Petitioner filed a contempt petition alleging institutional respondent violated his Court order regarding remission reduction. The Court dismissed the petition as premature, reasoning that attacking the merits of the order precluded contempt litigation, while reserving substantive objections for appropriate forums.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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kps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
CONTEMPT PETITION NO.278 OF 2013
Shafi Viziruddin Qureshi. ..Petitioner
Shyam Kant Pawar and another. ..Respondents
Ms.Nagma Tandon i/by Mr.Debajyoti Talukdar, for the Petitioner. Mr.K.V.Saste, AGP, for the Respondent/State.
CORAM: S.C. DHARMADHIKARI AND G.S. PATEL, JJ.
DATE :- 26th September, 2013
PC:
1 This Contempt Petition alleges civil contempt and the prayers in the Contempt Petition itself would show as to how the parties are abusing the contempt jurisdiction.
2 The prayer clause (a) of the Contempt Petition is that this Court should hold the Respondents guilty of contempt for willfully and inspite of having knowledge, violating the order/ judgment dated 15.02.2012 of this Court and by passing illegal orders against the Petitioner even after having knowledge of the order/judgment of this Court. Thereafter, the prayer clause (b) is for inflicting punishment for civil contempt and curiously the prayer clause (c) prays for directions to
the Respondent to grant all the remissions back which were cut as punishment by the office of the Respondent in the order dated 23.08.2006 and again on 19.03.2013 and to act in accordance with the order/
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judgment passed by this Court in Criminal Writ Petition No.2491/2012 dated 15.02.2013. 3 The Criminal Writ Petition No.2491/2012 was filed in this Court by the Petitioner and in that the prayer was to grant him remission in the sentence as he has already completed 22 years of actual imprisonment. He argued that the remission has been cut and reduced because of surrendering late before the Jail Authorities after being released on furlough leave. The facts were very few and simple. In AugustSeptember, 1996, the Petitioner was released on furlough leave for a period of two weeks on 05.08.1996 and thereafter, his leave was extended by seven days. However, he surrendered late by 15 days and was punished by reducing 45 days with ratio of 1:3 days from the remission earned by him. He gave reason for late surrender and namely that his mother had heart problem and she was hospitalized in Sasoon Hospital, Pune. In December, 1996, the Petitioner was released on parole and he returned 460 days late on 30.06.1998 for which he was punished for five years. At that time, the Petitioner was required to perform, according to him, marriages of his two sisters. The approval was not obtained from the Sessions Judge for the prison punishment. The Petitioner was transferred to Kolhapur Central Prison for some time. Thereafter, in 2003-2004 the Petitioner was released on furlough leave on 27.11.2003 and he returned late by 14 days on 14.02.2004 for which 56 days were reduced from the remission earned by him. At that time, it was stated that his father was seriously ill and the Petitioner being elder son had to look after and take care of his father. Again in 2005-2006 when the Petitioner was released on furlough leave, his remission was reduced by 3315 days as he returned late by 663 days. This time, his father passed away and he had to take care of his mother during her iddat period and she was treated for her illness at home. The Petitioner himself got married and a son was born to
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him. These reasons were cited as family reasons and genuine to return late on all occasions. After hearing him and the learned APP, this Court held that the Prison Authorities had not applied their mind and therefore, they must issue a show cause notice and give opportunity to the Petitioner before reducing remission period. This Court, therefore, directed the Prison Authorities to abide by the following directions:-
b) We do not consider it appropriate to disturb the order dated 19-07-2011 bearing no.RLP-1005/214/case no.143/prison-3/ Home Department, Mantralaya, Mumbai-32 issued by the Desk officer Home Department, in the name and on behalf of the Governor of Maharashtra, as the Superintendent of the Prison concerned is already directed to forward review proposal in view of section 432 of the Cr. Procedure Code, 1973 to the competent authority -
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Additional Director General of Police (Prisons), Maharashtra State to review the proposal for premature release of the prisoner. Superintendents of Prisons concerned will forward it accordingly alongwith the decision on the representation; if any submitted by the Petitioner herein.
c) The Petition is partly allowed accordingly. ”
4 The Petitioner states that after this order was passed by this Court, the Petitioner had to approach this Court once again because the Respondent No.1 arbitrarily, willfully and knowingly passed the order dated 19.03.2013. The Additional Sessions Judge, Kolhapur considered the application, oral and written submissions on behalf of the Petitioner, but did not pass any order recording approval to the order of the Prison Authorities. The Petitioner on such understanding and the impact of the action of the Respondent No.1, approached this Court in writ jurisdiction by filing the Criminal Writ Petition No.1391/2013. He was dissatisfied with the order passed on 19.03.2013. When this Writ Petition came up for admission before the Division Bench on 09.05.2013, the Respondent No.1 withdrew his order dated 19.03.2013 and stated that a fresh order would be passed.
5 Now, a fresh order has been passed and what the Petitioner states in the grounds of this Contempt Petition is that the entire procedure of cutting or reducing remission of the Petitioner which has been conducted by the Respondent No.1 is totally illegal, arbitrary and violative of the principles of natural justice. According to the Petitioner, the Respondent No.1 had issued the show cause notice to the Petitioner under Notification dated 02.08.2011 which itself is contemptuous and violative of the order dated 15.02.2013 of this Court. It is illegal to give retrospective effect to this Notification. At one place the Notification is
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stated to be dated 02.08.2011 and at another as 23.08.2011. Thus, the civil contempt is alleged by urging that the order passed now and afresh is illegal and not in terms of the orders and directions of this Court.
6 In the affidavit filed in reply and possibly on their own by the Authorities, it has been explained as to how the matter was taken up after the order passed by two Division Benches. It was pursuant to the statement made on 09.05.2013 before the Division Bench that a show cause notice was given on 11.05.2013. That was regarding parole leave. No notice was given regarding furlough leave as no grievance was made by the Petitioner in that regard. This notice was replied by the Petitioner on 14.05.2013. Thereafter, the proposal was sent and which was received by the Deputy Inspector General of Prison, Yerwada, Pune on 30.05.2013 and the Respondent No.2 passed an order dated 18.06.2013. This was forwarded for judicial appraisal of the Sessions Judge, Kolhapur. The papers were then forwarded to the Sessions Court at Kolhapur and when the Deponent filed the affidavit in this Contempt Petition, the order of the Sessions Court was awaited.
7 Two affidavits that have been filed to reiterate this factual position and despite all this, it is submitted that if the legal provisions and orders of this Court have not been understood properly, then, that is not an intentional act, but based on the law as the Authorities have understood. Now even the Sessions Court's order has been made available and that is dated 07.09.2013.
8 The proposal forwarded through the Prison Authorities was placed before the Sessions Judge and he has passed an order that for the purpose of sentence of deduction in remission, the period in the case of the Petitioner/ convict, ratio of 1:2 will serve the purpose and therefore, he approved the proposal for the period of 1326 days.
9 After hearing the Petitioner's Advocate at some length, we are
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unable to appreciate her argument that a civil contempt has been committed. Her reliance upon two judgments of the Honourable Supreme Court is entirely misplaced.
10 In a judgment in the case of Kedar Singh Kushwaha v/s Dhaniram and another reported in (2009) 9 SCC 396 , the High Court delivered a judgment allowing the Writ Petition setting aside the order of the Specified Officer and remitting the matter back to him directing the Election Petition be decided within two months. He should also decide the preliminary objections raised by the Respondent in Election Petition. The parties were directed to appear before him on 19.08.1996. Despite the said order, no action was taken and the notices were issued only on 23.10.1997 and what the Honourable Supreme Court noted was that the Specified Officer was authorized to determine the Election Petition filed by the Respondent No.1 before the Honourable Supreme Court. The Election Petition filed by him was dismissed only on the basis of an order of recounting passed by the Specified Officer in respect whereof allegedly no objection was raised. The High Court order was clear in terms. He had no jurisdiction to pass the order contrary to the High Court order even with the consent of parties.
11 It is in that context that the Honourable Supreme Court held that the case of civil contempt was made out. The entire judgment of the High Court was brushed aside and the Specified Officer adopted his own course and that is how being a high ranking officer and responsible, the plea that he did not understand the purport of the High Court order was rejected and the case of civil contempt was held to have been made out. Such is not the position before us. Therefore, this judgment reported in (2009)9SCC 396 cannot be of any assistance.
12 In the case of J.Vasudevan v/s T.R.Dhananjaya reported in (1995) 6 SCC 249 , the facts were more glaring. In that case, the said
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Vasudevan has been proceeded against by the Honourable Supreme Court because he urged that the way he had acted was on legal advise and more so in the backdrop of the judgment of the High Court of Karnataka passed in Writ Petition No.15458/1991 and batch rendered on 31.03.1994. The Honourable Supreme Court found that this plea was not available to him any longer. The High Court accepted that the claim of one Venkatesh was fully protected despite the order passed by the Honourable Supreme Court on 26.07.1993 in IA No.3. Therefore, the High Court's order could not be taken shield and protection of. The matter was carried to the Honourable Supreme Court on two occasions. The sentence was imposed on him and when it was to be implemented, he once again approached the Honourable Supreme Court. This time his conduct was found to be aggravating the civil contempt. That is how the Honourable Supreme Court did not extend mercy jurisdiction to him and dismissed his petition. It is in that context the Honourable Supreme Court observed that nobody is above the law. The Petitioner may be an IAS Officer, but that is of no consequence. If a high ranking officer indulges in an act of contempt, he deserves to be punished more rigorously so that nobody would take to his head to violate the Court's order. Even this judgment cannot be of any assistance in the present case.
13 Once we find that a fresh order has been passed which may not be strictly in terms of the judgment and orders of this Court or legal provisions in the field, then, the case of civil contempt is certainly not made out. The grounds in the Contempt Petition itself would show that the order is being assailed on merits rather that urging that the conduct or manner in which the order is passed is contumacious. Once we find that the basis and foundation of the allegations in the Contempt Petition is merits of the order and conclusion therein, then, surely the Contempt Petition is not the remedy of the Petitioner. The Contempt Petition is
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entirely misconceived and is dismissed.
14 We would be failing in our duty if we do not remind all those filing Contempt Petitions seeking execution and enforcement of this Court's orders and in a particular way that the contempt jurisdiction is meant to uphold dignity and majesty of this Court and to see that its orders are not violated willfully. That is not a tool or proceeding which the Petitioner on his own can institute and as of right. His role is merely to bring to the notice of this Court the violation or breach of the order or direction and beyond that any benefits or substantive reliefs cannot be claimed in contempt jurisdiction. In these circumstances cautioning that hereafter such Contempt Petitions would not be only dismissed, but by imposing heavy costs, we dismiss the present Contempt Petition. We make clear that we have not expressed any opinion on the rival contentions raised and based on the grounds raised in the Contempt Petition particularly regarding challenge to the orders of the Authorities on merits. Each one of them are kept open.
15 The Contempt Petition is dismissed. No costs.
(G.S.PATEL, J.)
( S.C. DHARMADHIKARI, J. )
3 issues framed by the court
Whether the Respondent Institution committed civil contempt by passing an order allegedly violating directions regarding remission
Whether this Contempt Petition is the appropriate remedy to challenge the merits of the order reducing remission
Whether the Contempt Petition should be dismissed with or without costs
Colour shows how this judgement treated each authority
Kedar Singh Kushwaha v/s Dhaniram and anotherDistinguished¶39
(2009) 9 SCC 396 · Who else cites this
J.Vasudevan v/s T.R.DhananjayaDistinguished¶41
(1995) 6 SCC 249 · Who else cites this
Shafi Viziruddin Qureshi
Shyam Kant Pawar
S.C. DHARMADHIKARI
G.S. PATEL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
