1 smcp-2.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SUO MOTU CONTEMPT PETITION NO. 2 OF 2011 IN CRIMINAL WRIT PETITION NO 446 OF 2003 (decided) The Registrar, High Court of Bombay, Bench at Aurangabad, Aurangabad. Petitioner versus 1. The State of Maharashtra Respondent 2. Faiyaz Shamsuddin Attar age 24 years, occup. labour, r/of Kolhar, Taluka Rahata, District Ahmednagar, at present, Behind Hotel Madina, Mominpura, Solapur, Dist. Solapur. 3. Mr. Shaikh Iliyas, Advocate, r/of Juna Bazar, Beed, Dist. Beed. 4. Mr. Balasaheb s/o Bhimrao Gite, Advocate, r/o Vidya Nagar, Beed. r/of Beed. 5. Mr. Waheed Ahmed Pyare Ahmed Shaikh, Advocate, r/o 12, Shambhu Patel Chawl, near Arbuda Mill, Rakhiyal Road, Ahmedabad. 6. Mr. Kanhyalal Bhaichandbhai Vaghela, Advocate and Notary Public, r/o 74/631, Pushpak Apartment, Naralpura, Ahmedabad. 7. Shaikh Altaf Ahmed Shakh Imam Nos. 2 to 7 Advocate, r/of Beed. (died) Contemnors ------- Shri V.D.Godbharle,Asstt.Public Prosecutor for Resp No.1-State Shri C.V. Thombre, Advocate for contemnor-Respondent No. 2 Shri S.S. Kazi, Adv. for contemnors-Respondent Nos. 3 and 4 Shri Mohd. Waseem, Advocate, for contemnor-Respondent No. 5 Shri S.D. Hiwarekar, Advocate,for contemnor-Respondent No.6 Shri P.M. Shah, Senior Counsel, with Shri Ameya N. Sabnis, Advocate, appointed as amicus curiae. 2 smcp-2.11 Coram: A.H.Joshi and A.M.Thipsay, JJ. Date : November 24, 2011. Judgment (Per: A.H. Joshi, J.) 01. Criminal Writ Petition No.446 of 2003 was filed by Faiyaz s/o Shamshuddin Attar, contemnor No.2, on 16.10.2003, for habeas corpus, for producing before Court, his wife Monika @ Muskan. 02. The order issuing rule and making it returnable after six weeks, was passed on 17.10.2003. Record of Writ Petition No. 446 of 2003 does not show that Rule was served on Respondent No. 4 Anil Prataprao Kadam, the father of Monika alias Muskan. 03. Writ Petition No. 478 of 2003 was filed by Anil Prataprao Kadam, for habeas corpus for production of his daughter Monika, against authorities and Faiyaz, (petitioner in Writ Petition No. 446 of 2003)- Respondent No.2. 04. Anil Prataprao Kadam, Petitioner in Writ Petition No.478 of 2003, filed his affidavit in reply on 18.10.2003 in Writ Petition no.446 of 2003. He 3 smcp-2.11 revealed that based on his report, Crime No. 763 of 2003 was registered against Faiyaz with Loni Police Station, for offences punishable under Sections 363 and 366 read with Section 34 of the Indian Penal Code for abduction of Monika from lawful custody of her parents etc. He, therefore, prayed for dismissal of Writ Petition No. 446 of 2003. 05. In Writ Petition No. 478 of 2003, this Court issued Rule on 13.11.2003 and made it returnable on 28.11.2003. Both Writ Petitions were heard together. 06. The record shows that an affidavit has been sworn by Monika @ Muskan on 21.11.2003 at Beed. It is attested on the same day by Advocate and Notary Shri M.S. Bahegavankar, at Beed. This affidavit is accompanied by:- (i) Affidavit by Monika, purportedly sworn and attested on 29.3.2003. Contemnor Mr. Advocate Wahed Ahmed had signed for identification of Monika @ Muskan. This affidavit is attested by Notary Shri K.B. Vaghela, contemnor-Respondent No.6, and; (ii) A certificate showing that Faiyaz and Monika had performed Nikah. 4 smcp-2.11 Though these documents were filed in this court in Writ Petition No.478 of 2003, it is not possible to gather from the record the date on which those are filed. It has to be inferred that those must have been filed prior to 8.12.2003. 07. While Criminal Writ Petition Nos. 446 and 478, both of 2003, were listed and were heard together from time to time, Monika @ Muskan, was produced before this Court, by Petitioner Faiyaz- contemnor-Respondent No.2. 08. The farad order dated 4.12.2003 in said Writ Petition further reveals:- (a) On interrogation by court or otherwise, Monika @ Muskan gave a statement that she had voluntarily gone with Faiyaz. (b) Anil s/o Prataprao Kadam, requested the court that, in order to ascertain that Monika was not under any pressure, she be referred to State Home for Women. (c) By consent of parties, court passed an order that Monika @ Muskan be kept in State Home for Women at Aurangabad, till next date. 5 smcp-2.11 09. Thereafter, the cases were listed on board on 8.12.2003 when the Court interrogated the parties in camera. During the course of interrogation, Monika alias Muskan complained of pains in abdomen and, therefore, she was referred to the Medical Officer Dr. Kanade attached to the High Court Bench and thereafter was produced before the court. 10. Court found that certain self-contradictory or incorrect statements were made and, therefore, directed that Monika @ Muskan be kept in Govt. Home for Women and be produced in court on next day i.e. 9.12.2003. On 9.12.2003, the Court interrogated Monika @ Muskan, as well as Faiyaz in presence of their Advocates and thereafter recorded the statements of Monika and Faiyaz. 11. Both, Faiyaz and Muskan stated before the Court that the story on which Writ Petition No.446 of 2003 was couched, was false and it was a fabrication by the Advocates-contemnors-Respondent Nos. 3, 4 and 7. 6 smcp-2.11 12. The Division Bench of this Court then decided both the Writ Petitions, i.e. Writ Petition No. 446 and 478 of 2003, by common judgment delivered on 11.12.2003. This court has directed the issue of notices to contemnors-Respondents Nos. 2 to 7, to show cause against initiation of contempt proceedings and other actions. 13. The record shows that suo motu show cause notices issued by the Court were served on the contemnors and they appeared in the matter and filed their replies. 14. This court has issued Rule in the Suo Motu Contempt, on 10.3.2005. 15. We have perused farad orders passed in Criminal Writ Petition No. 446 of 2003 and it appears that the Contemnors were present before the court, from time to time. 16. The Contempt Proceedings remained pending for a long time. We have heard learned Amicus curiae Senior 7 smcp-2.11 Advocate Mr. P.M. Shah, assisted by Shri Sabnis, the Advocates for contemnors and contemnors-Respondent Nos. 5 and 7 who appeared in exclusion to their Advocate whom they wanted to discharge. 17. The circumstances due to which notice of show cause was given and cognizance was taken, are summarized as below:- (a) Writ Petitioner Faiyaz and Monica @ Muskan, had admitted that the contents of Writ Petition No. 446 of 2003, Monika's affidavit attested before Advocate Bahegavankar, filed in Writ Petition No.478 of 2003, contained lie. Said story was a craft work of Advocates - contemnors- Respondents No. 3, 4 and 5. (b) Monika @ Muskan had never visited Ahmedabad prior to May 2003 and hence, her affidavit attested by K.B. Vaghela-contemnor No.6, purportedly dated 29.3.2003 was prepared by paying consideration, and was an ante dated document. (c) The act of Advocates at Beed, of giving advice to cook-up the story as foundation of the Writ Petition, was an act which amounted to undermining the prestige of the court and interference in administration of 8 smcp-2.11 justice, so also the act of getting affidavit from Monika @ Muskan at Beed for acknowledging a totally untrue story was unbecoming of an Advocate, and it also amounted to contempt of the court. 18. Notices were issued to: (a) contemnors-Respondent Nos. 3, 4 and 7 to show cause as to why the matter should not be referred for action to the Bar Council for such professional misconduct, for their conduct in tampering with the story which was the basis of Criminal Writ Petition No. 446 of 2003; (b) Contemnor-Respondent No. 5 Waheed Ahmed for signing false and ante dated identification of affidavit dated 29.3.2003, attested before Shri K.B. Vaghela-contemnor-Respondent No. 6; (c) Shri K.B. Vaghela-contemnor-Respondent No.6, of Ahmedabad, in preparing ante dated affidavit and using the same in the Criminal Writ Petition, in order to vouch for the fact that Monika @ Muskan had converted to Islam in March 2003, amounted to misconduct and 9 smcp-2.11 contempt of the court and thus, liable for appropriate action under Notaries Act, 1952. 19. Various affidavits have been filed by different persons/contemnors in suo motu contempt, as follows:- (i) Vahid Ahmed Pyare Ahmed Shaikh on: 4.01.2005 (ii) Kanhyalal Bhaichandbhai Vaghela on: 23.02.2005 (iii) Shaikh Altaf Ahmed s/o Shaikh Imam on: 07.03.2005 (iv) Shaikh Iliyas s/o Bale Saheb on: 07.03.2005 (v) Balasaheb s/o Bhimrao Gite on: 07.03.2005 (vi) Monika @ Muskan w/of Faiyaz on: 05.05.2005 (vii) Faiyaz s/o Shamshuddin Attar on: 30.01.2006 20. We have heard the learned Advocates for the respective parties at length and perused the record. 21. As can be seen from the record, notices of rule issued in writ petition No.446 of 2003 for habeas corpus filed by Faiyaz, which were directed by order dated 17.10.2003, were made returnable after six weeks. Writ Petition No. 478 of 2003 filed by Anil Kadam, father of Monika @ Muskan, was filed on 11.11.2003 and the said Petitioner filed his reply in Writ Petition No. 446 of 2003, on 18.11.2003. 10 smcp-2.11 22. What had transpired between 18.11.2003 to 4.12.2003, has not come on record. 23. On 4.12.2003, Monika @ Muskan was produced before this court and the court had interrogated her, in camera. Thereafter, the matter was on board almost on day-to-day basis. 24. Notes of revelations from interrogation and what Monika had disclosed during her interrogation in chamber (in camera), is not recorded. Therefore, the reflection of what must have been said, is to be perceived from the minutes of the order dated 9.12.2003. 25. What is gathered from minutes of orders on farad sheets, is that it appeared to the court that certain versions contained in the petition were incorrect. In the background of the said impression, the court had further interrogated contemnor No. 2 Faiyaz and Monika @ Muskan and recorded their statements on solemn affirmation. 11 smcp-2.11 26. Statements of parents of Monika and her brothers etc., nor the minutes of interrogation, if any, done by the court, are on record. 27. In the affidavit of Monika @ Muskan, filed in contempt proceedings dated 05.05.2005 and the affidavit filed by contemnor-Faiyaz to the notice, dated 30.1.2006, they have in totality retracted from what they have said in the notes of interrogation which was made by this court. 28. Both of them, Faiyaz and Monika, have stated that they were not in sound state of mind to give the statements when those were recorded by this court in response to the interrogation. 29. Monika @ Muskan has reiterated that she was carrying pregnancy of 5 months on the date when she was in the court, and had health problem while in the court and she was required to be sent to the dispensary attached to the High Court, where she was under care of her husband. She maintained that the version contained in the writ petition filed by her husband was correct 12 smcp-2.11 and the one, given by her before the court orally during interrogation by the Bench, was not correct. 30. Contemnors-Respondent Nos. 3, 4 and 7 have also maintained that whatever they have done was based on factual narration given to them by contemnor No. 2 Faiyaz and that they were, in no manner, responsible for the act of preparing any story to be the foundation of writ petition No. 446 of 2003. 31. Now, while deciding the suo motu contempt, the situation, in which this court is driven, can be summarized as follows:- (a) The Division Bench, while hearing the writ petitions between the period 4.12.2003 till those were disposed of on 11.12.2003, was guided by the versions of Monika @ Muskan and Faiyaz, and the Bench was led to believe that the version contained in writ petition was a lie. Therefore, as Faiyaz and Monika @ Muskan were living together on the date of filing of the petition Faiyaz had no reason, occasion or cause to file petition for habeas corpus. (b) Crime No. 763 of 2003 registered with Police Station, Loni, had remained either un- investigated, or investigated, but unfruitful 13 smcp-2.11 and no efforts seem to have been made by Anil Kadam, Petitioner in Writ Petition No. 478 of 2003-the father of Monika, to have a follow- up of the said Crime. (c) Anil Kadam filed Criminal Writ Petition No.478 of 2003 on 11.11.2003 and also filed affidavit on 18.11.2003 opposing Writ Petition No.446 of 2003 filed by Faiyaz. (d) On 4.12.2003, Faiyaz-contemnor No.2 and Monika @ Muskan appeared in the court, when Faiyaz was served with notice of Criminal Writ Petition No. 478 of 2003. (e) Faiyaz had failed to convince this court as to how Monika has returned to him, and version narrated in her affidavit tendered in Writ Petition No. 478 of 2003 had come under cloud of doubt. (f) What has happened thereafter, is already a matter of record and is narrated in foregoing paras. (g) After decision of both the Writ Petitions, Monika went with her husband Faiyaz, and her father Anil Kadam and others have completely withdrawn from the decided writ petition and Suo Motu Contempt, which were continued on the board (since the contempt was not separately registered). 14 smcp-2.11 (h) After Faiyaz and Monika @ Muskan filed affidavits in this court, which are at pages 68 to 71 and 63 to 67 respectively of Writ Petition No. 446/2003 (copies whereof are produced on record of contempt proceedings), they have retracted from what they had stated in answer to interrogation before the Bench. (i) Anil Kadam, the father of Monika, has abstained from participating in the contempt proceedings and has not filed any reply to the affidavit of Monika retracting from her earlier statements. (j) Learned A.P.P. has orally informed that Crime No.763 of 2003 is investigated and 'C' summary-no offence report, is filed. 32. This court, therefore, has to decide whether to act upon the supposition that Faiyaz gave confession of having made false and wrong statements, when interrogated by the court, or whether to rely upon their affidavits of retraction. 33. While considering the contempt, this court will have to find out whether the contempt is willful. 15 smcp-2.11 34. We need to visualize the situation in retrospection as it emerges from the record. 35. The Division Bench of this Court had interrogated a young pregnant girl of 24 years of age. She had married contrary to the wishes of her parents and the society and found her husband, as well as her parents, in equal difficulty. The atmosphere in the court is not of joy and of merriment. She was bound to give a statement before the court, while in an unfriendly and awkward atmosphere. Her husband had told the court that the story, on which the petition for habeas corpus was based, was untrue and was couched on the advice of the lawyers. Monika has, in one breath, supported the father, but maintained that she would like to live with her husband. 36. The question which arises is as to why Anil Kadam, the father of Monika @ Muskan, was silent and did not move the higher authorities and filed petition during five months after elopement of his daughter Monika @ Muskan with Faiyaz. 16 smcp-2.11 37. It is also to be considered as to what interest would the lawyers have in instigating the litigants to fabricate a story and file a petition for habeas corpus. Any motive on the part of Advocates at Beed, is not coming forward. 38. All that can be judged, without any dispute, is that the facts which are told to the court by all the parties, not only by contemnor No.2 Faiyaz and Monika @ Muskan, but also by her father, is by withholding truth within their knowledge from the court. 39. In the given situation, this court is required to consider whether to take an action against the contemnors on the basis of statements made before this court, which are retracted. 40. We cannot ignore that Monika has, while retracting her solemn statement which was made before this Court, stated that she was not in fit state of health and mind. She does not plead to be under pressure or duress. However, her being under stress, is apparent. 17 smcp-2.11 41. In this situation, we shall be governed by principle of self-restraint. We would elect not to convict the contemnors merely on suspicion. The benefit of doubt would go to the contemnors like in ordinary criminal law-jurisdiction. Once the statements are seen to be retracted, all actions, which this court had proposed, are rendered as based on weak and fragile support and hence, practically otiose. We would, therefore, propose not to exert in futility. 42. We, therefore, discharge the notices and dispose of the contempt petition and all proposed actions. (A.M. THIPSAY, J.) (A.H. JOSHI, J.) pnd/smcp-2.11