- (1.) THIS criminal contempt application by an advocate against two Hon'ble Judges of a Division Bench is painfully disturbing. The Division Bench had merely dismissed a Criminal Contempt Application No. 5 of 2006, Deepak Kumar Gupta v. Amrit Abhijat, District Magistrate Allahabad by a very detailed Judgment dated 25-9-2007 (Annexure 3 ).
(2.) BEFORE proceeding further we deem it proper to reproduce the said Judg ment dated 25-9-2007 in extenso below: This criminal contempt petition has been moved by the applicant-Deepak Kumar Gupta under Section 15 of Contempt of Courts Act, 1971, hereinafter referred to as the Act. The petitioner-applicant had filed a Civil Misc. Writ Petition No. 8961 of 2003, Deepak Kumar Gupta v. State of U. P. and another, seeking a direction commanding the District Magistrate, Allahabad to con sider his application for grant of free- hold rights in respect of the land. The said writ petition was disposed of by a Division Bench of this Court vide order dated 27. 1. 2004 and while disposing of the petition, the Court directed the District Magistrate, Allahabad to consider the applications filed by the peti tioner for grant of free-hold rights in the light of the Government Order appli cable after affording an opportunity of hearing to the petitioner as well as Sri Sandeep Mukherji by means of a reasoned order within a period of two months from the date of production of a certified copy of the order before the District Magistrate. Since the above direction did not specify which application of the petitioner was to be considered and decided, the aforesaid order was cor rected by specifying that application dated 26. 4. 2001 of the petitioner was to be considered by the District Magistrate, Allahabad. It appears that the petitioner's claim was, that his application dated 26. 4. 2001 for free-hold rights on the plot in question be considered and de cided in accordance with Government Order dated 1. 12. 1998. The District Magistrate, Allahabad has decided the application dated 26. 4. 2001 vide his. order dated 9. 9. 2004. By the time this order was passed by the District Magistrate, Allahabad another Government Order dated 23. 7. 2004 had come into force and the District Magistrate, Allahabad, therefore, decided the appli cation of the petitioner in the light of the said Government Order and the application of the petitioner has been rejected. The petitioner being aggrieved by this action of the District Magistrate, Allahabad moved a contempt petition against him which was registered as civil contempt application No. 3334 of 2004 in which the Court issued notice to the District Magistrate and the District Magistrate filed an affidavit of com pliance stating that he had fully complied with the order and decided the application of the petitioner vide his order dated 9. 9. 2004. At this, the Court dropped the proceedings of civil contempt and the matter was closed. Now the present application has been made under Section 15 of Contempt of Courts Act, 1971 alleging that the District Magistrate, Allahabad had filed a false affidavit in the contempt proceedings i. e. Civil Contempt Applica tion No. 3334 of 2004 and has misled the Court and thus interfered with the course of justice which amounts to criminal contempt as defined under Sec tion 2 (c) of the Act and punishable under Section 12 read with Section 15 of the Act. The thrust of the applicant is that the District Magistrate ought to have decided his application for free-hold right in accordance with Govern ment Order prevailing at the time of passing of the order dated 27. 1. 2004 by the Court i. e. Government Order dated 1. 12. 1998 but instead of this he de cided his application in accordance with the Government Order dated 29. 7. 2004. The District Magistrate, Allahabad has committed default, illegal ity and by submitting a false affidavit that he has complied with the order, he has misled the Court. We have heard Sri Deepak Kumar Gupta-applicant and have considered the submissions made by him. It is true that if any person by misleading or by filing a false affidavit before the Court tries to mislead the Court, he inter fere with the course of justice which amounts to criminal contempt under the Act but the procedure for taking cognizance in the matter of criminal con tempt is the matter under Section 15 of the Act. Section 15 of the Act is quoted below: "15. Cognizance of criminal contempt in other cases.- (1) In the case of a criminal contempt, other than a contempt referred to in Section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by- (a) the Advocate-General, or (b) any other person, with the consent in writing of the Advocate General, [or] (c) in relation to the High Court for the Union Territory of Delhi, such law Officer as the Central Government may, by notification in the official Gazette, specify in this behalf, or any other person, with the consent in writing of such Law Officers. (2) In the case of any criminal contempt of a subordinate Court, the High Court may take action on a reference made to it by the subordinate Court or on a motion made by the Advocate-General or, in relation to a Union territory, by such Law Officer as the Central Government may, by notification in the official Gazette, specify in this behalf. (3) Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty. Explanation.-In this section, the expression "advocate-General" means,- (a) in relation to the Supreme Court, the Attorney General or the Solici tor-General; (b) in relation to the High Court, the Advocate-General of the State or any of the States for which the High Court has been established; (c) in relation to the Court of a Judicial Commissioner, such Law Officer as the Central Government may, by notification in the official Gazette specify in this behalf. " As is evident from the aforesaid provision, cognizance can be taken ei ther on suo motu by the Court or motion made by Advocate General or any person with the consent of the Advocate General or in relation to the High Court for the Union Territory of Delhi, by such Law Officer as notified by the Government. In the present case admittedly, no consent of the Advocate General has been obtained and it is not a motion made by the Advocate General himself. The submission of the applicant suggests that he moved an application to the Advocate General for his consent but no consent has been obtained nor there is any claim of the applicant that the Advocate General was pleased to grant his consent on record. Allahabad High Court Rules contained in Chapter XXXV-E, particularly Rule-3 (4), requires that every petition in respect of criminal contempt, where it is not moved by the Advocate General and where the consent in writing of the Advocate General had not been obtained, and every petition in regard to criminal contempt of a subordinate Court where no reference has been made by it and the petition is moved without the consent of the Advocate General shall clearly state the reasons why the consent in writing of the Advocate General could not be obtained and why the Court has been approached to act sup motu. In this regard, the applicant has submitted that an affidavit filed by the District Magistrate, Allahabad was drafted by the then Advocate General and therefore there was no question of his granting consent for initiating the pro ceedings in the matter. A perusal of the application under Section 15 of the Act reveals that it does not contain any averment to this effect. Although as per requirement of the aforesaid Rule, this ought to have been mentioned in the application itself. The applicant claims that he had made such averment in the supplementary affidavit dated 5. 10. 2006. After considering the aforesaid facts, we are of the definite view that in the nature of controversy raised before us, it cannot be said that the District Magistrate, Allahabad while giving an affidavit of the compliance in aforesaid contempt proceedings made any intentionally wrong submission with a view to misguide the Court. The controversy was there that the Government Order dated 1. 12. 1998 should be taken into consideration for deciding the applica tion dated 26. 4. 2001 of the applicant for granting of free-hold right or whether that application could be decided in the light of subsequent Government Or der dated 29. 7. 2004. The order dated 27. 1. 2004 passed by this Court in Crl. Writ Petition No. 8961 of 2003 which was corrected by the Court on 26. 8. 2004 directed the District Magistrate, Allahabad to decide the application in the light of the Government Order applicable. The Court passed this order on 27. 1. 2004 when the Government Order dated 1. 12. 1998 was applicable but it is a fact that when the Collector passed the order, a new Government Order had come into force. It cannot be inferred from the order dated 27. 1. 2004 passed by this Court that any person dealing with the matter cannot reason ably infer that he has liberty to decide this application in the light of the Government Order applicable/available at the time of consideration. In any case, if there is controversy between the District Magistrate and the appli cant with regard to the applicability of the Government Order that can be sorted out by taking proper course but we do not think it proper to entertain this criminal contempt application on the basis of the above controversy. In our opinion, it is not an appropriate case where this Court should on suo motu take cognizance in the matter. We, therefore, dismiss this application and drop all further proceedings in the matter. " This criminal contempt application against the two Hon'ble Judges who had delivered the above order alleges that passing the above order amounts to criminal contempt by those Hon'ble Judges. Today, shortly after this criminal contempt application was taken up, a vakalatnama was filed in Court by a learned Counsel on behalf of the applicant advocate, and the learned Counsel for the applicant sought an adjournment. Since by that time we had already gone through the papers of the case, we declined to keep this kind of a matter alive, by granting adjournment and insisted that the matter be argued. Thereafter, the learned Counsel for the applicant argued the matter. We have heard his arguments, perused the record, and now we observe as under: Firstly, the contention of the applicant regarding grant of consent by the Advocate General is factually incorrect. A copy of the order dated 12-9-2006 passed by the then Advocate General has been filed before us as Annexure 5. By that order the application seeking consent has been rejected by the Advocate General. Indeed in the criminal contempt application No. 5 of 2006 (Annexure 2 before us) there is not a word about the Advocate General's consent. 6. Secondly, even if the consent had been granted and was on record before that Division Bench, the proper course for the applicant would be to file an appli cation before the same Bench bringing the alleged oversight to the notice of that Bench, instead of filing a criminal contempt against the Judges constituting that Bench. Even if an erroneous order has been passed by the Bench, that does not amount to contempt of Court as defined under the Contempt of Courts Act. The present application fails to make out any case of contempt of Court under the provisions of the above Act against the Judges of the Division Bench who decided the Criminal Contempt Application No. 5 of 2006. 7. Thirdly, while filing this frivolous, not to say blackmailing, contempt peti tion, the applicant has forgotten that every day during the course of arguments, lawyers too commit mistakes, make oral submissions which are factually incor rect and when detected they want to get away merely by saying sorry, and the Courts also do not normally direct prosecution of lawyers of their Court for every such indiscretion. If every mistake committed in a decision by a Bench ends up in a criminal contempt petition against the Hon'ble Judge or Judges of the Bench, it would become impossible for Judges to discharge their duties properly. 8. Moreover, of tentimes cases are decided by placing reliance upon the argu ments of the Counsel. Under the present workload, it is not practicable for every Bench to read every single line of every page of the paper book before passing an order. 9. Another allegation made against the Hon'ble Judges is that the applicant wanted to show a decision of the Supreme Court (viz. AIR 2005 SC 396), which was not examined by the Bench. 10. In this connection, we would like to observe firstly, that this kind of allega tion can be made in any case by way of an afterthought after adverse result in the case argued without proper preparation. Secondly the remedy for the litigant or lawyer in such situations is as mentioned in paragraph 6 above. And thirdly, the "full Bench Decision" of the Supreme Court (as the applicant chose to call it, not realising that in Supreme Court there is no such thing as a "full Bench", it is either a Bench or a Constitution Bench) had no relevance because it does not support the applicant's contention that the statutory requirement of Advocate General's consent is redundant. It only says that lack of such permission does not take away the Court's power to take suo-motu cognizance. As will be noticed from the Judgment dated 25-9-2007 (quoted above), that the Division Bench had considered the case from that aspect of law, and therefore there could be no possible motive on part of the Division Bench in not examining the Supreme Court authority if cited by the applicant. Lastly, in that case the Supreme Court ap proved the procedure suggested by the Delhi High Court and required the same to be followed. According to the suggested procedure criminal contempt applica tions not by persons coming within Section 15 of the Contempt of Courts Act should not be placed before the Contempt Bench on the judicial side but should be examined by the Chief Justice (of the High Court) in chambers for considering whether to take cognizance suo-motu. Cases are placed before various Benches on the judicial side under orders of the Chief justice. Once the matter is placed before the Contempt Bench on the judicial side without any decision of the Chief Justice that it is a fit case for suo-motu cognizance, it would normally imply that the Chief Justice has not found the matter to be appropriate for suo-motu cogni zance. The case before us also contains a simpliciter order of the Chief Justice dated 14-2-2008 saying "lay/list before the appropriate Bench". 11. We have therefore no doubt that the present criminal contempt applica tion is not only absolutely frivolous but is also vexatious. In the interest of proper functioning of this Institution, such tendency on part of litigants must be curbed with a heavy hand, more particularly when the litigant happens to be an advocate from whom the Court is entitled to expect a certain degree of legal knowledge and also some sense of responsibility and restraint as an officer of the Court. 12. Therefore, while dismissing this contempt application, we impose a de terrent and exemplary costs of Rs. 1,00,000 (Rupees one lakh only) against the applicant, for filing this kind of frivolous, irresponsible, and mischievous criminal contempt application. The said costs will be recovered as arrears of land revenue, and shall be paid to the legal aid cell of Allahabad High Court. 13. Let a copy of this order be sent to the Collector Allahabad, forthwith, for making recovery. .;