Versus Registrar, Delhi High Court1
has made observations
in paragraph Nos. 255 to 273 and has taken the same
exception on the request made for recusal of the judge from
hearing a case. The Apex Court in paragraph 255 of the said
judgment, discussed the question of “Request” for Recusal.
In paragraphs 264, 269, 270 the Apex Court has made
observations, as under:-
“264. We are constrained to pause
here for a moment and to express grave
concern over the fact that lately such
tendencies and practices are on the
1 (2009) 8 SCC 106
increase. We have come across instances
where one would simply throw a stone on
a Judge (who is quite defenceless in such
matters!) and later on cite the gratuitous
attack as a ground to ask the Judge to
recuse himself from hearing a case in
which he would be appearing. Such
conduct is bound to cause deep hurt to
the Judge concerned but what is of far
greater importance is that it defies the
very fundamentals of administration of
justice. A motivated application for
recusal, therefore, needs to be dealt with
sternly and should be viewed ordinarily as
interference in the due course of justice
leading to penal consequences.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
REFERENCE NO. 4 OF 2014
Smt. S.A. Sinha
Metropolitan Magistrate,
7th Court, Borivali, Mumbai
Vs.
Dr. Leo Rebello
CORAM: V.M. KANADE &
REVATI MOHITE DERE, JJ.
PRONOUNCED ON: 29th February, 2016
1. This is a case where the respondent/contemnor who is
an accused charged for offences punishable under sections
354, 337, 509, 323, 504 I.P.C. has persistently harassed,
intimidated, threatened the learned Metropolitan Magistrate
(“MM”) before whom his case was pending trial and as a
result the learned MM has made a reference under Section
15(2) of the Contempt of Courts Act, 1971 (hereinafter
referred to as “the said Act”).
2. Reference under section 15(2) of the Contempt of
Courts Act, 1971 has been made by Smt.S.A.Sinha,
Metropolitan Magistrate, 17th Court, Borivali, Mumbai vide
letter bearing Confi.Outward No.32 of 2014 dated 14.10.2014
addressed to the Registrar (Judicial-I), High Court, Bombay.
3. It is stated in the said order that she was Metropolitan
Magistrate, 17th Court, Borivali, Mumbai and she had taken
charge of that Court on 06.06.2011. She has stated that two
Criminal Cases; one bearing C.C. No.3869/PS/2008 (C.R.
No.281/99) of Samtanagar Police Station filed against Dinesh
Mathuria and others under Sections 143, 147, 149, 323, 504,
343, 427, 506 I.P.C. in which Dr. Leo Rebello was the
complainant and the other bearing C.C. No.1574/PS/2008
(C.R. No.280/99) also registered at Samtanagar Police Station
filed against Dr. Leo Rebello under sections 354, 337, 509,
323, 504 I.P.C in which Mrs. Ratna Vinay Malhotra was the
complainant, were pending in her Court. Both these cases
were kept in her court on the same day.
4. She has referred in the Reference as to what transpired
on 21.12.2011 in her Court when the Contemnor appeared in
her Court. She has stated that the Contemnor obstructed the
judicial proceedings, insulted the judicial officer, did not
maintain the court decorum, tried to pressurize the court and
also threatened the court that he had removed CMM.
Thereafter on 02.01.2012, the Respondent/Contemnor issued
a confidential letter to court by hand, which had
objectionable contents. Then, again, on 22.08.2013, the
Contemnor issued another letter to the Judicial Officer, which
had objectionable contents. The letter contained the
contents which were insulting and the contents of the letter,
apart from being highly objectionable, clearly amounted to
contempt of court within the meaning of Section 2(c)(i) to (iii)
of the said Act. Thereafter, again, further letter dated
12.11.2013 was sent by the Contemnor by a speed post to
the said Judicial Officer in which there was wild threat that
several High Court and Supreme Court Judges knew him and
he tried to pressurize the Court. Thereafter, it is stated in the
Reference that when the matter was posted on her board on
20.02.2014, the Court gave directions to the accused to
remain present for recording their pleas.
Respondent/Contemnor was not present that time when the
matter was called out. However, thereafter,
Respondent/Contemnor barged into the Court in 10/15
minutes and started shouting loudly when other proceedings
were going on and used threatening words to the court. She
has then stated that, again, on 26.06.2014 when both the
matters were kept for hearing, Respondent/Contemnor
entered the Court and started shouting loudly and when the
Court directed him to provide a copy of the application filed
by him to the other side, he used insulting and threatening
words to the Court. He obstructed judicial proceedings and
due to his behaviour in the court, the entire board of the
Court collapsed and hearing of other matters could not take
place. Reference was made of this incident in the Roznama
and the statements of persons present on that day were
recorded by the Magistrate. Thereafter, statements of PC -
Sunil Pawar, Vanrai Police Station, Advocate Shri Malekar,
Advocate Shri Dubey, Advocate Smt. Purnima Mehta,
Advocate Shri K.U. Joshi, PC – Shevale, Samtanagar Police
Station, PC – Patil, Samtanagar Police Station, PC – Surve,
Kandivali Police Station and PC – Sonavale, Vanrai Police
Station, learned APP Shri Mahakal and Interpreter Kum.
Kadambari Yevale were recorded on 2011. Copies of
Roznama and Statements are annexed to the Reference.
Thereafter, she has stated that the Contemnor sent her
personal post cards in which objectionable material was
typed. These post cards were dated 17.07.2014, 19.07.2014,
19.07.2014. Then message dated 10.07.2014 was released
on Face Book to all Indian Judges from lower Court to
Supreme Court of India. Thereafter, postcard dated
20.08.2014, 04.07.2014 were sent to her in which, again,
there was an objectionable material. Several other incidents
which have taken place thereafter and letters were sent in
which insinuation was also made against the Judicial Officer
and against Shri S.S. Shinde who was the former CMM. It is
stated that the Respondent/Contemnor wanted to pressurize
and threaten her, so that he could get an order of discharge
from the criminal case which was filed against him. She has
stated that the Contemnor has scandalized and lowered the
authority of the Court and thereby committed criminal
contempt of Court from time to time. Alongwith the
Reference, 18 annextures are enclosed.
5. Before making a Reference under Section 15(2) of
the Contempt of Courts Act, 1971, the learned Metropolitan
Magistrate had issued show-cause notice to the
Respondent/Contemnor and has sent copy of all the
documents and enclosures which were relied upon by the
learned Magistrate. This was served on the Contemnor on
25.09.2014 and the Respondent had also given a reply to the
said show cause notice on 29.09.2014. Thereafter a
Reference was made to this Court under Section 15(2).
6. The Reference was numbered and placed before
the Division Bench of this Court (Coram: V.M. Kanade &
Anuja Prabhudessai, JJ) on 17.11.2014, when the following
order was passed:-
“Issue notice before admission
returnable after six weeks.”
The matter thereafter appeared before the Division Bench
(Coram: V.M. Kanade & Revati Mohite Dere, JJ.) on
05.01.2015 when the following order was passed:-
“Heard. Prima facie case is made out
for grant of Rule.
Rule. Rule made returnable on
02.02.2015.”
On that day, Respondent/Contemnor was present. He had
filed written objections on the maintainability of Criminal
Contempt Reference. We, however, granted Rule since we
felt that prima facie case was made out. The Contemnor
made ruckus in the Court and said that he should be heard
before the Rule is issued. When we declined to give him
hearing on that day, he threatened the Court by saying “ I
will show you”. Thereafter, he had sent number of
threatening letters to this Court and has said inter alia that
order granting Rule passed by us was an illegal order. He
has repeated this in all the correspondence which has been
sent by him thereafter which fact has been admitted by him
during the course of hearing. Thereafter notice was served
on him alongwith copy of the Reference and the Rule which
was issued was also served on him on 27.1.2015 in which it
was stated that copy of the Reference was served upon him,
which can be seen from the office report. Thereafter on
22..06.2015, Respondent did not remain present, though he
was served and, therefore, the matter was adjourned to
21.6.2015. This order was also served on him.
7. After Rule was issued by this Court on the Reference, he
has served letter to this Bench asking us to recuse ourselves
from hearing the Reference. He also filed transfer
application before the Chief Justice. This application was
however rejected by the Chief Justice.
8. During the course of hearing on 18.02.2016,
Respondent/Contemnor has submitted that he does not wish
to press this application for recusal. He however submits
that this is without prejudice and further states that this
Court should hear him and decide the matter in a just and
fair manner.
9. It is now well settled in law that ordinarily the Court
should not recuse itself merely because an application for
recusal is filed by the litigant.
10. The Apex Court in the case of Subrata Roy Sahara
Vs. Union of India (UOI) and Ors.1
and more particularly, the
paragraph No.10, has observed as under :-
“10. We have recorded the above
narration, lest we are accused of not
correctly depicting the submissions, as they
were canvassed before us. In our
understanding, the oath of our office,
1 AIR 2014 SC 3241
required us to go ahead with the hearing.
And not to be overawed by such
submissions. In our view, not hearing the
matter, would constitute an act in breach of
our oath of office, which mandates us to
perform the duties of our office, to the best
of our ability, without fear or favour,
affection or ill will. This is certainly not the
first time, when solicitation for solicitation
for recusal has been sought by learned
Counsel. Such a recorded peremptory
prayer, was made by Mr. R.K. Anand, an
eminent Senior Advocate, before the High
Court of Delhi, seeking the recusal of Mr.
Justice Manmohan Sarin from hearing his
personal case. Mr. Justice Manmohan Sarin
while declining the request made by Mr.
R.K. Anand, observed as under:
“The path of recusal is very often a
convenient and a soft option. This is
especially so since a Judge really has no
vested interest in doing a particular
matter. However, the oath of office
taken under Article 219 of the
Constitution of India enjoins the Judge
to duly and faithfully and to the best of
his knowledge and judgment, perform
the duties of office without fear or
favour, affection or ill will while
upholding the constitution and the
laws. In a case, where unfounded and
motivated allegations of bias are sought
to be made with a view of forum
hunting/Bench preference or browbeating
the Court, then, succumbing to
such a pressure would tantamount to
not fulfilling the oath of office.”
The above determination of the High Court of
Delhi was assailed before this court in R.K.
Anand v. Delhi High Court (2009) 8 SCC 106 :
(2009 AIR SCW 6876). The determination of the
High Court whereby Mr. Justice Manmohan Sarin
declined to withdraw from the hearing of the
case came to be upheld, with the following
observations:
“The above passage, in our view,
correctly sums up what should be the
Court's response in the face of a
request for recusal made with the
intent to intimidate the court or to get
better of an 'inconvenient' judge or to
obfuscate the issues or to cause
obstruction and delay the proceedings
or in any other way frustrate or
obstruct the course of justice”
11. Similarly, the Apex Court in the case of R.K. Anand
Versus Registrar, Delhi High Court1
has made observations
in paragraph Nos. 255 to 273 and has taken the same
exception on the request made for recusal of the judge from
hearing a case. The Apex Court in paragraph 255 of the said
judgment, discussed the question of “Request” for Recusal.
In paragraphs 264, 269, 270 the Apex Court has made
observations, as under:-
“264. We are constrained to pause
here for a moment and to express grave
concern over the fact that lately such
tendencies and practices are on the
1 (2009) 8 SCC 106
increase. We have come across instances
where one would simply throw a stone on
a Judge (who is quite defenceless in such
matters!) and later on cite the gratuitous
attack as a ground to ask the Judge to
recuse himself from hearing a case in
which he would be appearing. Such
conduct is bound to cause deep hurt to
the Judge concerned but what is of far
greater importance is that it defies the
very fundamentals of administration of
justice. A motivated application for
recusal, therefore, needs to be dealt with
sternly and should be viewed ordinarily as
interference in the due course of justice
leading to penal consequences.”
12. In the recent Judgment, in S.C.A.O.R.A. vs. U.O.I1
, the
Apex Court also has held that the Courts should not recuse
themselves from hearing the matter since they have taken
an oath to decide the case without fear and favour. Today
during the course of hearing, Dr.Rebello has made several
statements. Firstly, it is stated that the order granting Rule
on the Contempt Petition was passed by this Court and this
Court had committed a mistake in passing the said order. He
has forgiven this Court for passing this incorrect order. The
Apex Court in the said case has observed in paras 13, 15, 16,
17 and 18 as under:-
“13. As a Judge presiding over the
reconstituted Bench, I found myself in an
awkward predicament. I had no personal
1 2015(11) SCALE 1
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desire to participate in the hearing of these
matters. I was a part of the Bench because of
my nomination to it, by Hon'ble the Chief
Justice of India. My recusal from the Bench at
the asking of Mr. Fali S. Nariman, whom I hold
in great esteem, did not need a second
thought. It is not as if the prayer made by Mr.
Mathews J. Nedumpara was inconsequential.”
“15. On the basis of the submissions
advanced by the learned Counsel, the Bench
examined the prayer whether I should remain
on the reconstituted Bench, despite my being
a member of the 1+4 collegium. The Bench
unanimously concluded that there was no
conflict of interest, and no other justifiable
reasons in law, for me to recuse from the
hearing of these matters. On 22.4.2015, the
Bench passed the following short order, which
was pronounced by J. Chelameswar, J.:
“A preliminary objection
whether Justice Jagdish Singh
Khehar should preside over this
Bench, by virtue of his being the
fourth senior most Judge of this
Court, also happens to be a
member of the collegium was
raised by the petitioners.
Elaborate submissions were
made by the learned Counsel for
the petitioners and the
respondents. After hearing all
the learned counsel, we are of
the unanimous opinion that we do
not see any reason in law
requiring Justice Jagdish Singh
Khehar to recuse himself from
hearing the matter. Reasons will
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follow.”
“16. After the order was pronounced, I
disclosed to my colleagues on the Bench,
that I was still undecided whether I should
remain on the Bench for I was toying with
the idea of recusal, because a prayer to
that effect, had been made in the face of
the court. My colleagues on the Bench
would have nothing of it. They were
unequivocal in their protestation.”
“17. Despite the factual position
noticed above, I wish to record, that it is
not their persuasion or exhortation, which
made me take a final call on the matter.
The decision to remain a member of the
reconstituted Bench was mine, and mine
alone. The choice that I made, was not of
the heart, but that of the head. The choice
was made by posing two questions to
myself. Firstly, whether a Judge hearing a
matter should recuse, even though the
prayer for recusal is found to be unjustified
and unwarranted? Secondly, whether I
would stand true to the oath of my office, if
I recused from hearing the matters?”
(Emphasis supplied)
“18. …................But recusal at the asking
of a litigating party, unless justified, must
never to be acceded to. For that would give
the impression, of the Judge had been
scared out of the case, just by the force of
the objection. A Judge before he assumes
his office, takes an oath to discharge his
duties without fear or favour. He would
breach his oath of office, if he accepts a
prayer for recusal, unless justified. It is my
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duty to discharge my responsibility with
absolute earnestness and sincerity. It is my
duty to abide by my oath of office, to
uphold the Constitution and the laws. My
decision to continue to be a part of the
Bench, flows from the oath which I took, at
the time of my elevation to this Court.”
13. We are of the view that the said observations clearly
apply to the facts of the present case.
14. Be that as it may, the decision given by the Apex
Court is binding on this Court and therefore even otherwise
the question of recusing ourselves from hearing this case
does not arise. We have no manner of doubt that this
attempt is made by the Respondent/Contemnor to obstruct
the work of administration of justice and to ensure that this
matter is not heard by this Court. It is a case of forum
hunting/Bench preference or browbeating the Court. We
deprecate this practice of sending such letters, asking the
Court to recuse itself. This practice is not only deprecable
but is also despicable and needs to be curtailed.
15. Heard the party in person at length. At the end of
the hearing we had asked him whether he wishes to have
any legal assistance and whether this Court should provide
an Advocate to him from the Legal Aid Committee. He
submitted that he has appeared in person and he does not
need any legal assistance. He has taken us through the
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written submissions which he has tendered in Court, which is
taken on record. He has also invited our attention to the
written objections which he had filed with regard to the nonmaintainability
of the criminal contempt Reference No.4 of
2014. He submitted that he do not wish to tender any
apology since he has not committed any contempt. He,
however, submitted that infact the learned Metropolitan
Magistrate who has made a reference under Section 15 of
the Contempt of Courts Act is herself liable to be prosecuted
under the Contempt of Courts Act so also the other
Magistrates such as Chief Metropolitan Magistrate
Mr.S.S.Shinde and few others who have been named in the
written submissions should be tried under the Contempt of
Courts Act.
16. Before the hearing of the Contempt Petition started
he has tendered two copies of the book written by him to this
Court and had submitted that these books have been given
by him without seeking any favour from this Court. The same
are however returned.
17. Thereafter the Reference was kept for final hearing
on 08.02.2016 and we heard the Respondent who appeared
in person at great length for more than three hours. During
the course of hearing, we asked him whether he wanted legal
assistance. However, he refused the offer made by this
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Court and said that he would like to argue himself. We also
asked him whether he would like to tender apology for his
conduct. He, however, emphatically submitted that he had
not committed contempt and, therefore, question of giving
apology did not arise. He then read the written submissions
which he had filed and thereafter he also read again the
initial objection which he had filed on non-maintainability of
the Criminal Contempt Reference, which runs into about
seven pages. He also stated that he forgives this Court for
granting Rule in his case. He warned the Court that we
should be just and fair.
18. We thereafter asked Dr. Shaikh, the learned APP to
take us through the Order of Reference and the annextures
thereto. While Dr. Shaikh was assisting this Court,
Respondent/Contemnor made discouraging remarks against
Dr. Shaikh.
19. The gist of the Reference is that the Contemnor
behaved rudely, improperly and arrogantly and has
committed contempt in the face of the Court by abusing,
insulting, intimidating, threatening the learned Metropolitan
Magistrate. The learned Magistrate has given instances of
dates and events when this has happened. Secondly, she
has stated that the Contemnor has written letters to her
personally and sent it by post at her residence before, during
and after the show cause notice was issued by her and after
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the Reference was made by her to the High Court. She has
enclosed copies of these letters and the letters which were
sent after the Reference was dispatched. Thirdly, she has
reproduced part of the contents of the letters.
20. We have perused the said letters. The letters
disclose persistent and malicious attack made by the
Accused whose case is pending before the learned
Magistrate and which are sent with an intention to
browbeating and intimidating the judge and, further, it is
clearly an attempt to force the learned Metropolitan
Magistrate to discharge the Accused from the criminal case.
These letters have been published on his Website. He has
not disputed having sent these letters to the learned
Magistrate. The language used in the letters is per se
contemptuous and scandalous. These letters indicate the
level to which the Accused can stoop down to harass the
judge and prevent her from discharging her duties. If no
action is taken against such an accused, it will be impossible
for subordinate courts to function and to discharge their
duties in accordance with law. This is a clear case of
obstruction by an accused in the administration of criminal
justice by the trial court. The Respondent/Contemnor has
gone to the extent of sending draft orders which the learned
Magistrate was supposed to pass and she was threatened
that if she did not do so, she would be removed/transferred
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since he knew the judges of the High Court and Supreme
Court.
21. It will be necessary to briefly reproduce the
contents of the letters which were sent by the
Respondent/Contemnor to the learned Metropolitan
Magistrate and also the instances which had taken place in
her Court from time to time. The first incident took placed on
21/12/2011. On that date, an application for discharge filed
by the Accused/Respondent was kept for hearing. When he
entered the Court Room, he started shouting loudly and was
addressing the Court by sitting in the chair. The Court asked
him to address the Court properly by standing up. However,
he refused to get up from the chair. He insulted the
Magistrate. He further said “The practice of standing and
arguing before the Court was prevalent in the British time
and not now. He said that he would not address the Court by
standing up. He then said to the learned Magistrate that
“You do your duty. Let me do my duty.” Then he threatened
the Court by making the following statement.
“I have removed C.M.M. because he
made complaint against me. I am telling
this for your own information.”
The Magistrate has said that because of this behaviour and
his constant shouting, the entire Board of that day collapsed
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and work of the Court was seriously affected. The
Accused/Respondent did not maintain decorum of the Court
and used insulting language in Court and, therefore, order on
Exhibit-1 was passed on the same day recording his
behaviour and the statements of persons who were present
before the Court were recorded viz. Adv. Harideep Singh,
Adv. Swapnil Malekar, Adv. Kishor Joshi, PC Avinash
Mhashilkar, PC Balu Shevale, PC Vilas Devendra Dnyanmote,
Interpreter of the Court Mrs. Elizabeth Gonsalves and typist
of the Court Shri Amit Chandrakant Agashe.
22. Immediately after the said date, the
Respondent/Contemnor addressed a letter to the learned
Metropolitan Magistrate on 02/01/2012 mentioning therein
the objectionable contents which read as under:-
“I consider you to be a good M.M. But
you can become better if you were to
listen more, guide poor accused or
under trials who are many a time
falsely implicated by the corrupt police,
improve speed, smile and make full
use of law for justice.”
The said letter dated 2.1.2012 contains similar such
patronizing attitude and on that pretext insulting the judge
by giving unwarranted advise of efficiency in disposal of
cases.
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23. Another letter was sent by the
Respondent/Contemnor to the learned Metropolitan
Magistrate on 22.8.2013. One of the paragraphs extracted
from the said letter is reproduced below:-
“Except for her bloated ego, she is
good MM, at least she is not corrupt.
But her English is substandard and
she has big ego problem. This is
your reputation in Borivali Bar.”
24. Thereafter, again, the Respondent/Contemnor sent
letter dated 12.11.2013 to the learned Magistrate by Speed
Post and two paras from the said letter are reproduced
hereinbelow:-
“Your reputation is that you are
an honest Lady Magistrate. This case
will help you to set precedents and
create judicial history. Based on this
you may be promoted to the
Sessions Court and before retirement
you may even become a High Court
Judge if you remain honest, healthy
and in harmony with your
conscience. We want more women
judges in male dominated judicial
domain.”
“Please note my degrees below.
I have given lectures to several
advocates, policemen, judges,
human rights activists and litigants.
Several High Court and Supreme
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Court Judges have shared platforms
with me. As I said my name is now
for appointment as the next Sheriff of
Mumbai.”
The next incident took place on 20.2.2014 when the case of
the Contemnor/Accused was on board when the matter was
called out because the Respondent was not present. The
Court, therefore, gave date and started taking other matters.
The Accused/Contemnor entered the Court Room and started
shouting loudly and threatened the learned Magistrate that
he would file complaint against her. The learned Magistrate
therefore passed an order noting the conduct of the
Accused/Contemnor.
25. Thereafter, the incident took place on 26.6.2014.
On that date also, when the matter was called out,
Respondent entered the Court and started shouting loudly.
The Court asked him to give copy of the application to other
side. The Accused/Contemnor then again threatened the
Court that he had sent six judges and three C.M.M. home
and that he was going to send her home by filing a
complaint in the High Court. He told her to be ready to go
home.
26. After the said incident, the Accused/Contemnor
sent to the learned Magistrate three postcards dated
17.7.2014, 19.7.2014 and 19.7.2014. Then he sent E-mail to
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Bombay High Court, Supreme Court of India and also
released on Face Book Message dated 10.7.2014 to all Indian
Judges from Lower Courts to the Supreme Court of India.
Then he sent two other postcards dated 20.8.2014 and
4.7.2014 to the learned Magistrate.
27. The next incident took place on 21.8.2014 when
the application filed by the Accused/Contemnor under section
209 of Cr.P.C. was kept for hearing. Again on that day, he
threatened the Magistrate that he knew Justice Bhangale and
Justice M.L. Tahaliyani of the Bombay High Court. The
learned Magistrate has recorded the statements of persons
present in the Court on 21.8.2014.
28. Thereafter on 21.8.2014 itself the application of
the Accused/Contemnor was heard and it was adjourned to
17.9.2014. The Respondent/Contemnor sent a letter dated
9.9.2014 by speed post. Alongwith the said letter, he has
sent a draft order in the name of the learned Magistrate
indicating what order was to be passed by the learned
Magistrate. The letter mentions as under:-
“1)“Dear Mrs S.A. Sinha: With this
covering letter, I send you the following
articles with my best compliments for
your progress. They should help you to
become a better Judge, if you read and
apply your mind to them. In fact, we
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REF/4/2014
wish to see you as the Judge in the
Bombay High Court, before your
retirement, as very few women judges
are there in the courts.
2) Draft Order in C.C. No.3869/PS/2008
written strictly as per the Law of the
land, record of the case, jurisprudence,
to help you and save Court's time. This
will also help you not to depend on
seniors/corrupt.
3) Draft order to Stop Proceedings u/s.
258 Cr.P.C in bogus Cross Case of Ratna
Malhotra. This will make you popular.”
In the said letter dated 9.9.2014, the Respondent/Contemnor
has stated as under:-
“Once these cases are disposed off,
you will be free to visit/consult me on
Drafting, Effective Written and Spoken
English, Effective Disposal of Cases,
Yoga and Detox for good Health etc.
for I am a Trainer's Tainer.”
29. The learned Metropolitan Magistrate then issued a
show cause notice to the Respondent/Contemnor for criminal
contempt committed by him along with all enclosures and
called his explanation within 15 days. The said show cause
notice is also annexed to the Reference. After service of
notice, he gave detailed reply on 29.9.2014, again making
further allegations against the learned Magistrate.
30. The Respondent/Contemnor then issued a show
cause notice dated 10.10.2014 and served it on the learned
Magistrate. In the said notice following most objectionable
allegations appeared:-
“You S.S. Shinde got your colleague S.A.
Sinha, who was earlier with you in Nagpur
as JMFC, to Mumbai, and posted her as
MM Court to cover up and continue with
your nefarious activities. In this regard
you had a closed door meeting with Mrs.
S.A. Sinha on 1st
August, 2011, and
apprised her of your revengeful plan, with
which she has been conniving even since,
being obliged to you for bringing her to
Mumbai. We know how these transfers to
Mumbai are organized.”
Several other unstatable allegations have been made against
the learned Magistrate in the said show cause notice dated
10.10.2014 sent by the Respondent/Contemnor.
31. In our view, this is a clear case where the
Respondent/Contemnor has not only committed contempt in
the face of the court but has also written scandalizing letters
personally to the Judicial Officer and has attempted to
threaten her and has made wild allegations against the
Judicial Officer who had made the Reference and against
other Judicial Officers. He has shown the temerity of issuing
contempt notice against the Judicial Officer. During the
pendency of Reference/Contempt Petition, he has written
several letters to all Benches which heard this matter, again
making similar allegations and giving similar threats. He has
also addressed several letters to the Hon'ble Chief Justice of
this Court and to the Prothonotary & Senior Master, asking
them to transfer his case from this Court. In his application
for recusal, he has stated that this Court is biased and he is
not likely to get justice since we have issued Rule. However,
the Hon'ble Chief Justice has refused to accede to his request
and has not transferred his case from this Court. He also
wrote several letters to the Division Bench, asking us to
recuse ourselves from hearing this case. We, however,
passed a detailed order dismissing his application asking us
to recuse ourselves from hearing his case.
32. During the pendency of this case, Respondent has
shown the audacity of issuing contempt notice against us for
entertaining the Criminal Reference. However, in spite of
this provocation, we did not take any action against the
Respondent and we have ignored the letters which have
been written by him though it amounted to clear case of
contempt of Court, as no litigant has a right to write such
type of letters to the Court before whom his case is pending.
It has to be noted that the Respondent/Contemnor has
behaved almost in identical manner before the CMM Shri S.S.
Shinde who had also made Reference, which came up before
Division Bench of this Court (Coram: V.M. Kanade & M.L.
Tahaliyani, JJ).. However, the Bench was pleased to reject
the Reference on technical ground that the procedure
contemplated under the Rules was not followed by the
learned CMM. The Respondent/Contemnor has relied on the
said order and submitted that on the same ground, the
present Reference should be dismissed.
33. It must be noted that though one of the Members of
this Bench (V.M. Kanade, J.) was presiding over the said
Division Bench, which dismissed the Reference, yet, in the
subsequent correspondence, he made false allegations
against V.M. Kanade, J. that he had entertained the said
Reference. Be that as it may, we are not concerned with the
allegations made by the Respondent against this Bench in
the correspondence addressed to us and to the Hon'ble Chief
Justice and to the Prothonotary & Senior Master and also the
material which has appeared against us on the Website and
on Face Book. We have just narrated this to show the
conduct of the Respondent.
34. Various instances which are narrated by the learned
Metropolitan Magistrate in her Reference and also the letters
which the Respondent/Contemnor has sent to her are per se
contemptuous and fall within the definition of section 2(c)(i)
to (iii) of the Contempt of Courts Act, 1971.
35. In our view, the Contemnor has committed criminal
contempt of the subordinate court by (a) scandalizing the
Court, (b) lowering the authority of the Court and
(c) interfering with due course of judicial proceedings and
obstructing the administration of justice.
36. From the various incidences mentioned by the
learned Metropolitan Magistrate in the Order of Reference, it
is apparent that the Respondent/Contemnor has used every
trick in the book to intimidate, threaten and to dissuade the
learned Metropolitan Magistrate in performing her duty of
trying two criminal cases which were pending in her Court.
One complaint was filed against the Respondent by one Mrs.
Ratna Vinay Malhotra for the offence punishable under
Sections 354, 337, 509, 323, 504 of the I.P.C. The
Respondent/Contemnor wanted the learned Magistrate to
discharge him from the said criminal complaint.
Respondent/Contemnor has used similar tactics against this
Court. He has sent several letters to both the members of
this Bench which have a similar threatening and intimidating
tone. He has gone to the extent of issuing show cause notice
of contempt against both the Members of this Bench. He has
sent letters, asking us to recuse ourselves from hearing this
case. We, however, do not propose at this stage to issue any
contempt notice against the Respondent for his deviant
behaviour. We have only considered the Reference which
has been filed before us by the learned Metropolitan
Magistrate.
37. The law on what is criminal contempt is quite well
settled. Section (2)(c)(i) to (iii) defines what amounts to
“criminal contempt”. It reads thus-
“2. Definitions.- In this Act, unless
the context otherwise requires,-
(a)......
(b)......
(c) “criminal contempt” means the
publication (whether by words,
spoken or written, or by signs, or by
visible representation, or otherwise)
of any matter or the doing of any
other act whatsoever which-
(i) scandalises or tends to
scandalise, 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;”
38. The purpose for the introduction of Contempt of
Courts Act was for securing a feeling of confidence of the
people in general and for the proper administration of justice
in the country. The procedure in contempt cases is summary
in nature. In State vs. Padma Kant Malviya and another1
the
Apex Court has traced history of law of contempt in India. In
State vs. Rajeshwari Prasad2
, it has been observed that the
object of the law of contempt is to ensure proper
administration of justice by the Court.
39. The Apex Court in Re : Vinay Chandra Mishra3
has
observed in para 13 as under:-
“13.......... The rule of law is the
foundation of the democratic society.
The judiciary is the guardian of the rule
of law. Hence judiciary is not only the
third pillar, but the central pillar of the
democratic State. In a democracy like
ours, where there is a written
Constitution which is above all
individuals and institutions and where
the power of judicial review is vested in
the superior Court, the judiciary has a
special and additional duty to perform,
viz., to oversee that all individual and
1 1954 CRI.L.J.1141
2 AIR 1966 Allahabad 588
3 AIR 1995 SC 2348
institutions including the executive and
the legislature act within the framework
of not only the law also the fundamental
law of the land. This duty is apart from
the function of adjudicating the disputes
between the parties which is essential to
peaceful and orderly development of the
society. If the judiciary is to perform its
duties and functions effectively and true
to the spirit with which they are sacredly
entrusted to it, the dignity and authority
of the Courts have to be respected and
protected at all costs. Otherwise the
very cornerstone of our constitutional
scheme will gave way and with it will
disappear the rule of law and the
civilized life in the society. It is for this
purpose that the Courts are entrusted
with the extraordinary power of
punishing those who indulge in acts
whether inside or outside the Courts,
which tend to undermine their authority
and bring them in disrepute and
disrespect by scandalising them and
obstructing them from discharging their
duties without fear or favour. When the
Court exercise this power, it does not do
so to vindicate the dignity and honour of
the individual judge who is personally
attacked or scandalised, but to uphold
the majesty of the law and of 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.
When the foundation itself is shaken by
acts which tend to create disaffection
and disrespect for the authority of the
Court by creating distrust in its working,
the edifice of the judicial system gets
eroded.”
40. The Apex Court in Brahma Prakash Sharma and
others vs. The State of Uttar Pradesh1 has observed in para 8
as under:-
“(8) It admits of no dispute that
summary jurisdiction exercised by
superior courts in punishing contempt of
their authority exists for the purpose of
preventing interference with the course
of justice and for maintaining the
authority of law as is administered in the
courts. It would be only repeating what
has been said so often by various Judges
that the object of contempt proceedings
is not to afford protection to Judges
personally from imputations to which
they may be exposed as individuals; it is
intended to be a protection to the
public whose interests would be very
much affected if by the act or conduct of
any party, the authority of the court is
lowered and the sense of confidence
which people have in the administration
of justice by it is weakened.”
41. The Apex Court in State vs. Rajeshwari Prasad2
has
observed in paras 7 and 8 as under:-
“(7) The law on this branch of contempt of
Court is to be found in two decisions of
1 AIR 1954 SC 10
2 AIR 1966 Allahabad 588
the Supreme Court. The first of them is
Ashwani Kumar Ghose vs. Arabinda Bose,
AIR 1953 SC 75 and the other is State of
Madhya Pradesh vs. Revashankar, AIR
1959 SC 102. In the former case the
Supreme Court, held that,
“Where a newspaper article while
criticising a Supreme Court decision
not merely preached the Courts of
law the sermon of divine detachment
from extraneous considerations such
as politics and policies but also
proceeded to attribute improper
motive to the Judges, it was held that
the article not only transgressed the
limits of fair and bona fide criticism
but had a clear tendency to affect
the dignity and prestige of the Court
and therefore amounted to gross
contempt of Court.”
“If an impression is created in the
minds of the public that the Judges in
the Highest Court in the land act on
extraneous considerations in
deciding cases, the confidence of the
whole community in the
administration of justice is bound to
be undermined and no greater
mischief than that can possibly be
imagined.”
while in the latter it held that:
“There are innumerable ways by
which attempts could be made to
hinder or obstruct the due
administration of justice in Courts
and one type of such interference is
found in cases where there is an act
which amounts to “scandalising the
Court itself”; this scandalising might
manifest itself in various ways but in
substance it is an attack on
individual Judges or the Court as a
whole with or without reference to
particular case, causing unwarranted
and defamatory aspersions upon the
character and ability of the Judges.
Such conduct is punished as
contempt for the reason that it tends
to create distrust in the popular
mind and impair the confidence of
the people in the Courts which are of
prime importance to the litigants in
the protection of their rights and
liberties.”
“(8) Thus a criticism which attributes
'improper motives' to a Judge in the
conduct of his judicial work not only
transgresses the limits of fair and bona fide
criticism but has a clear tendency to affect
the dignity and prestige of the Court and
consequently amounts to gross contempt
of Court. This is precisely what the
opposite party has done by publishing the
passages marked Annexure 'A” and “C”.
42. The Apex Court has therefore clearly drawn a
distinction between the defamation of a Judge and
scandalizing or lowering the image of the Institution. It is
held that defamation is a private injury and scandalizing the
Court is a public injury since the confidence in the Institution
is lowered in the eyes of the public at large. We are
therefore of the view that ratio of these judgments are
squarely applicable to the facts of this case and therefore we
have no hesitation in coming to the conclusion that the
Respondent/Contemnor has committed criminal contempt of
the subordinate Court within the meaning of section
2(c)(i) to (iii) of the said Act.
43. At the same, time it has to be borne in mind that
the power to punish a person for having committed criminal
contempt has to be used cautiously and sparingly. A proper
balance has to be struck between freedom of speech and
right of the judicial officers to administer justice without any
obstruction from the litigants or anyone else for that matter.
Litigants, at the same time, cannot be allowed to take law
into their own hands and start browbeating and insulting the
Court before whom his matter is pending for adjudication.
Litigants therefore cannot scandalize the Court by writing
letters to him/her at his/her residential or office address.
Litigants cannot file applications for adjournment or for any
other purpose and send it to the Court's residence or office.
Litigants cannot threaten or induce the Court through
correspondence. If this is permitted, all litigants will start
writing letters to the Court and this would seriously hamper
fair and transparent administration of justice. In the present
case, the Respondent/Contemnor has done this with impunity
and has stated that he is not afraid and has tried to justify his
conduct.
44. In our view, the conduct of the Respondent does
not amount to fair criticism of a judicial act not does it
amount to any statement made by him in good faith.
45. We are satisfied that the learned Metropolitan
Magistrate has followed the procedure which is prescribed
before making the Reference under Section 15(2). She has
issued a show cause notice to the Respondent to which he
has filed a reply, again making scandalous allegations in his
reply. Thereafter, she has held an inquiry, recorded the
statements of witnesses who were present in the Court. The
Respondent/Contemnor has admitted that he had sent all the
letters which are annexed to the show cause notice before
the Order of Reference was passed and, thereafter, she has
sent the Reference to this Court under section 15(2) giving
concise statement of facts and has specified the contempt
which is committed by the Contemnor.
46. The Respondent has submitted that the procedure
of making the Reference has not been followed by the
learned Metropolitan Magistrate. He has relied on Rule 1039
sub-rule (b) of the High Court (Original Side) Rules which is
identical to Rule 12 of the High Court Appellate Side Rules.
The said Rule of the High Court Appellate Side Rules reads as
under:-
“12. (a) Reference under section 15(2) of the
Act may be made by subordinate Courts either
suo motu or on an Application received by it.
(b) Before making a reference the
subordinate Court shall hold a preliminary
enquiry by issuing a Show Cause Notice
accompanied by copies of relevant documents,
if any, to the contemnor and after hearing him
the subordinate Court shall write a concise
reasoned Order of Reference indicating the
nature of the Contempt and the
person/persons alleged to have committed it.”
47. There is no substance in the said submission.
Though this is a Contempt Reference which has been filed on
the Appellate Side of this Court, it must be noted that High
Court Appellate Side Rules are identical to the High Court
(Original Side) Rules. Chapter XXXIV of the High Court
Appellate Side Rules prescribes the procedure to regulate
proceedings for contempt under the relevant rule viz Rule
12(b).
48. In our view there has been substantial compliance by
the learned Metropolitan Magistrate of the procedure before
making the Reference to this Court. It is not in dispute that
the show cause notice accompanied by the copies of relevant
documents was served on the Respondent. Thereafter a
concise Order of Reference was made by the learned
Magistrate. The Respondent has admitted having sent those
letters which are annexed to the show cause notice. The
Respondent/Contemnor in his reply to the show-cause notice
sent to the learned MM has, in fact, committed aggravated
contempt regarding the incidents in Court. Initially, he
denied that the said incidents had happened but then
thereafter justifies his behaviour in Court by saying that he
was not shouting but has a loud voice. Thus he does not
deny that the incident had taken place but gives his
justification for the said behaviour regarding the statements.
Secondly regarding the letters which he sent, he does not
deny that he had sent the letters recorded by the Magistrate.
He states that the statements were recorded subsequently.
49. The learned MM practically tolerated the antics and
histrionics of the Respondent who was an accused before
her in criminal complaint where, inter alia, charges of
molestation were made by the complainant. The first
incident took place in November, 2011 and thereafter the
other incidents took place. In between these incidents the
Respondent/Contemnor was sending insulting, intimidating
letters to her, yet she did not initiate contempt proceedings
against her. She displayed her equaminity towards the
accused throughout and, finally, in 2014, she made a
reference under Section 15(2) of the said Act to this Court.
The letters written by him are replete with contemptuous
remarks and the tone is intimidatory. They show that he has
scant regards towards the judiciary in general and the
learned Magistrate and the Metropolitan Court in particular.
Under these circumstances the question of giving him
personal hearing by her does not arise.
50. We have no manner of doubt that the Contemnor
shall continue with his tirade of denigrating the learned MM
and this Court which is evident from his past and present
conduct. He has shown no sign of remorse and possibility of
remorse is not only remote buy is impossible.
51. Reliance was placed by the Respondent/Contemnor on
the order passed by the Division Bench of this Court in which,
one of us (V.M. Kanade, J.) was a member. In this case,
Reference was made by the Chief Metropolitan Magistrate
against the Respondent under Section 15(2). Identical
allegations were made by the Respondent where same
modus operandi of terrorizing , intimidating, defaming,
scandalizing the Court was resorted. However, in the said
case, we noticed that though the show cause notice was
issued, it was not accompanied with annextures which were
annexed to the Order of Reference. Secondly, we noticed
that no preliminary inquiry was held and under these
circumstances we came to the conclusion that the Reference
made by the CMM Shri S.S. Shinde was not maintainable. In
our view, observations of this Court will not apply to the
facts of the present case since all the annextures were
annexed to the show cause notice and the preliminary
inquiry was held. There is no substance in the contention of
the Respondent that no hearing was given. In any case, this
Court can take suo moto cognizance of the contempt of the
subordinate court. We have, therefore, taken cognizance on
the material which was brought to our notice by the learned
Metropolitan Magistrate. Lastly, this is a case where
(a) contempt is committed in the face of the Court,
(b) constant intimidation through letters, (c) futile to give
personal hearing when facts are not disputed but justified
and (d) High Court as a Court of Record can take suo moto
cognizance.
52. The Respondent/Contemnor has not shown any sign
of remorse or repentance in his behaviour in and outside the
Court. He has refused to tender unconditional apology to the
Metropolitan Magistrate or to this Court.
53. Under these circumstances, in our view, this is a fit
case where Respondent/Contemnor should be punished for
having committed the contempt of the subordiante Court
within the meaning of section 2( c) of the Contempt of Court
Act, 1971. We therefore hold the Respondent/Contemnor
guilty of committing contempt of the subordinate Court and
sentence him to undergo simple imprisonment for a term of
three months and also direct him to pay fine of Rs 1000/- and
in default of payment of fine to suffer further simple
imprisonment for one month.
54. Taking into consideration the conduct of the
Respondent in and outside the Court, we are also of the view
that he is not a fit person who should be permitted to appear
in this Court in person. This Court has framed Rules for
regulating the procedure of permitting the parties in person
to appear in this Court. These Rules were framed because of
unruly behaviour of the parties in person when they appear
in Court. It was noticed that in several cases, these parties in
person did not maintain decorum of the Court, committed
contempt on the face of the Court, sent denigrating letters
directly to the Court, made allegations on the social website
and therefore Full Court framed these Rules which were
approved by the State Government. Rule 5 of the said Rules
reads as under:-
“5. If the party-in-person fails to abide by his
Undertaking as above, Contempt Proceedings
may be initiated against him and/or
appropriate costs shall be imposed on him
and/or the concerned party will not be allowed
to appear in any case as party in person for
such period as the Court may thinks fit.”
We are therefore of the view that this is a fit case where
under Rule 5 of the said Rules, the Respondent/Contemnor
should be and is prevented from appearing in person in this
Court for a period of two years. We would also like to issue a
note of caution to the Respondent/Contemnor that if he
continues to behave in a similar manner, as he has done in
the past, we will be constrained to pass further appropriate
orders.
55. Rule is made absolute in the aforesaid terms.
56. Reference is accordingly disposed of.
bdpps
(REVATI MOHITE DERE, J.) (V. M. KANADE, J.)
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