C.C.P.(Crl.)No.6/2007 Page 1 of 22 IN THE HIGH COURT OF DELHI AT NEW DELHI + C.C.P.(CRL.)NO.6/2007 Date of pronouncement 14th September, 2009 # LALIT MADHAN ..... Petitioner Through : Mr.Vijay Aggarwal and Mr.Rakesh Mukhija, Advocates Versus P.C. SRIVASTAVA .... Respondent Through : Mr.Tripurari Ray, Mr.Ravi Shankar and Mr.Aashutosh Dubey, Advs. CORAM: HON'BLE MR. JUSTICE B.N. CHATURVEDI HON'BLE MR. JUSTICE G.S.SISTANI 1. Whether reporters of local papers may be allowed to see the Judgment ? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the Judgment should be reported in the Digest? Yes G.S. SISTANI, J. CRL.M.A.No.5495/2008 1. Present application has been filed by the respondent/contemnor for recalling the judgment dated 10.4.2008 by virtue of which this Court had allowed the contempt petition and held the respondent guilty of criminal Contempt of Court and the matter was adjourned for hearing on the aspect of quantum of punishment. Counsel for respondent /applicant submits that respondent has been convicted for committing contempt on the basis of an alleged letter dated 5.5.2006, which is contrary to section 20 of the Contempt of Courts Act, and the proceedings are barred by limitation. It has also been contended that the judgment dated 10.4.2008 is in fact a nullity in the eyes of law, as no rules for proceedings have been framed by the Delhi High C.C.P.(Crl.)No.6/2007 Page 2 of 22 Court, as per section 23 of the Contempt of Courts Act, 1971. Counsel for respondent –applicant further contended that no evidence was recorded nor specimen signatures of respondent /applicant were taken to arrive at an opinion that the impugned letter was actually signed and sent by the contemnor. It is further contended that this Court had failed to enquire as to how the petitioner received letters dated 5.5.2006 and 1.10.2003, when they were not addressed to him. 2. Elaborating his submissions further, it is contended that the judgment is a nullity in the eyes of law, being based on a forged document i.e. letter dated 5.5.2006 and the fact of forgery could not be investigated, as there is no procedure enacted by the High Court on its administrative side for trial of cases of criminal contempt, thus in the absence of rules in this behalf, this Court had no jurisdiction to proceed to hear or punish for contempt. Counsel further contends that a judgment which has been rendered on the basis of a forged document i.e. letter dated 5.5.2006, is a nullity in the eyes of law and thus such a judgment cannot be enforced, as it is contrary to and in violation of fundamental rights. In support of his submissions, he has placed reliance on Kiran Singh Vs. Chaman Paswan 1955 (1) SCR 117, S.P. Chengalvaraya (Dead thr. LR’s) Vs. Jagannath (dead by LR’s) & Ors. 1994 (1) SCC 1 and S.Nagraj Vs. State of Karnataka (1993) Suppl. 4 SCC 495, paras 36 and 37. 3. It is also submitted that if a judgment which is a nullity is challenged at the stage of enforcement, this Hon’ble Court C.C.P.(Crl.)No.6/2007 Page 3 of 22 should refuse to enforce the same and recall its order (ex-debito- justitie). 4. Counsel for the applicant/contemnor also submits that the judgment rendered by this court is in violation of Article 21 of the Constitution of India and void-ab-initio, therefore, cannot be enforced and any violation of law of procedure amounts to violation to Article 21 of the Constitution of India. Reliance has also been placed on Maneka Gandhi Vs. U.O.I. 1978 (1) SCC 248 @ 401 para 219 and Attorney General Vs. Lacchma Devi 1989 Suppl. (1) SCC 264. It is also submitted that it is settled principle of administration of justice that mistake of court should not prejudice any litigant and therefore it is in the interest of justice that this Court may correct its mistake nunc- protanc i.e. by placing the respondent in the same position as was existing prior to the mistake of the Court, reliance has been placed on (1993) Suppl. 4 SCC 595. 5. Counsel for respondent-applicant also submits that in the absence of Rules framed by this court for trial of cases of criminal contempt as required under Article 21 of the Constitution of India read with section 23 of the Contempt of Courts Act, 1971 this Court has no jurisdiction to exercise its power to punish for criminal contempt of court itself. 6. It is also contended that Article 21 of the Constitution of India creates a two-fold duty i.e. to establish a procedure for trial of cases in which any person is liable to be deprived of his right or liberty. This duty is on the legislatures or executive and to follow the procedure so established by law and is the duty of the C.C.P.(Crl.)No.6/2007 Page 4 of 22 judiciary. In support of this submission he placed reliance on A.K. Gopalan Vs. The State 1950 SCR 88 195 and also contended that High Courts and the Supreme Court are constituted as the protector and enforcers of fundamental rights, therefore it is their constitutional duty to enforce the fundamental rights. Thus the High Court or the Supreme Court would not knowingly enforce an order which is contrary to a fundamental right or which has the effect of violating a fundamental right. In support of this plea, reliance has been placed on Premchand Garg Vs. Excise Commissioner U.P. (1963) Suppl. 1 SCR 885. It is also submitted that the Courts have no inherent power to violate a fundamental right. Article 21 of the Constitution of India is the ground-norms of all judicial process. Thus the power of Article 215 of the Constitution of India to punish for its Contempt is coupled with the duty to act according to the procedure established by law. For this a procedure has to be established by law. If no procedure is established by law the High Court lacks power/ jurisdiction to proceed as the High Court would be proceeding on the basis of ad-hoc procedure. In support of this submission reliance has been placed on 1950 SCR 88 and (1978) 1 SCC 248. 7. Counsel for applicant-contemnor submits that it is in this context that section 23 of the Contempt of Court Act, 1971 has delegated the power to the High Court to frame Rules for Trial of cases of criminal Contempt on its administrative side. In the absence of a procedure established by law the power to punish for its Contempt is like a automobile without an engine or ammunition C.C.P.(Crl.)No.6/2007 Page 5 of 22 without a gun. It is submitted that Articles 20, 21 and 22 of the Constitution of India are rights guaranteed against the judiciary and therefore, if the same are violated by the Courts order, the same would be void-ab-initio by the force of Article 13(2) of the Constitution of India and unenforceable. 8. It is also submitted that sections 15 and 17 of the Contempt of Courts Act, 1971 do not lay down the entire procedure for trial of cases of contempt by the High Court. They only provide for broad outlines or the policy on the basis of which Rules relating to procedure for trial of contempt cases is to be framed. He also submits that the manner in which and the procedure according to which such evidence is to be taken is not provided under the Contempt of Courts Act, 1971. It is this further procedure which is to be provided by framing Rules under section 23 of the Contempt of Courts Act, 1971. This further procedure is the procedure for trial where facts are disputed. The manner of proof of allegations and defence of the respondent needs to be provided by Rules. And it is the only safeguard to ensure a fair trial in an orderly manner and in accordance with the principles of natural justice. It is a settled principle of interpretation of statutes that the legislature inserted every part thereof for a purpose and the intention is that every part of the statute should have effect. Reliance has also been placed on (1997) 3 SCC 511 and (2002) 2 SCC 135. 9. Counsel for respondent has filed written submissions as well. Counsel for the petitioner/non-applicant has opposed this application and raised a preliminary objection with regard to the C.C.P.(Crl.)No.6/2007 Page 6 of 22 maintainability of this application, as no grounds are made out for recall of the judgment dated 10.4.2008 which would amount to review. 10. Counsel for non-applicant/ petitioner submits that section 23 of the Contempt of Courts Act is not a mandatory provision and further this Court has followed the principles of natural justice before passing the final order, as show cause notice was issued, the applicant was granted an opportunity to file his reply and thereafter arguments were addressed. It is next contended that during the course of hearing of the Contempt Petition neither any objection was raised with regard to non-framing of rules by the High court nor any grievance was made with regard to the procedure adopted by this Court. 11. We have heard counsel for the parties and given our thoughtful consideration to the matter. 12. Section 23, Contempt of Courts Act, 1971, deals with power of Supreme Court and the High Court to make rules. Section 23 Contempt of Courts Act, 1971, reads as under:- “23. Power of Supreme Court and High Courts to make rules.-The Supreme Court or, as the case may be, any High Court, may make rules, not inconsistent with the provisions of this Act, providing for any matter relating to its procedure.” 13. Bare reading of Section 23, Contempt of Courts Act, 1971, would show that power to make rules is not mandatory, but the contempt jurisdiction has to be exercised in accordance with procedure prescribed by law. 14. In the case of Dr. L.P. Misra Vs. State of U.P., reported at 1998 (7) SCC 379, the Supreme Court of India had set aside the order C.C.P.(Crl.)No.6/2007 Page 7 of 22 passed by a Division Bench of Allahabad High Court on the ground of non-compliance with the procedure prescribed under Allahabad High Court Rules. In the case of Dr. L.P. Misra (supra) certain advocates had manhandled one of the Judges of the Division Bench of Allahabad High Court and used abusive language against the other. The judges retired to the Chamber of one of them and the advocates entered the Chamber and repeated abusive language and extended threats. After sometime the Court re- assembled and in exercise of its power under Article 215 of the Constitution of India passed an order holding the advocates guilty of contempt of court both for interfering with the administration of justice as well as scandalising the Court and forthwith sentenced them with imprisonment for one month and fine of Rs.5,000/-. This order was assailed before the Supreme Court of India principally on the ground that the Court while passing the order did not follow the procedure prescribed by law. It was urged before the Supreme Court of India that the Court had failed to give a reasonable opportunity to the lawyers of being heard. The Court, it was argued, could not have passed the impugned order on the same day after it re-assembled without issuing a show cause notice or giving an opportunity to the appellants to explain the alleged contemptuous conduct. While remanding the matter back, the Supreme Court held as under:- “12. After hearing learned counsel for the parties and after going through the materials placed on record, we are of the opinion that the Court while passing the impugned order had not followed the procedure prescribed by law. It is true that the High Court can invoke powers and jurisdiction vested in it under Article 215 of the Constitution of India but such a jurisdiction has to be C.C.P.(Crl.)No.6/2007 Page 8 of 22 exercised in accordance with the procedure prescribed by law. It is in these circumstances the impugned order cannot be sustained.” 15. In the case of Daroga Singh & Others Vs. B.K. Pandey, reported at (2004) 5 Supreme Court Cases 26, the Supreme Court has held that criminal contempt is an offence sui generis and hence procedure adopted under common law or statute has always been summary and High Court can adopt its own procedure since need is for an expeditious disposal. The Court has also held that the procedure must be fair and contemnor should be aware about the charges against him and he should be given a fair and reasonable opportunity to meet them. It would be useful to reproduce paras 31 to 37:- “31. It has repeatedly been held by this Court [Vinay Chandra Mishra, In re] that the procedure prescribed either under the Code of Criminal Procedure or under the Evidence Act is not attracted to the proceedings initiated under Section 15 of the Contempt of Courts Act. The High Court can deal with such matters summarily and adopt its own procedure. The only caution that has to be observed by the Court in exercising this inherent power of summary procedure is that the procedure followed must be fair and the contemners are made aware of the charges levelled against them and given a fair and reasonable opportunity. Having regard to the fact that contempt proceedings are to be decided expeditiously in a summary manner the convictions have been recorded without extending the opportunity to the contemners to cross-examine those who had deposed against them on affidavits. Though the procedure adopted in this case was summary but adequate safeguards were taken to protect the contemners’ interest. The contemners were issued notices apprising them of the specific allegations made against them. They were given an opportunity to counter the allegations by filing their counter- affidavits and additional counter/supplementary affidavits as per their request. They were also given opportunity to file affidavits of any other persons which they did. They were given opportunities to produce any other material in their defence which they did not do. Most of the contemners had taken the plea that at the relevant time they were on duty in their respective police stations though in the same town. They also attached copies of station diaries and duty chart in support of their alibi. The High Court did not accept the plea of alibi as all these C.C.P.(Crl.)No.6/2007 Page 9 of 22 papers had been prepared by the contemners themselves and none of the superior officers had supported such a plea. The evidence produced by the respondents was rejected in the face of the reports made by the Additional District and Sessions Judge, Director General of Police coupled with affidavits of Mr Barai, the Additional District and Sessions Judge, two court officials and affidavits of some of the lawyers who had witnessed the occurrence. 32. The contempt proceedings have to be decided in a summary manner. The judge has to remain in full control of the hearing of the case and immediate action is required to be taken to make it effective and deterrent. Immediate steps are required to be taken to restore order as early and quickly as possible. Dragging the proceedings unnecessarily would impede the speed and efficiency with which justice has to be administered. This Court while considering all these aspects held in Vinay Chandra Mishra, In re7 (the alleged contemner) that the criminal contempt no doubt amounts to an offence but it is an offence sui generis and hence for such offence, the procedure adopted both under the common law and the statute law in the country has always been summary. It was observed that the need was for taking speedy action and to put the judge in full control of the hearing. It was emphasised that immediate steps were required to be taken to restore order in the court proceedings as quickly as possible. To quote from the above-referred-to case: (SCC pp. 609-10, para 26) “However, the fact that the process is summary does not mean that the procedural requirement viz. that an opportunity of meeting the charge, is denied to the contemner. The degree of precision with which the charge may be stated depends upon the circumstances. So long as the gist of the specific allegations is made clear or otherwise the contemner is aware of the specific allegation, it is not always necessary to formulate the charge in a specific allegation. The consensus of opinion among the judiciary and the jurists alike is that despite the objection that the judge deals with the contempt himself and the contemner has little opportunity to defend himself, there is a residue of cases where not only it is justifiable to punish on the spot but it is the only realistic way of dealing with certain offenders. This procedure does not offend against the principle of natural justice viz. nemo judex in sua causa since the prosecution is not aimed at protecting the judge personally but protecting the administration of justice. The threat of immediate punishment is the most effective deterrent against misconduct. The judge has to remain in full control of the hearing of the case and he must be able to take steps to restore order as early and quickly as possible. The time factor is crucial. Dragging out the contempt proceedings means a lengthy interruption to the main proceedings which paralyses the court for a time and indirectly impedes the speed and efficiency C.C.P.(Crl.)No.6/2007 Page 10 of 22 with which justice is administered. Instant justice can never be completely satisfactory yet it does provide the simplest, most effective and least unsatisfactory method of dealing with disruptive conduct in court. So long as the contemner’s interests are adequately safeguarded by giving him an opportunity of being heard in his defence, even summary procedure in the case of contempt in the face of the court is commended and not faulted.” 33. In the present case the High Court had decided to proceed with the contempt proceedings in a summary manner. Due opportunity was afforded to all the contemners and after verifying and cross- checking the material available before it, coming from different reliable sources the High Court convicted only nine persons out of twenty-six persons arrayed as contemners before it. The High Court took due care to ascertain the identity of the contemners by cross-checking with the affidavits filed by the different persons. It is also based on the independent reports submitted by the Director General of Police and Superintendent of Police. We do not find any fault in the procedure adopted by the High Court in conducting the proceedings in the present case. For the survival of the rule of law the orders of the courts have to be obeyed and continue to be obeyed unless overturned, modified or stayed by the appellate or revisional courts. The court does not have any agency of its own to enforce its orders. The executive authority of the State has to come to the aid of the party seeking implementation of the court orders. The might of the State must stand behind the court orders for the survival of the rule of the court in the country. Incidents which undermine the dignity of the courts should be condemned and dealt with swiftly. When a judge is attacked and assaulted in his courtroom and chambers by persons on whose shoulders lay the obligation of maintaining law and order and protecting the citizen against any unlawful act, it needs to be condemned in the severest of terms. If the judiciary has to perform its duties and functions in a fair and free manner, the dignity and the authority of the courts has to be respected and maintained at all stages and by all concerned failing which the very constitutional scheme and public faith in the judiciary runs the risk of being lost. 34. It was urged with some vehemence that principles of natural justice were not observed inasmuch as opportunity to cross-examine the witnesses who had deposed on affidavits is concerned, it may be stated that no such opportunity was asked for in the High Court at trial stage. It was for them to ask for such an opportunity to cross- examine the parties who had deposed against them on affidavit. Since the contemners did not avail of the opportunity at the trial stage, the plea of non- observance of principles of natural justice is not tenable. The appellants were made aware of the procedure which was adopted by the High Court. They were given full opportunity to put forth their C.C.P.(Crl.)No.6/2007 Page 11 of 22 point of view. Each of them filed detailed affidavits along with evidence in support thereof. They had attached their duty charts showing that they could not have been present at the place of occurrence as they were on duty somewhere else. The High Court has considered and discussed the entire evidence present on the record before recording the conviction. The contention that the affidavits of independent witnesses were not considered cannot be accepted. Only those were convicted against whom corroboration of the fact of their presence and participation in the incident was confirmed from more than one source. 35. Plea that reasonable and adequate opportunity was not afforded to the appellants is equally untenable. We find from the record that all the materials (affidavits, show-cause notice, etc.) which were brought on record were properly served on the learned advocates appearing for the contemners. The reports submitted by the Vth Additional Sessions Judge, District Judge, affidavit of Shri Barai and his staff, namely, R. Das and B. Sharma and the other affidavits of the advocates who had seen the occurrence and the reports submitted by the Director General of Police and the Superintendent of Police were given to the learned advocates who were appearing for the contemners in the High Court. Statements of A. Natarajan, the then SP, Harihar Choudhary, the then Deputy Superintendent of Police, Ranjit Pandey, the then Sergeant Major and Shashi Lata Singh, the then SI were recorded by the High Court in the presence of all the lawyers. The Registry of the High Court was directed to keep their statements in a sealed cover. The contemners were permitted to file affidavits and produce any other material in support of the same. They were also permitted to file affidavits of any other person supporting their version. They were all taken on record. After affording due opportunity of hearing to the counsel appearing for the contemners, the High Court recorded the order of conviction. Thus the appellants were given the evidence which had come on the record. They were given an opportunity to controvert the allegations made against them and produce evidence in support thereof. Counsel appearing for the contemners were satisfied with the opportunity provided to them by the High Court. Plea that reasonable opportunity was not afforded to the contemners was not raised before the High Court. We are of the opinion that due reasonable and adequate opportunity was afforded to the appellants to defend themselves and put forth their point of view. 36. The High Court has taken into consideration the entire evidence and material available on the record including the evidence produced by the contemners. It was not necessary for the High Court to discuss each and every affidavit individually. Out of 26 persons named only 9 have been convicted by the High Court. Since the procedure adopted was summary the High Court has taken care not to C.C.P.(Crl.)No.6/2007 Page 12 of 22 convict a person unless direct evidence and/or circumstances with sufficient corroborative material doubtless fastening guilt on the contemners who have been punished was available. The High Court found only those contemners guilty against whom the element of doubt was completely eliminated. Affidavit evidence if based on hearsay has been excluded. Contemners against whom there was single identification were also given the benefit of doubt. The version put forth by the appellants was not accepted as it fell short of proof. The High