1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Suo Motu Contempt Petition No.5 of 2003 In Criminal Writ Petition No.622 of 1996 High Court on its own motion Petitioner Vs. Shri Gopinath Mundhe & ors. Respondents Mr.Ravi Kadam, Advocate General with Mr.D.S. Mhaispurkar, APP for State. Mr.Nitin Pradhan with Miss S.D. Khot and Mr.Maheen Pradhan for Resp.no.1. Mr.S.S.Pakale for Resp.No.2. Mr.B.K.Ingale, Resp.no.3. CORAM: B.H.MARLAPALLE & NARESH H.PATIL,JJ. Reserved on : October 10, 2006. Pronounced on : October 20, 2006. JUDGMENT (PER B.H.MARLAPALLE,J.): 1. Criminal Writ Petition No.622 of 1996 praying for directions to hand over the investigations in C.R.No.69 of 1996 registered with the Police Station at Indapur, Dist.Pune, in respect of the attack on the police station, to the Central Bureau of Investigation was admitted on 12/8/1996 and the Minister of State for Agriculture, Maharashtra State was allowed to be impleaded as the respondent no.5 in 2 the said petition. It appears that when the petition came up for hearing, it was informed that by exercising powers under Section 321 of the Cr.P.C. the prosecution came to be withdrawn in Sessions Case No.37 of 1996 which had originated from C.R.No.69 of 1996. The Division Bench, therefore, took a serious note of this action on the part of the State Government and called for the original record. On perusal of the original file called from the Home Ministry and after hearing all the parties concerned by a detailed order dated 2/12/2003 the Division Bench recorded a prima facie case of contempt within the meaning of Section 2(c) of the Contempt of Courts Act, 1971 ("the Act" for short) against the following three persons: (i) Shri Gopinath Mundhe, MLA and Minister of State for Home at the relevant time, (ii) Shri Prabhakar More, MLA and Minister of State for Home at the relevant time, (iii) Shri B.K. Ingale, Deputy Secretary in the Department of Law and Judiciary at the relevant time. 3 Thus this Suo Motu Contempt Petition came to be registered against the above three persons. 2. On notice as directed by the order dated 2/12/2003 they have caused their appearances and filed replies, opposing the petition. At the first instance all of them have in their individual replies stated that the order dated 12/8/1996 admitting Criminal Writ Petition No.622 of 1996 was not known to them and, therefore, when the proposal for withdrawing the prosecution in Sessions Case No.37 of 1996 was placed before each of them, they were not aware personally about the pendency of the said writ petition. The officers concerned had never brought to the attention of the Home Ministry at any point of time that the Criminal Writ Petition No.622 of 1996 was admitted by this Court and it was pending and if it was within their knowledge or it was brought to their attention, the prosecution could not have been withdrawn by exercising the powers under Section 321 of Cr.P.C. Each one of them has also taken a preliminary point of law regarding the limitation as set out under Section 20 of the Act and in this regard they have relied upon a Division Bench 4 judgment of this Court in the case of State of Maharashtra v. J.V. Patil [1974 Vol.LXXVIII BLR [1974 Vol.LXXVIII BLR [1974 Vol.LXXVIII BLR 116] 116] 116] and a Full Bench judgment of the Punjab and Haryana High Court in the case of Manjit Singh and ors. v. Darshan Singh [1984 Cri.L.J. 301] [1984 Cri.L.J. 301] [1984 Cri.L.J. 301]. In addition they have placed reliance on the following two judgments of the Supreme Court: . (1) Om Prakash Jaiswal Vs D.K.Mittal [(2000) 3 [(2000) 3 [(2000) 3 SCC SCC SCC 171] 171] 171] and Pallav Sheth v. Custodian & ors. [(2001) [(2001) [(2001) 7 SCC 549] 7 SCC 549] 7 SCC 549]. 3. Mr.Gopinath Mundhe, who was holding the portfolio of Minister for Home at the relevant time has, in addition, submitted that the Home Department used to receive a large number of applications praying for various reliefs, in normal course on every working day and one Mangesh Patil had also submitted an application praying for withdrawal of prosecution in Sessions Case No.37 of 1996 claiming that the accused were falsely implicated on account of political rivalry. In normal course the application was placed before the Minister for Home and in a routine manner, as the Minister he made an 5 endorsement "Please put up the case for withdrawal". This endorsement by itself can, by no stretch of imagination, be said that it was an order for withdrawal. He has relied upon the various notes / reports submitted in respect of the application submitted by Mr.Mangesh Patil by different officers and pointed out that the fact that some of these officers objected to withdrawal itself indicated that it was not an order but it was only a direction to put up submissions in response to the application and the words used "for withdrawal" would mean either way i.e. for withdrawal or denying withdrawal. Finally he has submitted that when the officers in the Home Ministry had recorded difference of opinion for withdrawal of the prosecution, the case was forwarded to the Department of Law and Judiciary and the Deputy Secretary i.e. Mr.B.K. Ingale recorded his opinion in favour of withdrawal. This opinion and supported by the note of the Collector, Pune dated 4/1/1999 as well as the subsequent note of the Superintendent of Police, Pune (Rural) was accepted and the Minister of State for Home made his noting on 30/1/1999, "Considering the report of Law and Judiciary Department (A and B) it is directed that the case be withdrawn". Consequently the Government of 6 Maharashtra through the Home Department directed the District Magistrate, Pune to recommend to the Public Prosecutor to withdraw the prosecution from the Sessions Case No.37 of 1996 and accordingly the Prosecutor filed an application under Section 321 of Cr.P.C. on 10//1999. The learned Addl. Sessions Judge, Baramati allowed the said application and discharged the accused by his order dated 31/3/1999. Mr.Mundhe, therefore, submitted that at no point of time he passed an order in his capacity as a Minister for Home for withdrawal of the prosecution in Sessions Case No.37 of 1996. 4. On the issue of knowledge of the order passed by this Court on 12/8/1996 the Deputy Secretary to the Government of Maharashtra has filed affidavit in Criminal Writ Petition No.622 of 1996 on or about 24/11/2003 as under: "I say that the Government of Maharashtra, Home Department has processed the application for withdrawal and called for report from various authorities. It was never brought to the notice of the Home Department, Government of Maharashtra, by any of the authorities that 7 the present petition is pending before this Hon’ble Court for consideration." . By our order dated 6/10/2006 we called upon the Establishment Officer in the office of the Public Prosecutor of this Court to file an affidavit clarifying as to whether the order dated 12/8/1996 in Criminal Writ Petition No.622 of 1996 was supplied to or served on any particular officer of the State Government and / or in the Ministry for Home, Government of Maharashtra or the District Superintendent of Police, Pune (Rural) who has been impleaded as Respondent no.2 in the said petition. We had to pass this order because the learned APP could not place before us any specific information / record that the order dated 12/8/1996 was in fact communicated to any of the respondents in the writ petition or to the Home Ministry of the Government of Maharashtra during the last about ten years or till the order dated 2/12/2003 was passed taking cognizance of the alleged criminal contempt against the respondents. We had also sought assistance of the learned Advocate General on this issue and Mr.Manohar Kewale, Establishment Officer in the Office of the Government Pleader and Public 8 Prosecutor, High Court, Appellate Side has filed his affidavit and stated that the original brief of Writ Petition No.622 of 1996 is not traceable as well as the outward register for the year 1996 is not available as the same has been destroyed after keeping it for five years. The learned Advocate General while placing this affidavit on record also stated that there is no documentary proof to show that the order passed by this Court on 12/8/1996 was served either on the Superintendent of Police, Pune (Rural), or any officer of the State Government in the Ministry of Home. Thus right from the affidavit-in-reply filed by the Deputy Secretary in the Home Department, Government of Maharashtra on 24/11/2003 till the affidavit filed by the Establishment Officer from the office of the Public Prosecutor it is consistently stated that the order passed by this Court on 12/8/1996 was not communicated and/or there is no documentary proof available with the Public Prosecutor’s office to show that the said order was in fact communicated to the Home Ministry, Government of Maharashtra at any time till 2/12/2003. The contentions of the respondents that they had no knowledge of the order passed by this Court on 12/8/1996 therefore, cannot be 9 discarded. We have also gone through the record which was placed before us and which was perused while passing the order dated 2/12/2003 initiating contempt proceedings against the respondents. One Mr.Mangesh Wamanrao Patil submitted an application to the Minister for Home, Maharashtra State on or about 10/9/1998 and requested for withdrawal of prosecution in Sessions Case No.37 of 1996. It carries the following endorsement made by the Minister for Home: "Secretary (Home) please put up withdrawal". Consequent to this endorsement reports were called from the Police Superintendent, Pune (Rural), Collector, Pune and initially the Police Superintendent opposed the withdrawal. The Collector, Pune vide his letter to the Secretary in the Ministry for Home dated 4/1/1999 referred to the opinion of the Superintendent of Police, Pune (Rural) opposing the withdrawal and requested for suitable orders. On the basis of the Collector’s note submissions were made and the matter was referred to the Department of Law and Judiciary. Mr. B. K. Ingale, Deputy Secretary in the Department of Law and Judiciary, Government of Maharashtra opined that 10 there was no objection to recommend withdrawal of the prosecution in order to further the ends of public justice, public order and peace. His note was placed before the Principal Secretary as well as the Addl. Chief Secretary and both of them recorded their opinion against withdrawal. However, the Minister of State for Home i.e. Mr.More directed for withdrawal of the prosecution. In none of these notes / reports submitted by the Superintendent of Police, Pune (Rural), the Collector, Pune or any officers in the Ministry of Home, there is a reference to the pendency of Criminal Writ Petition No.622 of 1996. In normal course it is seen that if the Government officers are against withdrawal of prosecution or any proposal, there is tendency to take shelter of the pending Court case on the ground that the issue is sub judice before the Court and in the instant case this could have been the safest and easiest ground available to any of these officers to oppose the withdrawal of prosecution. But the Superintendent of Police as well as the Principal Secretary and the Addl. Chief Secretary have recorded their opinion on the merits of the case and in their opinion so recorded there is no reference to the pendency of 11 Criminal Writ Petition No.622 of 1996. This is one more reason to believe that none of these officers was aware of the pendency of Writ Petition No.622 of 1996 and more particularly the fact that it was admitted by this Court. We, therefore, accept the contentions of the alleged respondents that they had no knowledge about the pendency of Criminal Writ Petition No. 622 of 1996 while the application submitted by Mr.Mangesh Patil was being processed for withdrawal from prosecution. 5. Section 20 of the Act reads as under: "Limitation Limitation Limitation for actions for contempt. - for actions for contempt. - for actions for contempt. - No court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed." . There is a bar in initiating contempt proceedings either suo motu or otherwise after the expiry of period of one year from the date on which the contempt is alleged to have been committed. 12 In the instant case the Minister of State for Home directed withdrawal on 30/1/1999, the District Magistrate, Pune was directed by letter dated 5/2/1999 to recommend to the Public Prosecutor to withdraw the prosecution. The Public Prosecutor filed an application under Section 321 of Cr.P.C. on 10/3/1999 and the application was allowed on 31/3/1999. Thus the cause of action arose on 30/1/1999 when the Minister of State for Home directed to apply for withdrawal from the prosecution. By the order dated 2/12/2003 this Court took cognizance of prima facie contempt on the part of the respondents i.e. after about three years and eleven months. In the case of J.V.Patil (Supra) a Division Bench of this Court was considering the Reference under Section 15(2) of the Act and on the issue of limitation under Section 20 of the said Act it held that the date on which the matter is placed before the Division Bench of the High Court and on which date the Rule is granted is the date when contempt proceedings can be said to be initiated in the Court and neither the date when reference is made by the subordinate Court under Section 15(2) of the Act nor the date of the administrative order of the Administrative Judge of the High Court can be said to 13 be the beginning of contempt proceedings. . In the case of Manjit Singh (Supra) the Full Bench of the Punjab and Haryana High Court in para 5 observed as under: "5. It appears to me that on the unequivocal language of Section 20 itself as also on principle, the date when time begins to run or the terminus a quo here is inflexibly fixed from the point on which the criminal contempt is alleged to have been committed. This follows from the clear cut and plain grammatical construction of S.20 itself. This apart, on principle also the terminus of limitation has to be a fixed and precisely determinable one" The submissions that the limitation should run from the date the contempt was brought to the knowledge of the Court were rejected in the following words: "... Therefore. the actual awareness of the Court of an act of criminal contempt would inevitably remain a fortuitous circumstance. 14 For limitation to run from a point of time so uncertain as the knowledge of the Court itself or when it is brought to its notice would in my view introduce a double element of uncertainty for the start of the point of limitation which would be contrary to sound principles of construction. On such a view, an action for criminal contempt can be visualised many years after its actual commission because factually it may be brought to the notice of the Court even after a decade. This, in essence, would frustrate the very purpose of the legislature in introducing a period of limitation. The report of the Sanyal Committee which preceded the enactment of the Contempt of Courts Act, 1971, would indicate that one of the clear cut purposes was that the extraordinary jurisdiction to punish for contempt was not to be exercised in stale cases." . In the case of Om Prakash Jaiswal (Supra) the Supreme Court clarified the expression "initiate any proceedings for contempt" in the following words: 15 "14. In order to appreciate the exact connotation of the expression "initiate any proceedings for contempt" we may notice several situations or stages which may arise before the court dealing with contempt proceedings. These are: (i)(a) a private party may file or present an application or petition for initiating any proceedings for civil contempt; or (b) the court may receive a motion or reference from the Advocate General or with his consent in writing from any other person or a specified law officer or a court subordinate to the High Court; (ii)(a) the court may in routine issue notice to the person sought to be proceeded against; or 16 (b) the court may issue notice to the respondent calling upon him to show cause why the proceedings for contempt be not initiated; (iii) the court may issue notice to the person sought to be proceeded against calling upon him to show cause why he be not punished for contempt." . In the case of Pallav Sheth (Supra ) a three-Judge Bench by referring to the Full Bench decision of the Punjab and Harayana High Court in the case of Manjit Singh (Supra) and also its own decision in the case of Om Prakash Jaiswal (Supra) considered the issue of limitation as set out under Section 20 of the Act in all the available categories viz. on an application with the permission of the Advocate General, on the reference being made under Section 15(2) of the Act as well as suo motu and in para 44 Their Lordships observed as under: "44. Action for contempt is divisible into two categories, namely, that initiated suo motu by the court and that instituted otherwise than on the court’s own motion. The 17 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 the 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." . Applying the above enunciations to this case, it is clear that the suo motu contempt proceedings are hit by limitations under Section 20 of the Act. 6. In para 26 of the order dated 2/12/2003 this Court, in support of initiating contempt proceedings made the following observations: "26. All these submissions on Section 321 of the Criminal Procedure Code would be considered at a later point of time. We are 18 presently concerned with the withdrawal of the prosecution by the State when a writ petition was already admitted and was pending in this Court. The least that was expected, in our view, was that the State ought to have approached this Court pointing out the circumstances under which it wanted to move the application for withdrawal. This is because the Petitioners had made a clear grievance that the Minister was not being prosecuted and they wanted a proper investigation and in case that was not likely to be done, the matter may be transferred to C.B.I. The petition was admitted, was pending for consideration and the statement was made before this Court that the chargesheet has been filed. The chargesheet did disclose offences against S/Shri Dashrath Mane, Patil and others. When that prosecution was pending, the Petitioners were keen that the Minister be prosecuted. As stated above, the As stated above, the As stated above, the least least least that was expected from the State was that was expected from the State was that was expected from the State was that that that it ought to have moved the High Court for it ought to have moved the High Court for it ought to have moved the High Court for seeking seeking seeking leave for whatever action it wanted to leave for whatever action it wanted to leave for whatever action it wanted to take. take. take. On this background, there is much On this background, there is much On this background, there is much 19 substance substance substance in the submission of Mr.Bhosale. It in the submission of Mr.Bhosale. It in the submission of Mr.Bhosale. It isisis material to note that there is no clear material to note that there is no clear material to note that there is no clear recommendation recommendation recommendation in either of the two reports of in either of the two reports of in either of the two reports of the the the Superintendent of Police, Rural, Pune, Superintendent of Police, Rural, Pune, Superintendent of Police, Rural, Pune, that that that the case be withdrawn. Shri Iyengar, the the case be withdrawn. Shri Iyengar, the the case be withdrawn. Shri Iyengar, the then then then Principal Secretary (Special) Home has in Principal Secretary (Special) Home has in Principal Secretary (Special) Home has in clear clear clear terms recorded that the case should not terms recorded that the case should not terms recorded that the case should not be be be withdrawn since the Police had been withdrawn since the Police had been withdrawn since the Police had been attacked. attacked. attacked. In this state of affairs, in our In this state of affairs, in our In this state of affairs, in our view, view, view, the three orders, firstly, the initial the three orders, firstly, the initial the three orders, firstly, the initial note note note made by Shri Gopinath Mundhe, the then made by Shri Gopinath Mundhe, the then made by Shri Gopinath Mundhe, the then Deputy Deputy Deputy Chief Minister to the effect "Put up Chief Minister to the effect "Put up Chief Minister to the effect "Put up for for for withdrawal", secondly, the report made by withdrawal", secondly, the report made by withdrawal", secondly, the report made by Shri Shri Shri B.K. Ingale, the then Deputy Secretary, B.K. Ingale, the then Deputy Secretary, B.K. Ingale, the then Deputy Secretary, Law Law Law and Judiciary Department that there was a and Judiciary Department that there was a and Judiciary Department that there was a case case case for withdrawal and thirdly, the order for withdrawal and thirdly, the order for withdrawal and thirdly, the order passed passed passed by Shri Prabhakar More, the then by Shri Prabhakar More, the then by Shri Prabhakar More, the then Minister Minister Minister of State for Home, directing the of State for Home, directing the of State for Home, directing the withdrawal, withdrawal, withdrawal, prima facie, constitute a contempt prima facie, constitute a contempt prima facie, constitute a contempt inasmuch inasmuch inasmuch as they tend to interfere with the as they tend to interfere with the as they tend to interfere with the course course course of pending writ petition and also tend of pending writ petition and also tend of pending writ petition and also tend toto to obstruct the administration of justice." obstruct the administration of justice." obstruct the administration of justice." (Emphasis supplied by us) 7. Thus this Court was of the prima facie view 20 that the directions to withdraw from the prosecution in Sessions Case No.37 of 1996 tend to interfere with the course of pending writ petition and also tend to obstruct the administration of justice and, therefore, show cause notice as to why action for contempt should not be initiated and should not be punished for contempt was directed to be issued. 8. Section 2(c) of the Contempt of Courts Act, 1971 reads as under: (c) "criminal contempt" means the publication (whether by words, spoken or written, or by signs, or by visible representation, 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 21 (iii) interferes or tends to interfere with, or obstructs