CR.MA/8046/2006 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 8046 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= D. K. BHATT REFERER - Applicant(s) Versus HASMUKHBHAI ALIAS HAKO CHUNILAL CHAUHAN & 1 - Respondent(s) ========================================================= Appearance : SUO MOTU for Applicant(s) : 1, MR MM TIRMIZI for Respondent(s) : 1, PUBLIC PROSECUTOR for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 04/02/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE Z.K.SAIYED) 1.Learned Principal District Judge, Amreli forwarded Report bearing Confidential CR.MA/8046/2006 2/9 JUDGMENT No.10/2004 dated 11.7.2006 along with the papers of contempt of Court proceeding u/s.10 of the Contempt of Court Act, 1971 and Article 215 of the Constitution of India against the accused Hasmukhbhai @ Hako Chunilal Chauhan of Amreli. The said reference has been placed before the Hon'ble The Acting Chief Justice and Mr. Justice M.S.Shah and Their Lordships have been pleased to direct the Registry to place the same on the judicial side before the Bench having jurisdiction in contempt matter and, therefore, the present Application is placed before us for hearing. 2.The learned Principal District & Sessions Judge, Amreli, transferred the Sessions Case No.68 of 2004 to the Court of Additional District & Sessions Judge, Amreli for trial against the original accused of the said Sessions case. On 21.7.2004 the learned Additional Sessions Judge framed the charge, which is at Exh.4, for the offence punishable under Sections 397, 506(2), 504 and 341 of I.P. Code and Section 25(1)(a)(b) of the Arms Act, 1959. Thereafter, the trial was proceeded against the said accused. Then the statement of the accused u/s. 313 Cr.P.C. was recorded and the arguments were heard. During CR.MA/8046/2006 3/9 JUDGMENT the argument of learned Advocate for defence the accused – opponent No.1 herein Hasmukhbhai @ Hako entered into the witness box and stated that “Advocate Shri Kamlesh Mehta frequently visiting the Amreli Sub-Jail and forecasting of the result of the cases and conveying the prisoners that particular accused will be acquitted and particular accused will be punished. On 29.7.2005 said Advocate Shri mehta told regarding the Judgment to be delivered in Sessions Case Nos.52/04 and 65/04 by the Additional Sessions Judge that the accused were to be imposed life imprisonment, but by taking Rs.35,000/- from accused Jayantibhai, Gordhanbhai and Anandbhai, settlement was made and from life imprisonment, imprisonment for 7 years has been imposed. Said Advocate Shri Kamleshbhai has also forecasted that in their case (present Sessions Case) out of 7 accused, 4 accused will be sentenced and three accused will be acquitted, but he has not given the name of any particular accused as to who will be sentenced and who will be acquitted. He (Kamleshbhai) also told that the Judgment in their case will not be delivered on 30.7.2005 and their judgment would be delivered between 8 to 12.” CR.MA/8046/2006 4/9 JUDGMENT 3.On such statement being given by the accused Hasmukhbhai @ Hako in the witness box, confidential Inquiry was ordered to be made through Shri A.M. Jamsa, Dy. S.P. (SC/ST) Amreli. Shri Jamsa, Dy.S.P. Was directed to verify the statement and to find out the truth in the matter. On receipt of the inquiry report it was observed by the learned Addl. Sesions Judge that the statement of the contemner is totally created and got up one, baseless and without having any substance and got up one from his fertile brain or got up by the person interested in the result of Sessions case No.68 of 2004. It was also found that the contemner's real intention to give false statement by coming into the witness box was to cause interference with due administration of justice in the undecided Sessions case No.68 of 2004 in which the contemner himself and other persons were accused. It was also found that so far as the allegation of the settlement is concerned the Judgment in the consolidated Sessions case Nos.52/04 and 65/04 was delivered on 29.7.2005 and within one hour after hearing the arguments on the point of sentence of both the sides the order of sentence was passed in the open Court. CR.MA/8046/2006 5/9 JUDGMENT 4.Therefore the learned Additional Sessions Judge issued show cause Notice on 14.9.2005 to the present opponent No.1 and directed to make oral or written representation on 15.9.2005 as to why appropriate proceedings should not be initiated against him for the contempt of Court under the Contempt of Courts Act, 1971 for the allegations made by him in his voluntary statement given in open Court. On 16.09.2005 opponent No.1 appeared before the Court of learned Additional Sessions Judge and prayed for adjournment for engaging lawyer. The time, as prayed for, was granted and the matter was kept on 19.9.2005. Again on 19.9.2005 adjournment was sought by the opponent No.1 and the matter was adjourned on 21.9.2005. On 21.9.2005 the opponent filed Reply in which he offered unconditional apology and stated that he has no malafide intention to cause damage or to mislead the Court. 5.Thereafter the learned Additional Sessions Judge opined that the contemner has directly or indirectly made allegations of malice and dishonesty which amounts to contempt as defined in Section 2(c) of the Contempt of Court Act, 1971. Thereafter, the learned Judge has forwarded a Report to the Sessions CR.MA/8046/2006 6/9 JUDGMENT Judge, Amreli for making proper reference to this Court to initiate appropriate proceedings against opponent No.1. Thereafter, the learned Principal District Judge, Amreli, by letter dated 11.8.2006, addressed to the Registrar General, forwarded the papers of Contempt proceedings against opponent No.1 – Hasmukhbhai @ Hako Cunilal Chauhan of Amreli. The said papers were produced before the Hon'ble Acting Chief Justice and Mr. Justice M.S.Shah and Their Lordships have been pleased to direct the office to place the same for consideration along with all original papers of reference on the Judicial side before the Bench dealing with contempt matters. 6.On 4.8.2006 the Division Bench of this Court (Coram : Anil R. Dave & H.B. Antani, JJ.) issued Notice, returnable on 5.9.2006. Thereafter, from time to time the matter was adjourned. On 17.12.2007 the opponent No.1 was brought before the Division Bench (Coram : A.L. Dave & Sharad D. Dave, JJ.) from the Sabarmati Central Prison. On that date opponent No.1 submitted that he has engaged learned Advocate Mr. M.M.Tirmizi. Thereafter, the matter was adjourned to 11.1.2008. On 11.1.2008 learned Advocate Mr. CR.MA/8046/2006 7/9 JUDGMENT Tirmizi appeared and stated that he has received instructions to appear and will be appearing in the matter on behalf of the opponent. However, he sought time to have detailed instruction and, therefore, the matter was adjourned to today. 7.Today, learned advocate Mr. Tirmizi is present. He submitted that he has tried to obtain instructions from Opponent no. 1 and also his family members, but they did not turn up before him. We have perused the papers, perused the oral as well as documentary evidence. We have also gone through the show cause notice issued to opponent No.1, report of the Dy. S.P. Mr. Jamsa and the order passed by the learned Additional Sessions Judge. From the report of Dy. S.P. it appears that the allegation that Advocate Shri Kamlesh Mehta was frequently visiting the sub-jail, Amreli, is not proved. In the case bearing CR No.I-22/04 there were three accused, out of which the said Advocate has only met the accused Jayanti Lalji and since last one year the said Advocate has not contacted any of the accused of the said case, except Jayanti Lalji. It is also reported that since last 2-1/2 months said Advocate Shri Mehta has not visited the Jail. CR.MA/8046/2006 8/9 JUDGMENT Jayanti Lalji, accused of Rajula CR No.I- 22/04 has also denied the fact that Advocate Mr. Mehta has made any settlement in their case. 8.We have gone through the record as well as the papers produced before us in the said Application. From the papers, prima facie, it appears that it has not come on record that opponent No.1 has committed any criminal contempt. Though there is a veiled suggestion in the inquiry report made by Mr. Jamsa that the accused opponent No. 1 might have made the statement at the behest of the advocate for the defence (the accused), there is no evidence in this regard. 9.From the above facts and circumstances it is not established that the opponent has committed any contempt. It is true that the powers in the matters relating to the contempt of Courts have to be exercised with the greatest caution and neither too sensitive attitude nor an easy escape from performing the harsh duty would help in maintaining respect and decorum for the judicial process which is essential for establishing a society based on rule of law. Looking to the deposition of the contemner CR.MA/8046/2006 9/9 JUDGMENT and other relevant record and especially considering the reply given by the contemner to the show cause notice issued, and even from the Report of Deputy S.P., in our view, the contemner has not committed any criminal contempt as defined under Section 2(c) of the Contempt of Court Act. The contemner, being an illiterate and rustic person and in prison, might have stated so under frustration or desperation. However, it appears that there does not appear any wilful or malafide intention. When the contemner has already expressed his unconditional apology and when he is still facing criminal proceedings, it would be in the fitness of things and in the interest of justice to accept his unconditional apology and put to end the present proceedings as, in our view, the contemner has not committed any wilful or criminal contempt. 10.Accordingly, this Application is rejected. Notice discharged. No order as to costs. (D.A.MEHTA, J.) (Z.K.SAIYED,J.) sas