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Whether Act Constituting Offence U/S.228 IPC Bar Contempt Of Court Proceedings?

Karnataka High Court

High Court Of Karnataka
vs
Sri B M Shivanna

on 27 April, 2018
Author: Budihal R.B. K.S.Mudagal

CRL.C.C.C. No.8 OF 2017 (SUO-MOTU)

The accused was the complainant in P.C. No.151/2012 on the file of the Civil Judge and JMFC, Hosadurga. He filed the said complaint against his brothers B.M. Shekharappa and B.M. Rangappa to prosecute them for the offences of forgery and cheating etc.

2. Initially, acting under S.156(3) of Cr.P.C. the Magistrate referred the said private complaint to thejurisdictional police for investigation and report. The jurisdictional police filed ‘B Final report’ on the ground that no offence was made out to proceed against the accused. The present accused who was the complainant therein, filed the protest petition to the ‘B Final report’. On hearing on the protest petition the Magistrate by the Order dated 13.05.2015 accepted the ‘B report’ in so far as it relates to accused No.2. So far as accused No.1, the Magistrate held that there are grounds to proceed against him for the offences punishable under S.466 to 468, 471 & 474 of Indian Penal Code, 1908, took cognizance and issued process to him. On service of process accused No.1 of that case appeared and the proceedings were going on.

3. On 28.12.2016, the JMFC, Hosadurga submitted a report as per Ex.P5 to the Prl. District and Sessions Judge, Chitradurga, i.e. his Unit Head, stating that on 23.12.2016 when the proceedings of C.C.No.262/2015 were going on, the present accused who was the complainant in that case hurled footwear towards the Bench. The Magistrate reported that he has filed a complaint before the jurisdictional police in CR No.462/2016 in that regard.

4. On the basis of the report Ex.P5 the District and Sessions Judge, Chitradurga submitted the report Ex.P8 dated 16.01.2017 along with Ex.P5 and the enclosures thereto. It was stated in the repots that accused indulged into such acts with an intention to interrupt in the judicial proceedings and tarnish the image of the judiciary. The District Judge has further stated that such act of the accused amounts to contempt of Court and requested to initiate contempt proceedings against him.

5. The Registry of this Court acting under Rule 7 of the High Court of Karnataka (Contempt of Court Proceedings) Rules, 1981 placed the representation Annexure-P8 and the material enclosed thereto before Hon’ble The Chief Justice. Hon’ble The Chief Justice vide order dated 27.01.2017 ordered for initiation of criminal contempt proceedings against the accused. Then the matter was placed before the Division Bench.

6. This Court issued show-cause notice and in response to such notice the accused appeared and filed his reply on 24.07.2017. In the reply statement the accused admitted hurling of the footwear at the Court, but tried to justify that on the ground of his mental frustration and tendered apology for the same. He contended in his reply that for the same act, on the complaint of the Magistrate he is being tried for the offences punishable under Ss. 228, 186, 353 and 355 IPC. He contended that in view of S.10 of the Contempt of Courts Act, 1971 if the act complained constitutes an offence punishable under any provision of the Indian Penal Code, the High Court cannot take cognizance and conduct proceedings and therefore the contempt be dropped.

7. This Court on hearing the accused and his reply, vide order dated 24.07.2017 rejected his contentions regarding his apology and maintainability and decided to proceed against him and framed the following charge:

” That you were the complainant in C.C.No.262 of 2015 on the file of the Principal Civil Judge and JMFC, Hosadurga. On 23.12.2016, when the said case was called, you appeared before the court whereas the accused was absent. When the counsel for the accused filed an exemption application on behalf of the accused and the Presiding Officer was noting down the same in the order sheet, you took out your slipper (chappal) and hurled it towards the Presiding Officer with an intent to embarrass and humiliate the Presiding Officer and thereby you have scandalized and lowered the authority of the court, obstructed the judicial proceedings and interfered in the administration of justice and committed contempt of court within the meaning of Section 2(c) of the Contempt of Courts Act, 1971, punishable under sections 11, 12 of the Contempt of Courts Act, within the cognizance of this Court. “

8. To establish the charge, on behalf of the complainant CWs 1 and 2 are examined and exhibits P1 to P9 are marked. The accused is examined with reference to the incriminating material as required under S.313 of Cr.P.C. The accused got examined himself as witness.

9. Sri P.M. Nawaz, learned SPP – I referring to the material on record contends that the charge is proved by the admissions of the accused himself, but still claims that he did not intend to commit contempt of court which is unacceptable. He contends that such act of the accused is nothing but a glaring act of contempt of Court, therefore the accused is required to be punished for the same. He further submits that the proviso to S.10 of the Act does not bar the contempt proceedings even if the contumacious act of the accused constitutes an offence punishable under the Indian Penal Code.

10. In support of his contentions, the learned SPP relied upon the following Judgments:
(1) R.K. Garg, Advocate Vs. State of Himachal Pradesh (1981) 3 SCC 166 (2) Daroga Singh and Others Vs. B.K. Pandey AIR 2004 SC 2579 (3) Suo Motu Contempt D/-26-2-1999 In Re: Nand Lal Balwani AIR 1999 SC 1300

11. Per contra the accused who argued the matter in person contended that he has utmost respect for the Courts and he did not intend to commit any contempt of Court. He further contended that the Magistrate’s Court itself was at fault in recording the names of the parties during evidence.

REG: MAINTAINABILITY:

12. Regarding the very incident in question, on the complaint filed by CW-1 (the Judge) a case was registered against the accused in CR No.462/2016 of Hosadurga Police Station for the offences punishable under Ss. 228, 186, 353 and 355 IPC. After taking cognizance, the said case was registered in CC No.105/2017 before the Prl. Civil Judge and JMFC, Holalkere. The accused in his apology affidavit dated 24.07.2017 filed along with his reply has stated that, he was arrested in that case and was in judicial custody for 6½ months. The complainant also does not dispute that fact.

13. The accused contends that having regard to such parallel prosecution in CC No.105/2017 for theIPC offences, the proviso to S.10 of the Contempt of Court Act bars initiation of these proceedings. S.10 reads as follows:

“10. Power of High Court to punish contempts of subordinate courts.-
Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself:
Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code (45 of 1860).”

(Emphasis supplied)

14. The Hon’ble Supreme Court in R.K. Garg’s case referred to supra over-ruling the similar contentions raised, indicted the accused. In Daroga Singh’s case (pp.2583 to 2586 paragraphs 18 to 26) referred to supra the Hon’ble Supreme Court relying upon its earlier judgments in Bathina Ramakrishna Reddy Vs. State OF Madras 1952 SCR 425, State of Madhya Pradesh Vs. Revashankar 1959 SCR 1367, Brahma Prakash Sharma Vs. State of U.P. 1953 SCR 1169, Arun Paswan S.I. Vs. State of Bihar 2003 AIR SCW 6863, Delhi Judicial Service Association Vs. State of Gujarat AIR 1991 SC 2176, extensively dealt with the scope and purport of the proviso to Section 10 and held that what is made punishable under S.228 IPC is the offence of intentional insult to a Judge or interruption of court proceedings but not as a contempt of court. It was further held that contempt of Court is not limited to the offering of insult to the Judge or interruption to the judicial proceedings but it would include any act by a person which would either scandalize the court or tend to interfere with the administration of justice, therefore the act constituting an offence under S.228 Indian Penal Code does not bar an action for contempt of court. So holding the Hon’ble Supreme Court rejected such objections. Therefore there is no merit in the contention that the proviso to S.10 of the Contempt of Courts Act bars this petition.
REG: PROOF OF CHARGE:

15. The contemptuous act imputed to the accused is that on 23.12.2016, he hurled footwear towards the Judge, when the proceedings in C.C. No.262/2015 before the Civil Judge and JMFC, Hosadurga were going on. It is contended in the complaint that by such act the accused scandalized the Court and lowered the authority of the Court. In para 3 and 4 of his reply the accused has stated in that regard as follows:
” 3. The accused is in deep shock causing mental agony for the unfortunate act committed by him.
4. The accused nowhere justifies his act but he tends to apologise for his unfortunate act before the Hon’ble Court where such bad incident has happened ……”

16. In addition to that on 17.07.2017 the accused has filed an affidavit styled as “apology affidavit” wherein he has admitted his contumacious act as follows:

” 3. I submit to this Hon’ble Court that I hereby render an unconditional apology before this Hon’ble Court for the incident which took place in the Court of Hosadurga out of which this contempt proceedings have arisen and further undertake to maintain good behaviour in future.
4. I submit to this Hon’ble court that I undertake to appear before the court where the unfortunate incident occurred and tender an apology and regret for my action.”

Thereby there is a clear admission on the part of the accused about he throwing the footwear towards the Presiding Judge.

17. The material witness to prove the charge i.e. the Judge who presided over the Court on the date of the incident is examined as CW-1 in this case. In page 3 of his deposition regarding the incident has deposed as follows:
” His counsel had filed an application seeking exemption. On considering the application, I was noting down the same in the order sheet. At that time, the accused herein took out his slipper (chappal) and threw it at me. He threw the slipper at me with an intention to embarrass and show disrespect to the proceedings and therefore to defame the image of the judiciary.”
(Emphasis supplied) The emphasised evidence of CW-1 is not at all controverted in his cross-examination. Absolutely nothing is stated about the same. Further the accused in his evidence before this Court states as follows:

” The origin of the dispute is between me and my brothers. There are number of disputes between us. On 23.12.2016 since I was extremely frustrated with the progress of the Court, I removed the slipper and threw it at the Judge. I did not intend to cause any disrespect to the Court or to the institution.”

(Emphasis supplied)

18. Thus the charge that on 23.12.2016 when the proceedings in C.C. No.262/2015 on the file of the Prl. Civil Judge & JMFC, Hosadurga were going on, the accused took out his slipper (chappal) and hurled that towards the Presiding Officer stood proved by the overwhelming evidence and the admissions of the accused himself.

19. Then the question is whether the accused committed such acts with an intention to embarrass and humiliate the Presiding Officer and thereby scandalized and lowered the authority of the Court and obstructed the judicial proceedings and interfered in the administration of justice attracting the criminal contempt as defined under S.2(c) of the Contempt of Courts Act.

20. The accused himself states that there were several litigations between him and his brothers. Therefore it is clear that he was acclimatized with the court procedures and proceedings. Therefore it cannot be said that he was not aware of the decorum of the court. Whether the contention that since the accused in C.C.No.262/2015 was chronically absent, it caused anguish to him and his frustration in that regard led to the unfortunate incident is acceptable is the question.

21. The accused does not dispute that, on the counsel for the accused in C.C. No.262/2015 filing the exemption application, the Judge was noting the application and he hurled the footwear even before any order was passed on the application. It is not his case also that he was anticipating that the Officer is going to pass orders in favour of the said accused. Even if unfavourable orders are passed the litigants have to seek relief with regard to such orders in accordance with the procedure established by law and not by such extra-legal methods.

22. The very fact of the accused throwing the footwear before the Officer passing the order goes to show that he intended to obstruct the Officer from passing the order and lower the authority of the Court and scandalize the Judge. The incident has happened in the presence of the litigants, advocates and staff. The conduct of the accused is a brazen act of scandalizing the Court, lowering the authority of the Court, interference in the due course of judicial proceedings and obstruction to the administration of justice.

23. In the similar circumstances the Hon’ble Supreme Court in Leila David Vs. State of Maharashtra, AIR 2010 SC 862 held as follows:
” 19…….when an object, such as a footwear, is thrown at the Presiding Officer in a court proceeding, the object is not merely scandalize or humiliate the Judge but to scandalize the institution itself and thereby lower its dignity in the eyes of the public…..”

24. In Nand Lal Balwani’s case referred to supra, an advocate had hurled his shoe towards the Judge in the open court. The Hon’ble Supreme Court while dealing with such conduct held as follows:

” 4. The action of the contemnor, both by his words and deeds, in the presence of the Court amounts to gross criminal contempt of Court. His action was aimed at intimidating the Court and causing interference in judicial proceedings. It is unfortunate and we feel rather concerned that a person belonging to the Bar should have behaved in this manner. Law does not give a lawyer, unsatisfied with the result of any litigation, licence to permit himself the liberty of causing disrespect to the Court or attempting, in any manner, to lower the dignity of the Court.
A lawyer does not enjoy any special immunity under the Contempt of Courts Act where he is found to have committed a gross Contempt of Court. Courts cannot be intimidated to seek favourable orders. The action of the respondent is most reprehensible and has the tendency to interfere with the administration of justice and undermine the dignity of the court and the majesty of the law. From the manner in which the contemnor has behaved, a deliberate, motivated and calculated attempt to impair the administration of justice is discernable.”

(emphasis supplied)

So holding the Hon’ble Supreme Court convicted the contemnor and sentenced him to simple imprisonment of four months and fine of Rs.2,000/-.
Having regard to the aforesaid facts and circumstances and Judgments we hold that the charge against the accused / contemnor is proved. We do not find any bona fides in the apologies submitted by the contemnor. Therefore we hereby convict the accused / contemnor for the Contempt of Court punishable under S.12(1) of the Contempt of Courts Act and sentence him to simple imprisonment for four months and fine of Rs.2,000/-.
The Contemnor shall be taken to custody forthwith to serve the sentence. Registry shall furnish free copy of this Order to the Contemnor forthwith.

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