Thursday, 29 December 2016

Whether criminal prosecution under prevention of corruption Act can be initiated against Judge?


The fact that the judgment of acquittal rendered by the
Judicial Officer was not challenged and has attained finality is
far too significant a circumstance to be overlooked. If, parties
having oblique motives and their Advocates are allowed to
make wild allegations against judicial dictums which have attained
finality, the very independence of the judiciary will be
severely threatened and no Judge shall be able to work fearlessly
and independently. It is clearly reflected from the record
that the counsel representing the complainants has been taking
undue interest in the entire matter and appears to have made
it his own goal to somehow or the other and at any cost to target
and get the Judicial Officer entangled in a criminal case. Allegations
have been leveled in the complaint on the workings of
the officer at different stations, the knowledge whereof cannot
be imputed to the complainants who are illiterate persons.[25]
Thus evidently, it is the petitioners’ Advocate who appears to
be operating behind the scenes in the matter. A totally false
assertion has been made at para No.5 of the written submissions,
which are signed by the counsel, that the Registrar General
has informed this Court that the petitioners’ complaint has
been forwarded by Hon’ble the Acting Chief Justice to the Registrar
(Vigilance) for making inquiry. The fact is totally otherwise
inasmuch as, Hon’ble the Acting Chief Justice has directed
that the complaint be filed.
Now coming to the issue whether the Anti Corruption
Bureau officials were justified in sending the petitioners' complaint
to the Registrar General or not. Sections 2 and 3 of the
Judges Protection Act, 1985 have a material bearing on this issue
and are reproduced herein for the sake of convenience:-
“2. Definition.—In this Act, “Judge” means not only every
person who is officially designated as Judge, but also
every person—
(a) who is empowered by law to give in any legal
proceeding a definitive judgment, or a judgment which, if
not appealed against, would be definitive, or a judgment
which, if confirmed by some other authority, would be
definitive; or
(b) who is one of a body of persons which body of
persons is empowered by law to give such a judgment as
is referred to in Clause (a).
3. Additional protection to Judges.—(1) Notwithstanding
anything contained in any other law for the time being
in force and subject to the provisions of sub-section (2),
no Court shall entertain or continue any civil or criminal
proceeding against any person who is or was a Judge for
any act, thing or word committed, done or spoken by him
when, or in the course of, acting or purporting to act in
the discharge of his official or judicial duty or function.[26]
(2) Nothing in sub-section (1) shall debar or affect
in any manner the power of the Central Government or
the State Government or the Supreme Court of India or
any High Court or any other authority under any law for
the time being in force to take such action (whether by
way of civil, criminal, or departmental proceedings or otherwise)
against any person who is or was a Judge.
As per the foregoing provisions, it cannot be denied that
the arraigned Judicial Officer, who was discharging his judicial
duties while passing the judgment of acquittal, is covered by
the definition of Judge set out in Section 2 of the Act. As per
Section 3 of the Judges Protection Act, all courts have been
prohibited from entertaining any criminal or civil proceedings
against any person who is or was a Judge for any act, thing or
word committed, done or spoken by him when, or in the course
of, acting or purporting to act in the discharge of his official or
judicial duty or function. Sub-section (2) of Section 3 of the
Act, provides an exception and saves the powers of the competent
authority which can be, the Central Government, the State
Government, the Supreme Court of India or the High Court or
any other authority empowered under law to take such action
against any person who is or was a Judge. The clear intent of
the provision is that in case, the High Court feels that action;
civil and criminal is warranted against any subordinate Judicial
Officer, it can so direct without prejudice to the restrictions
contained in Sub-section (1) of Section 3 of the Act. That precisely
appears to be the reason that the complaint was for-[27]
warded by the officers of the Anti Corruption Bureau to the
High Court. Only Hon’ble the Chief Justice, upon being persuaded
that action is warranted, could have allowed registration of
a criminal case against the officer overriding the restrictions
contained in Sub-section (1) of Section 3 of the Judges Protection
Act. As noticed above, Hon’ble the Acting Chief Justice has
already decided that no action is warranted upon the complaint
received from the complainants against the arraigned Judicial
Officer and has been filed.
Consequently, this Court is of the opinion
(a) that the complaint submitted by the petitioners’ was
per se malicious and motivated.
(b) that the same does not disclose the necessary ingredients
of any cognizable offence whatsoever.
(c) that the motives of the petitioners’ counsel in filing
the complaint and prosecuting the matter is oblique and
malafide and was aimed at interfering in the administration
of justice and tarnishing the image of the Judiciary
and therefore, deserves to be deprecated.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
Reportable
S.B. CRIMINAL WRIT PETITION NO.20/2016
Smt. Makhni & Anr.
Vs.
The State of Rajasthan & Anr.
Date of order : 05/07/2016
HON’BLE MR.JUSTICE SANDEEP MEHTA

Citation:2016 CRLJ4552

By way of the instant criminal writ petition, the petitioner
complainants have approached this Court assailing failure of
the respondent Anti Corruption Bureau in registering an FIR on
the basis of a complaint submitted by the petitioners to the
Director General, Anti Corruption Bureau, Government of
Rajasthan, Jaipur.
Facts in brief are that the petitioners herein, being the
legal heirs of one Bage Khan, filed a complaint with the
Director General, Anti Corruption Bureau against a Judicial
Officer who was, at the relevant time, posted as the Additional
Chief Judicial Magistrate, Pokaran. It was alleged in the
complaint that Shri Bage Khan owned khatedari land
measuring 94 bighas 6 biswas in the Patwar Halka Badhewa,
Tehsil Pokaran. A revenue dispute arose between the[2]
complainant party and accused persons, namely Kadar Khan
and Ilamddin owing to the alleged fraudulent mutation of the
said agricultural land which was entered in the names of the
two persons named above. The complainant party filed a
mutation appeal in the Court of District Collector, Jaisalmer
against the alleged illegal mutation entries. The appeal was
accepted by order dated 11.06.2002 and the two mutation
entries made in the names of Kadar Khan and Ilamddin were
cancelled and the Tehsildar, Pokaran was directed to make an
inquiry and to rectify the error and enter the mutation of the
disputed lands in the names of legal heirs of Bage Khan.
Kadar Khan and others challenged the order dated
11.06.2002 by filing two separate appeals in the Court of
Additional Divisional Commissioner, Jodhpur. Both the appeals
were rejected and the order dated 11.06.2002 passed by the
SDM was upheld. The two orders referred to above, were not
challenged any further and became final.
An FIR No.12/2001 was registered by Smt. Lakhmo W/o
Baghe Khan (mother of the petitioners) against Kadar Khan
and others in relation to the fraudulent mutation at Police
Station Falsund for the offences under Sections 420, 467, 468,
471 and 120-B of the IPC. Prolonged investigation was
conducted and ultimately, on 26.05.2009, a charge-sheet was
filed in the Court of Additional Chief Judicial Magistrate,
Pokaran for the above offences against four accused namely
Kadar Khan, Gafoor Khan, Makne Khan and Hadaram. The[3]
Judicial Officer concerned (against whom the present complaint
was filed) was posted as ACJM, Pokaran at that time. The
complainants, attributing oblique motives to the Judicial
Officer, alleged that despite knowing that the parties were
having a bitter dispute amongst themselves, the Judicial
Officer, acted in hot haste and completed the trial within a
short period of four months without summoning the material
witnesses. The accused were acquitted by judgment dated
22.09.2009. The case had been registered as a State case and
by the time, charge-sheet came to be filed, Smt. Lakhmo, the
original complainant passed away. Thus, the petitioners were
not aware of the judgment of acquittal and could not challenge
it. It was further alleged that within a matter of two months
from the date of recording of acquittal of the accused, the
arraigned Judicial Officer, himself purchased the property
despite the knowledge that the fraudulent mutation entries of
the disputed land made in the name of Kadar Khan and others
had been cancelled long back. In order to avoid exposing
himself in the fraudulent scheme, the Judicial Officer
dishonestly got the registered sale-deeds of the property
executed in the names of his sisters-in-law Smt. Kalawati wife
of Lalit Kumar and Smt. Sarla Devi wife of Loonkaran Singhal,
residents of Gunga, Tehsil Shiv, District Barmer, who are
having no independent sources of income. The complainant
party thus alleged that the land was as a matter of fact,
purchased and acquired by the Judicial Officer for himself in a[4]
Benami fashion by keeping the two ladies in front. It was
further alleged in the complaint that the Judicial Officer, totally
bypassed the principles of fairness and judicious approach
while acquitting the accused. The acquittal was recorded by
striking a barter deal that the accused, would be acquitted and
in lieu thereof, the property would be transferred to the
relatives of the Judicial Officer. For the purpose of hiding the
fraudulent transaction, no attempt was made to get the
property mutated in the name of the purchasers despite the
registration having been carried out way back in the year 2009.
The complainants further alleged that they came to know of
the entire fraudulent transaction in the year 2015 when the
matter was under consideration before the Revenue Appellate
Authority. It was further alleged that before filing the
complaint, a notice for demand of justice was also forwarded to
the High Court. It was also alleged that the Judicial Officer,
whilst being posted at various places in Rajasthan, acquired
massive properties disproportionate to his known sources of
income. Even before being inducted in service, the conduct of
the Judicial Officer was shady inasmuch as, a criminal case for
the offences under Sections 8/21 and 8/22 of the NDPS Act
had been registered against him for which a charge-sheet was
also filed. Another criminal case involving the offences under
Section 147, 323, and 451 of the IPC was pending against the
Judicial Officer at the time of his induction in Judicial services.
The arraigned officer got inducted in Judicial Services by[5]
making concealment of these facts. The complainants further
alleged that despite information in form of the notice for
demand of justice being given to the Registrar General,
Rajasthan High Court against the corrupt and tainted Judicial
Officer, no action was forthcoming and the High Court
Administration was also trying to protect him. The Anti
Corruption Bureau officials also did not take lawful action upon
the complaint submitted by the petitioners. Upon this, the
petitioners complainants have approached this Court by way of
the instant criminal writ petition under Article 226 of the
Constitution of India.
The matter came up for consideration on 10.03.2016 on
which date, the learned Public Prosecutor was directed to
inquire from the concerned officer of the Anti Corruption
Bureau as to the action, if any, taken upon the complaint filed
by the petitioners herein. In response to the query made by
the Court, the learned Public Prosecutor submitted on record, a
letter dated 10.03.2016 of the Additional Superintendent of
Police, Anti Corruption Bureau, Government of Rajasthan,
Jaipur as per which, the complaint received from the
complainants was forwarded to the Registrar, Rajasthan High
Court, Jodhpur by letter dated 29.10.2015. Upon this, the
Registry was directed to apprise the Court regarding further
steps if any, taken pursuant to the complaint of the petitioners
forwarded by the ACB to the Registrar General, Rajasthan High
Court. The requisite information was supplied to this Court in[6]
an envelope marked as “Confidential”. The envelope was
opened and the letter contained therein was perused. On going
through the letter, it is evident that complaint of the petitioners
as forwarded by the Anti Corruption Bureau to the Registrar
General was considered by Hon’ble the Acting Chief Justice and
a decision taken thereupon that the same be filed. Thus, it has
to be assumed that Hon’ble the Acting Chief Justice, after
examining the complaint of the complainants, has decided that
no action is warranted thereupon against the Judicial Officer,
on the administrative side.
Shri Moti Singh, learned counsel for the petitioners complainants,
vehemently contended that ex-facie the allegations
levelled in the complaint disclose the necessary ingredients of
cognizable offences. The complainants have set up a case involving
grave and serious allegations of misconduct and corruption
against the Judicial Officer and as such, it was the
bounden duty of the Anti Corruption Bureau officials to have
registered the FIR and investigated the matter fairly. He urged
that the provisions of Judicial Officers Protection Act and the
Judges Protection Act do not have any application to the situation
at hand because once, there is an allegation of corruption
against a Judicial Officer, the provisions of these statutes cannot
be applied to rescue and shield such corrupt officer. He has
filed detailed written submissions in support of his oral contentions
wherein, basically the allegations levelled in the complaint
are reiterated. It is stated in the written submissions that[7]
the sale-deeds of the disputed lands were executed in favour of
Kalwati Devi and Sarla Devi without actual consideration being
paid and were actually meant to procure illegal gratification in
lieu of the acquittal of the accused in the criminal trial. Abuse
of power, taint and misconduct are attributed to the Judicial
Officer in passing the judgment of acquittal. It is also alleged
that the Judicial Officer acted in hot haste and decided the case
in an extremely short period of four months from the filing of
charge-sheet by overriding the principles of fair trial. It is further
alleged that the Judicial Officer committed grave misconduct
while exercising the powers of public office and obtained
valuable property for himself without consideration from the
accused who were facing trial in his own court. It has been
mentioned at para No.5 of the written submissions that the
Registrar General has informed the Court that the complaint of
the petitioners was received by Hon’ble the Acting Chief Justice
who has ordered the institution of a departmental inquiry
through the Registrar (Vigilance). Various provisions of the Prevention
of Corruption Act are quoted in the written submissions.
It has further been asserted that the Registrar General
was obliged by law to return the complaint to the officials of
Anti Corruption Bureau and not to withhold the same because
he is not an investigating agency. It is further mentioned that
Section 19 of the Prevention of Corruption Act provides for a
prior sanction before cognizance can be taken against public
servants for the offences under the Prevention of Corruption[8]
Act, but the said provision does not place any restriction upon
the registration of an FIR and investigation against the public
servant. It is vehemently asserted that the Anti Corruption Bureau
was bound to register the FIR under Section 154 of the
Cr.P.C. Reliance in support of the submissions is placed on the
Constitutional Bench Judgment of the Hon’ble Supreme court in
the case of Lalita Kumari vs. Government of Uttar
Pradesh & Ors., reported in (2014)2 SCC 1 and Manohar
Lal Sharma vs. Principal Secretary & Ors. Reported in
AIR 2014 SCW 329. Reliance is also placed on the Single
Bench judgment of this Court in the case of Ravi Shankar Srivastava
reported in RLW 2005(3) Raj. 1736 in support of
the contention that the scope of The Judges Protection Act is
not intended to prevent the initiation of a criminal inquiry
against any person who is or was a Judge. It is further asserted
in the written submissions that the provisions of The Judges
Protection Act are not applicable in the case at hand because
the acts of the “alleged Judicial Officer” are beyond the scope
and ambit of Sections 2 and 3 of the Act. Reliance is also
placed on the Supreme Court judgment in the case of Additional
District and Sessions Judge ‘X’ vs. Registrar General,
High Court of Madhya Pradesh & Ors., reported in
AIR 2015 SCW 391 in support of the contention that the findings
of the inquiry should be brought in the public domain so as
to show fairness and transparency essential in the judicial system.[9]
I have heard the arguments advanced by Shri Moti
Singh, learned counsel representing the petitioners and have
gone through the complaint filed by the petitioners, the written
submissions as well as the judgments cited at bar.
Upon a pertinent query being put during the course of
the arguments, Shri Moti Singh candidly conceded that the
much criticized judgment of acquittal dated 22.9.2009 passed
by the arraigned Judicial Officer, has attained finality as the
same was not challenged before any forum. On going through
the allegations leveled in the complaint, it is evident that the
basic thrust of the complainants’ is that the judgment of acquittal
was bartered through a deal for transfer of the disputed
land to the Judicial Officer. As noted above, the much berated
judgment of acquittal was never challenged and thus has attained
finality and therefore, no comments can be allowed to
be made there against and that too at this belated stage. Much
leverage is sought to be drawn from the circumstance that the
judgment was delivered in hot haste. Suffice it to say that expediency
in disposal of the criminal cases is call of the hour
from all quarters in this country, where the judicial system is
beleaguered with huge numbers of pending cases. Thus, merely
because the arraigned Judicial Officer, acted with expediency
in the criminal case, that by itself cannot be a circumstance to
attack his judgment. As a matter of fact, the endeavour of the
complainants as well as their counsel to criticize the judgment
on the ground that the Judicial Officer acted expediently is dep-[10]
recable particularly considering the fact that the judgment was
never challenged and has attained finality.
Nonetheless, I have minutely scrutinized the judgment
of acquittal dated 22.02.2009 rendered by the Judicial Officer
in Criminal Case No.260/2009 (State vs. Kadar Khan & Ors.).
The criminal case was founded on the allegation that the accused
managed to get the mutation of the disputed property in
their favour by adopting fraudulent means. Suffice it to say
that the law is well settled that a mutation entry does not confer
any proprietary rights whatsoever. A mutation is merely an
entry made for collecting revenue and nothing beyond that. It
was noticed in the judgment of acquittal that the complainant
Lakhmo passed away before the trial commenced and thus
could not be examined in evidence. Mst. Nimo & Sayro, being
the daughters of Smt. Lakhmo and Baghe Khan, were examined
at the trial as PW-9 and PW-10 respectively. Both turned
hostile and did not support the prosecution story. The trial
Judge took note of the document. (Ex.D/2) executed by
Lakhmo wherein it was recorded that Baghe Khan had kept the
accused Kadar Khan with him. A will (Ex.D/5) was also exhibited
wherein, Kadar Khan was portrayed to be the adopted son
of Bage Khan. The disputed mutation entries were made on the
basis of the above will executed by Bage Khan. The Panchayat
acted on the adoption deed and passed the mutation in favour
of Kadar Khan. The mutation was entered way back in the year
1978. The document (Ex.D/2) bears the thumb impression of[11]
Lakhmo, the mother of the present petitioners. The said document
was subjected to FSL examination and was found to be
genuine. In the document, Smt. Lakhmo acknowledged that
her husband had no male issue and thus, he had kept Kadar
Khan with himself and that she was executing a will in favour
of Kadar Khan to the effect that her husband’s property be
transferred in Kadar Khan’s favour after the death of Bage
Khan. Thus, evidently, the trial court, was thoroughly justified
in drawing its conclusions on the basis of oral as well as documentary
evidence which reflected that Baghe Khan had adopted
Kadar Khan. In this background, this Court is of the firm
opinion that the judgment of acquittal dated 22.09.2009
recorded by the arraigned Judicial Officer is absolutely unquestionable
on facts as well as law.
The complainants have further alleged that the judgment
of acquittal was bartered and thereafter, the Judicial Officer
procured the disputed property for himself. The property
was sold to Ilamddin and Nizamuddin much before commencement
of the criminal trial. It is the admitted case as per the
complaint and the other documents available on record that
the registered owners of the property namely Ilamddin and
Nizamdeen, sold the property to Smt. Kalawati Devi and Smt.
Sarla Devi respectively through registered sale deeds dated
17.11.2009. Neither Ilamddin nor Nizamdeen were arraigned
as accused in the criminal case decided by the Judicial Officer.
Thus, there is no foundation for the allegation that the acquittal[12]
was bartered in lieu of procuring the property fraudulently.
There can be no quarrel with the prepositions of law as laid
down in the judgments relied upon by the petitioners’ counsel.
In the case of Lalita Kumari (supra), the Constitutional
Bench of the Hon’ble Supreme Court, laid down the principles
required to be followed in the matter of registering an FIR
where the information given to the officer-in-charge of a police
station discloses the necessary ingredients of cognizable offences.
The Hon’ble Supreme Court, in no unequivocal terms,
laid down at para No.6 of the judgment that “an overall reading
of all the codes makes it clear that the condition which is sinequa-non
for recording a first information report is that there
must be an information and that information must disclose a
cognizable offence.” Thus, before proceeding with the matter,
the officials of the Anti Corruption Bureau had to be satisfied
that the complaint of the petitioners disclosed the necessary ingredients
of cognizable offences and that it was permissible in
law to register the FIR. As has been discussed above, ex-facie,
the allegations leveled by the complainant in the complaint do
not reveal the necessary ingredients of cognizable offences.
The complaint is entirely aimed at establishing that the Judicial
Officer, passed the judgment of acquittal for oblique motives
and acquitted the accused so that, in exchange, he could lay
hands on the disputed property for himself. Admittedly, the
only controversy involved before the Judicial Officer in the
criminal case was as to whether the mutation entries made in[13]
relation to the disputed property were fraudulent or not. It is
undisputed that the lands had been transferred by Kadar Khan
to Nizamdeen and Ilamddin long before the case was instituted
in the court of Judicial Officer. Though the FIR was filed by
Lakhmo against the said Nizamdeen and Ilamddin as well, the
police did not file a charge-sheet against these persons. The
sale deeds which are derided in the FIR were executed by the
registered owners in favour of Kalawati Devi and Sarla Devi for
valid consideration as narrated in the registered documents. In
view of the provisions of Benami Transactions (Prohibition) Act,
1988, the allegation that the property was acquired by the Judicial
Officer in a Benami fashion for himself by keeping the
ladies of the family as a front is per se unacceptable. It has to
be presumed as per the provisions of the Act of 1988 that the
ladies in whose favour the registered sale deeds were executed,
purchased the property from their own sources and for
themselves. The allegation leveled in the complaint that the
ladies were not having any source of income is baseless and
ex-facie appears to be obliquely motivated. The petitioners
counsel gave strong challenge to the action of the Anti Corruption
Bureau officials in not registering the FIR and forwarding it
to the Registrar General, Rajasthan High Court and so also the
inaction of the High Court pursuant to receiving the complaint
from the Anti Corruption Bureau. The said argument is based
on the ratio of the judgment rendered by a Single Bench of this
Court in the case of Ravi Shankar Srivastava (supra). The[14]
officer sought to be prosecuted in Ravi Shankar Shrivastava’s
case was working as a Member of the Board of Revenue. A preliminary
inquiry was made against the officer in relation to a
source information and it was revealed that the officer had accepted
gratification prior to deciding the case in favour of the
complainant therein. The Single Bench of this Court went on to
hold that sanction of the Government was not required for
prosecution of the public servant concerned if the complaint is
not in connection with the discharge of official duties. It was
pertinently held that the prosecution of the public servant concerned
was not proposed in relation to acts done by him in the
discharge of his official duties. The situation in the case at hand
is entirely different, inasmuch as, admittedly the berated judgment
of acquittal was passed by the Judicial Officer while discharging
his judicial functions. Thus, the judgment of Ravi
Shankar Srivastava (supra) which was heavily relied upon
by the petitioners’ counsel is totally distinguishable and has no
application to the case at hand because the factual scenario involved
in the case at hand is entirely different. The judgment in
the case of Ravi Shankar Srivastava (supra) was later on
considered and distinguished by another Single Bench of this
Court in the case of Rajesh Verma vs. State of Rajasthan,
reported in 2014 (2) RLW 1207. In the case of Ajay Kumar
Pandey vs. Unknown reported in AIR 1998 SC 3299,
the Hon’ble Supreme Court went to the extent of laying down
that any threat of filing a complaint against the Judge in re-[15]
spect of judicial proceedings conducted by him in his Court
amounts to an attempt to interfere in the due course of administration
of justice. The contemnor in that case was the lawyer
representing the party and was convicted and sentenced under
the Contempt of Courts Act. The Hon’ble Supreme Court held
as below:-
“16. At the outset, we wish to emphasise that this Court being
the Supreme Court of the country, has not only the right
to protect itself from being scandalized or denigrated but it
also has the right, jurisdiction and the obligation to protect
the High Courts and the Subordinate Courts in the country
from being insulted, abused or in any other way denigrated.
Any action on the part of a litigant-be he a lawyer appearing
in person - which has the tendency to interfere with or obstruct
the due course of justice has to be dealt with sternly
and firmly to uphold the majesty of law. No one can be permitted
to intimidate or terrorise judges by making scandalous
unwarranted and baseless imputations against them
in the discharge of their judicial functions so as to secure orders
which the 'litigant 'wants'.
17. The subordinate judiciary forms the very backbone of
administration of justice. This Court would come down with
a heavy hand for preventing the judges of the subordinate
judiciary of the High Court from being subjected to scurrilous
and indecent attacks, which scandalise or have the
tendency to scandalise, or lower or have the tendency to
lower the authority of any Court as also all such actions
which interfere or tend to interfere with the due course of
any judicial proceedings or obstruct or tend to obstruct the
administration of justice in any other manner. No affront to
the majesty of law can be permitted. The fountain of justice
cannot be allowed to be polluted by disgruntled litigants.
The protection is necessary for the courts to enable them to
discharge their judicial functions without fear.
18. The rule of law is the foundation of a democratic society.
The judiciary is the guardian of the rule of law and if
the judiciary is to perform its duties and functions effectively
and remain true to the spirit with which they are sacredly
entrusted, the dignity and authority of the Courts has to be
respected and protected at all costs. It is for this reason
that the Courts are entrusted with the extraordinary power
of punishing those for contempt of Court who indulge in acts
whether inside or outside the courts, which tend to undermine
the authority of the courts and bring them in disrepute
and disrespect thereby obstructing them from discharging
their judicial duties without fear or favour. This power is exercised
by the Courts not to vindicate the dignity and hon-[16]
our of any individual Judge who is personally attacked or
scandalised but with a view to uphold the majesty of law
and the administration of justice. The foundation of the judiciary
is the trust and the confidence of the people in its ability
to deliver fearless and impartial justice and as such no
action can be permitted which may shake the very foundation
itself.
19. 'Criminal Contempt' is defined in Section 2(c) of the
Contempt of Courts Act, 1971 and reads :
"2(c) "criminal contempt" means the publication (whether
by words, spoken or written, or by signs, or by visible representations,
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."
The definition is self explanatory. Scandalising the Judges or
the Courts tends to bring the authority and administration of
law into disrepute and is an affront to the majesty and dignity
of law. Such acts constitute criminal contempt of Court.
No one can be permitted to foul the fountain of justice. If
the authority of the Court is undermined or impeded by acts
or publications, the fountain of justice would get sullied creating
distrust and disbelief in the minds of the litigant public
and the right thinking public at large. Indeed everybody is
entitled to express his honest opinion about the correctness
or legality of a judgment or sentence or an order of a Court.
Objective criticism is permissible provided it is made with
detachment in a dignified language and respectful tone. The
liberty of expression cannot be treated as a licence to scandalise
the Court and instead of criticising the judgment to
criticise the judge who delivered it.
20. In Delhi Judicial Service Association v. State of Gujarat,
(1991) 4 SCC 406 : (1991) AIR SCW 2419), this Court
opined :
"The definition of criminal contempt is wide enough to include
any act by a person which would tend to interfere with
the administration of justice or which would lower the authority
of Court. The public have a vital stake in effective
and orderly administration of justice. The Court has the duty
of protecting the interest of the community in the due administration
of justice and, so, it is entrusted with the power
to commit for contempt of Court, not to protect the dignity
of the Court against insult or injury, but, to protect that to
vindicate the right of the public so that the administration of[17]
justice is not perverted, prejudiced, obstructed or interfered
with.
That the "publication" contemplated by Section 2(c) of Contempt
of Courts Act, 1971 (supra) includes pleadings affidavits
etc. which are filed in the Court, is no longer in
doubt.
21. In L.D. Jaikwal v. State of UP., (1984) 3 scc 405  air
1984 sc 1374) an advocate whose client had been convicted
by the learned Judge of the Special Court at Dehradun, was
required to appear before the learned Judge to make his
submissions on the question of 'sentence' to be imposed on
the accused upon his being found guilty of an offence Under
Section 5(2) of the Prevention of Corruption Act by the
Court. The learned advocate appeared in a shirt-and-trouser-outfit
in disregard of the rule requiring him to appear
only in Court attire when appearing in his professional capacity.
The learned Judge asked him to appear in the prescribed
formal attire for being heard in his professional capacity.
The advocate apparently took exception and left the
Court. Some other advocate appeared on behalf of the accused.
The learned Judge of the Special Court imposed a
sentence of 4 years’ RI on the accused. So far as the Court
of the learned Special Judge was concerned, as the judgment
had been pronounced, nothing more remained to be
done by that Court. The appellant, a senior advocate of long
standing, however, made a written application before the
learned Judge of the Special Court couched in scurrilous language
making imputation mat the Judge was a "corrupt
Judge" and adding that he was "contaminating the seat of
justice". A threat was held out that a complaint was being
lodged to higher authorities that he was corrupt and did not
deserve to be retained in service. The offending portion of
the application inter alia read :
"I am making a complaint against you to the highest authorities
in the country, that you are corrupt and do not deserve
to be retained in service. The earlier people like your
are bundled out the better for us all.
As for quantum of sentence, I will never bow down before
you. You may award the maximum sentence. Anyway, you
should feel ashamed of yourself that you are contaminating
the seat of justice."
22. On Rule being issued in suo motu contempt proceedings,
the contemner was punished and sentenced under the
Contempt of Courts Act. Before this Court, questioning his
conviction and sentence, the contemner advocate filed an
appeal and at the same time tendered his apology. Rejecting
the apology, this Court observed :
“We do not think that merely because the appellant has
tendered his apology we should set aside the sentence and
allow him to go unpunished. Otherwise, all that a person[18]
wanting to intimidate a Judge by making the grossest imputations
against him has to do, is to go ahead and scandalize
him, and later on tender a formal empty apology which
costs him practically nothing. If such an apology were to be
accepted, as a rule, and not as an exception, we would in
fact be virtually issuing a 'licence' to scandalize courts and
commit contempt of Court with impunity. It will be rather
difficult to persuade members of the Bar, who care for their
self-respect, to join the judiciary if they are expected to pay
such a price for it. And no sitting Judge will feel free to decide
any matter as per the dictates of his conscience on account
of the fear of being scandalized and persecuted by an
advocate who does not mind making reckless allegations if
the Judge goes against his wishes. If this situation were to
be countenanced, advocates who can cow down the Judges,
and make them fall in line with their wishes, by threats of
character assassination and persecution, will be preferred
by the litigants to the advocates who are mindful of professional
ethics and believe in maintaining the decorum of
courts" and such course cannot be permitted.
(Emphasis ours)
Again, in Re: Shri Sanjiv Dutta, (1995) 3 JT (SC) 538;
(1995 AIR sCW 2203), a three Judge Bench of this Court,
while dealing with an affidavit filed by a public functionary
causing aspersions on the Court, which (affidavit) had the
tendency to malign the Court, while assailing the correctness
of an order made in a writ petition filed in this Court,
held the contemner guilty of criminal contempt of Court and
observed (at p. 2208) of AIR SCW)
"Abuses, attribution of motives, vituperative terrorism and
defiance are no methods to correct the errors of the Courts.
In the discharge of their functions the Courts have to be allowed
to operate freely and fearlessly but for which impartial
adjudication will be an impossibility. Ours is a Constitutional
government based on the rule of law. The Constitution
entrusts the task of interpreting and administering the
law to the judiciary whose view on the subject is made
legally final and binding on all till it is changed by a higher
court or by a permissible legislative measure. Those living
and functioning under the Constitution have to accept and
submit to this obligation of respecting the constitutional authority
of the Courts. Under a Constitutional government,
such final authority has to vest in some institution. Otherwise,
there will be a chaos. The Court's verdict has to be respected
not necessarily by the authority of its reason but always
be reason of its authority. Any conduct designed to or
suggestive of challenging this crucial balance of power devised
by the Constitution is an attempt to subvert the rule of
law and an invitation to anarchy.
The contemner, for reasons which can only be attributed to
his misconception of his role and over-zealousness to assert
himself and his side of the matter intentionally overstepped
his limits and conveniently ignored die above legal position,
and abrogated to himself, in substance, the role of a Judge[19]
in his own cause. He has thus in effect not only challenged
the jurisdiction of the Court to discharge its functions but
also its authority to do so."
(emphasis supplied)
23. In Re: R.L Ahuja : 1993 Supp 4 SCC 446, the respondent-contender
cast unfounded and unwarranted aspersions
and made scurrilous and indecent attacks against some of
the Judges of this Court who had earlier dealt with his case
in wild, intemperate and even abusive language in the
memorandum of writ petition and in a representation sent
to the President of India. This Court while convicting and
sentencing the contemner for committing criminal contempt
of court observed :
"The passages in the memorandum of the writ petition and
the letter addressed to the President of India attack the integrity
and fairness of the Judges. The remarks made by the
contemner are disparaging in character and derogatory to
the dignity of the Court and besides scandalizing the Court
in relation to judicial matters have the tendency to shake
the confidence of the public in the apex court."
The tendency of maligning the reputation of judicial officers
by disgruntled elements who fail to secure an order
which they desire is on the increase and it is high time that
serious note is taken of the same. No latitude can be given
to a litigant to browbeat the Court. Merely because a party
chooses to appear in person, it does ' not give him a licence
to indulge in making such aspersions as have the tendency
to scandalise the Court in relation to judicial matters.
(Emphasis ours)
The contemner in the present case let alone showing any
remorse or regret has adopted an arrogant and contemptuous
attitude .................................................
…….. Of course, the dignity of the Court is not so brittle as
to be shattered by a stone thrown by a mad man, but when
the Court finds that the contemner has been reckless, persistent
and guilty of undermining the dignity of the Court
and his action is, motivated, deliberate and designed, the
law of contempt of Court must be activised."
(Emphasis supplied)
24. Thus, it is now settled that abuses, attribution of motives,
vituperative terrorism and scurrilous and indecent attacks
on the impartiality of the Judges in the pleadings, applications
or other documents filed in the Court or otherwise
published which have the tendency to scandalise and undermine
the dignity of the Court and the majesty of law
amounts to criminal contempt of Court.
25. While a litigant as also his lawyer have the freedom of
expression and liberty to project their case forcefully, it
must be remembered that they must while exercising that
liberty maintain dignity, decorum and order in the Court[20]
proceeding. Liberty of free expression cannot be permitted
to be treated as a licence to make reckless imputations
against the impartiality of the Judges deciding the case.
Even criticism of the judgment has to be in a dignified and
temperate language and without any malice.
26. In D.C. Saxena v. Hon'ble the Chief Justice of India,
(1996) 5 SCC 216 : (1996 AIR SCW 3082) this Court observed
:-
"Advocacy touches and asserts the primary value of freedom
of expression. It is a practical manifestation of the
principle of freedom of speech. Freedom of expression in arguments
encourages the development of judicial dignity,
forensic skills of advocacy and enables protection of fraternity,
equality and justice. It plays its part in helping to secure
the protection or other fundamental human rights.
Freedom of expression, therefore, is one of the basic conditions
for the progress of advocacy and for the development
of every man including legal fraternity practising the profession
of law. Freedom of expression, therefore, is vital to the
maintenance of free society. It is essential to the rule of law
and liberty of the citizens. The advocate or the party appearing
in person, therefore, is given liberty of expression.
But they equally owe countervailing duty to maintain dignity,
decorum and order in the Court proceedings or judicial
process. The liberty of free expression is not to be confounded
or confused with licence to make unfounded allegations
against any institution, much less the judiciary.”...
In other words, imputing partiality, corruption, bias, improper
motives to a Judge is scandalisation of the Court and
would be contempt of the Court. Even imputation of lack of
impartiality or fairness to a Judge in the discharge of his official
duties amounts to contempt. The gravamen of the offence
is that of lowering his dignity or authority or an affront
to the majesty of justice. When the contemner challenges
the authority of the court, he interferes with the performance
of duties of Judge's office or judicial process or administration
of justice or generation or production of tendency
bringing the Judge of judiciary into contempt."
(Emphasis supplied)
27. Does the law give a lawyer, unsatisfied with the result of
a case, any licence to permit himself the liberty of scandalising
a court by casting unwarranted imputations against the
judge in discharge of his judicial functions? Does the lawyer
enjoy any special immunity under the Contempt of Courts
Act, where he is found to have committed a gross contempt
of Court? The answer has to be an emphatic NO:
28. In Lalit Mohan Das v. Advocate General, Orissa, [1957]
SCR 167 : (Air 1957 sC 250), this court observed (at p. 254
of AIR) :[21]
"A member of the Bar undoubtedly owes a duty to his
client and must place before the Court all that can fairly and
reasonably be submitted on behalf of his client. He may
even submit that a particular order is not correct and may
ask for a review of that order. At the same time, a member
of the Bar is an officer of the Court and owes a duty to the
Court in which he is appearing. He must uphold the dignity
and decorum of the Court and must not do anything to bring
the Court itself into disrepute. The appellant before us
grossly overstepped the limits of propriety when he made
imputations of partiality and unfairness against the Munsif in
open Court. In suggesting that the Munsif followed no principle
in his orders, the appellant was adding insult to injury,
because the Munsif had merely upheld an order of his predecessor
on the preliminary point of jurisdiction and Court
fees, which order had been upheld by the High Court in revision.
Scandalizing the Court in such manner is really polluting
the very fount of justice; such conduct as the appellant
indulged in was not a matter between an individual
member of the Bar and a member of the Judicial service; it
brought into disrepute the whole administration of justice.
From that point of view, the conduct of the appellant was
highly reprehensible."
29. In M.B. Sanghi, Advocate v. High Court of Punjab &
Haryana, (1991) 3 SCC 600 : (1991 AIR SCW 2011), this
Court took notice of the growing tendency amongst some of
the Advocates of adopting a defiant attitude and casting aspersions
having failed to persuade the Court to grant an order
in the terms they expect. Holding the Advocate guilty of
contempt, Ahmadi, J. observed (at p. 2012 of AIR SCW):
"The tendency of maligning the reputation of Judicial Officers
by disgruntled elements who fail to secure the desired
order is ever on the increase and it is high time it is nipped
in the bud. And, when a member of the profession resorts
to such cheap gimmicks with a view to browbeating the
Judge into submission, it is all the more painful. When there
is a deliberate attempt to scandalise which would shake the
confidence of the litigating public in the system the damage
caused is not only to the reputation of the concerned Judge
but also to the fair name of the judiciary. Veiled threats,
abrasive behavior, use of disrespectful language and at
times blatant condemnatory attacks like the present one are
often designedly employed with a view to taming a Judge
into submission to secure a desired order. Such cases raise
larger issues touching the independence of not only the concerned
Judge but the entire institution. The foundation of
our system which is based on the independence and impartiality
of those who man it will be shaken if disparaging and
derogatory remarks are made against the Presiding Judicial
Officers with impunity. It is high time that we realise that
the much cherished judicial independence has to be protected
not only from the executive or the legislature but also
from those who are an integral part of the system."
(Emphasis supplied) [22]
Again, in Re: Vinay Chandra Mishra (1995) 2 SCC 584 :
(1995 AIR SCW 3488), this Court observed (at Pp.3509 &
3510 of AIR SCW) :
"To resent the questions asked by a Judge, to be disrespectful
to him, to question his authority to ask the questions,
to shout at him, to threaten him with transfer and impeachment,
to use insulting language and abuse him, to dictate
the order that he should pass, to create scene in the
Court, to address him by losing temper are all acts calculated
to interfere with and obstruct the course of justice. Such
acts tend to overawe the Court and to prevent it from performing
its duty to administer justice. Such conduct brings
the authority of the Court and the administration of justice
into disrespect and disrepute and undermines and erodes
the very foundation of the judiciary by shaking the confidence
of the people in the ability of the Court to deliver free
and fair justice.
The stance taken by the contemner is that he was performing
his duty as an outspoken and fearless member of
the Bar. He seems to be labouring under a grave misunderstanding.
Brazenness is not outspokenness and arrogance is
not fearlessness. Use of intemperate language is not assertion
of right nor is a threat an argument. Humility is not servility
and courtesy and politeness are not lack of dignity.
Self-restraint and respectful attitude towards the Court, presentation
of correct facts and law with a balanced mind and
without overstatement, suppression, distortion or embellishment
are requisites of good advocacy. A lawyer has to be a
gentleman first. His most valuable asset is the respect and
goodwill he enjoys among his colleagues and in the Court."
30. In the instant case, from a perusal of the memorandum
of various petitions filed by the contemner in this Court and
the language used therein, it is apparent that he has cast
aspersions on each and every learned Judge who in the discharge
of his judicial functions decided the matter not liked
to by the alleged contemner at one stage or the other. The
aspersions cast by him undoubtedly have the tendency to
scandalise the Court. The alleged contemner has been attempting
to brow beat the learned subordinate Judges as
well as the learned Judge of the High Court and cause interference
in the administration of justice. Even in this Court,
after the Rule was issued to him, he tried to brow beat the
Court. He filed an application stating that since he had filed
a contempt petition against the Judges constituting the Division
Bench which had issued Rule against him, this Bench
should transfer the case. It was an obviously motivated action
on his part to intimidate the Bench. He did file the contempt
petitions against it both the Judges constituting the
Bench. Those petitions were dismissed by a Bench comprising
of Hon'ble Mr. Justice J.S. Verma (as the Hon'ble Chief
Justice then was) and Hon'ble Mr. Justice B.N. Kirpal by the
following order :-[23]
"We regret to find that the petitioner who is a practising
lawyer of some standing has chosen to resort to such a proceeding
which, in our view, is misconceived. We find no
merit in the same, but before dictating this order, we have
tried to explain this position to the petitioner with the hope
that he will appreciate that as a member of the Bar, he is
expected to utilise his time in a better manner to assist in
the administration of justice. The contempt petition is dismissed."

The alleged contemner in this case has been making continuous
attempts to subvert the course of justice in whichever
Court his case was. He has been acting not only as if he is
above the law but as if he is law unto himself. Notwithstanding
his own assessment of his 'merit and 'competence' as
stated by him in the memo of petitions, the alleged contemner
appears to be blissfully ignorant of the role of a lawyer
and the law relating to grafting of pleadings - which must be
precise and not scandalous or abusive. It is sad that by filing
the applications, and the petition, as a party in person,
couched in very objectionable language, he has permitted
himself the liberty of indulging in an action, which does little
credit to the noble profession to which he belongs. An advocate
has no wider protection than a layman when he commits
an act which amounts to contempt of Court. It is most
unbefitting for an advocate to make imputations against the
Judge only because he does not get the expected result,
which according to him is the fair and reasonable result
available to him. Judges cannot be intimidated to seek
favourable orders. Only because a lawyer appears as a party
in person, he does not get a licence to commit contempt
of the Court by intimidating the Judges or scandalising the
Courts. He cannot use language, either in the pleadings or
during arguments, which is either intemperate or unparliamentary
and which has the tendency to interfere in the administration
of justice and undermine the dignity of the
Court and the majesty of law. These safeguards are not for
the protection of any Judge individually but are essential for
maintaining the dignity and decorum of the Courts and for
upholding the majesty of law. Judges and courts are not unduly
sensitive or touchy to fair and reasonable criticism of
their judgments. Fair comments, even if, out-spoken, but
made without any malice and without attempting to impair
the administration of justice and made in good faith in proper
language do not attract any punishment for contempt of
Court. However, when from the criticism a deliberate, motivated
and calculated attempt is discernible to bring down
the image of judiciary in the estimation of the public or to
impair the administration of justice or tend to bring the administration
of justice into disrepute the Courts must bitter
themselves to uphold their dignity and the majesty of law.
The alleged contemner, has undoubtedly committed contempt
of the Court by the use of the objectionable and intemperate
language. No system of justice can tolerate such
unbridled licence on the part of a person, be he a lawyer, to
permit himself the liberty of scandalising the Court by cast-[24]
ing unwarranted, uncalled for and unjustified aspersions on
the integrity, ability, impartiality or fairness of a Judge in
the discharge of his judicial functions, as it undoubtedly
amounts to an interference with the due course of administration
of justice. No litigant, even a lawyer appearing in
person in his own cause, can be permitted to overstep the
limits of fair, bona fide and reasonable criticism of the judgment
and bring the Courts generally into disrepute or attribute
motives to the Judges rendering the judgment. Perversity,
calculated to undermine the judicial system and the
prestige of the Court, cannot be permitted for otherwise the
very foundation of the judicial system is bound to be undermined
and weakened. Liberty of free expression is not to be
confused with a licence to make unfounded, unwarranted
and irresponsible aspersions against the Judges or the
Courts in relation to judicial matters. In the established
facts of this case, we hold that the alleged contemner has
committed gross contempt of court and convict him accordingly.”
The fact that the judgment of acquittal rendered by the
Judicial Officer was not challenged and has attained finality is
far too significant a circumstance to be overlooked. If, parties
having oblique motives and their Advocates are allowed to
make wild allegations against judicial dictums which have attained
finality, the very independence of the judiciary will be
severely threatened and no Judge shall be able to work fearlessly
and independently. It is clearly reflected from the record
that the counsel representing the complainants has been taking
undue interest in the entire matter and appears to have made
it his own goal to somehow or the other and at any cost to target
and get the Judicial Officer entangled in a criminal case. Allegations
have been leveled in the complaint on the workings of
the officer at different stations, the knowledge whereof cannot
be imputed to the complainants who are illiterate persons.[25]
Thus evidently, it is the petitioners’ Advocate who appears to
be operating behind the scenes in the matter. A totally false
assertion has been made at para No.5 of the written submissions,
which are signed by the counsel, that the Registrar General
has informed this Court that the petitioners’ complaint has
been forwarded by Hon’ble the Acting Chief Justice to the Registrar
(Vigilance) for making inquiry. The fact is totally otherwise
inasmuch as, Hon’ble the Acting Chief Justice has directed
that the complaint be filed.
Now coming to the issue whether the Anti Corruption
Bureau officials were justified in sending the petitioners' complaint
to the Registrar General or not. Sections 2 and 3 of the
Judges Protection Act, 1985 have a material bearing on this issue
and are reproduced herein for the sake of convenience:-
“2. Definition.—In this Act, “Judge” means not only every
person who is officially designated as Judge, but also
every person—
(a) who is empowered by law to give in any legal
proceeding a definitive judgment, or a judgment which, if
not appealed against, would be definitive, or a judgment
which, if confirmed by some other authority, would be
definitive; or
(b) who is one of a body of persons which body of
persons is empowered by law to give such a judgment as
is referred to in Clause (a).
3. Additional protection to Judges.—(1) Notwithstanding
anything contained in any other law for the time being
in force and subject to the provisions of sub-section (2),
no Court shall entertain or continue any civil or criminal
proceeding against any person who is or was a Judge for
any act, thing or word committed, done or spoken by him
when, or in the course of, acting or purporting to act in
the discharge of his official or judicial duty or function.[26]
(2) Nothing in sub-section (1) shall debar or affect
in any manner the power of the Central Government or
the State Government or the Supreme Court of India or
any High Court or any other authority under any law for
the time being in force to take such action (whether by
way of civil, criminal, or departmental proceedings or otherwise)
against any person who is or was a Judge.
As per the foregoing provisions, it cannot be denied that
the arraigned Judicial Officer, who was discharging his judicial
duties while passing the judgment of acquittal, is covered by
the definition of Judge set out in Section 2 of the Act. As per
Section 3 of the Judges Protection Act, all courts have been
prohibited from entertaining any criminal or civil proceedings
against any person who is or was a Judge for any act, thing or
word committed, done or spoken by him when, or in the course
of, acting or purporting to act in the discharge of his official or
judicial duty or function. Sub-section (2) of Section 3 of the
Act, provides an exception and saves the powers of the competent
authority which can be, the Central Government, the State
Government, the Supreme Court of India or the High Court or
any other authority empowered under law to take such action
against any person who is or was a Judge. The clear intent of
the provision is that in case, the High Court feels that action;
civil and criminal is warranted against any subordinate Judicial
Officer, it can so direct without prejudice to the restrictions
contained in Sub-section (1) of Section 3 of the Act. That precisely
appears to be the reason that the complaint was for-[27]
warded by the officers of the Anti Corruption Bureau to the
High Court. Only Hon’ble the Chief Justice, upon being persuaded
that action is warranted, could have allowed registration of
a criminal case against the officer overriding the restrictions
contained in Sub-section (1) of Section 3 of the Judges Protection
Act. As noticed above, Hon’ble the Acting Chief Justice has
already decided that no action is warranted upon the complaint
received from the complainants against the arraigned Judicial
Officer and has been filed.
Consequently, this Court is of the opinion
(a) that the complaint submitted by the petitioners’ was
per se malicious and motivated.
(b) that the same does not disclose the necessary ingredients
of any cognizable offence whatsoever.
(c) that the motives of the petitioners’ counsel in filing
the complaint and prosecuting the matter is oblique and
malafide and was aimed at interfering in the administration
of justice and tarnishing the image of the Judiciary
and therefore, deserves to be deprecated.
As an upshot of the above discussion, the writ petition
being devoid of any merit is hereby dismissed with a cost of
Rs.10,000/-.
(SANDEEP MEHTA),J.[28]
/tikam daiya/
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