Gujarat High Court
Nagarbhai Govindbhai Patel vs State Of Gujarat & 2 on 15 February, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/9097/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION - TO LODGE
FIR/COMPLAINT) NO. 9097 of 2017
With
CRIMINAL MISC.APPLICATION NO. 1494 of 2018
In SPECIAL CRIMINAL APPLICATION NO. 9097 of 2017
With
CRIMINAL MISC.APPLICATION NO. 1496 of 2018
In SPECIAL CRIMINAL APPLICATION NO. 9097 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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NAGARBHAI GOVINDBHAI PATEL....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR NARENDRA L JAIN, ADVOCATE for the Applicant(s) No. 1
MS MOXA THAKKAR, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 15/02/2018
ORAL JUDGMENT
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HC-NIC Page 1 of 22 Created On Thu Feb 22 23:14:01 IST 2018 R/SCR.A/9097/2017 JUDGMENT As the issues raised in all the captioned petitions are the same, those were heard analogously and are being disposed of by this common judgment and order.
The Special Criminal Application No.9097 of 2017 has been filed by one Mr.Nagarbhai Govindbhai Patel, a resident of Ahmedabad, with the following prayers :
"(a) To direct the CID Crime Branch, Gandhinagar or any other independent investigating agency to register the application at Annexure-C as an FIR and to conduct fair and impartial investigation into the allegations contained therein, in accordance with law.
(b) During the pendency of the present petition, to direct the respondent no.2 not to file any report in connection with the written complaint dated 02/03/2017, pending the outcome of the present petition and further be pleased to direct the respondent no.2 to produce the case diary of the complaint dated 02/03/2017, at Annexure-C before this Hon'ble Court; And
(c) To direct the Home Department, Government of Gujarat to initiate appropriate departmental action against the respondent nos.2 and 3 for showing such open favours to the accused in relation to the written complaint dated 02/03/2017 at Annexure-C;
(d) To pass any other and further orders as may be deemed fit and proper to this Hon'ble Court."
On 5th December 2017, this Court passed the following order :
"Let Notice be issued to the respondents, returnable on 27th December 2017. Ms. Moxa Thakkar, the learned Additional Public Prosecutor waives service of notice for and on behalf of the respondents.
On the returnable date, the Police Inspector of the Page 2 of 22 HC-NIC Page 2 of 22 Created On Thu Feb 22 23:14:01 IST 2018 R/SCR.A/9097/2017 JUDGMENT Dehgam Police Station, District: Gandhinagar shall personally remain present before this Court with the papers of the investigation and point out what investigation he has carried out after the matter was referred by the S.I.T. to him for investigation.
On the returnable date, notify the matter on top of the Board."
Thereafter, on 19th January 2018, the following order was passed :
"1. Prima-facie, it appears that the Assistant Commissioner of Police, 'A' Division, Ahmedabad City carried out a detailed inquiry as regards the complaint lodged by the writ-applicant herein. The report of the Assistant Commissioner of Police forwarded to the Police Commissioner, Ahmedabad City, dated 27/05/2017, Annexure-'E' to this writ-application, Page-22, makes the picture quite clear. The plain reading of the report of the Assistant Commissioner of Police would indicate that he has found some substance in what has been alleged by the writ-applicant. However, the Assistant Commissioner of Police thought fit to ask the Special Investigation Team, headed by the Collector, Gandhinagar, to look into the matter and do the needful in accordance with the law.
2. It appears as pointed out by the learned APP that the Special Investigation Team in turn directed the Police Sub Inspector of the Dehgam Police Station to look into the matter in accordance with law. The Police Inspector of the Dehgam Police Station seems to have not done anything on the ground that the parties are before the Civil Court and the complainant i.e. the writ-applicant should seek appropriate relief from the civil or revenue court. Ms. Moxa Thakkar, the learned APP pointed out that the report rather the communication of the Police Inspector, Dehgam Police Station, dated 26/08/2017 addressed to the writ-applicant herein, Annexure-'B' to this writ-application is pending for consideration at the end of the Superintendent of Police, Gandhinagar. The Superintendent of Police, Gandhinagar, is yet to look into the matter and take an appropriate decision.
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3. In such circumstances referred to above, the Superintendent of Police, Gandhinagar, is directed to take an appropriate decision in accordance with law i.e.whether the complaint lodged by the writ-applicant discloses commission of a cognizable offence so as to register an FIR at the concerned Police Station. It is expected of the Superintendent of Police to consider the report of the Assistant Commissioner of Police, 'A' Division Police Station, Ahmedabad City, which is on record before taking any final decision in the matter.
While taking an appropriate decision in this regard, the Superintendent of Police, Gandhinagar, shall keep in mind the dictum of law as laid down by the Supreme Court in the case of The State of Telangana Vs. Habib Abdullah Jeelani & Others; Criminal Appeal No.1144 of 2016, more particularly, the observations of the Supreme Court as contained in para-8 as under:-
"8. The exceptions that were carved out pertain to medical negligence cases as has been stated in Jacob Mathew v. State of Punjab, [(2005) 6 SCC 1]. The Court also referred to the authorities in P. Sirajuddin v. State of Madras, [(1970) 1 SCC 595] and CBI v. Tapan Kumar Singh, [2003) 6 SCC 175] and finally held that what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence."Page 4 of 22
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4. Let such decision be taken at the earliest. I expect a detailed report to be placed before this Court by the Superintendent of Police as regards his decision. Post the matter on 07/02/2018."
It appears that pursuant to the order passed by this Court dated 19th January 2018 referred to above, the First Information Report came to be registered at the Dehgam Police Station, Ahmedabad, being CR-I No.09 of 2018 for the offence punishable under Sections 406, 420, 465 and 468 of the Indian Penal Code.
Mr.I.H.Syed, the learned counsel appearing for the writ- applicant, submitted that although the FIR has been registered, yet the same has been against a dead person. The persons who are actually involved in the fraud are not even named in the FIR. Mr.Syed submitted that the entire blame is sought to be thrown on one Mr.Mukundbhai Chakwawala, who is dead and gone. Whereas, the persons who have actually masterminded the entire fraud are his three sons, namely M/s.Pradipbhai Chakwawala, Mukeshbhai Chakwawala and Rajesh Chakwawala. Mr.Syed pointed out that after the registration of the FIR, his client was compelled to address a representation to the Director General of Police, Gujarat State, Gandhinagar, dated 2nd February 2018, stating as under :
"Nagar G.Patel, 124, Patel Vaas, Near Old Bodakdev Gram Panchayat Bodakdev Ahmedabad-380059 02/02/2018 To, Page 5 of 22 HC-NIC Page 5 of 22 Created On Thu Feb 22 23:14:01 IST 2018 R/SCR.A/9097/2017 JUDGMENT The Director-General of Police Gujarat State Gandhinagar Subject : Complaint against the superior officer and other police officers of Dehgam Police Station, Gandhinagar for the illegal action in connection with FIR being I-CR No.09 of 2018, registered with Dehgam Police Station, Gandhinagar.
Respected Sir, I write to you in a state of shock and fear owing to the outright illegal action taken by the police officers of the Dehgam Police Station, Gandhinagar. The matter relates to the complaint given by me dated 02/03/2017 against various accused persons for offences of impersonation, cheating, criminal breach of trust, forgery and other offences in conspiracy with each other. The influence of the accused in the matter has been immense from the very beginning and instead of registering an FIR because of the prima facie offence disclosed by my application, the concerned police officers sent a reply stating that I should seek remedy from the civil court. The same was challenged before the honourable High Court by filing an application being special criminal application number 5439 of 2017. Thereafter, on the direction of the honourable High Court, the ACP conducted an investigation and concluded that an offence is made out because the accused in the present case have taken advantage of persons of similar name mentioning their names in the revenue records without surname and by such means, got their names mutated in revenue records of agricultural lands, without themselves being agriculturalists and therefore, the accused persons have become agriculturalists by committing the aforementioned offences. it is submitted that the accused are managed with the police officers at the police station level and now even at the level of the Inspector General - Gandhinagar to ensure that no meaningful action is taken against any of the accused persons. It is pertinent to note that the police authorities have been so clearly overprotective of the accused persons that I have been required to move the Hon'ble Gujarat High Court a second time by way of filing an application being Special Criminal Application No.9097 of Page 6 of 22 HC-NIC Page 6 of 22 Created On Thu Feb 22 23:14:01 IST 2018 R/SCR.A/9097/2017 JUDGMENT 2017 and the Hon'ble Gujarat High Court has been pleased to pass the following orders in my application, which is pending as on date:
CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 05/12/2017 ORAL ORDER "Let Notice be issued to the respondents, returnable on 27th December 2017. Ms. Moxa Thakkar, the learned Additional Public Prosecutor waives service of notice for and on behalf of the respondents.
On the returnable date, the Police Inspector of the Dehgam Police Station, District: Gandhinagar shall personally remain present before this Court with the papers of the investigation and point out what investigation he has carried out after the matter was referred by the S.I.T. to him for investigation.
On the returnable date, notify the matter on top of the Board."
Thereafter, the matter was again heard on 19/01/2018, when all attempts were made again by the proposed accused to derail the hearing and on that date, the Hon'ble High Court was pleased to pass the following order :
CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 19/01/2018 ORAL ORDER "1. Prima-facie, it appears that the Assistant Commissioner of Police, 'A' Division, Ahmedabad City carried out a detailed inquiry as regards the complaint lodged by the writ-applicant herein. The report of the Assistant Commissioner of Police forwarded to the Police Commissioner, Ahmedabad City, dated 27/05/2017, Annexure-'E' to this writ-
application, Page-22, makes the picture quite clear. The plain reading of the report of the Assistant Commissioner of Police would indicate that he has found some substance in what has been alleged by the writ-applicant. However, the Assistant Commissioner of Police thought fit to ask the Page 7 of 22 HC-NIC Page 7 of 22 Created On Thu Feb 22 23:14:01 IST 2018 R/SCR.A/9097/2017 JUDGMENT Special Investigation Team, headed by the Collector, Gandhinagar, to look into the matter and do the needful in accordance with the law.
2. It appears as pointed out by the learned APP that the Special Investigation Team in turn directed the Police Sub Inspector of the Dehgam Police Station to look into the matter in accordance with law. The Police Inspector of the Dehgam Police Station seems to have not done anything on the ground that the parties are before the Civil Court and the complainant i.e. the writ-applicant should seek appropriate relief from the civil or revenue court. Ms. Moxa Thakkar, the learned APP pointed out that the report rather the communication of the Police Inspector, Dehgam Police Station, dated 26/08/2017 addressed to the writ-applicant herein, Annexure-'B' to this writ-application is pending for consideration at the end of the Superintendent of Police, Gandhinagar. The Superintendent of Police, Gandhinagar, is yet to look into the matter and take an appropriate decision.
3. In such circumstances referred to above, the Superintendent of Police, Gandhinagar, is directed to take an appropriate decision in accordance with law i.e.whether the complaint lodged by the writ- applicant discloses commission of a cognizable offence so as to register an FIR at the concerned Police Station. It is expected of the Superintendent of Police to consider the report of the Assistant Commissioner of Police, 'A' Division Police Station, Ahmedabad City, which is on record before taking any final decision in the matter.
While taking an appropriate decision in this regard, the Superintendent of Police, Gandhinagar, shall keep in mind the dictum of law as laid down by the Supreme Court in the case of The State of Telangana Vs. Habib Abdullah Jeelani & Others; Criminal Appeal No.1144 of 2016, more particularly, the observations of the Supreme Court as contained in para-8 as under:-
"8. The exceptions that were carved out pertain to medical negligence cases as has Page 8 of 22 HC-NIC Page 8 of 22 Created On Thu Feb 22 23:14:01 IST 2018 R/SCR.A/9097/2017 JUDGMENT been stated in Jacob Mathew v. State of Punjab, [(2005) 6 SCC 1]. The Court also referred to the authorities in P. Sirajuddin v. State of Madras, [(1970) 1 SCC 595] and CBI v. Tapan Kumar Singh, [2003) 6 SCC 175] and finally held that what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence."
4. Let such decision be taken at the earliest. I expect a detailed report to be placed before this Court by the Superintendent of Police as regards his decision. Post the matter on 07/02/2018."
It is submitted that pursuant to the report submitted by the ACP as also because of the pendency of the application before the honourable Gujarat High Court, I was asked to remain present before the police station on 13/01/2018 and also on 24/01/2018, when my statements have been recorded and I have explained the facts in detail to the DSP, Mr Virendra Yadav. Eventually, succumbing to the impeccable record generated during the investigation of the case, and in order to save their face before the honourable Gujarat High Court, and FIR Page 9 of 22 HC-NIC Page 9 of 22 Created On Thu Feb 22 23:14:01 IST 2018 R/SCR.A/9097/2017 JUDGMENT being I-CR No.08/2018 has been registered by the police station today. However, while registering the offence, when I raise an objection with regard to the names of the accused as mentioned in my application compared to the names mentioned in the FIR, I have been informed by the police officers at the police station that it is on the instructions of the Inspector General of Police- Gandhinagar range, that the names of the other accused have not been incorporated in the FIR and that the police officers are not in a position to defy the orders of the Inspector General of Police. In fact, after having first noted the entire FIR as per the narration mentioned in the written complaint given by me, the officers were constantly taking instructions over the phone in front of me from the superior officers and on their instructions, the contents were first altered and later on, the names of all accused were removed and the name of a dead man alone was kept in the FIR, despite the fact that the written complaint contains specific roles of each accused person and how the accused is a part of the conspiracy. This is nothing but clear and blatant violation of the order passed by the Hon'ble Gujarat High Court.
It is very important to bring to your notice that they FIR has been registered against only one person, who is a dead person and therefore, practically their FIR is not registered against any of the actual culprits, clearly shielding them from the process of law and defeating the true investigation even before it actually begins. It is therefore necessary that the investigation of the offence be taken from such dishonest officers and transferred to some other independent agency like the CID crime, which is outside the influence of the Inspector General of Police-Gandhinagar Range.
I humbly pray that a high level inquiry be kindly ordered in the whole episode of clearly influencing the investigation and fix the liability of the officer/s concerned and thereafter, take appropriate steps against all concerned as per law.
I am sure that you will act in the interest of Justice at the earliest and pass appropriate orders considering the gravity of the offences and the manner in which the highest level officers of the police department are interfering with the investigation and aiding the accused Page 10 of 22 HC-NIC Page 10 of 22 Created On Thu Feb 22 23:14:01 IST 2018 R/SCR.A/9097/2017 JUDGMENT persons."
Having regard to the history of this litigation, which is quite checkered and also the nature of the allegations, I am of the view that the FIR should be investigated by none other than the State CID Crime.
The Director General of Police, State CID Crime, Gujarat State, is directed to appoint a competent and honest police officer to investigate into the FIR, in accordance with law.
The State CID Crime shall takeover the investigation from the Dehgam Police Station at the earliest and complete the same in accordance with law.
In view of the order passed in the main matter, I could have disposed of the two connected Criminal Misc. Applications filed by none other than Mr.Pradipbhai Mukundbhai Chakwawala and Mr.Mukeshbhai Mukundbhai Chakwawala.
The two Criminal Misc. Applications are for being impleaded in the main matter.
While hearing the main matter, i.e. the Special Criminal Application No.9097 of 2017, I had made myself very clear that the proposed accused has no locus. In such circumstances, I declined to implead the two applicants in the main matter. However, the matter does not rest over here.
Having realized that there is no escape now and they are going to land up in trouble, one of the applicants, namely Mr.Pradipbhai Chakwawala, tried his best to get away from this Page 11 of 22 HC-NIC Page 11 of 22 Created On Thu Feb 22 23:14:01 IST 2018 R/SCR.A/9097/2017 JUDGMENT Court and save himself and his brother.
I am sorry to say that Mr.Pradipbhai Chakwawala, as a last ditched effort to salvage the situation, indulged in something which amounts to criminal contempt of court. With a view to see that I release the main matter so that no final orders can be passed, Mr.Chakwawala addressed a letter to me, which I received by a registered speed post, wherein, he stated as under :
"From :-
Pradip M.Chakwawala Add-205, Sanskar Complex-1, Polytechnic Road, Ambawadi, Ahmedabad.
To, The Honourable Justice Shri J.B.Pardiwala, High Court of Gujarat at Sola, Ahmedabad.
Reference :
(1) Special Criminal Application No.9097 of 2017 pending at your good office.
(2) Misc. Criminal Application No.1494 of 2018 in Special Criminal Application No.9097 of 2017 pending at your good office.
(3) Misc. Criminal Application No.1496 of 2018 in Special Criminal Application No.9097 of 2017 pending at your good office.
Subject : Humble request.
Honourable Justice Shri J.B.Pardiwala, You are kindly requested that I Pradip M.Chakwawala, (Advocate and Notary) and my Advocate brother have Page 12 of 22 HC-NIC Page 12 of 22 Created On Thu Feb 22 23:14:01 IST 2018 R/SCR.A/9097/2017 JUDGMENT deep family relations with senior Advocate Shri K.J Sethna saheb and Shri B.J.Sethna saheb and we have also worked for their properties and conveyances. My younger brother Rajesh M.Chakwawala has also worked as a junior advocate in the office of Shri K.J Sethna saheb for a long period during 90's and onwards, along with other juniors Mr.Adilbhai, late Shri Tamtonbhai, Mr.Percibhai, Mr.Jayesh Dave and many others. It is also to be noted that you also happen to be a junior and a part of the office of Shri K.J Sethna saheb and have worked in the same office for years together. The above referred matter pending before your court is our personal and thereby we are directly affected party to this litigation and other side is trying to take revenge against us. Somehow, we feel that interest of justice will be served if matter is transferred to some other court. It will be for the best interest of the parties and Justice, if the case be conducted by some other judge so as to avoid any prejudice, predetermination and personal things. I would personally bring to your notice that we brothers have always tried to uplift the name of our senior Shri K.J Sethna saheb and there is not a single criminal case filed and or pending against me or my Advocate brothers and it is also to be noted that there are no antecedent till date and there is no stigma in our entire career of practicing law. I also humbly submit that what we have earned is with the grace of the god and through our hard work and hard earned money and the properties that we have purchased are through A/C payee bankers cheques. We are deeply saddened and shocked and it is very unfortunate on our part that your honour has used some bad and insulting words against us in the open court, during the course of hearing.
I don't want to say further any more in the subject but I will still request your honour not to take above referred cases and please transfer the matter to any other Court and thereby oblige.
Place : Ahmedabad Thanking you,
Date : 22/1/2018 Sd/-
Pradip M.Chakwawala
Copy forwarded to Senior Advocate Shri K.J Sethna saheb with great Love and Respect.
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Address : A-402, Samay Apartment, B/H Azad Society, Nr.Telephone Exchange, Ambawadi, Ahmedabad."
Mr.Bhargav Bhatt, the learned counsel appeared for Mr.Pradipbhai Chakwawala, whereas, Mr.Yatin Oza, the learned senior counsel appeared for Mr.Mukeshbhai Chakwawala.
I confronted Mr.Bhatt with the letter and inquired with him, whether his client had addressed the letter to this Court or not ? Mr.Bhatt, the learned counsel, admitted, after asking his client about the same that such a letter had been written by Mr.Pradipbhai Chakwawala. Mr.Bhatt, the learned counsel immediately retired from the matter by tendering his apology. Mr.Yatin Oza also retired from the connected matter.
Mr.Mihir Thakore, the learned senior counsel appearing for Mr.Pradipbhai Chakwawala, submitted that his client is extremely sorry for what he did. Mr.Thakore also filed an affidavit of unconditional apology, in which it has been stated that Mr.Pradipbhai M.Chakwawala was in a depressed state of mind on account of the criminal proceedings, and in such circumstances, he addressed the letter. Mr.Thakore, the learned senior counsel submitted that the unconditional apology may be accepted and nothing further be done in the matter.
I am of the view that what has been done by Mr.Pradipbhai M.Chakwawala is something which was a very well calculated and well planned attempt to see that this Court does not take up the main matter. The explanation put forward about being in a depressed state of mind is nothing but an eyewash. The contents of the letter are quite eloquent and it Page 14 of 22 HC-NIC Page 14 of 22 Created On Thu Feb 22 23:14:01 IST 2018 R/SCR.A/9097/2017 JUDGMENT does not reflect that Mr.Pradipbhai M.Chakwawala was in a depressed state of mind. whatever may be the state of mind, this is something which the court of law should not take it lightly.
Section 2(c) of the Contempt of Courts Act, 1971, defines a 'criminal contempt' in the following manner:
"2. (c) Criminal contempt' means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which-
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or
(ii) prejudices or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
In Babu Ram Gupta v. Sudhir Bhasin, AIR 1979 SC 1528, the Supreme Court held that the power to punish for contempt should be exercised to uphold the majesty of law and dignity of Court.
In Asharam M.Jain v. A.T.Gupta, AIR 1983 SC 1151, the Supreme Court held that it is the duty of the court to protect the interests of the public in the due administration of justice and that is why it is entrusted with the power to punish for Contempt of Court not in order to protect the dignity of the court against insult or injury as the expression 'Contempt of Court' may seem to suggest, but, to protect and to vindicate the right of the public that the administration Page 15 of 22 HC-NIC Page 15 of 22 Created On Thu Feb 22 23:14:01 IST 2018 R/SCR.A/9097/2017 JUDGMENT of justice shall not be prevented, prejudiced, or obstructed or interfered with. It is a mode of vindicating the majesty of law, in its active manifestation against obstruction and outrage. The court further held that the law should not be seen to sit by simply, while those who defy it go free, and those who seek its protection lose hope.
'Rule of Law' is the basic rule of governance of any civilised democratic policy. Our Constitutional scheme is based upon the concept of Rule of Law which we have adopted and given to ourselves. Everyone, whether individually or collectively is unquestionably under the supremacy of law. Whoever the person may be, however high he or she is, no-one is above the law notwithstanding how powerful and how rich he or she may be. For achieving the establishment of the rule of law, the Constitution has assigned the special task to the judiciary in the country. It is only through the courts that the rule of law unfolds its contents and establishes its concept. For the judiciary to perform its duties and functions effectively and true to the spirit with which it is sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs. After more than half a century of independence, the judiciary in the country is under a constant threat and being endangered from within and without. The need of the time is of restoring confidence amongst the people for the independence of judiciary. Its impartiality and the glory of law has to be maintained, protected and strengthened. The confidence in the courts of justice, which the people possess, cannot, in any way, be allowed to be tarnished, diminished or wiped out by contumacious behavior of any person. The only weapon of protecting itself from the onslaught to the Page 16 of 22 HC-NIC Page 16 of 22 Created On Thu Feb 22 23:14:01 IST 2018 R/SCR.A/9097/2017 JUDGMENT institution is the long hand of contempt of court left in the armoury of judicial repository which, when needed, can reach any neck howsoever high or far away it may be. In Re: Vinay Chandra Mishra (the alleged contemner) (AIR 1995 SC 2348), the Supreme Court reiterated the position of law relating to the powers of contempt and opined that the judiciary is not only the guardian of the rule of law and third pillar but in fact the central pillar of a democratic State. If the judiciary is to perform it duties and functions effectively and true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs. Otherwise the very corner-stone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society. It is for this purpose that the courts are entrusted with the extraordinary powers of punishing those who indulge in acts, whether inside or outside the courts, which tend to undermine the authority of law and bring it in disrepute and disrespect by scandalizing it. When the court exercise this power, it does not do so to vindicate the dignity and honour of the individual judge who is personally attacked or scandalised, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by the acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded. (See Suo Motu Contempt Petition (Crl.) No.10 of 2001 In re: Arundhati Roy) The Apex Court in the case of Subrata Roy Sahara v.
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Union of India (UOI) and Ors., AIR 2014 SC 3241, more particularly, the paragraph No.10, has observed as under :-
"10. We have recorded the above narration, lest we are accused of not correctly depicting the submissions, as they were canvassed before us. In our understanding, the oath of our office, required us to go ahead with the hearing. And not to be overawed by such submissions. In our view, not hearing the matter, would constitute an act in breach of our oath of office, which mandates us to perform the duties of our office, to the best of our ability, without fear or favour, affection or ill will. This is certainly not the first time, when solicitation for solicitation for recusal has been sought by learned Counsel. Such a recorded peremptory prayer, was made by Mr. R.K. Anand, an eminent Senior Advocate, before the High Court of Delhi, seeking the recusal of Mr. Justice Manmohan Sarin from hearing his personal case. Mr. Justice Manmohan Sarin while declining the request made by Mr. R.K. Anand, observed as under:
"The path of recusal is very often a convenient and a soft option. This is especially so since a Judge really has no vested interest in doing a particular matter. However, the oath of office taken under Article 219 of the Constitution of India enjoins the Judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties of office without fear or favour, affection or ill will while upholding the constitution and the laws. In a case, where unfounded and motivated allegations of bias are sought to be made with a view of forum hunting/Bench preference or brow- beating the Court, then, succumbing to such a pressure would tantamount to not fulfilling the oath of office."
The above determination of the High Court of Delhi was assailed before this court in R.K. Anand v. Delhi High Court (2009) 8 SCC 106 : (2009 AIR SCW 6876). The determination of the High Court whereby Mr. Justice Manmohan Sarin declined to withdraw from the hearing of the case came to be upheld, with the following observations:
"The above passage, in our view, correctly sums up Page 18 of 22 HC-NIC Page 18 of 22 Created On Thu Feb 22 23:14:01 IST 2018 R/SCR.A/9097/2017 JUDGMENT what should be the Court's response in the face of a request for recusal made with the intent to intimidate the court or to get better of an 'inconvenient' judge or to obfuscate the issues or to cause obstruction and delay the proceedings or in any other way frustrate or obstruct the course of justice."
Similarly, the Apex Court in the case of R.K. Anand v. Registrar, Delhi High Court, (2009)8 SCC 106, has made observations in paragraph Nos. 255 to 273 and has taken the same exception on the request made for recusal of the judge from hearing a case. The Apex Court in paragraph 255 of the said judgment, discussed the question of "Request" for Recusal. In paragraphs 264, 269, 270 the Apex Court has made observations, as under:-
"264. We are constrained to pause here for a moment and to express grave concern over the fact that lately such tendencies and practices are on the increase. We have come across instances where one would simply throw a stone on a Judge (who is quite defenceless in such matters!) and later on cite the gratuitous attack as a ground to ask the Judge to recuse himself from hearing a case in which he would be appearing. Such conduct is bound to cause deep hurt to the Judge concerned but what is of far greater importance is that it defies the very fundamentals of administration of justice. A motivated application for recusal, therefore, needs to be dealt with sternly and should be viewed ordinarily as interference in the due course of justice leading to penal consequences."
In a recent Judgment, in S.C.A.O.R.A. v. U.O.I, (2015)11 SCALE 1, the Apex Court also has held that the Courts should not recuse themselves from hearing the matter since they Page 19 of 22 HC-NIC Page 19 of 22 Created On Thu Feb 22 23:14:01 IST 2018 R/SCR.A/9097/2017 JUDGMENT have taken an oath to decide the case without fear and favour. The Apex Court in the said case has observed in paras 13, 15, 16, 17 and 18 as under:-
"13. As a Judge presiding over the reconstituted Bench, I found myself in an awkward predicament. I had no personal desire to participate in the hearing of these matters. I was a part of the Bench because of my nomination to it, by Hon'ble the Chief Justice of India. My recusal from the Bench at the asking of Mr. Fali S. Nariman, whom I hold in great esteem, did not need a second thought. It is not as if the prayer made by Mr. Mathews J. Nedumpara was inconsequential.
15. On the basis of the submissions advanced by the learned Counsel, the Bench examined the prayer whether I should remain on the reconstituted Bench, despite my being a member of the 1+4 collegium. The Bench unanimously concluded that there was no conflict of interest, and no other justifiable reasons in law, for me to recuse from the hearing of these matters. On 22.4.2015, the Bench passed the following short order, which was pronounced by J. Chelameswar, J.:
"A preliminary objection whether Justice Jagdish Singh Khehar should preside over this Bench, by virtue of his being the fourth senior most Judge of this Court, also happens to be a member of the collegium was raised by the petitioners.
Elaborate submissions were made by the learned Counsel for the petitioners and the respondents. After hearing all the learned counsel, we are of the unanimous opinion that we do not see any reason in law requiring Justice Jagdish Singh Khehar to recuse himself from hearing the matter. Reasons will follow."
16. After the order was pronounced, I disclosed to my colleagues on the Bench, that I was still undecided whether I should remain on the Bench for I was toying with the idea of recusal, because a prayer to that effect, had been made in the face of the court. My colleagues on the Bench would have nothing of it. They were Page 20 of 22 HC-NIC Page 20 of 22 Created On Thu Feb 22 23:14:01 IST 2018 R/SCR.A/9097/2017 JUDGMENT unequivocal in their protestation.
17. Despite the factual position noticed above, I wish to record, that it is not their persuasion or exhortation, which made me take a final call on the matter. The decision to remain a member of the reconstituted Bench was mine, and mine alone. The choice that I made, was not of the heart, but that of the head. The choice was made by posing two questions to myself. Firstly, whether a Judge hearing a matter should recuse, even though the prayer for recusal is found to be unjustified and unwarranted ? Secondly, whether I would stand true to the oath of my office, if I recused from hearing the matters ?
18. .......But recusal at the asking of a litigating party, unless justified, must never to be acceded to. For that would give the impression, of the Judge had been scared out of the case, just by the force of the objection. A Judge before he assumes his office, takes an oath to discharge his duties without fear or favour. He would breach his oath of office, if he accepts a prayer for recusal, unless justified. It is my duty to discharge my responsibility with absolute earnestness and sincerity. It is my duty to abide by my oath of office, to uphold the Constitution and the laws. My decision to continue to be a part of the Bench, flows from the oath which I took, at the time of my elevation to this Court."
I am of the view that the aforesaid observations clearly apply to the facts of the present case.
What is more painful and disturbing is that Mr.Pradipbhai Chakwawala is a lawyer by profession. Despite the same, he indulged in such a contemptuous act.
This is a fit case for issue of notice, calling upon Mr.Pradipbhai Mukundbhai Chakwawala to show-cause why he should not be proceeded and punished for the criminal contempt. Let notice be issued to Mr.Pradipbhai Mukundbhai Chakwawala in Form-I as required by Rule 13 of the Contempt Page 21 of 22 HC-NIC Page 21 of 22 Created On Thu Feb 22 23:14:01 IST 2018 R/SCR.A/9097/2017 JUDGMENT of Courts (Gujarat High Court) Rules, 1984.
The letter received by this Court shall be preserved by the registry in a sealed cover.
The registry shall forward a copy of this judgment and order to the Bar Council of Gujarat, so that appropriate proceedings can be initiated under the Advocates' Act.
In view of the disposal of the main petition, both the connected Misc. Criminal Applications are disposed of.
(J.B.PARDIWALA, J.) /MOINUDDIN Page 22 of 22 HC-NIC Page 22 of 22 Created On Thu Feb 22 23:14:01 IST 2018