Dr. Ghanshayam Dev vs Dr. Ranbir Singh

S.K. Gupta, J.—We have heard Mr. Raghu Mehta, learned counsel appearing for the petitioner as also Mr. D.S. Thakur, learned counsel

appearing for the respondent at length.

Fall out of certain events that culminated in the initiation of the contempt proceedings on an application commenced by Dr. Ghanshayam Dev in

resume may be noticed.

Aggrieved by the Government Order No. 537-GR/HME of 1991 dated 27.6.1991, whereby the petitioner alongwith five other Doctors

including respondent herein came to be appointed as Lecturer in the Department of Radio Diagnosis and Imaging in Government Medical College,

Jammu and Srinagar, Dr. Ranbir Singh respondent filed writ petition SWP 598/91 in Jammu Wing of the High Court, in assailing the correctness of

the aforesaid order and seeking a mandamus for his placement in the Govt. Medical College, Jammu. However, another writ petition SWP No.

757/91 was filed by the respondent herein in the Srinagar Wing of the High Court on 8.7.1991. In both these petitions respondent/writ petitioner

had sought the quashing of the Government order, referred above by issuing writ of certiorari and further commanding the respondents for posting

of the writ-petitioner as Lecturer in the Govt. Medical College, Jammu instead of Govt. Medical College, Srinagar by means of writ of mandamus.

Respondent in subsequent writ petition filed in the Srinagar Wing of the High Court made a false statement and filed an affidavit averring therein

that he had not filed any other petition or proceedings in respect of the matter in controversy. Learned Single Judge before whom application for

initiating contempt proceedings against the respondent was filed found that making a false statement before the Court on affidavit filed amounts to a

criminal contempt. In relying upon the judgment of the Supreme Court in Dhananjay Sharma Vs. State of Haryana and Others, . Learned Single

Judge also found that prima facie the respondent has committed the contempt and issued a rule to the respondent-contemner, to show cause as to

why he should not be punished for contempt of the Court.

In response to show cause notice objections were filed by the respondent and tendered an unconditional apology for having made a statement

on affidavit that no writ petition in fact has been filed at Jammu. It is further stated the writ petition SW No. 598/91 despite having been filed in

Jammu Wing of the Court, was not listed before this Court. The respondent further submitted that the matter could not come before the court

because of the strike of the Bar Association and he proceeded to Srinagar and after having consulted his lawyer filed another writ petition in the

Srinagar Wing of the High Court and sworn an affidavit stating that he has not filed any other writ petition or proceedings in respect of the matter in

controversy. It is further explained that the respondent did not know the implication for not disclosing the factum of the filing of the writ petition in

Jammu Wing of this Court, Averments made in para 3 of the preliminary objections read as under:

That otherwise also, strictly speaking the filing of the second petition does not in any manner amount to criminal contempt in as much as the

respondent had never scandalize or prejudiced with the due course of judicial proceedings or in any manner interfered with or intended to interfere

with or to obstruct the administration of justice in any manner. The process of law and the administration of justice has not effected in any manner

by filing the petition in the Srinagar wing of this Hon'ble Court, particularly in the facts and circumstances of the case referred to hereinabove, so

one could understand that the process of law or the stream of justice is affected when the petitioner had approached the Court and the Hon'ble

Court had taken the cognizance of the petition and there-after did not give the interim relief, But in a case where the petition has only been

presented in the Jammu Wing of this Hon'ble Court and the same could not come up for consideration before the Court because of the strike of

the lawyers, the petitioner could in such a situation approached the Srinagar Wing of the Hon'ble Court for the purposes of processing his

grievance. This came up before the Hon'ble Court for consideration on 12.7.1991. The process of the Hon'ble Court in the facts and

circumstances was never scandalize and no prejudice was caused to any body nor there was any interference in the administration of justice in any

manner. The contempt petition, therefore, is mis-conceived and deserves no consideration. Notwithstanding this strict position of law, the

respondent as law abiding citizen having full faith in the administration of justice still tenders the unconditional apology and keeps himself at the

mercy of the Hon'ble Court.

The filing of the writ petition at Srinagar however, is not disputed by the respondent. He also did not dispute to have indicated in para 8 that no

other writ petition was filed or any other proceedings in respect of the matter in controversy any where. He however, contended that mere filing of

the petition in the Registry in the facts and circumstances cannot amount to filing of the petition in the Court. The matter which could not be taken

up by the Court because of the strike of the lawyers cannot he subject-matter of contempt proceedings and thus assailed the maintainability of the

contempt petition. According to the respondent, the contempt application is time-barred and has been filed with the purposive Intent to cause him

harassment and not to advance the administration of justice.

The admitted facts discernable from the record are that in both the writ petitions, respondent-contemner had prayed for quashing the

Government Order No. 537-GR/HME of 1991 dated 27.6.1991 by virtue of which he was posted as Lecturer in Government Medical College,

Srinagar, whereas posting of other persons was made as Lecturers in the Department of Radio Diagnosis and Imaging in Government Medical

College, Jammu, with a further prayer for issuance of writ of mandamus commanding the official respondents in the writ petition to post the

respondent-contemner as Lecturer in Government Medical College, Jammu instead of Government Medical College, Srinagar. It is also not denied

that in the affidavit flied in another writ petition at Srinagar the respondent-contemner made a Statement that he has not filed any other writ petition

or proceedings in respect of the matter in controversy. This false affidavit has been flied when writ petition SWP No. 598/91 was already filed by

him in Jammu Wing of this Court in respect of the same matter in, controversy. The Srinagar Wing of the High Court believing the statement of

facts given by the respondent-contemner in the writ petition granted ex parte Interim relief on 12.7.1991 which reads as under:-

Mr. Blial Nazki:

Mr. Nazki, learned counsel for the petitioner at the out set submitted that this petition virtually pertains to Jammu Wing of the High Court as the

parties belong to Jammu. However, according to him, the petition has been presented before this Court under extra-ordinary circumstances

because the lawyers at Jammu were on strike and the petitioner had to come a long way to Srinagar for processing his grievances through the

medium of this petition.

Heard. Issue notice to the respondents returnable within six weeks.

Issue notice in the CMP also returnable within the same period with the direction, subject to the objections, to the respondents that If any post is

lying vacant at Jammu in the discipline the petitioner has qualified the respondents 1, 2, 3 and 4 are at liberty to adjust him on that post making

alternative arrangements for the post the petitioner was initially appointed under order impugned Annexure PA dated 27.6.1991. This direction is,

however, subject to the risk and cost of the petitioner. The file be sent to Jammu Wing of the Court and the Deputy Registrar of that wing will

place the file before the appropriate Bench after the notices are served.

After obtaining ex parte interim relief from the Srinagar Wing of the High Court, the respondent-contemner sought dismissal of the writ petition

No. 598/1991 filed in Jammu Wing of the High Court as withdrawn even without disclosing that he had filed another similar writ petition at

Srinagar and had obtained a favourable interim relief.

What is un-disputably gatherable from the record is that there had been willful suppression of facts by the respondents. He clearly stated in para

8 of the writ petition:--

That the petitioner has not filed any other writ petition or proceedings in respect of the matter in controversy"".

This is a false statement and in support of which false affidavit has been filed. Respondent-contemner therefore, has committed criminal contempt.

From the facts it is unambiguously clear that the respondent has filed a false affidavit with a view to obtain favourable order by misleading the Court

and by giving a false affidavit on statement of facts that no writ petition or proceedings in respect of the matter in controversy has been filed in any

Court.

Respondent-contemner Ranbir Singh by giving false facts before the Court in affidavit flied has therefore, committed a criminal contempt and he

is accordingly held guilty of the Contempt of Court. In Dhananjay Sharma Vs. State of Haryana and Others, , the Apex Court in dealing with the

issue that by swearing false affidavit amounts to Contempt of the Court observed as under;

Any conduct which has the tendency to interfere with the administration of justice or the due course of judicial proceedings amounts to the

commission of criminal contempt. The swearing of false affidavits in judicial proceedings not only has the tendency of causing obstruction in the due

course of judicial proceedings but has also the tendency to impede obstruct and interfere with the administration of justice. The filing of false

affidavits in judicial proceedings in any court of law exposes the intention of the party concerned in preventing the course of justice. The due

process of law cannot be permitted to be slighted nor the majesty of law be made a mockery of by such acts or conduct on the part of the parties

to the litigation or even while appearing as witnesses. Anyone who makes an attempt to impede or undermine or obstruct the free flow of the

unsoiled stream of justice by resorting to the filing of false evidence, commits criminal Contempt of the Court and renders himself liable to be dealt

with in accordance with the Act. Filing of false affidavits or making false statement on oath in courts aims at striking a blow at the rule of law and

no court can ignore such conduct which has the tendency to shake public confidence in the judicial institutions because the very structure of an

ordered life is put at stake. It would be a great public disaster if the fountain of justice is allowed to be poisoned by anyone resorting to filing of

false affidavits or giving false statements and fabricating false evidence in a court of law. The stream of justice has to be kept clear and pure and

anyone soiling its purity must be dealt with sternly so that the message percolates loud and clear that no one can be permitted to undermine the

dignity of the court and interfere with the due course of judicial proceedings or the administration of justice.

So relying on the aforesaid judgment of the Apex Court, there is no manner of doubt that by filing false affidavit, the respondent-contemner has

committed a criminal contempt. The action of the respondent-contemner is not only reprehensible and condemnable but also requires to be dealt

with sternly. It is significant to note that in response to the show cause notice a detailed reply has been filed by the respondent. No apology much-

less unconditional apology was tendered by the respondent-contemner. In fact the respondent contemner has defended his action and categorically

stated that he has not committed any contempt. However, in para 1 of the reply, the respondent-contemner tendered apology which is as under:

That at the out set the respondent tender unconditional apology for having made a statement on affidavit that no writ petition in fact has been filed

at Jammu. The respondent has the highest regards for the Judicial System and at no point of time ever thought of making any wrong or false

statement of fact before the Hon'ble Court.

The conduct of the respondent-contemner as indicated above is beyond condonable limit. It is well settled principle of law that an apology is

not a weapon of defence to purge the guilt of the contemner. In para 1 of the reply as quoted above he stated that he tenders unconditional

apology, but it is not really so as in para 3 of the reply he has defended his action. So the apology so tendered by the contemner is not a product of

remorse or contrition.

In considering whether the action of the respondent-contemner amounted to Contempt of the Court, we take into account the entire course of

conduct of the contemner. No-doubt the contemner has tendered apology, this apology is coming forth after sensing that the adventures have

turned out to be mis-adventures, realizing that there is no escape from punishment. The apology if intended to be evidence of real contriteness, the

manly consciousness of a wrong-done, of an injury inflicted, and the earnest desire to make such reparation as lies in the wrong doer's power. We

do not find the apology to be the genuine, bona fide or an expression of true repentance. Reliance is placed on the decision of the Supreme Court

in M.C. Mehta Vs. Union of India (UOI) and Others, and the Apex Court in dealing with the similar proposition observed as under;

However, in paragraph 9 of the said affidavit the respondent tendered apology, which is as under"":

I tender an unconditional and unqualified apology to this Hon'ble Court for any of my actions which might be deemed to be in contempt of the

orders of this Hon'ble Court and pray that the said apology be accepted I state that I hold this Hon'ble Court in highest esteem and have no

intention whatsoever to be in breach of any order passed by this Hon'ble Court. I most respectfully pray that this Hon'ble Court may be pleased to

recall the notice to show cause as to why proceedings for alleged Contempt of Court issued to me and the said proceedings be dropped.'

The conduct of the contemner as recited above, is beyond condonable limit. It is now well settled principle that, an apology is not a weapon of

defence to purge the guilt of the contemner. At the same time, the apology must be sought at the earliest opportunity. The apology tendered by the

respondent is at a belated stage to escape punishment of the Court. Furthermore, as already noticed, in paragraph 6 of the affidavit he has stated

that he has not committed any contempt and defended his action. In paragraph 9 of the affidavit, as quoted above, though it is stated that he

tenders unconditional apology, It is not really so, as in paragraph 6 of the affidavit he has defended his action. Therefore, the apology so tendered

by the contemner is not a product of remorse or contrition.

In this case, the apology tendered by the respondent-contemner merely to protect against the rigorous of law is no apology. Apology cannot

be used as weapon of defence to purge the guilt which precisely the condemner has sought to do so. In para 1 of the preliminary objections of his

reply it is recited that the respondent-contemner tenders unconditional apology for having made a statement on affidavit that no writ petition in fact

has been filed at Jammu, but in para 3 (Supra) the respondent-contemner defended his action in stating that he committed the Contempt of the

Court. The conduct of the respondent is highly reprehensible. In the facts and circumstances afore-stated, We reject the apology tendered by the

respondent-contemner and we hold him guilty of contempt.

Another plea taken by the respondent-contemner in the reply flied to the show-cause notice is that the contempt petition is palpably time-barred.

On going through the record, it is found that in para 7 of the application preferred by the petitioner for initiating contempt proceedings, the

petitioner stated that he acquired the knowledge of the filing of writ petition by the respondent-contemner only recently when he received copy of

the objections to his writ petition pertaining to the seniority filed in the year 1996. The contempt petition came to be filed by the petitioner on

17.7.1996. It is apt to point out that the Jammu & Kashmir Contempt of Court Act, 1997 came into force on 1.10.1997 when published in the

Government Gazette The period of limitation for filing the contempt petition is provided one year from the date on which the contempt is alleged to

have been committed. Prior to the J&K Contempt of Court Act, 1997, the High Court was deriving its power of contempt u/s 94 of the Jammu

and Kashmir Constitution. The present contempt petition has been filed in July, 1996 when the J&K Contempt of Court Act, 1997 was not in

force. Under Rule 17 of the Rules framed under the Contempt of Court Act, the proceedings initiated prior to the coming into force of the Act

have been saved from the provisions of the Act and the rules made there-under. It therefore, follows that all the previous actions stand validated

under the Jammu & Kashmir Contempt of Court Rules, 1998. In this view of the matter the plea put across by the respondent-contemner in his

reply is legally unsustainable.

This takes us to consider the quantum of punishment.

The Supreme Court of India in a recent judgment in the case of S.C. Pabreja the Court rejected the plea for mercy and noting the willful

suppression of facts by S.C. Pabreja the Court said that he has clearly stated in his affidavit that no plots were available, the Apex Court held, ""this

is a false statement, we held that S.C. Pabreja has committed Contempt of the Court order"". The Supreme Court further held ""We are not satisfied

that the apology tendered in this case is genuine or bonafide. We do not see any reason for accepting such an apology"" and awarded jail sentence

for one week for committing contempt of the Court in giving false statement on affidavit.

In the instant case the gravamen of the contemptuous act of the respondent-contemner is of superlative dimension as this relates to making a

false statement of facts and swearing false affidavit in judicial proceedings, which exposes the intention of the party concerned in perverting the

course of justice and by concealment of facts obtained favourable order from Srinagar Wing of the High Court. The increasing tendency of taking

resource to objectionable means to get a favourable verdicts has to be viewed gravely to deter the large number of persons approaching courts

from doing so. The swearing of false affidavit in judicial proceedings not only has the tendency of causing obstruction in the due course of judicial

proceedings, but has also the tendency to impede, obstruct and interfere with the administration of justice. Such a tendency is required to be

curbed which requires somewhat deterrent sentence. We are, therefore, convinced to send a strong signal by imposing exemplary punishment so

that like minded people would not repeat and such recurrence is thwarted. Keeping this background in mind, We are of the view that the ends of

the justice would be served, if the respondent-contemner is sentenced to one week simple imprisonment. We order accordingly. The period of

imprisonment has been restricted to one week with the hope that the incarceration of the respondent-contemner will work as eye-opener and deter

others from obstructing and interfering with the administration of justice. In addition, he is saddled with costs, which we quantify at Rs. 5000

(Rupees five thousands). The costs shall be deposited in the Registry of this court within two weeks from today. In case of non-deposit of the

costs within the aforesaid period, the respondent-contemner shall further suffer one week further simple imprisonment. The sentence awarded

however, shall be executable after two weeks from today.