Court on its own motion vs Varinder Kumar @ Vittu and ors.

V. K. Bali, J.

Varinder Kumar and his fatherinlaw Raw Sarup Sethi as also Mr. D.D. Sharma Advocate of this Court who represented the first two are before us as contemners by virtue of taking cognizance of Contempt against them under Section 18 of the Contempt of Courts Act" 1971 while deciding Criminal Miscellaneous No. 197 of 1989 in: Criminal Writ Petition No. 2056 of 1988 by S.S. Grewal, J. Before, however, finding with regard to their guilt or innocence is returned, it shall be useful to give a brief resume of facts.

Varinder Kumar filed Criminal Writ Petition No. 1804 of 19.88 in .this Court through his lawyer Shri D.D. Sharma Advocate. The prayer was to release him on emergency parole for a period" of four weeks commencing with effect from October 12, 1981. The contents of aforesaid Criminal Writ Petition would go to show that Varinder Kumar prayed for his release on emergency parole for a period of four weeks on the ground that he was to appear in M.A. Part I (Economics) examination. which was to be held by the Punjabi University from October, 1988 under roll cumber which he had received on October 1, 1988. He prayed for parole by stating that in a case under Section 362 read with Section 34 IPC in which he was arrested, he was undergoing. imprisonment in Central Jail, Bhatinda. With a view to strengthen his case for release on parole he even annexed with the aforesaid Writ Petition a copy of date sheet and roll number stated to have been issued by the Punjabi University. The facts detailed above would pre suppose that the petitioner was tried in a case under Section 302 read read with Section 34 Indian Penal Code and after trial was convicted. The Criminal Writ Petition came up for hearing before A.P. Chowdhri, J. on October 11, 1988 and it is obvious that on the sole ground that Varinder Kumar was to appear in M.A. Part I (Economcs) examination he was granted parole under the provisions of Punjab Good Conduct Prisoner (Temporary Release) Act, 1962 for a period of four weeks. Varinder Kumar filed yet another petition under Section 482 of the Code of Criminal, Procedure vide which he sought for correction in the order dated October, 11, 1988 in Writ Petition No. 1804 of 1988 and prayed that as a matter of fact he was undertial prisoner facing trial in a case under Section 302 read with Section 34 IPC before Sessions Judge, Bhatinda and, therefore, instead of parole, he should be released on interim bail. The above mentioned request was, a also allowed vide order dated October 14, 1988. Yet another C.W.P. No. 2056 of 1988 was filed by Ram Sarup Sethi, fatherinlaw of Varinder Kumar wherein extension of interim bail granted to him vide order dated October 14, 1988 was prayed for a period of four weeks. The ground for seeking extension this time was that the house of Varinder Kumar had fallen due to floods which requied reconstruction so as to provide shelter to his parents. It was further pleaded in the aforesaid Criminal Writ Petition that there was no other adult male member in his family who could do the job which was very emergent. This time too Mr. D.D. Sharma was engaged to plead the cause of Ram Sarup Sethi, With a view to strengthen the grant of prayer, the resolution of Municipal Committee Bhatinda City verifying that house of Varinder Kumar had actually fallen down and required extensive repars was made part of the record. The said resolution was signed by two exMunicipal Commissioners. On the representation of aforesaid facts, Ram Sarup Sethi was able to obtain an order of extension of, interim bail already granted to Narinder Kumar vide orders dated November 21, 1988 passed by A.P. Chowdhri, J. Vide yet another order dated December 22, 1992 passed by S.D. Bajaj, J. Varinder Kumar was able to, obtain parole for the period, December 25, 1988 to January 7, 1989. When all these facts came to notice of Rakesh Kumar complainant in a case under Section 302 read with Section 34 IPC against Varindar Kumar etc, he filed Criminal Misc No. 197 of 1989 in Criminal Writ Petition No. 2056 of 1988 and prayed for recalling of order dated October 11, 1988 as also order dated October 14, 1988 as well as order dated November 21, 1981 as also for initiating contempt proceedings under the provisions of Contempt of Courts Act, 1971. Prayer of Rakesh Kumar so as to recall the orders, referred to above, as also to proceed against the respondents stems from unrebutted facts that Varinder Kumar was never to appear in M.A. Part I (Economics) examination in the session of October" 1988 and no roll number was allotted to him. In order to strengthen the aforesaid factual position, he, produced report of Controller of Examations, Punjabi University, Patiala. Further, it was successfully pleaded by Rakesh Kumar that house of Varinder Kumar had not fallen due to rain or floods and the story coined by Ram Sarup Sethi with regard to reconstruction of home so as to provide, shelter to old parents of Varinder Kumar was concocted simply with a view to obtain unfair advantage. With a view to strengthen this assertion as well, resolution of Municipal Committee, Bhatinda which was produced before the Court to I obtain extenssion of parole is styled to be forged for the reason that during the relevant period, no Municipal Comittee at Bhatinda was in existence. When the facts as disclosed by Rakesh Kumar camp to notice of S.S. Grewal, J. notice was issued to all the respondents, in response to which no steps were taken to controvert the factual position revealed by complainant Rakesh Kumar. A detailed order dated May 22, 1990, thus, came into being vide which this case was referred to Division Bench as has been indicated above.

All the contemners have filed their replies by way of affidavits. In so far as reply of Mr. D. D. Sharma is concerned, the same goes to show. that he had drafted the petitions reference of which has been given above at the instance and instructions of his client and the moment the fact had come to his notice that Varinder Kumar was not a convict but was .only an under trial, he brad taken appropriate steps to inform the Court by way of appli cation for correction. He has also tendered unqualified apology and, placed himself at the mercy of the Court.

After going through his reply, we are of the view that Mr. D.D. Sharma Advocate had no personal knowledge and he simply acted on the instructions of his clients Varinder Kumar and Ram Sarup Sethi. Nothing has been pointed out by, the counsel of Mr. Rakesh Kumar which might point towards his guilt Unhesitantingly, thus, we discharge the Rule against him.

In so far as Varinder Kumar and Ram Sarup Sethi are concerned, they have. tendered unqualified apology and have not joined any issue on facts. After giving considerable thought to the matter, we are of the considered view that in a case of this kind the apology even though unqualified cannot be accepted. Not only, that Varinder Kumar and Ram Sarup Sethi came up with blatatn lies but with a view to support false assertions, they even forged. documents with impunity. Varinder Kumar could not been have able to obtain hit release in normal circumstances when he was involved in a heinous crime. With a view to obtain his release, he in active connivance and support of his fatherinlaw coined special circumstances by falsely stating before this, Court that he had since been convicted and was undergoing sentence for life imprisonment. Although he never appeared in any examination whatsoever yet he styled himself to be a student of M.A. Economics and so much so forged documents authentiwing his. case for appearing Inexamination. Encouraged with the result of the case and grant of parole or ad interim, bail as the case may be, his fatherinlaw Ram Sarup Sethi followed dishonest and unscrupulous example set up by his soninlaw and secured release of Varinder Kumar by giving totally false version of collapsing of the house on account of rains and old parents of Varinder Kumar were to be provided shelter. Even though there was no Municipal Committee in existence at the relevant time, he .had the courage to forge a resolution said to have, been passed by the Municipal. Committee. The matter did not end there and Varinder Kumar successfully secured his release by repeating the trumped up grounds. From the unrebutted facts, we find that the conduct of respondent Varinder Kumar Ram and Sarup Sethi has been most reprehensible and it is manifest, that absolutely no respect for the Courts. It is by now well settled law that if a person deliberately and wilfully makes a misleading statement with a view to obtain a favourable order it will certainly prejudice or interfere with the due course of judicial proceeding and would amount to contempt of Court. It is true that an unqualified apology should normally be accepted but the facts and circumstances of the present case are revealing, and we are of the view that if in a case of this kind also lenient view is taken and apology is accepted, it would practically render the power of this Court to convict for contempt nugatory and further it will, have the 16 effect of encourging others to follow the same course and if caught to simply ask for pardon. Litigants should not got the impression that howsoever much they have indulged in misrepresenting they would be let off without punishment simply by tendering apology. From the fact of the present case, we find that the apology is not an act of contrition but in the present case is used as a weapon to escape the consequences of contemners action and therefore, we reject the same.

Arguments in this case were heard on July 22, 1991 and the case was adjourned for pronouncement of judgment on 31st July, 1991. Before, however we could pronounce the judgment, Mr. D.R. Mahajan learned counsel for the respondent contemners appeared and requested that he had missed to Argue that proceedings initiated against the contemners were barred for the same were initiated after 9 period of one year so preescribed20 of the Contempt of Courts Act, 1971. With the permission of the Court, he was allowed to take up, the point. Mr. Mahajan contends that whereas contempt is said to have been committed on a day when various criminal. Writ Petitions and criminal applications were filed in this Court i.e. on October 8, 1988, November 12, 1988 and December 21, 1988, the proceedings were initiated vide orders passed by Sharanjit Singh Grawal, J. on May 22, 1990 i.e. beyond the period prescribed. After examining the matter we however, find no merit in the same. Rakesh Kumar moved this Court for recalling orders dated October 11, 1988 as also October 14, 1988 as well as order dated November 21, 1988 and for initiate contempt proceedings under the Contempt of Courts Act, 1911 against the respondents, on November 26, 1988 and as per case of contemners them seleves, the "terminus a quo" (date when time begins to run) is the date on which the contempt it alleged to have been committed. The dispute is only. with regard to "terminus ad quem" (terminating point for limitation). Whereas the contention Mr. Mahajan is that "terminus ad quem" would be when the matter, was referred to a Division Rench, vide orders passed by Sharanjit Singh. G rewal, J. on May. 22, 1990, the counsel appearing for Rakesh Kumar petitioner contends that the same would be when notice of his application reference of which has been given above, was issued to the contemners. It is not disputed that the said application was filed in November 1988 itself when notice was also issued in December 1988 if terminuk ad quem" is a date when notice was issued on the said application action against the respondents would not come within the bar created by Section 20 of the Contempt of Courts Act. The matter is not res integra and is determined by a Full Bench of this Court in Manjit Singh and others v. Shri Darshan Singh, Deputy Superintendent of Police, Baba Bakala and others, 1984(1) Recent Criminal Report 491 (FB) : 1984 Punjab Law Reporter 9 . The bar of limitation as canvassed by Mr. Mahajan based upon the date of actual issuance of notice of criminal contempt by the Court was rejected by observing that, in a case of criminal contempt, it would necessarily vary and depend upon the modes of taking cognizance thereof provided for in Section 15 of the Contempt of Courts Act. In cases where it is initiated on the Court''s own motion it would necessarily be from the issuance of the notice for contempt by the Court and in case of motion by the Advocate General under Section 15 (1)(a) the proceeding would initiate from the date of the filing of such a motion in the High Court and where any other person moves the Advocate General for his consent in writing as prescribed in Section 15 (1)(b) the initiation of proceedings would be with effect from the date of such application and lastly in cases of criminal contempt of a subordinate Court on a reference made by it, the proceedings must be deemed to be initiated from the date when such reference is made. Mr. Mahajan, however, submits that proceedings were initiated against the contemners only on, reference made by single Judge on May 12, 1990 and the Division Bench ultimately issued notice to the contemners.

We find no merit in this contention as well for the reason that there is no bar for a single Judge to initiate, contempt proceedings. It is true that as per mandatory language of Section 18, every case of contempt under Section 15 has to be heard and determined by a Bench of not less than two Judge but the bar of limitation provided under Section 20 applies only to initiation of proceedings which proceedings as mentioned above can well be initiated by a single Judge. It has been authortatively held in Court on its own motion v. Kasturi Lal and others, AIR 1980 Punjab and Haryana 72, by a Full Bench of this Court that Section 18 has no bearing or relevance to either taking of cognizance under Section 15 or to the initiation of proceedings and issuance of notice under Section 17. The words "heard and determined" as used in Section 18 are not to be read as individual isolated words, but conjointly as a phrase. The legal phrase "heard and determined" is not to be applied to each and every step taken in the contempt jurisdiction but has obvious relevance only to the final trial and adjudication of criminal contempt. It is only when the contemner has appeared and a final adjudication of the matter is to be made that the provisions of S. 18 and the phrase "heard and determined" is attracted. In so far as proceedings under Sec. 15 are concerned, these involve no determination as such nor do the proceedings under Section 17 decide anything till the contemner appears and makes his defence. Mere cognizance of criminal contempt under Section 15 and the initiation and notice to the contemner under Section 17 are, thus. obviously different from and in essence distinct from the final hearing and determination which has been provided for under Section 18. There is thus, no bar or, a single Judge of the High Court for initiating proceedings in criminal contempt.

The only surviving point for determination is as to whether criminal proceedings as have been initiated on an application made by Rakesh Kumar would attract the bar created under Section 15 wherein permission of Advocate General was necessary. In case of criminal contempt other than contempt referred to in Section 14, the Supreme Court or the High Court has the power to take action on its own motion or on the motion made by the Advocate General or any other person with the consent in writing of the Advocate General. The third method of taking cognizance of criminal contempt is on a reference made by the subordinate Court. Obviously, Section 14 would not be attracted to the facts of the present case inasmuch as the contemners did not commit any contempt in the presence of hearing of the High Court. So far as subsection (1) of Section 15, which is regarding taking cognizance of criminal contempt is concerned, the High Court can take action on its own motion. Subsection (2) of Section (15), however, provides that when it is a case of criminal contempt of a subordinate Court, then in that `case'', 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. When, therefore, the High Court takes action on its own motion then the consent in writing of the Avocate General provided in sub section (1) of section 15 would not apply. It is true that in the present case the information supplying material for proceeding against the contemners was supplied by Rakesh Kumar complainant but can it be said that for the simple reason that the Court proceeded to issue notice on a motion made by any other person, it could not take action on its own motion and consent in writing of the Advocate General was necessary. In our view simply because information has been supplied by any other person, the Court is not debarred from taking action on its own motion. There will be no difficulty where the Court or the Advocate General chooses to move in the matter, but when this is not done and a private person desires that such action should taken, there are two courses open to him. He may place the information in his possession before the Court and request the Court to take, action. He may place the information before the Advocate General and request him to take action. Rakesh Kumar while moving his application, reference of which is made above, prayed that the Court should take action against the contemners and while doing so, he adopted the first method of laying the relevant information before the Court for such action as the Court may deem fit. The Court was well within its jurisdiction to take action is envisaged under Section 1(1) of the Contempt of Courts Act. It is, however, true that no one can claim, as a matter of right, that the moment he has laid the information before the Court, it would be necessary to proceed in the matter "and the Court cannot insist upon permission in writing of the Advocate General, but at the same time it cannot be laid as general principle of law that if information is laid before the Court by a private person which appears to be well merited, the High Court only would have no jurisdiction to proceed under Section 15 (1) of the Contempt of Courts Act without permission of the Advocate General. In any case. there is ample power with the High Court to punish for the contempt of itself which power continues to be derived from and is traceable to Article 215 of the Constitution of India. The power conferred upon High Court to convict for contempt cannot be construed so as to affect the power given to the High Court under the Constitution. Therefore, whether the contempt of High Court alleged to have been committed by the contemners in the present case was brought to the notice of the High Court with or without the consent of Advocate General, the High Court is competent to punish the contemners in exercise of its powers under Article 215 of the Constitution of India. It is an admitted position that if the power is exercised under Article 215 of the Constitution of India, there will be no bar as way be forthcoming from the provisions of Contempt of Courts Act. We are, thus, unable to accept any of the contentions raised by Mr. Mahajan.

In the facts and circumstances fully detailed above, we hold both the petitioners i.e. Varinder Kumar and Ram Sarup Sethi guilty of committing gross contempt of Court but inasmuch as no contest has been made in this case and unqualified apology, has been tendered, we deem it fit, that they should be convicted commensurate to the advantage taken by misstating the facts. Inasmuch as Varinder Kumar obtained his release by six weeks in pursuance of two petitions filed by him, reference of which has been given above, he is convicted and sentenced to six weeks simple imprisonment and to pay a fine of Its. 1,000/ which if recovered, shall be paid to Rakesh Kumar complainant failing which he shall undergo simple imprisonment for 15 days. In asmuch as on petition filed by Ram Sarup Sethi, Varinder Kumar obtained undue advantage of two weeks Ram Sarup Sethi is convicted and sentenced to undergo simple imprisonment for a period of two weeks and, also to pay a fine of Rs. 500/ which if recovered, shall be paid to Rakesh Kumar. In default of payment of fine, Ram Sarup Sethi shall undergo further simple imprisonment for a period of seven days.

JUDGMENT accordingly.