1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R M/s G.B.Jain & Sons Vs. Smt.Kiran Maheshwari (1) D.B.CR.MISC.PETITION NO.647/2009 M/s G.B.Jain & Sons Vs. Smt.Kiran Maheshwari (2) D.B.CR.MISC.PETITION NO.648/2009 UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE. Date of Order: Dec.02, 2010 P R E S E N T HON'BLE THE CHIEF JUSTICE MR.ARUN MISHRA HON'BLE MR.JUSTICE KAILASH CHANDRA JOSHI Mr.M.C.Bhoot, for the petitioner. BY THE COURT : The prayer for recalling of the order dt.13.1.2009 passed by the Division Bench of this Court on merits of the case, has been sought on the various grounds urged in both the applications. 2 Facts, in short, indicate that the D.B.Criminal Misc.Contempt Petitions No.26/98 and 39/96 were decided vide order dated 13.1.2009. The contempt petitions were filed in the years 1996 & 1998. The Cr.Contempt Petition No.39/96 was ordered to be heard alongwith Cr.Contempt Petition No.26/98 as per the order of this court dt.20th April, 2000. The order was passed on 11.12.2000 in Cr.Contempt Petition No.26/98 to the effect that - “This case may be listed only when a joint prayer is made by the learned counsel for the parties by filing a written application; otherwise may be posted for hearing in due course.” Thereafter, an application was filed on behalf of respondent No.1 for dismissing the contempt petition. This application was filed on 12.1.2009 and the prayer was made to dismiss the contempt petition as not maintainable. There is an endorsement on the index of the application that the counsel appearing on behalf of applicant had refused to accept the copy, as such, the copy was filed alongwith the application. The case was listed before this Court on 13.1.2009 before the Division Bench of this Court and order on merits was passed in both the Cr.Contempt Petitions dismissing 3 them on the ground that cognizance was not taken suo moto by the court and permission of the Advocate General has not been obtained and the Contempt Petitions were not filed with the consent in writing of the Advocate General. Consequently, the Division Bench of this Court held that in view of the decision of the Apex Court in Bal Thackery vs. Harish Pimpalkhute & ors., (2005) 1 SCC 254, these Contempt Petitioners were not maintainable hence the Division Bench dismissed both the Contempt Petitions. Due note was also taken that petitioners have not shown any interest in the matter as apparent from efflux of time. The matter was lying in the court for the last more than a decade and this Court declined to proceed further in the matter. In the application, which has been filed for recalling of the order, it has been averred that on 12.1.09, petitioner's partner Pradeep Jain was present before this Court before the Single Bench in another Contempt Petition and requested in the presence of counsel for the respondents that he wanted to engage some other counsel than Mr.M.R.Singhvi and had prayed for time. Three weeks' time was granted. In the 4 application, which was filed on behalf of respondent No.1, a wrong note was appended that copy of the application has been served on the opposite counsel but as a matter of fact, no such copy was served. The matter was listed in the Cause list of 13.1.2009. The regular cause list of 13.1.09 was available on 12.1.09. The case was shown in the final revised cause list of Court No.1. No information was given to the petitioner by the clerk of Mr.M.R.Singhvi. Information was given only on 16.1.09 when Pradeep Jain came to engage another lawyer. The opportunity of hearing was not afforded to the petitioner. The matter was listed before the court without dealing with the application in accordance with law. In the circumstances, the prayer has been made for recalling of the order dt.13.1.2009. Mr.M.C.Bhoot, learned counsel appearing on behalf of the petitioner, has submitted that opportunity of hearing has not been afforded to the petitioner while deciding the case on merits by this Court. It appears that fraud has been played upon the court. Wrong mention has been made in the application that copy has been served upon the counsel appearing for the petitioner, whereas infact, it was not served. Even 5 otherwise, the application could not have been listed within a day, as it was not dealt with in accordance with procedure. The matters are not listed in the court the next very day. The case could not have been listed on 13.1.09, had the application been dealt with in accordance with the procedure. The order dated 11.12.2000 passed in Cr.Contempt Petition No.26/98 indicates that the case was to be listed on joint application by the parties. There was no joint application, as such, the case could not have been listed. Counsel Mr.M.R.Singhvi had pleaded no instructions on the day on which the order was passed by the Division Bench of this Court. The case is made out so as to hold an enquiry as to in what circumstances, the case was listed before the Division Bench of this Court without dealing with the application in accordance with procedure. Mr.Bhoot has also elaborated the submission on the strength of the Full Bench decision of this Court in Habu vs. State of Rajasthan, AIR 1987 Raj.83. Learned counsel has also submitted that in another Contempt Petition being S.B.Cr.Contempt Petition No.24/98 listed before the Single Bench on 12.1.09, petitioner requested in the presence of counsel for the respondent No.1 that he 6 wanted to engage some other counsel, as such, the counsel appearing for the respondent No.1 was well aware that the petitioner wanted to change the counsel and when Mr.M.R.Singhvi had pleaded no instructions, the order dt.13.1.09 deserves to be recalled and in the interest of justice, opportunity be accorded to the petitioner for arguing the matter on merits. It is apparent from the order dt.13.1.09 passed by the Division Bench of this Court on merits of the case that suo moto cognizance was not taken by this Court and permission of Advocate General has not been obtained for filing the Criminal Contempt. The Division Bench of this Court has relied upon the decision of the Apex Court in Bal Thackrey's case (supra). The Apex Court has laid down that permission of the Advocate General is necessary for a private party to file a criminal contempt and in case, the High Court has not treated it as a suo moto petition, such contempt petition cannot be said to be maintainable. Mr.M.C.Bhoot, learned counsel appearing on behalf of the petitioner, has attracted our attention to the order dated 7.9.98 when the notice was issued to show 7 cause as to why the cognizance as prayed-for by the Contempt Petition No.26/98 be not taken. The notice was made returnable within four weeks. By the aforesaid ordersheet, it is apparent that cognizance was not taken by this Court but notice was issued to show cause why the cognizance be not taken. In both the Contempt Applications, prayer has not been made to take suo moto cognizance for the contempt, which has been committed. In this view of the matter, the Division Bench of this Court opined that the contempt petition is not maintainable. Coming to the submission of Mr.Bhoot, learned counsel appearing on behalf of the petitioner that the application filed on behalf of respondent No.1 was listed within a day of filing it by making wrong endorsement that copy of the same had been supplied to the learned counsel for the petitioner, whereas the same was not supplied. Learned counsel has produced certified copy of the application dt.12.1.09 in which no endorsement has been made as to refusal by the counsel appearing on behalf of the petitioner to receive the copy of the application. 8 We have seen the certified copy of the application, produced by Mr.Bhoot, learned counsel for the petitioner, during the course of the arguments as well as the original application, which has been preferred in the Cr.Contempt Petition No.26/98. We find that infact on the index, there is mention of application for dismissing the contempt petition as well as the affidavit in support of the application and the endorsement had been made to the effect that counsel appearing on behalf of the petitioner had refused to accept the copy, as such, the copy was filed alongwith the application. It appears that endorsement has been made on behalf of Mr.M.S.Singhvi on the application, who was the counsel appearing for the respondent No.1. Mr.Bhoot, learned counsel appearing for the petitioner, has submitted that since the endorsement has not been made by the counsel, the same cannot be said to be reliable and particularly when the certified copy of the application, which was applied for and has been supplied, there is a typed note i.e. bottom note-4 to the effect that copy of the application has been served on opposite counsel and it is signed by Mr.M.S.Singhvi. The same amounts to playing fraud upon the court. We are unable to accept the submission of Mr.Bhoot, learned counsel appearing 9 on behalf of the petitioner. When the counsel signed the typed application, obviously the copy was not served on the opposite counsel but after the application was typed and signed by the counsel for the respondent No.1, there was a refusal to accept it as mentioned on the index of the application. We find no reason to disbelieve the endorsement, which has been made on 12.1.09 on behalf of Mr.M.S.Singhvi that there was a refusal to accept the copy by the counsel appearing on behalf of the petitioner. It appears that certified copy of the index was not applied-for, hence it has not been supplied to the petitioner. Only the copy of the application has been supplied, which has been produced by Mr.Bhoot, learned counsel appearing on behalf of the petitioner. Thus, we find that it is not a case of fraud played by making the aforesaid endorsement on the application. Now coming to the submission of Mr.Bhoot, learned counsel appearing on behalf of the petitioner, that the case could not have been listed before the court within a day of filing the application and it is not the usual practice. The application was not dealt-with by the office and outrightly the case was listed in the 10 revised Cause list, thus the order deserves to be recalled. We find that the submission, that application dt.12.1.09 was not dealt with by the office, is not correct because it was dealt with by the office on 12.1.09 and there is the order of the Dy.Registrar (Judl) to list the case on 13.1.09 alongwith Contempt Petition No.39/96. Consequently, the submission which has been raised, cannot be said to be correct in view of the record of Cr.Contempt Petition No.26/98. The proposal was to the following effect: “May if approved the application be listed before Hon'ble Court on 13.1.09 alongwith Contempt 39/96.” This has been signed by the Dy.Registrar (Judl.). It is not unusual that the cases are listed the next very day. Thus, it cannot be said that fraud has been played upon the court by getting the case listed on 13.1.09, while filing application on 12.1.09. The application was dealt-with in the office and there was the order of the Dy.Registrar (Judl.) to list the case the next very day. We find that no further enquiry is necessitated, as prayed-for by Mr.Bhoot in this aspect that how the matter was listed on 13.1.09. The order, which was 11 passed earlier by the Division Bench of this Court on 11.12.2000 was to the effect that the case may be listed only when joint prayer is made, otherwise it may be posted for hearing in due course. Virtually for nine years, nothing happened. No effort was made to get the case listed by the petitioner, who had filed the Contempt Petitions in this court. There was an order to list the case otherwise for hearing in due course. When an application had been filed on behalf of respondent No.1 for dismissing the contempt petition as not maintainable on the grounds mentioned in the application dt.12.1.09 that the consent of the Advocate General in writing has not been obtained, the case could have been listed for hearing before this Court and there was nothing improper in listing the case on 13.1.09. Coming to the submission of Mr.Bhoot, learned counsel appearing on behalf of the petitioner, that counsel Mr.M.R.Singhvi had pleaded no instructions, as such this Court should not have decided the contempt applications on merits. No doubt about it, it has been mentioned in the order dt.13.1.09 that after the order has been dictated in part, Mr.M.R.Singhvi had pleaded 12 that he was not having any instructions on behalf of the petitioner. Whatever that may be, the fact remains that the contempt applications were pending in this Court for a period of almost nine years but no effort was made to pursue them and when the application was filed on behalf of respondent No.1 to dismiss the same as not maintainable, this Court has opined that suo moto cognizance has not been taken by the court as well as the consent of the Advocate General in writing has not been obtained before filing the Contempt Petition and the Contempt Petitions have been dismissed. No useful purpose would have been served by issuing notice to the petitioner in the aforesaid circumstances for arguing the matter. Mr.Bhoot, learned counsel appearing on behalf of the petitioner, has made an interception to submit that the case was to be argued on the ground whether cognizance was to be taken or not and that opportunity should have been afforded in the interest of justice. In view of the Full Bench decision of this Court in Habu's case (supra), the order dt.13.1.09 deserves to be recalled, as review is not provided as against such order. When opportunity of hearing has not been 13 afforded, the order can be recalled as laid down by the Full Bench of this Court in the aforesaid dictum. Learned counsel has relied upon para 42, 43 & 44 of the aforesaid decision wherein this Court has laid down that in all democratic societies, right of hearing has been given utmost importance, rather laws have been enacted from time to time for providing legal aid to the persons, who are unable to afford the lawyers. The right of hearing cannot be taken away and the sound judicial review would be that reasonable opportunity of being heard must be provided to the accused. In all civilized and democratic societies, right of hearing has been considered to be one of the most fundamental of the fundamental rights flowing from principles of natural justice and principles enshrined in well known maxim audi alteram partem. No doubt about it that opportunity of hearing is necessary to be afforded. However, in the facts of the instant case, the petitioner had himself filed the contempt applications in this court and if he wanted to engage some other counsel, nothing prevented him for a period of almost nine years during which period he could have taken steps to change the counsel but he 14 wanted to keep the contempt applications pending for the reasons best known to him, though a suit for damages was also filed by him, which was pending in the court of the District Judge. Thus, no effort was made by the petitioner for getting the case listed before the court. When it came up on the application filed on behalf of respondent No.1, this Court has refused to take cognizance on the aforesaid grounds. No doubt, the counsel Mr.M.R.Singhvi pleaded no instructions but the fact remains that a reasoned order has been passed and the reasons are sound and the counsel was present in the court. In case, the counsel was not having any instructions, it was the duty of the petitioner to have engaged some other counsel before the date when the contempt applications were listed before the court. We do not find that any failure of justice has been caused in view of the reasons assigned by the Division Bench of this Court that suo moto cognizance has not been taken by the Court and no prayer was made in the applications for taking suo moto cognizance of the contempt. The consent of the Advocate General in writing has also not been obtained and it is not the case of the petitioner that consent of the Advocate General had been obtained. In view of the decision in Bal 15 Thackrey's case (supra), we find that substantial justice has been done. No grounds have been made so as to make interference in the order dt.13.1.09 passed in the aforesaid Criminal Contempt Petitions and for recalling the said order as emphasized by Mr.Bhoot, learned counsel appearing on behalf of the petitioner. Resultantly, both the Misc. Petitions filed for recalling of the order dt.13.1.09 are hereby dismissed. (KAILASH CHANDRA JOSHI), J. (ARUN MISHRA), CJ RANKAWAT JK, PS