SMCP. 10-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION SUO MOTU CONTEMPT PETITION No. 10 OF 2011 High Court on its own motion ... Petitioner Vs. Natwarlal T. Dalal & Ors. ... Defendants (Petitioners) AND Sukesh Tulsidas Vora ... Respondent/ Contemnor *** Mr. Mohan Bir Singh a/w Ms. Pooja Jalan, Rahul Jalan i/b MBS & Co. for original Defendants in S. C. Suit No. 1208 of 2007. Mr. N. H. Modi with Mr. S. T. Manek, for the Respondent/Contemnor. Dr. F. R. Shaikh, APP for the State. *** CORAM : V. M. KANADE, & A. M. THIPSAY, JJ. DATE : SEPTEMBER 08, 2011 PC [PER : V. M. KANADE, J.]: 1. Heard the learned counsel appearing on behalf of the original Defendants, the learned counsel appearing on behalf of the respondent/contemnor and the learned APP for the State. 2. A reference is made by the Judge, Bombay City Civil Court, at Bombay under section 15(2) of the Contempt of Courts Act, SMCP. 10-11 - 2 - 1971, by order dated 27th January, 2011 which was passed in Contempt Notice of Motion Exh. 54 in S. C. Suit No. 1208 of 2007. After having heard the learned counsel for the contemnor and the learned APP for the State and the counsel for original Defendants, this Court by an order dated 11th July, 2011 was pleased to issue show- cause notice which was made returnable on 21st July, 2011, calling upon the contemnor as to why proceedings under the Contempt of Courts Act should not be initiated against him. 3. Pursuant to the said show-cause notice, the contemnor was served and he has filed his affidavit dated 21st July, 2011. In the affidavit-in-reply he has tendered his unconditional apology for making incorrect statements in his cross-examination in S. C. Suit No. 1208 of 2007. It is further stated in affidavit-in-reply that he was examined on behalf of the plaintiff as PW 1 to identify his signatures on Exhs. 35, 36 and 37, which were three letters sent by the Plaintiff to the Defendant. He has stated that even though after identifying his signature, he had said that he had signed the said letters, as an authorized signatory of the plaintiff firm but he had no knowledge of contents of the said letters. He has further stated that when he was cross-examined on 4-10-2008 he was not aware of the fact that his father had made him partner of M/s. Creations on 1-1-1987 or made him retire on 1-4-1995 and when he gave answer to the questions asked in the cross-examination it had not occurred to him that among the documents and/or papers that his father had asked him to sign in the past; as a result which, he became a partner of the plaintiffs firm. SMCP. 10-11 - 3 - It was submitted that therefore the said answer which was given by him was an incorrect statement. 4. The suit was filed by M/s. Creations as a partnership firm, inter alia for the relief of permanent injunction against the defendants. The plaintiffs had taken out a Notice of Motion for grant of an ad-interim relief of temporary injunction and the trial court was pleased to grant ad-interim relief to the plaintiff. Thereafter the defendants filed their affidavit-in-reply and also filed written- statement. One of the issue which fell for the consideration of the Court was issue of lack of jurisdiction of the City Civil Court to deal with the subject matter of the suit, and the relief which was sought by them was relating to possession of the property, situated in Greater Mumbai and therefore, it was contended by the defendants that the suit falls within the sweep of Section 41(1) of the Small Causes Court Act, and therefore, jurisdiction of the City Civil Court was ousted. 5. After examining the preliminary issue regarding jurisdiction of the court, the trial court commenced recording of evidence in relation to the said preliminary issue. After evidence was led on behalf of the defendants, the plaintiff commenced their evidence by examining respondent Sukesh Tulsidas Vora and he filed his affidavit in lieu of examination-in-chief. He was cross-examined in open court on 3-10-2008. During the course of his cross- examination the respondent deposed as follows - “I am not the partner of the plaintiff firm Messrs SMCP. 10-11 - 4 - Creation. I was not partner of the plaintiff firm for the period 1/1/91 to 01/04/1997. I was not partner of the plaintiff firm at any time. .......... My father, mother and two elder brothers namely Tulsidas Vora, Nalini T. Vora, Paresh T. Vora and Ashok T. Vora were the partners of the plaintiff firm. At presently my mother and 2 brothers are the partners of the plaintiff firm. ....... I am not in position to produce before the court the partnership deed for the year from 1987 till 1995. At presently I am not in position to produce the partnership deed today as the same is not in my possession. It is not true to say that I am not willing to produce the same for the period from 1/1/95 till 01/04/97 as I was the partner of the plaintiff firm during the said period .......... ........ .........6. It is not true to say that I am deposing falsely that I was not the partner of the plaintiff firm.” 6. Thereafter the Defendants have taken out of Notice of Motion in which it was prayed the City Civil Court to refer the matter under Section 15(2) of the Contempt of Courts Act for the contempt committed by Sukesh Tulsidas Vora. Affidavit in reply was filed by the defendant in which it was stated that he had obtained the certificate from the office of Registrar of Firms which revealed that said Sukesh was inducted as partner of the plaintiff firm with effect from 1-1-1987 and remained as its partner till 1-1-1995. Copy of the certificate was annexed to the affidavit-in-reply. It was contended that therefore, the respondent/contemnor Sukesh had made a false SMCP. 10-11 - 5 - statement on oath and his contempt amounted to interference with administration of justice or the due course of judicial proceeding. The affidavit-in reply was filed on behalf of the plaintiff by Nalini T. Vora in which she stated that her husband died on 18-6-2008 and that father of Sukesh had expected him to take more active interest in the business of the family firm and Sukesh used to sign on documents, asked by her husband without reading or questioning him. The respondent also filed an affidavit on similar lines and tendered his unconditional apology for the statements made in the cross- examination. The trial court came to the conclusion that the respondent had committed criminal contempt and though unconditional apology was tendered by him, he did not have the power to accept the apology tendered by him. Since the question of accepting apology was the matter within the jurisdiction of the. High Court. The trial court also relied on the judgment in the case of – Dhananjay Sharma, Petitioner Vs. State of Haryana & Ors. Respondents1. 7. The learned counsel appearing on behalf of the contemnor submitted that the contemnor has tendered his unconditional apology to the trial court as well as this Court. It was submitted that the statement which was made in the cross-examination by the contemnor was an incorrect statement. It was, therefore, submitted that such a statement would not amount to contempt of Court. Reliance was placed on the judgment of Apex Court in the case of – Bhadrakanta Mishra, Appellant Vs. Mr. Justice Gatikrushna 1 (1995) 3 Supreme Court Cases 757 SMCP. 10-11 - 6 - Misra, Chief Justice of Orissa H.C., Respondent1. It was submitted that therefore no deliberate contempt had been committed by the contemnor and an incorrect statement made in the cross-examination would not amount to an interference in the administration of justice. 8. On the other hand, learned counsel appearing on behalf of the respondent submitted that the deliberate, intentional, false statement was made by the contemnor, respondent herein. He submitted that the Apex Court had held that if false statements are made, it amounted to interference with the administration of justice or due course of judicial proceeding and it amounts to commission of criminal contempt. Reliance was placed on the judgment of Apex Court in the case of Dhananjay Sharma (supra) . 9. After having heard the learned counsel for the original defendants, respondent/contemnor and the learned APP for the State, in our view it is not a fit case where contempt proceeding should be initiated against the respondent. In the present case, respondent was examined to prove his three signatures on the three letters which were addressed by the plaintiff to the defendant and in respect of merits of the case. During the course of cross-examination, the contemnor stated that he was never a partner of the firm from 1987 to 1997 and later on the defendant produced a certificate issued by the Registrar of Firms which shows that this statement which was made by the contemnor that he was not a partner of the firm during the said period was false. The defendant in his affidavit-in-reply has thereafter 1 AIR 1974 Supreme Court 2255 SMCP. 10-11 - 7 - admitted that the said statement was incorrect. He has stated that his father was a dominating person in the family, who used to take various signatures on various documents and papers, that his late father desired him to sign; he never questioned his father and used to sign various documents without going through them. It was vehemently urged by the learned counsel for the respondent that this explanation was unacceptable since the respondent contemnor was a partner from 1985 to 1987 and though he was 17-18 years of age when he signed the partnership-deed, he was 40 years age when he retired from the said firm and therefore, it could not be said that he was not aware that he was a partner of the said firm. 10. Though it is true that Apex Court has in terms held that any false statement made either in the affidavit or in the evidence amounts to interference in the administration of justice, it does not mean that in each and every case where the statements made by witness if found to be incorrect, contempt proceedings should be initiated against such witnesses. In the present case, defendant was cross examined and in his cross-examination a statement was made by him that he was never partner of the said plaintiff firm which is now proved to be an incorrect statement. If such a yardstick is used for initiation of contempt proceeding, in all cases where any part of the evidence of witness is shown to be incorrect in cross-examination, such a party would be liable under the provisions of Contempt of Courts Act. Surely, that was not the intention of the legislature when the Contempt of Courts Act was passed by the legislature. The Apex SMCP. 10-11 - 8 - Court in the case of – Bhadrakanta Mishra (supra) in paragraph 7 after referring to the provisions of the said has observed as under- “7. ........... It will be seen from these provisions that the scheme adopted by the legislature is that the Court may initiate a proceeding for contempt suo motu or on a motion made by the Advocate General or any other person with the consent in writing of the Advocate General or a reference is made by a subordinate court. Where the Court initiates a proceeding for contempt suo motu, it assumes jurisdiction to punish for contempt and takes the first step in exercise of it. But what happens when a motion is made by the Advocate General or any other person with the consent in writing of the Advocate General or a reference is made by a subordinate cour?. Does the Court enter upon the jurisdiction to punish for contempt and act in exercise of it when it considers such motion or reference for the purpose of deciding whether it should initiate a proceeding for contempt? We do not think so. The motion or reference is only for the purpose of drawing the attention of the Court to the contempt alleged to have been committed and it is for the Court on a consideration of such motion a reference, to decide, in exercise of its discretion whether or not to initiate a proceeding for contempt. The Court may decline to take cognizance and to initiate a proceeding for contempt SMCP. 10-11 - 9 - either because in its opinion no contempt prima facie appears to have been committed or because, even if there is prima facie contempt, it is not a fit case in which action should be taken against the alleged contemnor. The exercise of contempt jurisdiction being a matter entirely between the Court and the alleged contemner, the Court, though moved by motion or reference, may in its discretion, decline to exercise its jurisdiction for contempt. 11. In the peculiar facts and circumstances of the present case, we are of the view that this is not a fit case where action should be taken against the alleged contemnor and it would be sufficient to accept the unconditional apology tendered by the contemnor. Reliance is placed by the trial Court on the case of Dhananjay Sharma (supra) . So far as said case is concerned, in the said case the facts were that a writ of habeas corpus was filed for the release of Dhananjay Sharma from the illegal and unauthorized custody of police and production in the Court. It was contended that on account of civil dispute between M/s. Bhanu Iron and Steel Company Limited of New Delhi with a factory at Indore, which was owned by respondent No.7, Shri Anoop Bishnoi, son-in-law of Shri Bhajan Lal, Chief Minister of Haryana and M/s. G. R. Industries Limited, a case under Sections 406, 420 IPC was got registered by respondent No. 6, S. K. Kaushik, and non bailable warrants of arrest were issued against Pradeep Rampuria by the Additional Chief Judicial Magistrate, Hissar and he was arrested on 7-1-1994 and produced before the Chief Judicial Magistrate, SMCP. 10-11 - 10 - Alipore, Calcutta, who released him on bail till 15-1-1994 with a direction to appear before the competent court at Hissar. On 15-1-1994 Shri Dhananjay Sharma, the detenu, who is an employee of M/s. Golden Industries, a sister concern of M/s. G. R. Industries Limited, along with Shri S. C. Puri, advocate went to Hissar in a taxi (van) and they appeared in the court of the Addl. CJM Hissar and filed an application seeking exemption from personal appearance of Pradeep Rampuria on medical grounds. While returning to Delhi in the same taxi, a team of Haryana police officers, stopped the said taxi and took away Dhananjay Sharma and Sushil Kumar who was a driver of the taxi and they were illegally detained by the Haryana police; their whereabouts were not known and they did not return to Delhi. This fact was stated by S.L. Puri, Advocate in his affidavit in support of the writ petition. The affidavit-in-reply was filed by respondent 3 on behalf of respondents 3 to 5 in which he stated that taxi driver Sushil Kumar informed the Delhi police that they returning to Delhi along with Dhananjay Sharma on 15-1-1994 itself and they were kept in illegal detention. The Apex Court noted that the said averments made in the affidavit were false and in that context the Apex Court has passed strictures and has observed in paragraph 38 as under - “38. Section 2(c) of the Contempt of Courts Act 1971 (for short the Act) defines criminal contempt as "the publication (whether by words, spoken or written or by signs or visible representation or otherwise) of any matter or the doing of any other act whatsoever to (1) scandalise or tend to scandalise or lower or tend to lower the authority of any court; (2) prejudice or interfere or tend SMCP. 10-11 - 11 - to interfere with the due course of judicial proceedings or (3) interfere or tend to interfere with, or obstruct or tend to obstruct the administration of justice in any other manner. Thus, any conduct which has the tendency to interfere with the administration of justice or the due course of judicial proceedings amounts to the commission of criminal contempt. The swearing of false affidavits in judicial proceedings not only has the tendency of causing obstruction in the due course of judicial proceedings but has also the tendency to impede, obstruct and interfere with the administration of justice. The filing of false affidavits in judicial proceedings in any court of law exposes the intention of the party concerned in perverting the course of justice. The due process of law cannot be permitted to be slighted nor the majesty of law be made a mockery by such acts or conduct on the part of the parties to the litigation or even while appearing as witnesses. Anyone who makes an attempt to impede or undermine or obstruct the free flow of the unsoiled stream of justice by resorting to the filing of false evidence, commits criminal contempt of the court and renders himself liable to be dealt with in accordance with the Act. Filing of false affidavits or making false statement on oath in Courts aims at striking a blow at the Rule of Law and no court can ignore such conduct which has the tendency to shake public confidence in the judicial institutions because the very structure of an ordered life is put at stake. It would be a great public disaster if the fountain of justice is allowed to be poisoned by anyone resorting to filing of false affidavits or giving of false statements and fabricating false evidence in a court of law. The stream of justice has to be kept clear and pure and anyone soiling its purity must be dealt with sternly so that the message perculates loud and clear that no one can be permitted to undermine the dignity of the court and interfere with the due course of judicial proceedings or the administration of justice. In Chandra Shashi v. Anil Kumar Verma, [1995] 1 SCC 421, the respondent produced a false and fabricated certificate SMCP. 10-11 - 12 - to defeat the claim of the respondent for transfer of a case. This action was found to be an act amounting to interference with the administration of justice. Brother Hansaria, J. speaking for the Bench observed : (SCC pp. 423-24, paras 1 and 2) "The stream of administration of justice has to remain unpolluted so that purity of court's atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of court's environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned. Anyone who takes recourse to fraud deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice." (emphasis supplied) 12. It has to be remembered that the Apex Court was compelled to make the observations in the facts and circumstances of the said case. It, therefore, cannot be said that whenever any statement which is made by a witness in the cross-examination is proved to be false or incorrect, in such cases this Court should initiate contempt proceedings. 13. Even otherwise, the defendants have taken out one more Notice of Motion alleging perjury which is pending before the trial SMCP. 10-11 - 13 - Court and the said motion may be disposed of expeditiously by the trial court. In the result, in our view, it is not a fit case where contempt proceedings should be initiated against the respondent. The apology which is tendered by him is accepted. Suo-Motu Contempt Petition is, accordingly, disposed of. [ A. M. THIPSAY, J.] [ V. M. KANADE, J.]