IN THE HIGH COURT OF JUDICATURE AT PATNA ORIGINAL CR. MISC. (DB) No.19 of 2008 HARENDRA RAI, son of Sri Rama Rai, resident of village Dhenuki, P.S. Panapur, district Saran At Champra. .. Petitioner 1. The State of Bihar through the Chief Secretary, Government of Bihar, Old Secretariat, Patna 2. Sri. R.J.M. Pillai, son of not known to the petitioner, presently posted as the Chief Secretary, Government of Bihar, Old Secretariat, Patna 3. Sri Afzal Amanullah, son of not known to the petitioner, Presently posted as Home Secretary, Government of Bihar, Patna 4. Sri Yogendra Prasad, son of not known to the petitioner, presently posted as the Law Secretary, Government of Bihar, Patna. .. Contemnors-opposite parties **** For the petitioner .. Mr. S.A. Khan, Sr. Adv. With Mr. S.B.K. Manglam, Adv. For the opposite parties .. Mr. P.K. Shahi, Advocate General **** /3/ 23.10.2008 Heard the counsel for the petitioner and the State. 2. Harendra Rai, petitioner of Cr.W.J.C. No. 717 of 2006 has filed this application under Section 215 of the Contempt of Courts Act for initiation of a contempt proceeding against contemnors opposite parties for their deliberate and willful disobedience of the order, dated 13.03.2007, passed in the criminal 2 writ application as they have failed to comply the direction of the Division Bench. 3. Mr. Shakeel Ahmad Khan, Senior counsel for the petitioner, has submitted that the direction of the High Court in Cr.W.J.C. No. 717 of 2006, with regard to Session’s Trial No. 19 of 2003 arising from Mashrakh (Panapur) P.S. Case No. 62 of 1995 were as follows : (i) The proceedings of Session’s Trial No. 19 of 2003 be transferred from the Court of the Additional Sessions Judge, VII, Bhagalpur, to Patna. The records of the case be transmitted forthwith to the Sessions Judge, Patna. The Sessions Judge, Patna, will either keep the case in his own Court or assign it to some other Additional Sessions Judge or a Fast Track Court, who will hold the trial on priority basis so as to conclude it without any undue delay and preferably within three months from the date of receipt of the record. (ii) The State Government was directed to appoint the Special Public Prosecutor to conduct the trial, who should be an experienced lawyer of reputed integrity. (iii) Earlier deposition of Lalmuni Devi, taken on 3 03.11.2006, was scrapped and she was directed to be examined afresh before the trial Court at Patna under Section 311 of the Criminal Procedure Code. (iv) The trial Court shall proceed from the stage of examination of Lalmuni Devi. (v) The Special Public Prosecutor was given option to make an application for recall of witnesses earlier examined. In case of filing such petition, the trial Court was directed to pass an appropriate orders, in accordance with law. 4. The counsel for the petitioner has submitted that the Special Public Prosecutor was appointed in violation of the direction of the Hon’ble Court as well as in violation of Section 24(8) of the Criminal Procedure Code. The Special Public Prosecutor, so appointed has tried to subvert the trial, as earlier he had filed an application for recall of two witnesses, Narendra Singh and Kishori Rai under Section 311 of the Criminal Procedure Code, but, subsequently he filed affidavits sworn by these witnesses that their deposition before the earlier trial Court should be treated as their deposition and they are not willing to depose. 4 5. The first question which arises whether the Original Criminal Miscellaneous application for initiating proceeding of contempt is maintainable. 6. Section 2(c) of the Contempt of Courts Act, 1971, says “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) Scandalizes or tends to scandalize, 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 (iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner; 7. Counsel for the petitioner submits that contempt application is maintainable under the provisions of Section 2(c)(ii) of the Contempt of Courts Act. 8. From the pleadings of the petitioner in the contempt petition itself we find that (1) all direction of this Court has fully been complied (2) Mr. Rakesh Kumar Sinha was appointed as 5 Special Public Prosecutor. Appointment of Mr. Rakesh Kumar Sinha as Special Public Prosecutor in another session’s trial against same accused persons transferred for trial before sam Court, was challenged in the High Court, which was dismissed. Against that order, Special Leave to Appeal (Crl.) No. 5425 of 2008 was filed and that has been dismissed by order, dated 08.08.2008. This fact was completely suppressed and not mentioned in the contempt petition. In this view appointment of Special Public Prosecutor is neither in violation of the direction of High Court or in violation of Section 24(8) of the Criminal Procedure Code. 9. The order of the Supreme Court was brought before this Court by the Advocate General, who came to represent the opposite parties contemnors. 10. From the pleadings itself we find that Lamuni Devi was examined as per the direction of High Court. Petition under Section 311 of the Criminal Procedure Code was filed for recall of other witnesses also, but, the witnesses themselves individually filed their affidavits stating that their earlier deposition before the trial Court should be treated as their deposition and they are not interested. The pleadings of the petitioner itself show that after 6 transfer of the session’s trial from Bhagalpur to Patna the trial has proceeded as per direction in the criminal writ application. There is nothing on record to show that petitioner being aggrieved by any of the order of trial Court has moved before the superior forum for it’s quashing. No material has been brought before the Court to justify initiation of contempt proceeding under Section 2(c)(ii) of the Contempt of Courts Act, 1971. 11. Counsel for the petitioner has placed reliance on two decisions of the Apex Court reported in (1985) 5 S.C.C., 749 (Pepsi Foods Ltd. & Another. Vrs. Special Judicial Magistrate & others), which deals with the scope of High Court’s power to quash criminal proceedings in exercise of power under Articles 226 and 227 of the Constitution of India or under Section 482 of the Criminal Procedure Code. This decision has no application in the present case. Another decision on which reliance has been placed is (2004) 4 S.C.C., 158 (Zahira Habibullah H. Sheikh & Another Vrs. State of Gujrat and Others.). This decision has also no application, considering the fact that direction of High Court for conducting trial has duly been complied by the trial Court. 12. The application filed for initiating a proceeding of 7 contempt is not maintainable, as no case is made out. 13. This Original Criminal Miscellaneous application is dismissed. S.A. ( Mridula Mishra, J. ) (S.M. Mahfooz Alam, J.)