contempt of Court Act, 1971 (hereinafter referred to as 'the Act'). Armed with the said content, the petitioner has preferred this petition. 3 It may be contextually relevant to note the reasons, which weighed with the learned Advocate General to accord the consent, at this stage itself. Paragraph 2 of the communication by the learned Advocate General dated 15th April 2014 is relevant and thus extracted below :-
Shraddha Talekar PS 4 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 :::
5 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc "2. I hereby grant consent under Section 15(1)(b) of the Act :
(i) On a perusal of pleading and the letters addressed by the Alleged Contemnors it appears that they have made frivolous allegations, filed false complaints and issued illegal threats.
(ii) The Alleged Contemnors have cast unwarranted defamatory aspersions upon the integrity of Judges of the Bombay High Court. Such allegations amount to scandalizing and lowering the authority of the Bombay High Court. The allegations pertaining to the Judges of the Bombay High Court contained in the Criminal Application No. 245 of 2013 dated 13th April 2013 and in the Written Submissions dated 29 th April 2013 in that application and in the letter dated 9 th September 2013 addressed to the Hon'ble Chief Justice scandalize and lower the authority of the Bombay High Court and prima-facie constitute criminal contempt.
(iii)The threat of criminal proceedings and allegations against the Advocates made in the letter dated 1st March 2013 and Affidavit dated 30th August 2013 also prima facie amount to an attempt to intimidate them to deter them from appearing for their clients and amount to obstruction of or interfere with or tend to interfere with the administration of justice and interfere with or tend to interfere with the due course of judicial proceedings and prima facie constitute criminal contempt."
4 To make the narration of facts complete, it may be apposite to immediately notice the contents of the application, written submissions and application to the Hon'ble Chief Justice, which were construed to have the propensity to scandalize and lower the authority of the Bombay High Court.
(A) In Criminal Application No.245 of 2014 dated 13th April 2013 filed by respondent No.1, the contents in following paragraphs, inter-alia, Shraddha Talekar PS 5 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 6 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc were alleged to be of contemptuous nature. Paragraph Nos. 7 and 8 read as under :-
"7 Due to HDFC/HDFC Bank with many Judge/s made conspires with harassments of my/my family members by torturing Mentally and physically due to save HDFC Rs. 10000 Crores FRAUD with HDFC Bank (both Co.'s) but HDFC, its Directors, Officers who had filed Criminal Application No. 27 TO 45/2003 in Bombay High Court in above application, HDFC, its Directors, officers hide above facts, by affidavit/s on oath/s and suppressing material facts. Exhibit No.A. 8 HDFC got justice by money power only? False and Fabricated Consumer forum judgment filed in judicial proceeding for get justice in his favour, concocted, false evidence produced in complaint, in Cr.P.C.200, Exam-in-Chief and in P.W.No.1 to 4 giving Contradictory statements but HDFC, its Directors, officers who had filed Criminal Application No. 27 TO 45/2013 in Bombay High Court in above application, HDFC + 18 hide above facts, by affidavit/s on oath/s and suppressing material facts. EXHIBIT NO.54."
(B) In the written submissions dated 29th April 2013 submitted by respondent No.1, the petitioner took umbrage to the following narrations :-
"1...........
[E] SOME BOMBAY HIGH COURT JUDGES ARE HELPING TO SAVE HDFC/BANK Rs. 10000 CRORES FRAUD SO HDFC GOT JUSTICE BY UN DUE ADVANTAE OF LEGAL SYSTEMS ONLY.
2 ...............
[A] ON 6/2/13 ADVOCATE WADIA GHANDY AMIT DESAI HAD VIVEN WRONG & ILLEGAL WRONG AND ILLEGAL RECORDED STATEMENTS TO HON'BLE BOMBAY HIGH COURT SIMILAR ALLEGATION FOR AHMEDABAD CRIMINAL CASE AND BOMBAY CRIMINAL CASE BY HIDING CORRECT FACTS AMIT DESAI Shraddha Talekar PS 6 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 7 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc MISGUIDE HON'BLE COURT SO COURT HAD PASSED FOLLOWING ORDER/S IN HDFC + 18 FAVOURS IN CRIMINAL APPLICATION NO. 27 TO 45 IN HDFC + 18 FLAVOURS, EXIBIT NO. D, E, B, BB.
[7] Hon'ble Court passed order in favour of HDFC and persons due to Wadia Ghandy & Co. Amit Desai had disclose wrong and illegal details to Hon'ble Bombay High Court so Hon'ble Court had passed WRONG order in favour of HDFC LTD., and 18 persons in Criminal Application No. 27 to 45 ADMIT DESAI STATEMENT WAS RECORDED BY HON'BLE COURT ETC. EXHIBIT NO. 8, My Petition, BB.". "
(C) In the application submitted on the administrative side dated 9th September 2013, seeking transfer of Contempt Petition Nos.334 of 2012 and 287 of 2013, in CLB Company Petition No.10 of 2010, the following portion is alleged to be contemptuous :
"[2] WE HAVE NO TRUST IN HON'BLE JUSTICE RANJITBHAI MORE, AS HE HAS PASSED WRONG, ILLEGAL ORDER AGAINST HDFC LTD., BY WRONGLY APPROVED STAY IN POLICE INQUIRY IN APL. NO. 27/13 TO 45/12 ON 6/2/13 WITHOUT MERRIT OF THE CASE AND WITHOUT HEARD MY SINGLE WORD OR WRITTEN SUBMISSION ETC. AND ON 1/3/13, WE HAD SENT NOTICE TO WADIA AMIT DESSAI, ADVOCATES UNDER I.P.C.S. 406, 420, 114 + CO. ACT S. 6/26 ETC."
5 As regards the allegations against the Advocates and the threat of criminal proceedings against them so as to constitute an attempt to intimidate them and thus cause an obstruction to or interference with the administration of justice and tendency to interfere with due course Shraddha Talekar PS 7 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 8 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc of judicial proceedings, the learned Advocate General relied upon the statements and assertions in the letter of respondent Nos.1 and 2, dated 1st March 2013, wherein allegations were made against the Advocates who represented the petitioner, and the additional affidavit filed by the respondents in Criminal Application No. 30 of 2013 and connected matters wherein the said allegations were reiterated. 6 On 9th March 2015, a Division Bench of this Court, upon perusal of the Contempt Petition and the accompanying annexures, recorded a prima-facie opinion that the offence under the Act were disclosed and, therefore, directed that notice be issued to respondent Nos.1 and 2 to show cause as to why they should not be punished for criminal contempt. Accordingly, a show cause notice was issued to respondent Nos.1 and 2 along with the copies of the Contempt Petition and the documents annexed thereto.
7 Respondent Nos.1 and 2 appeared. On 7 th December 2016, a Division Bench of this Court was pleased to discharge the contempt notice against respondent No.2-Mrs. Nila Parekh as it was found that the correspondence was essentially made by respondent No.1. The Court further directed that an Amicus Curiae be appointed to assist the Court to understand the grievance of respondent No.1 was directed to deposit Shraddha Talekar PS 8 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 9 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc an amount of Rs.10,000/- towards the travelling expenses of respondent No.1. Thus, the petition proceeded against respondent No.1 alone. 8 By order dated 14th March 2017, upon the choice being made by respondent No.1, Shri Uday Warunjikar, Advocate, practicing in this Court, came to be appointed as Amicus Curiae on behalf of respondent No.1 with a view to assist the Court.
9 It is pertinent to note that by 2 nd May 2017, respondent No.1 had filed four affidavits in reply to the Contempt Petition, i.e., affidavits dated 2nd December 2016, 20th January 2017, 4th April 2017 and 24th April 2017, respectively. Thus, the Court ordered on 2 nd May 2016 that no further affidavit by way of reply shall be filed by respondent No.1. On the same day, the learned Amicus Curiae, on instructions, made a statement that respondent No.1 desires to withdraw the allegations made against the Judges of this Court and tender an unconditional apology and sought time to file an affidavit to that effect. 10 On 21st June 2017, respondent No.1 did tender an affidavit. The tenor of the affidavit is that it was filed without prejudice to the contentions of respondent No.1. Secondly, it was filed pursuant to the orders passed by the Court on 2nd May 2013. Thirdly, it contained a bald Shraddha Talekar PS 9 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 10 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc affirmation that respondent No.1 thereby withdrew the allegations made against the Judges of this Court and tendered unconditional apology. Evidently, the affidavit was bereft of voluntariness and a genuine repentance and remorse for the allegations.
11 In the aforesaid backdrop, the proceeding was set down for hearing.
12 On 28th August 2018, the matter was heard by a Division Bench (Coram : A.A. Sayed and S.C. Gupte, JJ) and remained Part-heard as respondent No.1 sought an adjournment. Another Division Bench (Coram : A.A. Sayed and S.S. Shinde, JJ) heard the petition on 19 th October 2018. Respondent No.1 did not appear on that day and hence an adjournment was sought.
13 With the change in assignment, the matter came to be assigned to this Bench. We have heard Shri Vineet Naik, learned Senior Advocate for the petitioner, respondent No.1 in-person and Advocate Uday Warunjikar, Amicus Curie at length on 12 th December 2018 and 13th December 2018. At the request of respondent No.1, time was granted till 5th January 2019 to file written submissions. Accordingly, respondent No.1 has filed written submissions. Petitioner has also tendered Notes of Shraddha Talekar PS 10 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 11 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc Arguments.
14 Before we advert to deal with the hub of the controversy, that is, whether the statements and assertions of respondent No.1 constitute the criminal contempt, within the meaning of Section 2(c) of the Act, it may be appropriate to deal with a preliminary objection to the proceeding on account of the alleged breach of procedure, prescribed in the Contempt of Courts (Bombay High Court) Rules, 1994, raised by the learned Amicus Curiae.
15 The learned Amicus Curiae urged that a serious procedural defect occurred in the instant proceedings as the inquiry has not been conducted in the manner prescribed by Rule 1049 of the the Contempt of Courts (Bombay High Court) Rules, 1994. Rule 1094 reads as under :-
"1049. (a) Any person charged with contempt, may file an Affidavit in support of his defence on the date fixed for his appearance or on such other date as may be fixed by the Court in that behalf.
(b) If such person refuses to plead guilt to the charge, his plea shall be recorded and the Court may, in its discretion, convict him thereon.
(c) If such person refuses to plead or does not plead, or claims to be tried or the Court does not convict him on his plea of guilt, it may determine the matter of the charge either on the Affidavits filed or after taking such further evidence as it deems fit."Shraddha Talekar PS 11 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 :::
12 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc 16 The learned Amicus Curiae laid emphasis on the provisions of Clause (b) above and urged that the failure to frame a formal charge and record the plea of respondent No.1 vitiates the entire proceeding. Since no formal charge was framed, it cannot be said that respondent No.1 was given an effective opportunity of hearing. 17 The submission appears attractive at the first blush. However, when subjected to close scrutiny, it falls through. It is pertinent to note that the object of the Rules is to provide an effective opportunity of hearing to the respondent No.1 and sufficiently indicate to him the case which he is called upon to meet. In the instant case, show cause notice served upon respondent No.1 contains the relevant part of the order passed by this Court whereby a prima-facie view was recorded, and the entire Contempt Petition was annexed to the show-cause notice. Respondent No.1 was thus made aware of the charge which he was required to meet.
18 It is pertinent to note that allegations of contempt emanate from the statements which respondent No.1 has made in the Criminal Misc. Application No. 245 of 2013, in the written submissions filed in the said proceedings and a transfer application submitted by respondent No.1. Moreover, respondent No.1 filed as many as four affidavits in reply. Shraddha Talekar PS 12 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 :::
13 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc Respondent No.1 never contended that he was not aware of the contents which were alleged to be contemptuous. On the contrary, the respondent No.1 categorically denied that the statements in the applications and affidavits constitute contempt. 19 It is imperative to note that respondent No.1 was not prejudiced in his defence though he appeared in-person. Not only an Amicus Curie, of the choice of respondent No.1, was appointed but the Court even directed the petitioner to deposit Rs. 10,000/- for the traveling expenses of respondent No.1. In these circumstances, the submission of the learned Amicus Curiae that for want of formal charge the respondent No.1 was prejudiced in his defence, does not appear to be fairly sustainable.
20 Even on a legal premise, the aforesaid Rule does not, in terms, warrant a formal charge to be framed. Moreover, even under Section 464 of the Code of Criminal Procedure, any error or omission to frame a charge does not vitiate the trial, if there is no failure of justice. 21 In this context, a useful reference can be made to a recent Full Bench judgment of this Court of this Court in case of Bombay High Shraddha Talekar PS 13 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 14 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc 1 Court on its own Motion Vs. Ketan Tirodkar wherein, the nature of contempt proceedings and the procedure therefor were explained in the following words :-
"6 Pertinently these very materials were referred to in a notice to show cause addressed to the respondent which has been duly served. Upon its receipt, there is absolutely no iota of doubt that the respondent is aware of what he has to meet. In fact, he has not questioned the procedure adopted, particularly insofar as SRP 3/90 SMCP1.17.doc issuance and service of a show cause notice. He was aware of the charge that he has to meet and, therefore, he purports to deal with it by filing affidavits-in- reply.
7 It is such a person we are dealing with. As the Hon'ble Supreme Court has observed several decades back in the case of Pritam Pal Vs. High Court of Madhya Pradesh 1993 Supp (1) SCC 529 that the maxim : 'salus populi suprema lex', that is "the welfare of the people is the supreme law" adequately enunciates the idea of law. This can be achieved only when justice is administered lawfully, judicially without fear or favour and without being hampered and thwarted and this cannot be effected unless respect for it is fostered and maintained. A wrong doer like the respondent who puts himself on occasions and at times on par with advocates can hardly be heard to complain. He is mindful of the fact that the proceedings in contempt have to be conducted by following a summary procedure. The power of this Court to punish for contempt is not restricted or trammeled by ordinary legislations. This Court derives the same from Article 215 of the Constitution of India. The inherent power thus derived is elastic, unfettered and not subjected to any limit. In Pritam Pal SRP 4/90 SMCP1.17.doc and later cases, it has been adequately and amply clarified by the Hon'ble Supreme Court that so long as the gist of the specific allegations is made clear or otherwise the contemnor is aware of the specific allegations, it is not always necessary to formulate the charge in a a specific allegation. The procedure under the Rules, therefore, does not offend the principles of natural justice. The Judge has to remain in full control of the hearing of the case and he must be able to take steps to restore order as early and quickly as possible. The 1 2019 (1) Mh.L.J. 252 Shraddha Talekar PS 14 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 :::
15 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc degree of precision with which the charge may be stated depends upon the circumstances of each case. The time factor is crucial. Dragging of contempt proceedings means a lengthy interruption to the proceedings which, at times, paralyzes the Court and indirectly impedes the speed and efficiency with which justice is administered. So long as the contemnor's interests are adequately safeguarded by giving him an opportunity of being heard in his defence, then, the procedure followed cannot be faulted. This is the summary of the salutary principles laid down by the Hon'ble Supreme Court and at the same time, it has cautioned that the power should be used sparingly. We have, but gone by this prescription alone." 22 The full Bench of this Court has observed in clear and explicit terms that so long as the gist of the specific allegations is made clear or otherwise the contemnor is aware of the specific allegations, it is not always necessary to formulate the charge. The degree of precision with which the charge may be stated, varies according to the circumstances of the case and so long as the contemnor's interests are adequately safeguarded by giving him an effective opportunity of hearing, the procedure followed cannot be faulted at.
23 In the backdrop all the facts, elaborately narrated above, it becomes abundantly clear that respondent No.1 was provided an effective opportunity of hearing in all its facets, namely, adequate opportunity to put-forth his defence, representation by a competent advocate and even financial assistance to meet the travelling expenses. Thus, we are not persuaded to accede to the submission of the learned Shraddha Talekar PS 15 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 16 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc Amicus Curiae that the proceedings are vitiated on account of breach of procedure prescribed in Rule 1049 of Rules 1994 24 Though the genesis of the commercial dispute between the petitioner and respondent Nos.1 is not significant for determination nor it would influence this Court, yet, we deem it appropriate to briefly note the same to properly appreciate the defence put-forth by respondent No.1.
25 It appears that respondent Nos.1 and 2 were holding 10 equity shares of the petitioner under one folio : N - 41561. There was a request to split the said share certificates into 10 separate share certificates of Rs.10/- each. A further request to transfer 8 shares was made. It was allegedly realized by the petitioner that the request for transfer of shares was not genuine as the shares were sought to be transferred to a transferee, who appeared to be different combinations of the name of one and the same person, which is shown in the following table, in the petition :-
Certificate No. of Name of the transferee Transfer Deed No. shares 399335 1 N.S. Parekh 13377 399336 1 Nila S. Parekh 13378 399337 1 Nilaben Parekh 13379 Shraddha Talekar PS 16 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 17 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc 399338 1 Nila Parekh 13380 399340 1 Nilaben Sureshbhai 13381 399341 1 Nila Sureshbhai 13382 Total 7 Nilaben S. Parekh 13383
26 Thus, a dispute arose between the petitioner and respondent No.1. The dispute escalated as in the year 1994, when the petitioner promoted HDFC Bank Limited and offered shares HDFC Bank Limited to the existing shareholders of the petitioner on preferential basis. Under the said Scheme, a shareholders holding 1 to 10 shares were offered a maximum of 100 shares. Since respondent Nos. 1 and 2 were holding 10 shares of the petitioner, under one folio, before the attempted transfer of shares (which was not approved by the petitioner), they would have been entitled to 100 shares only. Respondent No.1, on the other hand, asserts that since there were 7 different folios, they should have been allotted 700 shares, i.e., 100 shares of HDFC Bank per folio. This dispute spiralled in to a number of proceedings between the parties. 27 The defence of respondent No.1 as set out in the four affidavits in reply and the written submissions tendered, revolve around the aforesaid dispute. Respondent No.1 alleges fraudulent action on the part of the petitioner so as to deprive him of the allotment of 700 shares. Allegations of alleged fraud in HDFC/HDFC Bank Limited in relation to Shraddha Talekar PS 17 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 18 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc other transactions were also made.
28 With regard to the aforesaid contentions, which cast aspersions on the Judges of this Court and their tendency to create an impression that the Judges of this Court pass orders influenced by the commercial might of the petitioner, the stance of respondent No.1 is ambivalent. It is categorically contended that respondent No.1 has not committed any contempt. At one breath respondent No.1 contends that in spite of flat denial, if the Hon'ble Court believes, then he tenders an unconditional apology. At the other breath, respondent No.1 adds a rider that the apology may not be construed as an admission of guilt as he has not committed any criminal contempt. This is the gist of the defence of respondent No.1.
29 It is true in the offending portions in the Criminal Application No. 245 of 2015 dated 13th April 2013, the written submissions dated 13 th April 2013, extracted above, the thrust of the allegations is against the petitioner, that is, the petitioner has made false and contradictory statements and obtained orders of the Court with a view to further harass respondent Nos.1 and 2. Yet, there is a definite assertion to the effect that the Judges of this Court have conspired with the Shraddha Talekar PS 18 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 19 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc petitioner/HDFC Bank and so as to harass respondent No.1 and his family members. In paragraph 8 of the Criminal Application No.245 of 2013, an interrogative statement is made to the effect that "HDFC got justice by money power only". Whereas, in the written submissions dated 29 th April 2013, respondent No.1 has alleged that some Bombay High Court Judges are helping the petitioner/HDFC Bank (to suppress 10,000 crores fraud). Again an interrogative statement was made, i.e., 'HDFC got justice by undue advantage of legal system only'. Lastly, in paragraph No.7, it is alleged that "the Hon'ble Court passed order in favour of HDFC & 18 other persons due to Wadia Ghandy & Co." The rest of the allegations in the said paragraph are directed against Shri Amit Desai. 30 If the aforesaid offending statements are properly constructed, they unmistakably indicate respondent No.1 intended to impute that the order in question passed by the learned Single Judge on 6 th February 2013 was the result of the money power of the petitioner. Respondent No.1 had no compunction in alleging that the Judges of this Court conspired with the petitioner to harass him. He went on to hurl the accusation that some Judges of this Court helped the petitioner- HDFC /Bank to suppress the fraud to the tune of Rs.10,000 crores and that the petitioner got justice by taking undue advantage of the legal Shraddha Talekar PS 19 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 20 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc system. The general impression that respondent No.1's statement would create is that the weight of pursue of a litigant like HDFC would influence the justice dispensation system, and the system operates in favour of wealthy persons at the cost of the have-nots. In our view, this is a grave and scurrilous attack on the institution. 31 Before we proceed to deal with the submissions of the learned Amicus Curiae, who endeavoured his best to demonstrate that the aforesaid statements and the other material pressed into services against respondent No.1 does not amount to criminal contempt, we deem it appropriate to note the legal propositions which govern the contempt jurisdiction of the Court.
32 A constitution Bench of the Supreme Court in the case of Shri Batrakanta Mishra Vs. The Registrar of Orissa High Court & Anr. 2 wherein a judicial Officer was hauled for contempt for having made certain statements in the petition and appeal memo, expounded the key element which inform the decision making, in this arena. The Supreme Court summed up the approach to be adopted in the following words :-
"93 To wind up, the key word is "justice", not "judge"; the key- note thought is unobstructed public justice, not the self- defence of a judge; the corner-stone of the contempt law is the-
2 (1974) 1 SCC 374 Shraddha Talekar PS 20 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 21 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc accommodation of two constitutional values-the right of free speech and the right to independent justice. The ignition of contempt action should be substantial and mala fide interference with fearless judicial action, not fair comment or trivial reflections on the judicial process and personnel."
33 In the same case, the Supreme Court explained the import of the word "scandalization" which is a species of 'criminal contempt' in the following words :-
"49 Scandalization of the court is a species of contempt and may take several forms. A common form is the vilification of the Judge. When proceedings in contempt are taken for such vilification the question which the court has to ask is whether the vilification is of the Judge, as a Judge. See Queen v. Gray(1) or it is the vilification of the Judge as an individual. If the latter, the Judge, is left to his private remedies and the court has no power to commit for contempt. If the former, the court will proceed to exercise the jurisdiction with scrupulous care and in cases which are clear and beyond reasonable doubt. Secondly, the court will have also to consider the degree of harm caused as affecting administration of justice and, if it is slight and beneath notice, courts will not punish for contempt. This salutary practice, is adopted by section 13 of the Contempt of Courts Act, 1971. The jurisdiction is not intended to uphold the personal dignity of the Judges. That must rest on surer foundations. Judges rely on their conduct itself to be its own vindication."
34 In case of State of Madhya Pradesh Vs. Revashankar3 in the context of the scurrilous and vilificatory allegations against the Courts and Judges, the Supreme Court explained the reason for punishing the contempt of such kind :-
"......It was also pointed out that there were innumerable ways by which attempts could be made to hinder or obstruct the due 3 AIR 1959 SC 102 Shraddha Talekar PS 21 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 22 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc administration of justice in courts and one type of such interference was found in cases where there was an act which amounted to " scandalising the court itself ": this scandalising might manifest itself in various ways but in substance it was an attack on individual Judges or the court as a whole with or without reference to particular cases, causing unwarranted and defamatory aspersions upon the character and ability of the Judges. Such conduct is punished as contempt for the reason that it tends to create distrust in the popular mind and impair the confidence of the people in the courts which are of prime importance to the litigants in the protection of their rights and liberties."
35 In the case of Perspective Publications (P) Ltd. & Anr. Vs. State of Maharashtra 4, the Supreme Court after reviewing the entire case law formulated the following propositions :-
"17 There can be no manner of doubt that in this country the principles which should govern cases of the present kind are now fully settled by the previous decisions of this Court. We may restate the result of the discussion of the above cases on this head of contempt which is by no means exhaustive:-
(1 ) It will not be right to say that committals for contempt for scandalizing the court have become obsolete.
(2) The summary jurisdiction by way of contempt must be exercised with great care and caution and only when its exercise is necessary for the proper administration of law and justice.
(3) It is open to anyone to express fair, reasonable and legitimate criticism of any act or conduct of a judge in his judicial capacity or even to make a proper and fair comment on any decision given by him because "justice is not a cloistered virtue and she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of 4 AIR 1971 SCC 1 Shraddha Talekar PS 22 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 23 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc ordinary men".
(4) A distinction must be made between .a mere libel or defamation of a judge and what amounts to a contempt of the court.
The test in each case would be whether the impugned publication is a mere defamatory attack on the judge or whether it is calculated to interfere with the due course of justice or the proper administration of law by his court. It is only in the latter case that it wilt be punishable as Contempt.
(5 ) Alternatively the test will be whether the wrong is done to the judge personally or it is done to the public. To borrow from the language of Mukherjea, J. (as he then was) (Brahma Prakash Sharma's case, 1953 SCR 1169 the publication of a disparaging statement will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the court's administration of justice or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties." 36 In the case of Rachapudi Subba Rao Vs. The Advocate General, Andhra Pradesh 5 it was, inter-alia, enunciated that unfounded imputation of mala fides, bias, prejudice or ridiculing the performance of a Judge or casting aspersions on his integrity is always considered to mean scandalising the Court and lowering the authority of his Court by bringing him and his office into disrespect and disrepute. Vilification of the Judge, even in administrative matters or decided judicial matters, may amount to "criminal contempt" under sub-clause (i) of section (2) 5 AIR 1981 SC 755 Shraddha Talekar PS 23 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 24 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc
(c) as it lowers or tends to lower the authority or dignity of the Court by undermining public confidence in the capacity of the Judge to met out evenhanded and impartial justice.
37 In the backdrop of aforesaid legal position, it is evident that the Courts exhibit a generous latitude in the matter of initiating and taking action for contempt. Only in those rare cases, where the statements have the propensity to undermine the public confidence in the administration of justice, in which the public have a profound, real and abiding interest, the Courts proceed to punish for contempt. The criticism of judgments and Judges, even when found to be lacking in sobriety, fairness and bonafide is not considered as contempt. But when the vilificatory statements have the impact of brining the institute into disrepute, and foster an impression that the administration of justice is not according to law but for extraneous consideration, the Courts have a duty to intervene lest it would erode the very faith of the citizens in the administration of justice.
38 The learned Amicus Curiae urged that Criminal Application No. 245 of 2013 and the affidavits filed therein, of which the aforesaid offensive statements form part, are required to be read as whole. According to him, if the application and the affidavits are read as a Shraddha Talekar PS 24 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 25 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc whole, it unmistakably indicates that the objective of respondent No.1 was to get the interim order vacated. The plain prayer of respondent No.1 was to allow the criminal prosecution of the petitioner and other 19 to proceed, in accordance with law. Thus, respondent No.1 cannot be said to have had the intent to scandalize the Court. 39 Undisputedly, the said application and notes of written submissions therein were filed for vacating the interim order. However, we find it difficult to accede to the submission of the learned Amicus Curiae that only the prayer of respondent No.1 deserves cognizance. The offending statements, extracted above, appear per-se scandalous. Respondent No.1 was within his rights to make allegations against the petitioner. But to suggest that the order dated 6 th February 2013 was the outcome of financial prowess of the petitioner and that the Judges of this Court conspired with the petitioner to cause harassment of respondent No.1 and suppressed the unearthing of the alleged fraud was totally uncalled for.
40 The learned Amicus Curiae then urged that the respondent No.1 has merely asked questions. (HDFC got justice by money power only?; and HDFC got justice by undue advantage of legal system only?). Thus, the Shraddha Talekar PS 25 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 26 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc learned Amicus Curiae would urge that respondent No.1 cannot be said to have attributed any motives and imputations. This submission was also canvassed by respondent No.1 in-person.
41 What is of paramount significance is intent with which these statements were made. The form and the choice of words and punctuation marks may have bearing but not of decisive significance. Merely putting interrogatory marks after making scurrilous positive statement, would not absolve the author of those statements from the consequences. This leads to further questions : Were the questions bonafide? Was there a justifiable reason for putting such questions? Respondent No.1, on the basis of the material on record, has not been able to demonstrate that there was any reason, much less justifiable, for making aforesaid vilificatory statements.
42 The third submission of the learned Amicus Curiae, however, carries some substance. As regards the statements made in the application, seeking transfer of the Contempt Petition No. 344 of 2012 and 287 of 2013 in CLB Company Petition No. 10 of 2010, the learned Amicus Curiae submitted that mere assertion that a Judge has passed a wrong and illegal order and, therefore, the litigant has no trust in the said learned Judge does not amount to criminal contempt. Shraddha Talekar PS 26 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 :::
27 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc 43 The learned senior counsel Shri Vineet Naik for the petitioner joined the issue by putting forth a submission that such baseless allegations have the tendency to interfere with the due course of justice. Drawing attention to the order dated 11th October 2013 passed in the said Contempt Petitions, whereby the learned Judge directed, that in view of the said letter of respondent No.1, the matter be removed from the board of the Court over which he presides. It was urged that the baseless allegations in the application for transfer did, in fact, interfere with due course of justice.
44 We find that the aforesaid submission on behalf of the petitioner, in face of the facts on record, does not merit acceptance. We have perused the transfer application dated 9th September 2013. Apart from the assertion that as the learned Judge passed a wrong and illegal order and, therefore, respondent Nos.1 and 2 have no trust in the learned Judge, there is no further accusatory assertion therein. 45 As a proposition of law, it trite that aspersions of a serious nature made against a Judge, even in a transfer petition may amount to contempt. Under the garb of transfer petition, a party cannot be Shraddha Talekar PS 27 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 28 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc permitted to launch a scurrilous attack against, and impute improper motives to, a Judge. Nonetheless, the transfer applications, by their very nature, stand on a different footing. A little more latitude is required to be given while construing a case of contempt based on assertions in a transfer application.
6 46 In case of Gobind Ram Vs. State of Maharashtra , a Constitution Bench of the Supreme Court, observed that cases in which applications for transfer are made stand on a slightly different footing from those where a party makes allegations either inside or outside the Court of a scandalising nature imputing improper motives to the Judge trying the case. It was further observed that the nature of the allegations will have to be closely examined and so long as they do not satisfy the requirement of what may be regarded as contempt of Court no punishment can possibly be inflicted.
47 In the case at hand, since the allegations in the transfer application are restricted to the fact that respondent Nos.1 and 2 had lost trust in the learned Judge, we are unable to accede to the submission that respondent No.1 exceeded the limit, permissible under law. Thus the said statement in the transfer application is held to be not 6 (1972) 1 SCC 740 Shraddha Talekar PS 28 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 29 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc in the nature of contempt.
48 The learned Senior Counsel for the petitioner urged with a degree of vehemence that the conduct of respondent No.1 in making false and baseless allegations against all the Advocates who represented the petitioner, manifested in the form of complaint addressed to various authorities on 1st March 2013, with the sole objective of intimidating the Advocates and thereby deter them from representing the petitioner, squarely amounts to interference in the administration of justice. The affidavit sworn by respondent No.1 in the Criminal Application No. 30 of 2013 wherein the allegations against the Advocates were reiterated and they were even impleaded as party respondents, betray the intent of respondent No.1, urged the learned Senior Counsel for the petitioner. 49 Per contra, the learned Amicus Curiae would urge that the complaint made by respondent No.1 against the learned Advocates, who appeared for the petitioner, of alleged suppression of fact was to the concerned authorities. Respondent No.1 was seeking redressal of his grievance against the Advocates. If the complaint to the regulatory authorities against the professionals are construed as contempt, according to the learned Amicus Curiae, the ambit of contempt Shraddha Talekar PS 29 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 30 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc proceeding would get unnecessarily expanded and the corresponding right of the aggrieved party to seek redressal of the grievance of professional misconduct would get unjustifiably curtailed. 50 We have given careful consideration to the aforesaid submissions. We are of the view that it cannot be laid down as an immutable rule of law that in no circumstance the allegations against the Advocates of the opposite party, irrespective of the nature of the allegations, would amount to interference with the administration of justice. If the ultimate result of the accusation and imputation is that the Advocate is deterred from rendering his professional duties to the opposite party and assistance to the Court, as an officer of the Court, it may have the tendency to obstruct the due course of justice.
51 A useful reference in this context can be made to a judgment of Delhi High Court in case of H. Syama Sundara Rao Vs. Union of India & Ors.7 Wherein a after a survey of the authorities on this point, the following statement of law was made :
"19. Thus, it is crystal clear that casting aspersions and extending threats by issuing notices to the Advocate for the opposite side containing disparaging and derogatory remarks has the effect of deterring an Advocate from conducting his duties towards his client and embarrassing him in the discharge of his duties and thus amounts to contempt of court on the very 7 2007 CRI. L. J. 2626 Shraddha Talekar PS 30 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 31 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc same principles which are applicable with regard to the criticism of a judge or a judgment as in each such instance, the tendency is to poison the fountain of justice, sully the stream of judicial administration, by creating distrust, and pressurizing the advocates as officers of the court from discharging their professional duties as enjoined upon them towards their clients for protecting their rights and liberties."
52 In the case at hand, it was brought to our notice that the disciplinary proceedings which was initiated against the advocates who represented the petitioner, on the strength of the complaint made by the respondent Nos. 1 and 2, has been dismissed opining that the complainants have not made out any case for invoking jurisdiction under Section 35 of the Advocates Act 1961. It is true that some of the allegations in the complaint dated 1 st March 2013 are of disparaging nature. Yet, the tenor of the complaint is that the learned Advocates suppressed material facts from the Court and obtained interim relief. In this view of the matter, the allegations, though defamatory and vilificatory in nature, yet do not have the notoriety to interfere or obstruct the due course of justice. Thus, we are not persuaded to hold that the allegations against the Advocates in the aforesaid complaint and affidavits constitute contempt of Court.
53 The learned Amicus Curiae then urged that the Court may be persuaded to take a broad view of the matter, especially in view of the Shraddha Talekar PS 31 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 32 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc fact that respondent No.1 appeared in-person. Some latitude on account of the absence of legal counsel and the stress of litigation would be in order, urged by the learned Amicus Curiae. As respondent No.1 had no benefit of the guidance of a legal practitioner, the statements made by respondent No.1, which may appear scandalous in nature, deserve to be ignored as an expression of frustration of a litigant, submitted the learned Amicus Curiae.
54 The learned Senior Counsel for the petitioner, on the other hand submitted that respondent No.1 has pursued a consistent course of confrontation and contemptuous conduct. It cannot be said that respondent No.1 is unaware of the sanctity of judicial proceedings. Respondent No.1 has been filing proceedings after proceedings before various Courts and Tribunals.
55 To bolster up the aforesaid submission, the learned Counsel for the petitioner drew attention of the Court to the order passed by another Single Judge of this Court in Criminal Application No. 245 of 2013, dated 1st October 2013, wherein the Court recorded that despite repeated warnings given by the Court, respondent No.1 herein, was not ready to listen and thus the Court was constrained to adjourn the Shraddha Talekar PS 32 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 33 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc proceedings. The attention of the Court was invited to an order passed by the learned Member of the Company Law Board dated 19 th November 2010 wherein it is recorded that in view of the frivolous and vexatious complaint made by respondent No.1 against the learned Member of the Tribunal and the staff, he was constrained to recuse from the petitions/applications in which respondent No.1 was a party. The judgment of the Gujarat High Court in Appeal from Order No.5 of 2014, between the parties herein, dated 20 th March 2014 was also pressed into service to demonstrate the conduct and demeanor of respondent No.1 before the Court.
56 We have referred the aforesaid proceedings with a view to note that respondent No.1 is not totally uninitiated into the judicial proceedings. The respondent, by this time, it seems, gained sufficient exposure to, and knowledge about the Court proceedings and understood solemnity and sanctity attached to the Court proceedings. In this backdrop, the question that arises for consideration is, whether everything should be simply ignored for the reason that respondent No.1 appears as party-in-person.
57 The submission of the learned Amicus Curiae that the offending Shraddha Talekar PS 33 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 34 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc statements are the result of the frustration of the litigant is required to appreciated in the aforesaid backdrop. It would be impermissible to level such accusation and thereafter take shelter under the plea of frustration. A profitable reference can be made to the judgment of the Supreme Court in the case of Asharam M. Jain vs. A.T. Gupta & Ors. 8, wherein the submissions based on such contentions was negatived. The following observations are instructive in nature.
"3. There is never any risk of judicial hypersensitivity. The very nature of the judicial function makes judges sympathetic and responsive. Their very training blesses them with `insensitivity', as opposed to hypersensitivity. Judges are always seeking good reasons to explain wrong conduct. They know there are always two sides to a coin. They neither give nor take offence because they deal with persons and situations impersonally, though with understanding. Judges more than others realise the foibles, the frustrations, the undercurrents and the tensions of litigants and litigation. But, as elsewhere, lines have to be drawn. The strains and mortification of litigation cannot be allowed to lead litigants to tarnish, terrorise and destroy the system of administration of justice by vilification of judges. It is not that judges need to be protected; judges may well take care of themselves. It is the right and interest of the public in the due administration of justice that has to protected."
(emphasis supplied) 58 The learned counsel for the petitioner placed reliance upon the judgment of the Supreme Court in the case of Ila Vipin Pandya VS. 9 Smita Ambalal Patel & Anr. wherein the Supreme Court emphasized that a litigant appearing in person does not enjoy a status higher than 8 (1983) 4 SCC 125 9 (2007) 6 SCC 750 Shraddha Talekar PS 34 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 35 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc that of a lawyer arguing a case for his client. The following observations of the Supreme Court, in Paragraph 8, underscore the types of cases where the latitude provided to a party in-person is abused. They read as under :-
"8 There is yet another disturbing feature of this case which needs to be highlighted. We must, at the outset, emphasize that a litigant appearing in person does not enjoy a status higher than that of a lawyer arguing a case for his client. We are also aware that such a litigant is nevertheless given extra consideration by the court for several justifiable reasons; first, the torturous and cumbersome court procedures are truly debilitating and tend to exhaust and frustrate the most hardened and energetic litigant, often making him bitter about the entire system; secondly as a layman with limited knowledge of law he is unable to distinguish between a relevant and an irrelevant argument leading to verbosity and finally, being over sensitive to his case with the opposite counsel and Judge often being identified as belonging to a hostile camp, an occasional digression or deviation from established norms and mores is tolerated. We have, however, come to notice a growing tendency on the part of some litigants to misuse the latitude granted to them and to deliberately create a situation whereby the functioning of the court becomes an impossibility thus stultifying the entire judicial process."
(emphasis supplied) 59 In the light of the aforesaid enunciation of the legal position, in our view, the contemptuous conduct of respondent No.1, cannot be brushed aside on the premise that respondent No.1 appeared in-person. We are thus inclined to hold that the underlined statements, extracted above at paragraph 6 (A) and (B) constitute criminal contempt as they have the tendency and propensity to scandalize the Court and thereby Shraddha Talekar PS 35 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 36 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc erode the public confidence in the administration of justice. 55 The learned Amicus Curiae then advanced two submissions. One, rooted in facts, and the other based on the import of the provisions contained in Section 13 of the Act.
60 On facts, it was urged that respondent No.1 had tendered apology by filing an affidavit dated 21st June 2017. Thus the same may be accepted and respondent No.1 may be exonerated of the charge of contempt. We have already indicated that the affidavit dated 21 st June 2017 whereby apology was sought to be tendered, singularly lacks element of repentance and remorse. In addition to this, it must be noted that till the conclusion of hearing, we gave multiple opportunities to respondent No. 1 to tender an unconditional apology in true spirit of apology. Even a draft of the apology was shown to him. Respondent No.1 was, however, defiant and recalcitrant. Respondent No.1 expressly refused to tender a meaningful apology. Thus, now it is too late in a day to urge that respondent No.1 had tendered apology. 61 On the legal premise, it was submitted that the Court has to consider the degree of culpability in view of the provisions contained in Shraddha Talekar PS 36 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 37 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc Section 13 of the Act which mandates that no Court shall impose a sentence under the Act unless it is satisfied that the contempt is of such a nature which substantially interferes or tends substantially to interfere with due course of justice. Amplifying the submission it was urged that the mere fact that a case of criminal contempt, within the meaning of Section 2 of the Act is made out, is not sufficient but it has to be further shown that the contempt is of such nature that it falls within the tentacles of Section 13 Clause (a) of the said Act. 62 Indeed the provisions of Section 13 forbids imposition of sentence unless the Court is satisfied that the contempt is of such a nature that it substantially interferes or tends substantially to interfere with the due course of justice. It implies that the jurisdiction is not to be resorted to for asking but sparingly and in deserving cases. However, it does not imply that when act complained scandalizes the Court and brings the entire institution into disrepute, it does not amount to interference with due course of justice. A useful reference can again be made to the judgment of the Supreme Court in case of Rachapudi Subba Rao (Supra) wherein it was postulated that if the act complained scandalizes the judicial officer in regard to the discharge of his judicial functions, it thereby substantially interferes or tends to interfere with the "due course Shraddha Talekar PS 37 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 38 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc of justice" which is a facet of the broad concept of the "administration of justice", and, as such, is punishable under Section 13. 62 In the instant case, the reckless imputations which have been found to be contemptuous, have the tendency to scandalize the Court and thereby substantially interfere with the due course of justice. Thus, we are afraid to accede to the submission of the learned Amicus Curiae. 63 The upshot of the aforesaid discussion is that respondent No.1 is found guilty of criminal contempt punishable under Section 12(1) of the Act.
64 We have given anxious consideration to the treatment to be meted out to the respondent No.1-Contemnor. We are of the view that the totally unwarranted, unsubstantiated, derogatory and vilificatory contemptuous imputations coupled with unyielding defiance on the part of the contemnor would justify a condign punishment. Even a sentence of imprisonment for a term of a month would have been in order. We are, however, not oblivious of the advanced age not only of the contemnor but his wife (respondent No.2) also, who is stated to be unwell. We mean when we record that we do not derive any pleasure in punishing a litigant for contempt. However, the punishment we propose Shraddha Talekar PS 38 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 ::: 39 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc to impose upon the contemnor must convey our unequivocal disapprobation of the contemptuous conduct and obstinate disrespect to the institution, as a whole.
65 Having regard to the entire gamut of the circumstances, including the situation in life of the contemnor, we are of the view that a sentence of simple imprisonment for one day and fine of Rs. 2,000/- would meet the ends of justice. Hence the following order :-
ORDER
(i) Sureshchandra V. Parekh, the contemnor, stands convicted under Section 12(1) of the Contempt of Courts Act, 1971. The contemnor is sentenced to suffer Simple Imprisonment for one day and pay a fine of two thousand rupees.
(ii) Since an appeal against the order of this Court is provided as of right under Section 19(1) of the Contempt of Courts Act, 1971, we deem it appropriate to suspend the execution and operation of the substantive sentence for a period of 60 days from the date of this order.Shraddha Talekar PS 39 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 :::
40 cri. contempt petition no. 1.2014 =JUDGMENT.29.01.doc
(iii) The contemnor shall surrender on 2nd April 2019 before the Registrar (Judicial) of this Court, in case no appeal is preferred or the sentence is not suspended by the Supreme Court in the meanwhile.
(iv) The registry is directed to provide a copy of this order to the contemnor free of cost, forthwith.
[ N.J. JAMADAR, J. ] [K.K. TATED] Shraddha Talekar PS 40 ::: Uploaded on - 31/01/2019 ::: Downloaded on - 01/02/2019 02:53:10 :::