Bombay High Court
Balbhim Ramchandra Kedar, Civil Judge, ... vs The State Of Maharashtra And Jalaluddin ... on 8 April, 2008
Equivalent citations: 2008(110)BOM.L.R.1324
Author: Naresh H. Patil
Bench: Naresh H. Patil, P.R. Borkar
JUDGMENT Naresh H. Patil, J.
Page 1327
1. This is a reference made under Section 15(2) of the Contempt of Courts Act 1971 by Shri. Balbhim Ramchandra Kedar, Civil Judge Junior Division & Judicial Magistrate First Class, Bhusawal, District Jalgaon dated 11-5-2007. By an order dated 19-6-2007 Shri. V.N. Damle, learned Counsel was appointed as amicus curiae and notice was issued to respondent No. 2 as to why action under Contempt of Courts Act be not Page 1328 taken against the contemner. The contemner was directed to remain personally present in this Court on 16-7-2007. By an order dated 13th August 2007 the contempt petition was admitted and it was set down for hearing on 1-10-2007.
2. By an order dated 28th February 2008 charge was framed against the contemner, a practising Advocate, in the presence of the contemner. The contemner denied the charge against him and pleaded not guilty. The first charge against the contemner is that on 10-7-2006 at Bhusawal the contemner had already filed a criminal complaint bearing Criminal Complaint No. 9 of 2006 against Shri Balbhim Ramchandra Kedar, Joint civil Judge Junior Division and Judicial Magistrate, First Class Bhusaswl in his own Court, made verification statement on oath and made following allegations against said Judicial Officer Shri. Kedar.
(i) Withheld registration of Misc Cri. Appln. No. 26 of 2004 so as to save and protect the accused in the said Misc. Cri. Appln. No. 26 of 2004.
(ii) Maliciously dismissed in default another matter i.e. Misc. Criminal Application No. 364 of 2005 only because the accused No. 1 in that matter was one Shri Satish Choudhary who allegedly was a Bench Clerk of J.M.f.C./Jt. C.J.J.D. Shri. Kedar, and said Judge thereby intended to save the said Bench Clerk.
(iii) Is in habit of harassing and intimidating advocates.
The second charge is that on 2-9-2006 at Bhusawal the contemner presented application for action under Section 340 of the Code of Criminal Procedure against Shri Balbhim Ramchandra Kedar, Joint Civil Judge, Junior Division and Judicial Magistrate, First Class, Bhusawal and requested him to record findings thereof regarding offence under Section 211 of the Indian Penal Code fully knowing that Shri Kedar could not have taken cognizance of the same against himself. The third charge is that on 12-1-2007 the contemner filed complaint to the D.I.G. Nasik making therein false and frivolous allegations against two Judges S/Shri Kedar and Karankal alleging that-(a) they are Dalits and therefore communal minded, and (b) they have been instigating and mobilising Dalit advocates and have further conspired with Dlit advocates for causing physical assault on the contemner.
3. Along with the Reference the learned Judge has forwarded copies of relevant application and documents.
4. The contemner has himself argued the case. The contemner has filed two applications being Criminal Application Nos. 2731 of 2007 and 3446 of 2007. The contemner has submitted written arguments dated 28-2-2008. In substance, the contention of the contemner is that the contempt petition is not tenable, it is barred by limitation as regards filing of Regular Criminal Case No. 99 of 2006 by virtue of Section 20 of the Contempt of Courts Act, 1971. As regards the proceedings of Criminal M.A. No. 231 of 2006 it is contended that the same is barred by Section 3 of the Contempt of Courts Act, 1971. As regards the proceedings of application made to the D.I.G. Nasik it is contended that on the basis of same simultaneously two criminal prosecutions are already launched. The contemner cannot be tried twice for the same alleged offences. Therefore these proceedings would amount Page 1329 to double jeopardy. In the view of the contemner the learned Judge Shri. Kedar himself has committed contempt of his own Court punishable under Section 15 of the Contempt of Courts Act. The contemner has also averred that in view of the provisions of Section 10 of the Act there is bar for initiating contempt proceedings in the matters wherein the alleged offences are punishable under the Indian Penal Code. The contemner has also filed an affidavit-in-reply dated 10-8-2007. In the affidavit-in-reply the contemner submitted that the Reference is sent by the learned Judge Shri. Kedar at the instance of Shri. M.T. Joshi, the Principal Sessions Judge Jalgaon because he had made serious allegations against him by sending telegrams to the Bombay High Court. The contemner avers that there is conspiracy of taking revenge against him. It is further averred that Shri. Kedar and his mentor Shri. Joshi the then Principal District Judge Jalgaon have violated contempt law and instituted parallel inquiry through City Police Station Bhusawal regarding the subject matter of the Reference. In the view of the contemner the attitude of Shri. M.T. Joshi, the then District Judge of Jalgaon, was vindictive and it is well calculated conspiracy to secure his conviction by hooks or crook. In para 20 of the affidavit-in-reply the contemner contended as under:
20) ...Even other wise invoking fundamental rights does not amount to contempt of court especially when judicial officers are indulging in criminal acts like criminal intimidation and filing false complaint at Police Station, to frame practising advocate, in false and fabricated cases of non bailable accusations.
In para 21 (c) of the affidavit-in-reply the contemner by giving reference to another Judicial Magistrate Shri, Karankal has contended as under:
c) J.M.F.C. Shri. Karankal,a comrade-in-Arm of the petitioner, who, at the instance of Shri. Joshi, lodged 2 false F.I.R.s at Police Station Bhusaval, against me, issued warrant against me, in a Cri. case which was already withdrawn from him and made over to another Court, on my complaint it is pertinent to note that I am orig. Complainant in said Police case and Shri Karankal was trying to screen one P.W. Sansare who belongs to his communing but who had committed perjury in Cri. Case (S.C.C. 389/96).
In para 21 (d) the contemner contended as under:
d) Same J.M.F.C. Shri Karankal has victimized Advocates belonging to High Caste Hindu Community, Jains upper class, community within short period of 4.1/2 months.
It is simply a case of class hatred, which is supported and encouraged by Principal Sessions Judge Shri Joshi, who himself belongs to Nomadic Tribe.
In para 21 (f) it is contended as under:
f) Shri. D.S. Patil another J.M.F.C. Bhusawal reportedly is involved in the commission of felonious offences punishable Under Section 307 I.P.C. and SC/ST Prevention of Atrocities Act. He is avoiding service of Summons and execution of warrants issued against him, by Shirpur Court.
Page 1330
5. The contemner had filed a criminal case being R.C.C. No. 99 of 2006 against the learned Judge Shri. Balbhim Ramchandra Kedar on 10th March 2006 for offences under Sections 166, 167, 217, 218, 219 of the Indian Penal Code. Verification of the complaint was recorded on 10-7-2006. It is alleged in the said complaint that on 4-3-2006 the learned Judge of the Court dismissed one complaint i.e. Cri. M.A. No. 364/2005 on the ground of alleged default which is violative of mandatory provisions of Section 249 of the Cr.P.C. The contemner contended that the Judge has maliciously dismissed the complaint because the accused No. 1 - Satish Chaudhary in the said complaint was the Bench Clerk and he wanted to save him by hooks or crook. It is further alleged that the Judge was in habit of harassing and intimidating lawyers without just cause.
6. We have perused the proceedings of Criminal Misc. Application No. 231 of 2006 filed against the Judicial Magistrate First Class Balbhim Ramchandra Kedar which is an application under Section 340 of the Cr.P.C. In the said application it is contended that the contemner was humiliated in open Court in presence of several Advocates who were watching the incident. In para 5 the contemner contended that he had filed criminal case against the opponent under Sections 166, 167, 218, 219 of the Indian Penal Code which is marked as R.C.C. No. 99/2000 pending before Shri. D.S. Patil, J.M.F.C. Bhusawal. He ultimately prayed for inquiry under Section 340 of the Cr.P.C. By an order dated 18-10-2006 the Court passed order of dismissal of the said complaint as not maintainable.
7. We have also perused the application dated 12-1-2007 filed by the contemner addressed to Shri. P.K. Jain, I.G.P. Nasik. In the said complaint it is alleged that in Bhusawal Court Judges Balbhim Kedar and R.S. Karankal belong to Dalit (formerly Mahar caste). These Judges are castists who have hatred for high caste community people and persons belonging to minority community. It is contended that these Judges had formed a group of Dalit community. By giving reference to the proceedings of Criminal Case No. 99/2006 it is further contended that these Judges are threatening the contemner and trying to trouble him. The contemner further stated that his statement was recorded by a police officer but no offence could be made out and therefore the contemner apprehended occurrence of an offence under Sections 143, 147, 323, 324, 325 of the Penal Code and that he would be assaulted as the Judges at Bhusawal may instigate Dalit lawyers to assault the contemner.
8. Along with the Reference the learned Judge has also forwarded statements of the contemner dated 2-3-2007, communication made by the contemner to the District Judge Jalgaon dated 26th January 2007, report submitted by the Judge Mr. B.R. Kedar to the District and Sessions Judge dated 15-2-2006 and copy of show cause notice dated 10-4-2007 issued by the Judge Mr. Kedar to the contemner as per Rule 6(b) of the Contempt of Courts (Bombay High Court) Rules, 1975 for initiating contempt proceedings under Section 15(2) of the Contempt of Courts Act, 1971. Accordingly the contemner gave his reply to the show cause notice on 4-5-2007. Copies of telegrams issued by the contemner to the authorities are also placed on record. We have perused Page 1331 all these documents for considering the issue raised in the Reference by the learned Judge.
9. As regards the proceedings of the Criminal case being R.C.C. No. 99 of 2006 we find that verification of the contemner was recorded on 10-7-2006. Reference order was passed on 11-5-2007. We find that the action of entertaining the contempt petition was within the period of limitation and the same was not barred. The contemner has placed reliance on a reported judgment of this Court in Golchha Adversising Agency v. State of Maharashtra, 1990 Mh. L.J. 216 to support his contention that the Reference is barred due to the provisions of Section 20 of the Contempt of Courts Act 1971. We place reliance on a reported judgment in Pallav Seth v. Custodian . Para 44 of the Report reads thus:
44. Action for contempt is divisible into two categories, namely, that initiated suo motu by the Court and that instituted otherwise than on the Courts own motion. The mode of initiation in each case would necessarily be different. While in the case of suo motu proceedings, it is the Court itself which must initiate by issuing a notice. In other cases initiation can only be by a party filing an application. In our opinion, therefore, the proper construction to be placed on Section 20 must be that action must be initiated, either by filing of an application or by the Court issuing notice suo motu, within a period of one year from the date on which the contempt is alleged to have been committed.
10. As regards the issue of double jeopardy concerning the criminal cases faced by the contemner we may refer to the provisions of Section 10 of the Contempt of Courts Act, 1971 which reads thus:
10. Power of High Court to punish contempts of subordinate Courts.--Every High Court shall have and exercise the same jurisdiction, power and authority, in accordance with the same procedure and practice, in respect of contempts of Courts subordinate to it as it has and exercises in respect of contempts of itself:
Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code, 1860 (45 of 1860).
11. We find that the contentions raised by the contemner in the applications filed before the Judge and the communications made amount to lowering down the dignity and decorum of the Court and in such circumstances even if the acts of the contemner constitute a penal offence but amounts to something more than the contempt then the contemner can be tried under the contempt law. Reliance may be placed on the following judgments.
(1) In the case of Court on its own motion v. R.K. Garg 1981 Cri.L.J. 239 a Division Bench of the Himachal Pradesh High Court observed in para 10 thus:
Page 1332
10.It is plain that the proviso to Section 10 of the Act bars cognizance only of those cases where acts constitute a contempt of a subordinate court and such contempt is an offence punishable under the I.P.C. If the acts merely amount to an offence punishable under the Penal Code the cognizance will not be barred: Bathina Rama Krishna Reddy v. State of Madras . The essential ingredients of an offence under Section 228 are: (i) intention, (ii) insult or interruption to a public servant, and (iii) the public servant must be sitting in any stage of a judicial proceeding. But if the acts complained of amount to something more, that is contempt, then the person can be tried for contempt as well as for an offence under Section 228 of the I.P.C.
(2) In the case of Arun Paswan v. State of Bihar ( the Apex Court observed in para 18 thus:
18.In the present case, the alleged slogan-shouting and levelling abusive language against the Judge took place outside the court. Therefore, the District and Sessions Judge rightly has not taken any action under Section 345 of the Code of Criminal Procedure and, therefore, the jurisdiction of the High Court would not be ousted. The rationale behind it is quite obvious. There would be no reason why the High Court should invoke its jurisdiction when the court against whom contempt is committed, in the view or presence of the court, can itself take action. Thus, bar of the jurisdiction of the High Court imposed by proviso to Section 10 of the Contempt of Courts Act is not attracted in the cases where the offences under Sections 178, 179, 180 and 228 IPC are not committed in the view or presence of the court.
(3) In Arundhati Roy, In Re, the Apex Court observed in para 2 thus:
2. No person can flout the mandate of law of respecting the courts for establishment of rule of law under the cloak of freedom of speech and expression guaranteed by the Constitution. Such a freedom is subject to reasonable restrictions imposed by any law. Where a provision, in the law, relating to contempt imposes reasonable restrictions, no citizen can take the liberty of scandalising the authority of the institution of judiciary. Freedom of speech and expression, so far as they do not contravene the statutory limits as contained in the Contempt of Courts Act, are to prevail without any hindrance. However, it must be remembered that the maintenance of dignity of courts, is one of the cardinal Page 1333 principles of rule of law in a democratic set-up and any criticism of the judicial institution couched in language that apparently appears to be mere criticism but ultimately results in undermining the dignity of the courts cannot be permitted when found having crossed the limits and has to be punished....
12. In the order of Reference passed on 11-5-2007 the learned Judge observed in para 17 thus:
17. The serval frivolous complaints filed by Mr. J.K. Shaikh against the undersigned for orders passed in judicial capacity making false and frivolous accusations with intent to pressurise the Court and with intent to cause disturbance in administration of justice, which are of very serious nature, disrespectful, defamatory, scandalizing and unexpected from a person who is lawyer by profession. Even reply given by him to the contempt notice itself is contemptuous as in the said reply he has made target to various judges of Jalgaon District before whom he has appeared, including Honble District and Sessions Judge. No where in his reply he has denied any of the acts done by him nor he is having repentance for the same. Therefore, taking into consideration above mentioned position, I am of the opinion that it is a fit case for making reference to the Hon'ble High Court under Section 15(2) of the Contempt of Court Act, 1971 for further necessary orders.
13. We have heard the contemner extensively and we find from the sheets of Roznama that the matter was adjourned on number of times and by providing sufficient opportunities we have given our anxious consideration to the submissions advanced by the amicus curiae and the contemner. We find that the contentions raised in the applications filed before the learned Judge which are described above, are contemptuous in nature amounting to lowering down the dignity and decorum of the Court and to scandalise the Court. The proceedings in Court shall be conducted in dignified manner by maintaining decorum of the Court. Our system has developed certain precedents while working in Court or participating in judicial proceedings. Even if certain grievances regarding presiding officers are to be raised one has to follow the settled procedure and precedent for agitating the grievances. While addressing Courts and making written applications to Courts or public authorities sufficient care and caution is required to be taken when it comes to the reference to Judge or the presiding officer.
14. We find in this case that even in the complaint made to the police authorities on 12-1-2007 serious aspersions are cast on the presiding officers of the Courts below. In the reference order the learned Judge observed in para 12 that the complaint made to Mr. P.K. Jain was forwarded to S.D.P.O. Bhusawal for investigation and in the said complaint statement of the contemner was recorded by the police officer of City Police Station Bhusawal which comes within the jurisdiction of Bhusawal Court. In the reference order the learned Judge has observed that in reply to the contempt notice the contemner did not restrict himself to the extent of reply of the notice but he reiterated the accusations made by him against the Judicial Officers of the Court at Amalner and against the Principal District and Sessions Judge Jalgaon. In para 13 of the order the learned Judge observed that reference Page 1334 was given to the members of the Republican party and thereby he tried to connect the judicial officers with a political party.
15. During the course of hearing the contemner submitted that he was earlier working with the Army and as he suffered injury he left the Army and thereafter joined the legal profession. He is 67 years of age. According to the contemner, insulting behaviour meted out to him by the concerned Judicial Officers could not be tolerated by him being a disciplined army officer who served the country. According to the contemner his grievances should therefore be considered by this Court in the light of the submissions advanced and the applications filed from time to time.
16. We have been assisted by Mr. Damle, learned Amicus Curiae. With the help of the learned amicus curiae we have gone through the entire material placed on record. Based on the material on record the learned amicus curiae has submitted that this is a case where the contemner has committed contempt of the lower Court and therefore he should be held guilty for contempt of Court under Section 12 of the Contempt of Courts Act, 1971. In support of his submissions the learned amicus curiae has placed reliance on the following reported judgments. We have perused these judgments.
(1) In Re: D.C. Saxena 1996 Cri.L.J. 3274, (2) In Re: Ajay Kumary Pandey , (3) Pallav Seth v. Cusodian , (4) B.M. Khodade v. Kumar Saptarshi 2006 ALL MR (Cri) 2960.
17. We find that in the facts of the case sufficient opportunity was provided to the contemner and we do not find that any further evidence is required to be recorded for the consideration of the issue raised in this Reference. We do not find from the record produced by the contemner that he was apologetic for any of his conduct.
18. After considering the facts of the case, the material placed before this Court and the pleas raised we find that the allegations made and the contentions raised by the contemner amount to committing of contempt of Court. We are of the view that the contemner is required to be punished for committing contempt of the Court. A useful reference may be made to a reported judgment of the Apex Court in C. Ravichandran Iyer v. Justice A.M. Bhattarcharjee . Paragraph 31 of the report reads thus:
31.It is true that freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution is one of the most precious liberties Page 1335 in any democracy. But equally important is the maintenance of respect for judicial independence which alone would protect the life, liberty and reputation of the citizen. So the nations interest requires that criticism of the judiciary must be measured, strictly rational, sober and proceed from the highest motives without being coloured by partisan spirit or pressure tactics or intimidatory attitude. The Court must, therefore, harmonise constitutional values of free criticism and the need for a fearless curial process and its presiding functionary, the Judge. If freedom of expression subserves public interest in reasonable measure, public justice cannot gag it or manacle it; but if the Court considered the attack on the Judge or Judges scurrilous, offensive, intimidatory or malicious, beyond condonable limits, the strong arm of the law must strike a blow on him who challenges the supremacy of the rule of the law by fouling its source and stream. The power to punish the contemner is, therefore, granted to the Court not because Judges need the protection but because the citizens need an impartial and strong judiciary.
19. We find that even while arguing the matter till its conclusion the contemner did not show any regret, remorse or express apology for his conduct which we find to be contemptuous. We, therefore, find that the contemner has committed contempt of the Court. We hold him guilty as the charges framed agaisnt him are established.
20. At this stage the contemner was heard on the point of punishment. The contemner has expressed his remorse for whatever has happened. The contemner states that his illness and age shall be considered. It is further contended that due to provocation the contemner had to address the Court. The learned amicus curiae Shri. V.N. Damle pointed out that the contemner is in habit of making such allegations against the judicial officers. The counsel has brought to our notice the proceedings of Criminal Contempt Petition No. 9 of 2001 and the order passed therein by the Division Bench (Coram: Vishnu Sahai & Dr. Pratibha Upasani, JJ.) dated 18th August 2001 which reads as under:
At the very inception, the alleged contemnor Mr. Jalaluddin Kadir Shaikh, expressed his unconditional apology and made a statement that in future he would not commit such acts as have been reflected to in this petition. We find his statement to be sincere and in our view the majesty of law is satisfied. The learned Advocate General also states that in view of the said statement, nothing further needs to be done. In the circumstances, we accept the apology of Mr. Jalaluddin Kadir Shaikh and discharge the notice.
Reference is also made to the proceedings of Contempt Petition No. 194 of 2004 which was disposed of by an order of the learned Single Judge (J.H. Bhatia, J.) dated 6-2-2006. This contempt petition was filed by the present contemner and the same came to be dismissed with cost of Rs. 2000/- which was directed to be recovered from the petitioner therein.
21. We find that throughout the proceedings of this contempt petition nowhere the contemner was apologetic regarding his conduct. To a query made by this Court on the point of punishment the contemner expressed his remorse. Page 1336 But considering the record we are not accepting the feeling of remorse expressed by the contemner.
22. The contemner has also submitted that he is old and ailing person running 67 years of age. He was injured while he was in Army. He is a practising lawyer. Considering these aspects we are not inclined to pass order of sentence of imprisonment against the contemner. But we find that an order of sentence of fine would meet the ends of justice.
23. We hold the contemner guilty for contempt of Court punishable under Section 12 of the Contempt of Courts Act 1971. We sentence the contemner with fine of Rs. 2000/- (Rs. Two Thousand) which shall be deposited in this Court within 8 weeks from today. In default of payment of fine amount the contemner shall undergo sentence of simple imprisonment for a period of one month.
24. The contempt petition is disposed of.
25. The contemner at this stage makes a request to suspend the order of sentence for approaching the Apex Court against the order passed by this Court. We suspend the order of sentence for a period of 8 weeks.