T.S.Shergil, Maj.General vs State

Through the medium of this petition, inherent jurisdiction of the court has been invoked under section 561A Cr.P.C. A prayer is made for

quashing order dated 04011997 passed by learned 1st Addl Session Judge, Jammu (in Sessions Case No. 23/96 titled State Vs. Shinder Singh,

offence under section 302 RPC). In terms of impugned order (dated 04011997 Supra), the learned Judge has issued a rule against the petitioner

herein requiring him to show cause for initiating contempt proceedings against him as he by his conduct has committed the contempt of the court.

The factual matrix of the case is that on August 14, 1994 case under FIR No. 15/96 was registered in GRP Bari Brahmana against accused

Shinder Singh who is an Army personnel. The allegations against him are that he had murdered JC 498271 Naib Sub. Manjeet Singh and No.

338005 Hav. Hardial Singh of 10 Sikh Regiment. The investigation of the case was carried by the police and on 18111996 final report for offence

under section 302 RPC was filed before the court of learned Chief Judicial Magistrate Jammu. It is alleged that the learned Chief Judicial

Magistrate in contravention to the provisions of section 549 Cr.P.C read with J&K Criminal Courts and Court Martial (Adjustment of Jurisdiction)

Rules, 1983 (hereinafter referred to as 'Rules') committed the case to the court of learned Sessions Judge, Jammu as well as issued the direction

for the production of the accused there. The learned Sessions Judge had transferred the case for trial to the court of 1st Addl. Sessions Judge,

Jammu.

The petitioner being, the competent authority under law, made application under section 549 Cr.P.C before the trial court and requested for

taking over the custody of the accused for his trial by the court martial. The court called the objections from the prosecution as well as defence.

The Additional Public Prosecutor, instead of filing the objections, filed application (Annexure P2) wherein request was made for initiating contempt

proceedings against the petitioner as he in his said application had used 'Rough language' while claiming the custody of the accused. On this motion,

the learned Judge passed the impugned order which has been challenged on the following grounds:

i) The order lacks jurisdiction;

ii) The accused Naib Shinder Singh is a person subject to the provisions of Army Act and the Rules made thereunder. The learned Chief Judicial

Magistrate, Jammu at the time of committing the case for trial to the court of Sessions Judge had not complied with the mandatory provisions of

section 549 Cr.P.C and the Rules made thereunder. The petitioner, being the competent Authority, had decided his trial in the court martial and for

that purpose his detention in the military custody was sought. It is alleged that in para No.3 of the application the word 'directed' was inadvertently

adopted while copying the contents of the application from the proforma prescribed in ""the Book of Military Law written by Col. G.K.Sharma"".

That the petitioner in casual routine had signed the application without realising the significance of the word 'directed' which it ordinarily conveys. It

is specifically pleaded that the petitioner never intended the show of any disrespect or undermining the authority or dignity of the court. While

placing himself 'unconditionally' at the mercy of this court, the petitioner has entreated to treat the word 'directed' as 'requested'.

Heard the arguments.

The learned counsel appearing for the petitioner has reiterated the grounds of the petition in his arguments and further contended that the

petitioner nowhere had shown his authority or command over the learned trial judge. Continuing his arguments, he asserted that the application was

addressed to the learned Judge with the starting word, 'Sir' and the request contained in the contents had ended with 'Yours faithfully'. On the legal

aspect of the impugned order, it is contended that the learned Judge had no jurisdiction to initiate the contempt proceedings because, while

discharging the functions of a criminal court, it lacked the inherent jurisdiction to initiate the contempt proceedings. Undoubtedly, the criminal court

is clothed with the powers to take congnizance of offences falling under section 175, 178, 179, 180 or 228 RPC but these offences should have

been committed in the view of presence of any Civil, Criminal or Revenue Court, That the contents of the application EXP1 do not constitute any

of the ingredients of the above stated offences as well as no offences said to be committed in the presence of the learned trial Judge. The learned

A.A.G has asserted that this court should invoke its extra ordinary jurisdiction to initiate the proceedings so that in future no such type of

communication is received from any quarter and that Majesty of the law and consequently of the law courts is maintained at all levels.

For the proper appraisal for the respective contentions of the counsel for the parties, a brief reference is made to the above stated offences.

Section 175 defines an offence committed by a person who being legally bound to produce or deliver up any document to any public servant, as

such, intentionally omits so to produce or deliver up the same. An offence under section 178 RPC is committed by a person who refused to bind

himself by on oath or affirmation to state the truth, when required so to bind himself by a public servant legally competent to require that he shall so

bind himself. An offence under section 179 RPC relates that whoever being legally bound to state the truth on any subject to any public servant,

refuses to answer any question demanded of him touching that subject by such public servant. An offence under section 180 RPC is made out by a

person who refuses to sign any statement made by him, when required to sign that statement by a public servant legally competent to require that

he shall sign that statement. From the above said statement of law being made it can be said that the case of the petitioner does not fall under any

of the category of offences. Now, it has to be seen whether the writing of the application (EXP1) could constitute an offence as defined under

section 228 RPC. An offence under section 228 RPC has been defined as under:

Whoever intentionally offers any insult, or causes any interruption to any public servant while such public servant is sitting in any stage of a judicial

proceedings, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one

thousand rupees or with both.

At the most it can be gathered from the circumstances that the learned trial Judge had felt insulted by the use of the word 'directed' in the

application EXP1. Before forming such opinion, it had to be seen whether there was an intention for the use of this word to cause such an effect.

Reading the application EXP1 as a whole, it transpires that the net result was a request made for seeking the custody of the accused. For taking

cognizance of an offence which falls within the preview of section 228 RPC, the concerned court has to depend upon procedural law enshrined in

section 480 Cr.P.C which mandates that cognizance can only be taken in case the offence is committed in the view or presence of the learned

Judge. Otherwise also, except the objectionable use of solitary word 'directed', it cannot be said that the contents of the application EXP1 are

disrespectful in language or disparaging in character and derogatory to the dignity of the court, which would have widely shaken the confidence of

the public in the judicial system. The petitioner from the very beginning has realised his mistake for the unwanted use of the word 'directed' in his

application EXP1 and tendered unconditional apology. In the back ground of such facts and the circumstances, a hypersensitive approach is not

required from this court to initials the proceedings which are unwarranted. The impugned order is found to have been passed without any

jurisdiction.

Viewing the matter in all its perspectives, it is found that the petitioner is found not to have committed any contempt of the court.

In the result, the petition is accepted an the impugned order dated 511997 passed by the 1st Addl. Sessions Judge, Jammu is hereby set aside.