1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAQL APPELLATE JURISDICTION CRIMINAL REFERENCE NO.1 OF 2009 WITH CRIMINAL REFERENCE NO.2 OF 2009 Shri R.S.Paranjape .. Petitioner Vs Shri Sunil S.Doshi and Anr. .. Respondents Mrs M.M. Deshmukh, APP, for the petitioner. Mr P.K.Dhakephalkar, Senior Counsel, with S.S.Patwardhan for respondent no.1. Mr I.M.Khairdi, for respondent no.2. Mr Raosaheb Mahavir Chimanna, respondent no.2 present. CORAM : D.B.BHOSALE & R.V.More,JJ. DATE : 21/04/2010. ORAL ORDER: (Per D.B.Bhosale, J.) 1. Heard Mrs Deshmukh, learned APP, for the petitioner, Mr Dhakephalkar, learned senior counsel, for respondent no.1 and Mr I.M.Khairdi, learned counsel for respondent no.2. 2. These two criminal references under section 15(2) of the Contempt of Courts Act, 1971 (for short, “the Act”) are made by the learned Principal District Judge and Sessions Judge, Sangli, (for short, “the learned Judge”) vide his Judgment and order T 2 dated 16.9.2009. The references are made in Contempt Proceeding nos 1 and 2 of 2009, both initiated against contemnor no.1 -Shri Sunil Sumatilal Doshi and contemnor no.2 Shri Raosaheb Mahavir Chimanna (for short, “contemnor no. 1” and “contemnor no.2”). The contempt proceedings were initiated in view of the contents of the applications - Exhibits 25 and 27 in Criminal Appeal Nos 44 and 45 of 2009. These applications were filed by contemnor no.2 under his signature seeking transfer of both the criminal appeals to some other Sessions Judge. The criminal appeals were arising from the judgment and order dated 13.1.2009 of conviction rendered by the 4th Joint Judicial Magistrate First Class, Sangli in Summary Criminal Cases under section 138 of the Negotiable Instruments Act (for short, “the N.I.Act”). In both these cases contemnor no.2 was the complainant. The accused in these cases were sentenced to suffer R,I for twelve months and to pay compensation of Rs.Nine lacs and in default to suffer RI for six months. 3. Pending the hearing and final disposal of the criminal appeals, the accused filed Exhibit-5-applications under section 389 of the Code of Criminal Procedure seeking stay of the substantive sentence. The learned Judge, while admitting the 3 appeals, heard the applications for stay and at the very inception, before issuing notices to the complainant, granted ad-interim stay of the judgment and order of conviction passed by the trial Court and also directed the appeals to be heard without paper books expeditiously. The notices were also issued to contemnor no.2 to show cause as to why the exparte stay granted should not be confirmed. 4. The facts in both the references are similar and hence we propose to refer to the facts in Reference no.1 of 2009 in Contempt Proceeding No.2 of 2009. 5. Contemnor no.2 filed the application - Exhibit-25 on 10.6.2009. The application was signed and presented by contemnor no.2 himself. Contemnor no.1 was the Advocate on record for contemnor no.2 in both the Criminal Appeals. When the application was presented, contemnor no.1 was not present in the court and, therefore, the learned Judge summoned him through contemnor no.2. When contemnor no.1 appeared before the learned Judge, he was specifically asked whether he approves the contents of the application - Exhibit-25. It is mentioned in the impugned order that contemnor no.1 said yes by nodding. In view thereof, the learned Judge initiated the 4 contempt proceedings against both the contemnors holding that the contents of the application – Exhibit-25 scandalize and lower the authority of the court. Accordingly, notices on both the contemnors were served and they were asked to show cause on 18.6.2009 at 11.30 am as to why reference should not be made against them under section 15(2) of the Act to this court. Both the contemnors accordingly filed their affidavits. 6. Contemnor no.1 in his affidavit dated 18.6.2009 has specifically stated that he did not file the application - Exhibit-25 nor did he sign it or argued before the Court. As a matter of fact, he has stated, when he was asked to argue the application he denied since he had not filed the said application. He also denied to have committed contempt as contemplated by section 2(c) (i) (ii) (iii) of the Act. Similarly, contemnor no.2 also filed an affidavit dated 18.6.2009 and has explained the circumstances that prompted him to file the transfer application - Exhibit-25. Though he has tried to justify the apprehension expressed in the application - Exhibit 25, seeking transfer of the case, he has also tendered unconditional apology. It is against this backdrop, we have heard learned counsel for the parties for some time and with their assistance gone through the entire record. 5 7. Before we proceed further, it would be advantageous to notice the contents of the application-Exhibit-25. The contents of the application-Exhibit-27 in other reference are similar. The application-Exhibit-25 states that during 2.1/2 - 3 years the learned Judge, while dealing with the applications for stay in the proceedings under section 138 of the N.I. Act, had not granted interim stay by entering into merits of the case even before issuing notice to the other side. It further states that during the last 2.1/2 – 3 years, in none of the matters, arising from the order of conviction under section 138 of the N. I. Act, the learned Judge had granted stay to substantive sentence awarded by the trial Court without issuing direction to the accused to deposit either the entire amount of cheque or part thereof. It further states that on the contrary, the learned Judge, has a practice to direct the appellant/accused to pay either the entire amount of compensation or part thereof in installments without entering into the merits of the case. It is against this backdrop he has further stated that in Criminal Appeal No.45 of 2009 the learned Judge has granted ex parte stay of the substantive sentences including the payment of fine without assigning justifiable/sufficient reasons. While granting the stay, he has further stated, that the appeal itself was fixed for hearing without paper books when there was no such prayer made by 6 the accused. 8. In the application-Exhibit-25, contemnor no.2 has further stated that for the first time “without assigning sufficient reasons” the learned Judge has granted interim relief deviating from his practice of not granting such relief in the proceedings under section 138 of the N.I. Act. He has then stated that even fixing of the appeal for early hearing without paper book, when such prayer was not made by the appellant, was also illegal. He has stated that by passing such order on the said application, injustice has been caused to him. It is further stated that he believes that the learned Judge is prejudiced against him and that he would not get justice in the appeal. 9. It would be relevant to reproduce the official translation of the application-Exhibit-25 done by the Translation Department, High Court, which reads thus: “(Translation of a Xerox copy of an application in Marathi) Exhibit-25 CRIMINAL APPLICATION NO.45/2009 IN THE COURT OF THE HON'BLE DISTRICT JUDGE AT SANGLI. Shri Abhay Prabhakar Lele .. Appellant. Vs 1. Shri Raosaheb Mahavir Chimanna Respondent. Application on behalf of the respondent no.1 herein, as 7 follows. The present appeal has been preferred by the appellant – original accused, on aggrieved by the conviction awarded by the lower court in the case under section 138 of N.I.Act. During the last two and half to two and three quarters years period, whichever appeals have been filed in this Hon'ble Court under the aforesaid Act, in such appeals while passing order on the stay application, the Hon'ble Court has never taken into account the merits of the original case nor any complaints in that regard have been heard in the appeal and passed the order in the application for stay accordingly. On the contrary, almost in all the appeals, this Hon'ble Court considered that it is an appeal in the case under section 138 of the N.I. Act and without going into the merits of the original case, the Court has fixed installments for the appellant to pay the amount of compensation or the amount of cheque. This practice is scrupulously followed by this Hon'ble Court for the last two and three quarters years. In such circumstances, in this particular case, for the first time, when no specific points or exceptions were put forth in the application for stay by the appellant, while considering the vaguely made application this Hon'ble Court deviated from its aforesaid practice and only for the first time, without any substantial ground, considered the grounds which have not at all been mentioned in the application for the first time, it appears that the merits of the original case have been taken into account and the stay has been granted to the conviction. Not only this, but when the appellant had shown his inclination to get prepared paper book at his own costs in the application for stay and though there was no request to take up appeal for hearing without paper book, this Hon'ble Court, while passing the order in the application for stay of the appellant, has directed to take up the said appeal for hearing without paper book, which is unjust and unlawful. Moreover, when there was no prayer in the appellant's application for stay to take up the said appeal expeditiously, the Hon'ble Court while granting exparte order of stay on the very application for stay, granted to the appellant the said relief which was not sought by him. Thus, the Hon'ble Court, by granting the reliefs which 8 were not sought by the appellant in the application for stay, made injustice against the respondent. Moreover, even the stay has been granted, by breaking the practice being followed so far and without any substantial grounds; and now the said Hon'ble Court is making haste to take up the said appeal for hearing expeditiously. In such circumstances, the Hon'ble Court without any reason has broken its usual practice in this appeal and though there was no case of the appellant in the application for stay, this Hon'ble Court by going into the merits of the original case granted the stay and as such the respondent, taking into account the aforesaid circumstances, feels that the Hon'ble Court has prejudiced and biased mind against the respondent and as the hon'ble Court has ordered to take up the appeal for hearing without paper book expeditiously, though there was no such prayer from the appellant and though the appellant was ready to get prepared the paper book, in such circumstances, the respondent feels that he will not get justice by this Hon'b le Court in the matter of this appeal and he also feels that the hearing will not be made impartially; hence it is prayed that instead of entertaining the said appeal by this Hon'ble Court and hearing any application therein, the same may be transferred to any other Hon'ble Sessions Court. Hence, the application is made. Sangli. Sd/- Date : 10.6.2009. Signature illegible. Respondent in person.” 10. At this stage, it would be relevant to reproduce what the Supreme Court has observed in Gurucharan Dass Chadha Vs State of Rajasthan, AIR 1966 Supreme Court 1418, in paragraph 13 of the Judgmentd, in respect of the law with regard to transfer of cases. The relevant observations in paragraph 13 read thus : “13. … …. The law with regard to transfer of cases is well settled. A case is transferred if there is a 9 reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained, but must appear to the Court to be a reasonable apprehension.” 11. Contemnor no.2, as noticed in the application – Exhibit-25, has expressed apprehension that justice would not be done to him since the learned Judge is prejudiced against him. We have noticed the reasons stated in the application for expressing the apprehension. The learned Judge was expected to consider whether the apprehension expressed by contemnor no.2, in his application for transfer, was justified. Section 408 of the Code of Criminal Procedure empowers a Sessions Judge to transfer cases and appeals either on the report of the lower court, or on the application of a party interested, or on his own initiative. A party is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and 10 that it is reasonable in the circumstances alleged. However, mere allegations that there is apprehension that justice will not be done does not suffice. The learned Judge in the present case ought to have seen whether the apprehension was reasonable and it was supported by adequate reasons. 12. A litigant in an application for transfer is fully justified in expressing his apprehension that justice will not be done in his case provided he says so in proper language or in a temperate manner. It is equally true that the Judge should remain unperturbed by innocuous use of expressions in the application for transfer as long as the apprehension expressed appears to the court to be a reasonable apprehension. In such an eventuality if the Judge finds that the apprehension is justified he should avoid hearing of the case. However, if he thinks that the apprehension is baseless and unfounded he should proceed to hear the case ignoring the allegation of prejudice. In other words, the learned Judge is expected to closely examine the nature of allegations/language used in the application seeking transfer so as to find out whether it satisfies the requirements of what may be regarded as contempt of court. It is necessary to see whether the language used or allegation made in any case would amount to scandalizing the court. We, therefore, would 11 have to examine whether the apprehension expressed in the application-Exhibit-25 is reasonable in the circumstances alleged and that it was expressed in proper language or in a temperate manner. 13. In the course of hearing before the learned Judge, the contemnors had relied upon the judgment of the Supreme Court in Gobind Ram Vs State of Maharashtra, AIR 172 Supreme Court 989 and the Judgment of Allahabad High Court in Ram Narayan Shukla and Anr Vs J.O.Gyanper and anr, 1965 (2) Cri. L. J. 268. The learned Judge, however, brushed aside these judgments simply observing that the facts in the present case do not match with the facts of the reported ruling. In Gobind Ram's case the Supreme Court was dealing with an appeal from the Judgment of this Court finding the appellant therein, who was an advocate, guilty of the contempt of court. In that case a transfer application was filed in which a statement was made that the Magistrate was friendly with a party who happened to be an advocate and enjoyed his hospitality and had friendly relations with him. The transfer application was dismissed and a reference was made to the High Court for considering the conduct of the contemnor and the course adopted by him in making imputation or assertion against the Judicial Officer. The 12 reference was decided holding the contemnor guilty of contempt of court. While dealing with this case, the Supreme Court in paragraphs 9,11 and 12 observed thus: “9. … … It is difficult to comprehend that the mere statement that Magistrate is friendly with a party who happens to be an advocate and enjoys his hospitality or has friendly relations with him will constitute contempt unless there is an imputation of some improper motives as would amount to scandalizing the court itself and as would have a tendency to create distrust in the popular mind and impair the confidence of the people in the Courts.” 11. It is true that in the garb of a transfer application a person cannot be allowed to commit contempt of Court by making allegations of a serious and scurrilous nature scandalizing the court and imputing improper motives to the Judge trying the case. But then the nature of the allegations will have to be closely examined and so long as they do not satisfy the requirements of what may be regarded as contempt of court, no punishment can possibly be inflicted. The appellant, in the present case, is an advocate and it is most unfortunate that though at the stage of the transfer application he made certain allegations in para 1 about the social intimacy between Jagiasy and Sarvashri Sayyid and Baadkar, the two judicial officers, with the apparent object of securing a transfer of the case. He proceeded to take highly ill-advised step of attempting to substantiate the allegations so made. We are, however, not covered with any charge relating to the matters subsequent to the notice which was issued by the High Court with regard to the allegations for which punishment has been imposed on the appellant. That notice on the face of it discloses no such allegation which could be regarded as falling within the rule laid down by this court and by a series of decisions of the Privi Council in which this head of contempt that is scandalizing the court has come up for examination … …... .” 13 12. In our judgment, the allegations contained in para 1 of the transfer application were not such as would amount to contempt of Court we cannot help observing that the appellant did not show the sense of responsibility in making the allegations in question which is expected from an advocate and in further attempting to substantiate them which he failed to do so.” 14. When we examined the contents of the application-Exhibit- 25 in the backdrop of the settled law with regard to transfer of cases, we find that the learned Judge did not examine the case in proper perspective. He ought to have judged the reasonableness of the apprehension or the state of mind of contemnor no.2, who entertained the apprehension. From the language of the impugned judgment, it appears that the learned Judge had taken it personally and was sensitive while dealing with the case. 15. The learned Judge in the impugned order has narrated the circumstances in which he proceeded to hear the application for stay at Exhibit-5 in the appeal. He has also stated what prompted him to grant stay by making exception. In paragraph 4 of the order dated 10.2.2009, by which the stay was granted, he has specifically mentioned that during 2.1/2 years he had made a practice of passing conditional order under 14 section 389 of the Code and only where the appellant agreed to deposit the amount of cheque by way of installments, then only an interim order of suspension of sentence was passed. He has further recorded that though this was a rule of the court (of the Principal District Judge), but every rule had an exception and, therefore, he heard the learned Advocate for the appellant at length and in view of the logical submissions advanced on his behalf, granted stay holding that it was an exceptional case. Why did he make an exception and heard the learned advocate for the appellant without issuing direction to the appellant, as per his practice, to deposit the cheque amount or part thereof is not clear from the order. In paragraphs 8 and 9 of the impugned order, he has observed thus:- 8. …. …..., it is pertinent to note that Exh.25 was preferred on which the advocate did not sign. However, I have already observed that when I called the learned advocate and asked him in the open court, point-blank as to whether he approves the contents, the reply came in the affirmative in the form of nod of approval.” 9. It is pertinent to note that in Exh.25, it has been specifically contended that this Court deliberately took a different view in this appeal and granted an ex-parte stay. It is also contended that since last 2 and ½ years practically in every appeal the Court was insisting for installments without considering the merit of appeal. However, in this 15 particular case, for the reasons best known to the Court, a different view was taken. So, in a way, it was tried to be suggested that the Court was either following the norms which are not within the scope of legal frame work, either it was a case of nepotism or favoritism or it was a case of corruption. That was the sense clearly reflected in the drafting of the application, which in my opinion, on the face of it amounting to scandalizing the Court. That was precisely the reason why I initially decided to initiate contempt proceeding so as to ultimately decide as to whether the reference is essential to be made to the Hon'ble High Court or not as per the scheme of the Contempt of Courts Act. (emphasis supplied) The observations made in the aforesaid paragraphs show that the learned Judge has used the expressions “deliberately took a different view” and “the reasons best known to the Court” (see the highlighted portion in the aforesaid paragraph 9), as if they are part of the application-Exhibit-25. We have carefully gone through the application which is in Marathi. The contemnor no.2 has not used such expressions in the application attributing any improper motives as would amount to scandalizing the court. It is evident from the contents of the application reproduced in earlier part of the judgment. 16. We would not like and it would not be proper in these proceedings to examine whether the learned Judge was justified 16 in passing the interim order even before issuing notice to the complainant, i.e contemnor no.2. But, fact remains that the appeals of contemnor no.2 were the only appeals in which the learned Judge, from the date he took over at Sangli, had granted ad-interim stay of the substantive sentence “unconditionally” at the very inception and without issuing notice to contemnor no.2. We would like to consider whether this fact is sufficient enough to hold that the apprehension expressed in the application-Exhibit-25, was reasonable. 17. The impugned order shows that the learned Judge took a very serious view of the contents of the application-Exhibit-25 and of the grounds on which transfer was sought. He got perturbed and made very harsh remarks against the contemnors. In paragraph 10 of the impugned order the learned Judge has observed that “in this particular case there was a direct attack on the integrity of this court by specifically contending that this court has deliberately granted stay in this particular case against the policy of this court and,therefore, the respondent has lost faith in this court.” He further observed that “it is rather unfortunate that only for the purpose of either seeking adjournment or for the purpose of choosing favorable forum, the contemnor has gone to the extent of scandalizing the court.” 17 18. Insofar as contemnor no.1 is concerned, the learned District Judge in paragraph 11 of the order has observed thus : “11. …. …. I am also of the view that an Advocate, having some self respect, after he comes to know that without his advice, his client has placed on record an application scandalizing the court and