Dismissed

Adv. Nilesh Ojha v. the State of Maharashtra and Ors.

Bombay HC11 Nov 2014WP/3611/2014

Case brief

AI extract

What is this about?

The Court held that a High Court Judge acting judicially is protected from prosecution under Section 3(1) of the Judges (Protection) Act and Section 77 IPC. It further directed that no court can entertain criminal complaints against such judges without CJI advice/sanction. The writ petition to quash a contempt notice was dismissed.

What did the court decide?

Directing that no court in Maharashtra, Goa, Dadra, Daman or Diu shall entertain prosecution against a High Court Judge for acts committed in discharge of judicial duty without prior sanction.

Adv. Nilesh Ojha Vs the State of Maharashtra and Ors. — Contempt of Court | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.3611 OF 2014

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Nilesh C. Ojha, Age : 37 years, Advocate, R/o.Bhayander (East), Petitioner District Thane

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versus

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State of Maharashtra through Public Prosecutor, High Court, Bombay.

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Smt.Justice Roshan Dalvi, Judge, Bombay High Court.

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Shri Shengle, PSI, Maharashtra Police.

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Shri D.V.Sawant, Registrar and Prothonotary (Original Side), Bombay High Court.

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Shri O.D.Kakde, Advocate, Nagpur.

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Shri Sanjay Punamiya, Mumbai.

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Central Bureau of Investigation, Mumbai.

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Smt.Mohini Kamwani, R/o.Vashi, Navi Mumbai. Respondents

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Mr.Nilesh C. Ojha, Petitioner in person present. Mr.S.K.Shinde, Public Prosecutor with Mr.J.P.Jagnik, Additional Public Prosecutor for Respondent-State.

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CORAM : MOHIT S. SHAH, CHIEF JUSTICE & B.P.COLABAWALLA, J.

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Date of Reserving the Judgment : 7 November 2014 Date of Pronouncing the Judgment : 11 November 2014

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JUDGMENT - (Per : Chief Justice) :-

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Before indicating the prayers for which this Criminal Writ Petition is filed, it will be necessary to refer to the facts noted by this Court in Appeal (L) no.352 of 2014 and the orders passed by Mrs.Justice Roshan Dalvi.

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The petitioner is an Advocate for Sanjay Punamiya, defendant no.1 in Suit no.175 of 2014. The suit is filed by the owner of a 7,000 sq. ft. flat at Marine Drive, Mumbai, alleging that defendant no.1 trespassed into the suit flat and fabricated documents to show that he is granted lease in the suit flat on a monthly rent of Rs.50,000/- per month only.

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The Plaintiff is the daughter of the owner of the building claiming title of the entire building of which the suit flat is one of the flats. The Plaintiff's case in the suit is that Sanjay Punamiya (Defendant no.1) trespassed upon the suit flat which was in possession and occupation of Mr.Faizal Essa Alyousuf Al-Essa (`Faizal'), who was the constituted attorney of Plaintiff's father. The said Faizal had kidney transplant in January 2013 in Mumbai and after recovering from the surgery, he left India for Kuwait on 6 May

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2013 for rest. Defendant no.1 Sanjay Punamiya claims to have been inducted as a tenant into the suit flat on the fifth floor of a building on Marine Drive admeasuring about 7,000 sq.ft. from Faizal on the basis of alleged tenancy agreement dated 30 October 2012 for a rent of Rs.50,000/- per month.

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In the said suit, the plaintiff filed Notice of Motion no.313 of 2014 for interim orders. The Notice of Motion was listed for hearing before the Court of Mrs. Justice Roshan Dalvi on 7 May 2014. Justice Dalvi passed an order dated 7 May 2014 granting adinterim injunction against Sanjay Punamiya (defendant no.1) and defendant nos.2 and 3 not to sell, alienate, encumber or create any third party rights in the suit premises. Last two paras of the said order read as under:

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“43. The acts of defendant No.1 and his Advocate Nilesh Ojha (who has yet not filed his Vakalatnama) detailed above is seen to be both scandalous and defamatory. It constitutes contempt in the face of the Court. This is a fit case where action for having committed criminal contempt under the Contempt of Courts Act should be initiated against them. However, both defendant No.1 and Advocate Nilesh Ojha be first allowed to show course against the action in contempt.

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Issue notice upon both defendant No.1, Sanjay Mishrimal Punamiya and Advocate Nilesh Ojha to show cause, if any, why action under the Law of Contempt of Court should not be initiated against them.”

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Justice Dalvi also noted in the order that Defendant no.1 (Sanjay Punamiya) was trying to avoid her Court as, in a similar case of trespass, she had passed an interim order for appointment of Court Receiver.

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Order dated 7 May 2014 was passed by Smt.Justice Roshan Dalvi under section 14 of the Contempt of Courts Act for issuing notice to Sanjay Punamiya and the petitioner, Adv. Nilesh C. Ojha, to show cause why proceedings for contempt in the face of the Court should not be initiated against them. On the basis thereof, the Prothonotary & Senior Master of this Court (respondent no.4), issued show cause notice no.787 of 2014 against Sanjay Punamiya and the petitioner on 22 May 2014. Further, after considering the affidavits of Sanjay Punamiya and the petitioner, Justice Roshan Dalvi passed order dated 23 June 2014 setting out the facts of the case as per the requirements of section 14(2) of the Contempt of Courts Act. In view of the prayer of the petitioner to transfer the case to another Court, by the said order dated 23 June 2014, Justice Roshan Dalvi passed the order for placing the matter before the Chief Justice for passing directions as per section 14(2) of the Contempt of Courts Act for placing the matter before another Judge.

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Sanjay Punamiya filed Appeal (L) no.352 of 2014 before the Division Bench of this Court challenging the aforesaid order dated 7 May 2014. On 9 July 2014, when Sanjay Punamiya sought to tender an affidavit tendering unconditional apology and withdrawing the allegations made in his complaint dated 5 May 2014 against

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Justice Roshan Dalvi, the Division bench of this Court specifically brought to his notice, through his counsel, the provisions of Section 13(b) of the Contempt of Courts Act, 1971 that justification by truth could be pleaded as a defence. However, Sanjay Punamiya stated in the Court that he wanted to tender an unconditional apology and withdraw the allegations. Sanjay Punamiya then tendered affidavit dated 30 June 2014 before the Division Bench withdrawing the allegations made by him in his complaint dated 5 May 2014 and tendering unconditional apology. Again similar affidavits were filed by Sanjay Punamiya before the Division Bench on 24 July 2014 and 2 September 2014. By order dated 5 September 2014, the Division Bench of this Court dismissed the appeal of Sanjay Punamiya and also directed issuance of suo motu show cause notice under section 15 of the Contempt of Courts Act, inter alia, against Sanjay Punamiya and his Advocate (the present petitioner).

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In the said order, this Court has also noted that in the suit when the Plaintiff relied upon affidavits of sixteen neighbours to show that Defendant no.1 had trespassed into the suit flat, the Defendant no.1 filed a criminal complaint against those neighbours in the Court of Metropolitan Magistrate, Mumbai after the Plaintiff had filed complaint of criminal trespass against Sanjay Punamiya. Sanjay Punamiya made similar allegations against the Metropolitan Magistrate also to get the complaint transferred from the Court of that Metropolitan Magistrate.

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When the said suo motu contempt proceedings reached hearing on 13 October 2014, while the other respondents in the said proceedings appeared, the present petitioner did not appear and the Division Bench passed the following order:

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“Learned counsel for respondent No.1 as well as learned counsel for respondent Nos. 3 and 4 pray for adjournment.

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Respondent Nos.1,3 and 4 shall remain present on the next date of hearing.

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As far as respondent No.2 Nilesh C. Ojha is concerned, the report dated 10 October, 2014 of the Prothonotary and Senior Master, prima facie, indicates that respondent No.2 is evading service of notice of the present proceeding. Hence, a bailable warrant in the sum of Rs.25,000/- be issued against respondent No.2 to secure his presence in the present proceeding on the next date of hearing, which shall be 10 November, 2014.”

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When the present criminal writ petition was called out, the Petitioner moved Notice of Motion (L) No.2449 of 2014 and pleaded for cancelling the bailable warrant and assured that he would appear in Court on the next date of hearing of the said suo motu contempt proceedings.

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In the background of the aforesaid facts, we have to consider the prayers made in the present Criminal Writ Petition which may broadly be classified in the following categories :-

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(A)  To challenge the show cause notice issued to the Petitioner under section 14 of the Contempt of Courts Act, 1971 on the basis of the order dated 7 May 2014 of Mrs. Justice Roshan Dalvi (Respondent no.2) and for stay of the said show cause notice no.787 of 2014;

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[prayer clauses (vii), (viii) and (ix)]

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 To challenge/expunge the observations made by Mrs. Justice Roshan Dalvi in the aforesaid order dated 7 May 2014; [prayer clauses (i) and (ii)]

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(B)  To direct initiation of prosecution against respondent no.2 (Mrs. Justice Roshan Dalvi) under sections 341, 342, 504, 220, 167, 191, 193, 465, 466, 211, 471, 474, etc., of the Indian Penal Code.

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 To hold that respondent no.2 (Mrs. Justice Roshan Dalvi) acted without jurisdiction while detaining the petitioner and passing order by creating false evidence and forgery of Court records.

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 To take suo motu cognizance of contempt of Supreme Court's direction in D.K.Basu case to try and punish respondent no.2 and Police Inspector (Respondent no.3).

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 To grant compensation of Rs.1 crore.

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[Prayer clauses (iii) to (vi)]

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As far as the Plaintiff's prayers in Group-A above are concerned, they are all directed against the judicial order dated 7 May 2014 passed by the Single Judge who is arraigned as Respondent no.2 in this criminal writ petition. This order dated 7 May 2014 was passed in a Notice of Motion in the suit pending on the original side of this Court. If at all an appeal is maintainable against such an order, the Petitioner's remedy would be to challenge the said order in appeal. If no appeal is maintainable, the Petitioner's remedy would be to approach a higher court. However, present writ petition is not maintainable for challenging the judicial order passed by Single Judge of this Court. On this short ground alone, the petition is required to be dismissed insofar as prayers (i), (ii) and (vii) to (ix) in this criminal writ petition are concerned.

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As far as prayers in Group-B are concerned, the Petitioner is seeking criminal prosecution of a Judge of this Court in respect of her acts when she was discharging judicial functions as a Judge of this Court. Section 3(1) of the Judges (Protection) Act, 1985 grants protection to a Judge in following terms:

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" 3. Additional Protection to Judges :

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(1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub section (2), no Court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function."

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Section 4 of Judges (Protection) Act, 1985 provides saving clause, which reads as under :

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" 4. Saving : The provision of this act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force providing for protection of Judges."

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Section 77 of Indian Penal Code (`IPC') also provides the following protection to Judges :

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" 77. Act of Judge when acting judicially : Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law."

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It is thus clear that in view of the aforesaid statutory provisions, no Court shall entertain or continue any civil or criminal proceeding against a Judge for any act, thing or word committed, done or spoken by him, when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function. Prayers (iii) to (vi) in the criminal writ petition pertain to the acts committed, things done or words spoken by Smt.Justice Dalvi when acting in the discharge of her judicial function. On this short ground alone, in view of the protection granted by Section 3(1) of the Judges (Protection) Act, 1985, this criminal writ petition is liable to be dismissed as not maintainable in respect of aforesaid prayers.

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Moreover, Section 77 of IPC also specifically provides that nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law. A perusal of the orders passed by Smt.Justice Dalvi in Notice of Motion No.313 of 2014 on 7 May 2014 as well as on 23 June 2014 make it clear that the Single Judge was acting in her capacity as a Judge of this Court and was thus acting judicially in exercise of the power which is, or which in good faith, she believed to be given to her by law.

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Regarding temporary detention of the Petitioner, Smt.Justice Dalvi made following observations in the order dated 7 May 2014 :

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"4. When this application was sought to be made by Mr.Dwarkadas on behalf of the plaintiff, one Advocate O.D.Kakde, who was instructed by another Advocate Nilesh C. Ojha, interrupted Mr.Dwarkadas to state to Court that a complaint has been made against this Court by defendant no.1 and hence this Court must recuse herself.

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The Advocate for defendant No.1 tendered a copy of the complaint to Court which is dated 5th May 2014 and sent/received by the addressees on 5th May 2014. It makes false, defamatory and contemptuous statements against the Court and two other officers of this Court.

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The allegations and statements in the complaint show the complainant having been approached with an offer for corrupting the court from his acquaintance since 11th March 2014. It shows how the complainant

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met that acquaintance on 12th March 2014 and thereafter had meetings on various dates in the month of March with regard to his allegations of corruption. Despite these meetings and his case of corruption, the complainant never made any complaint until 5th May 2014 after he was served the notice of the Plaintiff's application for ad-interim relief on 2nd May 2014.

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The complaint/application shows two enclosures - one is copy of the plaint in this Court, the other is copy of "the cell details amongst the applicant and some of the non applicants". The Court called upon Advocate Kakde to show Enclosure-2 to the complaint. He sought to search for the record. He stated that the copy of that enclosure is not with him and took instructions from defendant no.1 to state that it would be brought from his residence.

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The Advocate has not filed any Vakalatnama. He has not obtained the NOC of the previous Advocates. He has made inappropriate allegations. The Court, therefore, directed a Police Officer to accompany the Advocate and/or defendant no.1 whilst they sought to obtain Enclosure-2 to the complaint and to report back to Court. They were directed not to leave the court without the police officer. The Court detained them until they obtained Enclosure-2 to the complaint/application, which would be the only evidence, if any, to corroborate the allegations therein. The Court thus detained defendant no.1 and his Advocate under the provisions of the initial part of Section 345 of the Code of Criminal Procedure.

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Counsel on behalf of the plaintiff made the necessary application which shall be considered presently. Whilst that was being made, Advocate Kakade on behalf of defendant no.1 tendered to Court a token of Vodafone being Token No.94 dated today - 7th May 2014 showing the time 12:32:21 p.m. being an application for obtaining a transcript of certain calls.

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The Advocate stated that the statement of call details shall be produced later. The Advocate tendered the receipt of Vodafone bearing Mobile No.9820502288. The Advocate has also written two other mobile numbers on the token and on a chit given to the Court along with token.

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It is clear that what is stated to be annexed to the complaint/ application of defendant No.1 is non-existent and could not be produced upon the Court's query to show any corroboration of the statements in the application/complaint.

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The Court saw that the application being made by the plaintiff is sought to be thwarted. The Court cannot be a privy to such abuse of process of law. The Court informed defendant No.1 and the Advocate, who has not filed any Vakalatnama, that the Court shall hear the application. Of course, the Court would also hear Advocate O.D.Kakade."

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The aforesaid justification given by Single Judge for detaining Sanjay Punamiya and his Advocate (present Petitioner) would clearly indicate that the Single Judge believed, in good faith, that she had the power given to her by law under the first part of Section 345 of the Code of Criminal Procedure, 1973 to detain Defendant no.1 and his Advocate (present Petitioner) until they obtained the documents upon whom Defendant no.1 had relied in his complaint dated 5 May 2014 by showing it as enclosure-2.

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However, the Petitioner appearing in person relied upon the provisions of sub-section (2) of Section 3 of Judges (Protection) Act, 1985, which reads as under :

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" 3. Additional Protection to Judges :

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(1) ... ... ...

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(2) Nothing in sub section (1) shall debar or affect in any manner the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge."

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It is obvious that the Petitioner himself does not hold any office or position referred to in sub-section (2) of Section 3 of Judges (Protection) Act, 1985.

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Learned Public Prosecutor Mr.Shinde relied upon the judgment of a Division Bench of this court in E.S.Sanjeeva Rao Vs. Central Bureau of Investigation, Mumbai and others¹ . This Court examined the provisions of Section 77 of IPC and Sections 3 and 4 of Judges (Protection) Act, 1985. The Court explained the distinction between the provisions of sub section (1) of Section 3 of the Judges (Protection) Act, 1985 on the one hand and provisions of sub section (2) of Section 3 of the said Act on the other and held that the prosecution cannot be launched on the basis of an act, such as delivery of a judgment delivered by a Judge in the course of his official duty. But Government can initiate criminal proceedings under sub section (2) of Section 3 of Judges (Protection) Act, 1985 on the basis of material which could show that the judgment which was given, was based on extraneous considerations after accepting bribe

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1 2013-ALL.MR. (Cri)-933

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and if such complaint had been filed, the officer could not have asked for protection under Section 3(1) of the Judges (Protection) Act, 1985.

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It is also pertinent to note that Section 197 of Code of Criminal Procedure, 1973 (`Cr.P.C.') provides that when any person who is or was a Judge or Magistrate, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the appropriate Government i.e. the appointing authority. The appointing authority of a High Court Judge is the President of India. In case of K.Veeraswami Vs. Union of India² , the Supreme Court has held that President of India shall not grant sanction to prosecute a Judge of the High Court, Chief Justice of High Court or Judge of the Supreme Court, if the Chief Justice of India is of the opinion that it is not a fit case for grant of sanction for prosecution of the Judge concerned. It would, of course, be obvious that if President of India is not inclined to grant any such sanction in the first place, there would be no need for the President of India to consult the Chief Justice of India in the matter.

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The Supreme Court observed as under :

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“Any complaint against a Judge and its investigation by the CBI, if given publicity will have a far reaching impact on the Judge and the litigant public. The need therefor, is a judicious use of taking action under the Act. Care should be taken that honest and fearless

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2 (1991)3-scc-665

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judges are not harassed. They should be protected. The Act is not basically defective in its application to judiciary. All that is required is to lay down certain guidelines lest the Act may be misused. This Court being the ultimate guardian of rights of people and independence of the judiciary will not deny itself the opportunity to lay down such guidelines. It is accordingly directed that no criminal case case shall be registered under Section 154 of Cr.P.C. against a Judge of the High Court, Chief Justice of High Court or Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter. Due regard must be given by the government to the opinion expressed by the Chief Justice of India. If the Chief Justice of India is of opinion that it is not a fit case for proceeding under the Act, the case shall not be registered. …

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There shall be similar consultation at the stage of examining the question of granting sanction for prosecution and it shall be necessary and appropriate that the question of sanction be guided by and in accordance with the advice of the Chief Justice of India. It is necessary that the Chief Justice of India is not kept out of the picture of any criminal case contemplated against a Judge. He would be in a better position to give his opinion in the case and consultation with the Chief Justice of India would be of immense assistance to the government in coming to the right consultation.

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Undoubtedly, respect for the judiciary and its public credibility and dignity has to be maintained in order to ensure respect for the Judges in public and also for the decisions rendered by the Judges. …... In order to adequately protect a Judge from frivolous prosecution and unnecessary harassment the President will consult the Chief Justice of India who will consider all the materials placed before him and tender his advice to the President for giving sanction to launch prosecution or for filing

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FIR against the Judge concerned after being satisfied in the matter. The President shall act in accordance with advice given by the Chief Justice of India. If the Chief Justice is of opinion that it is not a fit case for grant of sanction for prosecution of the Judge concerned the President shall not accord sanction to prosecute the Judge. This will save the Judge concerned from unnecessary harassment as well as from frivolous prosecution against him. Similarly in the case of Chief Justice of India the President shall consult such of the Judges of the Supreme Court as he may deem fit and proper and the President shall act in accordance with the advice given to him by the Judge or Judges of the Supreme Court.”

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In Anil Kumar and others Vs. M.K.Aiyappa and another³ , the Supreme Court has examined the question of sanction for prosecution of a public servant in the context of provisions of Sections 156(3), 190, 200 and 202 of Cr.P.C. and has held that where jurisdiction is invoked on a complaint filed in terms of Section 156(3) or Section 200 of Cr.P.C., the Magistrate is required to apply his mind and cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The Supreme Court has also held in the said decision that requirement of sanction is a precondition for ordering investigation under Section 156(3) of Cr.P.C. even at a pre-cognizance stage. When it was contended before the Supreme Court that in case of prosecution under Prevention of Corruption Act, 1988, absence of sanction will not vitiate any finding, sentence or order passed by a Special Judge unless a failure of justice has in fact been occasioned thereby, the Supreme Court observed that

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3 (2013)10-SCC-705

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such a provision (Section 19(3) of Prevention of Corruption Act, 1988) does not mean that the requirement to obtain sanction is not a mandatory requirement. The Court then held as under :

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"Once it is noticed that there was no previous sanction, as already indicated in various judgments, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) of Cr.P.C. The above legal position, as already indicated, has been clearly spelt out in State of Uttar Pradesh Vs. Paras Nath Singh⁴ and Subramanium Swamy Vs. Manmohan Singh and another⁵ .

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In view of the above settled legal position, no Judge can be prosecuted without a prior sanction, whether the alleged offence is punishable under the provisions of Prevention of Corruption Act, 1988 or under the Indian Penal Code or under any other law.

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The Petitioner contended that the Supreme Court has laid down the law for grant of deemed sanction and that since the Petitioner had submitted an application to the President of India on 21

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4 (2009)6-SCC-372

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5 (2012)3-SCC-64

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May 2014 to prosecute Respondent no.2 herein, there is deemed sanction as per the decision of Supreme Court in Subramanium Swamy Vs. Manmohan Singh and another.

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The argument is misconceived. The Petitioner's application to the President of India is in respect of the same alleged offences for which the Petitioner has sought directions in the present writ petition. All those alleged offences are punishable under Indian Penal Code. Section 6 of IPC lays down that through out the IPC, every definition of an offence shall be understood subject to the exceptions contained in the Chapter entitled “General Exceptions”, though those exceptions are not repeated in such definition. In Chapter-IV “General Exceptions”, Section 77 provides that nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law. Secondly, in Subramanium Swamy case, the Supreme Court was not concerned with the provisions of Section 3 of Judges (Protection) Act, 1985. Thirdly, the observations made by the Supreme Court in Subramanium Swamy case were concerning the offences falling under the provisions of Prevention of Corruption Act, 1988 and not relating to the offences which are subject matter of present petition.

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At the hearing, the Petitioner relied upon the following decisions in support of the contention that no sanction would be required for prosecuting a Judge.

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20. Anowar Hussain Vs. Ajoy Kumar Mukherjee and others - AIR-1965-SC-1651 :-

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In this case, the officer was holding two offices - one as an executive officer as a Sub Divisional Officer and other as a judicial officer as a Sub Divisional Magistrate. The officer ordered arrest of the Plaintiff but the proceedings were closed without trial. The Plaintiff sued the officer for damages for false imprisonment. The Supreme Court held that in view of his admission that he had not taken cognizance as a Magistrate of the offence alleged against the Plaintiff before ordering his arrest, and his main defence that he had acted under the direction of his superior executive officer, he must be held to have acted in his executive capacity and not in discharge of his duties as a Magistrate and hence was not entitled to protection under Judicial Officers' Protection Act, 1850. The case is, therefore, clearly distinguishable as in the present case, Respondent no.2 was acting only as a Judge of this Court and not in any executive capacity. Moreover, the judgment clearly lays down that the Act grants large protection to Judges and Magistrates acting in the discharge of their judicial duties.

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21. Raman Lal Vs. State - 2001-Cri.L.J.-800

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This was a case where the allegation against an Additional Judge of Gujarat High Court was that the Additional Judge along with a Police Officer and others was alleged to have hatched a conspiracy to falsely implicate a shop owner in Rajasthan and when the shop owner submitted to their demands, he was discharged. The Court held that there was no connection between the official duty and

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the offence. Therefore, no sanction was required. In that case, the prosecution was not in respect of any act committed by the Judge when acting judicially in the exercise of any power given to him by law. The act attributed to the Judge had nothing to do with the discharge of his official duty as a Judge.

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22. B.S.Sambhu Vs. T.S.Krishnaswamy – AIR-1983-SC-64

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In this case, the Respondent, an Advocate, was representing a party which moved an application for transfer of the suit from the Court of the Appellant-Magistrate to another Court. The District Judge called for the remarks from the Appellant-Magistrate regarding certain allegations which were made in the transfer application. The Appellant submitted his remarks wherein he called the advocate as “rowdy”, “a big gambler” and “a mischievous element”. The letter was read out by the District Judge in open Court. The Respondent filed a complaint against the Appellant-Magistrate alleging defamation under Section 499 of IPC. The question raised was whether the Court could take cognizance of the offence alleged against Appellant-Magistrate in absence of proper sanction as contemplated in Section 197 of Cr.P.C. The learned Magistrate hearing the complaint negatived the contention of the AppellantMagistrate that the sanction was necessary. The High Court confirmed that view. In appeal, the Supreme Court confirmed the above concurrent views.

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The letter written by the Appellant-Magistrate was not a judicial order but a communication sent to the District Judge which was read out by the District Judge in the open Court.

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In the instant case, the Petitioner's grievance is about a judicial act committed and judicial order passed by the Second Respondent and, therefore, Section 3(1) of the Judges (Protection) Act, 1985 would clearly apply.

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23. Bidhi Singh Vs. M.S.Mandyal and another 1993-CR.L.J.-499

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In this case, the Respondent was a Sub Divisional Judicial Magistrate at the relevant time when the Appellant was a Head Constable who escorted some under trial prisoners for their production in the Court. On seeing that the under trial prisoners were brought before him hand-cuffed, the Respondent-Magistrate lost his temper and abused the Appellant by uttering words “non-sense” and “bloody fool”. The Appellant filed a complaint in the Court of Chief Judicial Magistrate alleging that the Resopondent Magistrate had intentionally insulted the Appellant and had given provocation to him, knowing that it was likely to cause the complainant to break public peace. The Chief Judicial Magistrate issued summons to the Respondent under Section 504 of IPC and the Respondent challenged said order in criminal revision before Additional Sessions Judge. The Sessions Judge held that the CJM could not have taken cognizance of the comkplaint in the absence of a proper sanction under Section 197 of Cr.P.C. and proceedings were quashed. The High Court held that use of the above words by the RespondentMagistrate cannot be said to be one attributable to him “while acting or purporting to act in the sicaharge of his official duty.” However,

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the High Court declined to interfere with the order passed by the Sessions Court and dismissed the criminal miscellaneous petition on the ground that the action complained of had become stale by lapse of time and also because in respect of the same incident, the Respondent-Magistrate had made a reference to the High Court for initiation of contempt proceedings against the Appellant-Complainant and his witnesses. The complaint by the Head Constable against Respondent-Magistrate was filed after the Respondent made a reference to the High Court.

¶126

It is necessary to note that the High Court took the view that the Presiding Judge is expected to maintain decorum in the proceedings before him. He is expected also to act with restraint. One would expect him to be sober, unruffled and temperate in language even when faced with a situation where those appearing before him may tend to lose their composure. While here can be no quarrel with this approach, we would like to express some reservation in respect of underlying words in the following observations made by the High Court “.... .... ... the action should be consistent with the dignity of the high pedestal on which society places him, while he is discharging his duty as a Judge. In this scheme of things any vituperative outburse on the part of the Presiding Officer, howsoever grave the provocation to him, cannot be countenanced as an action sustainable as one performed by him “while acting or purporting to act in the discharge of his official duty.”

¶127

23 of 29 CRWP.3611.2014

¶128

In the facts of the present case, no such unparliamentary words are attributed to the learned Judge. Hence, the authority relied upon by the Petitioner need not detain us.

¶129

24. Muhammad Shafi Vs. Choudhary Qadir Bakhsh, Magistrate, 1^st Class – AIR-1949-Lah-270

¶130

The question which was considered by the Full Bench of Lahore High Court in this case was whether the Respondent Magistrate had committed contempt of Court. The following paragraph in the judgement would indicate that the High Court took strong exception to the Respondent Magistrate using highly unparliamentary words against another Magistrate and the Lawyer :

¶131

“5. There was, however, no occasion whatever for the Magistrate to lose his temper completely, to jump up from his chair and to begin shouting at the counsel who had dared to secure such an injunction. The words used by the respondent gather ominous significance when all the surrounding circumstances are taken into consideration. Mr.Manzur Qadir urged that while cases are being argued in various Courts, an order is often termed as a foolish order and that no serious notice is ever taken of such an epithet. Mr.Manzur Qadir is evidently referring to occasions when an order of a subordinate Court is being challenged in an appellate Court or in a Court of revision. In those circumstances it is the duty of the counsel to point out all the defects that exist in the order that he wishes to challenge. The counsel may letigimately submit that the order is wrong, foolish or even perverse. The atmosphere and the circumstances, in which such submissions are made, are completely different from the scene created in a Court of law by Chaudhari Qadir Bakhsh by getting up from his chair and by hurling insulting epithets at the counsel

¶132

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¶133

who had dared to obtain an injunction. In these circumstances, the remark that “this is a foolish order passed by a foolish Sub-Judge and secured by a foolish lawyer” certainly amounts to contempt of the Court of Mian Muhammad Salim.”

¶134

In the facts of the present case, no such unparliamentary words are attributed to the learned Judge. Hence, the authority relied upon by the Petitioner need not detain us.

¶135

25. State of Uttar Pradesh Vs. Tulsi Ram and others AIR-1971-All-162

¶136

In this case, the Plaintiff-Respondents were prosecuted for offences punishable under Sections 148, 323, 324, 325 and 307 of IPC in the Sessions Court. While one of the accused was acquitted by the Sessions Court, four others were convicted and sentenced. One of them came to be acquitted by the High Court. The High Court's order, therefore, authorized the arrest of remaining three convicts whose appeals were dismissed. The certified orders were sent to the Sessions Court. The Sessions Court forwarded those orders to the Committing Court, a judicial officer, for compliance. All that the judicial officer had to do was to issue warrants of arrest against the three convicted persons who did not surrender, so that the High Court's order may be duly complied with. The Committing Court, however, signed the warrants of arrest of five persons including two accused who were acquitted either by the Sessions Court or by the High Court. This was so, in spite of the fact that the Magistrate's order itself authorized issuance of warrants against three convicts only. The above resulted into two Plaintiffs being arrested by the Police and being

¶137

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¶138

hand-cuffed and taken from their village to the Police Station six miles away and detained in the lock-up and released one hour thereafter. This was done on the day of important festival of Holi in the presence of their relations, friends and fellow villagers. The two Plaintiffs, therefore, filed a suit for damages against the Magistrate.

¶139

It was in the background of the above facts that Allahabad High Court held that the Magistrate was not performing a judicial function but was performing purely a ministerial function to see that the directions of the High Court were duly carried out. The Magistrate was certainly not executing any order in signing the warrants for those who had been acquitted. Hence, the Magistrate was not protected by the Judicial Officers' Protection Act for signing the warrants negligently. The High Court, therefore, passed a decree of damages against the Magistrate and set aside the decree for damages against the State Government.

¶140

The facts stated hereinabove are too eloquent to be compared with the facts in the present case.

¶141

26. Saileajnand Pande Vs. Suresh Chandra Gupta

¶142

AIR-1969-Patna-194

¶143

In this case, a decree for damages for wrongful arrest for four days was passed against the Magistrate. The Plaintiff's case was that Defendant no.1, who was a certificate officer of Baghmara, in order to coerce and put undue pressure upon the Plaintiff to pay the certificate dues, sent him to hazat. This fact was not disputed in the

¶144

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written statement but was tacitly admitted. The High Court found that no reason was recorded in the order as to why this extaordinary and over zealous step was taken by the Magistrate to put the Plaintiff under arrest. The High Court also found that the action of the Magistrate was highly deplorable as questionable and unlawful method was adopted to achieve the object of realising the certificate dues. The fact of not releasing the Plaintiff on bail for three days was a part of this method and, therefore, the High Court held that such action should not be considered as exercise of judicial power which was protected under Section 1 of Judicial Officers Protection Act, 1850, which read as under :

¶146

“No Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction.

¶147

Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of ... ... ...”

¶148

The facts of the present case are quite distinguishable as indicated in paragraphs 4 to 11 of the order of learned Single Judge and quoted in paragraph 13 hereinabove are quite different and, therefore, the decision relied upon by the Petitioner is clearly distinguishable on facts.

¶149

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¶150

In view of the above discussion, we do not find any merit in the Petitioner's contention that the acts in question were not committed in the purported discharge of her duties by Respondent no.2 as a Judge of this Court. The acts in question were very much performed when Respondent no.2 was acting as a Judge of this Court. In this view of the matter, in the facts of the present case, Respondent No.2 would get protection under section 3(1) of the Judges (Protection) Act, 1985 read with section 77 of the IPC, and no Court can entertain or continue any civil or criminal proceeding against Respondent No.2 for any act, thing or word committed, done or spoken by her when, or in the course of, acting or purporting to act in the discharge of her official or judicial duty or function.

¶151

That leaves only one prayer, being prayer (x) which reads as under :

¶152

"(x) To order installing of CCTV cameras in all courts to avoid such incidences in future and to ensure fair trial and proceedings for Judge, Advocates and litigants."

¶153

This is a much wider question to be decided by this Court on the administrative side after considering all the pros and cons and after considering the views of all the stake holders. If at all any writ petition could be filed for such a relief, it would be a civil writ petition. The Petitioner, however, appears to have deliberately chosen to file present writ petition as a criminal writ petition for arraigning a sitting Judge of this Court who has issued a contempt notice against the Petitioner under Section 14 of the Contempt of Courts Act, 1971

¶154

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and for thwarting the proceedings which the Petitioner is facing under Sections 14 and 15 of the Contempt of Courts Act, 1971. These proceedings shall continue and the Petitioner cannot be allowed to stall those proceedings on the ground of any such prayer which can be considered only in the future, and in appropriate proceedings, which may be filed by a person who may be found to be fit to carry the writ of this Court.

¶156

For the reasons aforesaid, it is directed that in view of the protection granted by Section 3(1) of the Judges (Protection) Act, 1985 and Section 77 of the Indian Penal Code, 1861, no Court in the States of Maharashtra and Goa, Union Territories of Daman, Diu, Dadra and Nagar Haveli shall entertain any prosecution or any complaint under any provision of the Code of Criminal Procedure, 1973, including under section 156(3) of Cr.P.C. for investigation against a Judge of this Court or any judicial officer in respect of an offence alleged to have been committed in the discharge or purported discharge of official duty or judicial function by passing a judicial order or by committing any act or omission or by doing anything or by speaking any words in the Court precincts.

¶157

Where the act constituting an offence is alleged to have been committed by passing a judicial order or committing an act within the Court precincts coupled with some other material and on that basis the case falls under Section 3(2) of the Judges (Protection) Act, 1985, as explained by this court in E.S.Sanjeeva Rao Vs. CBI, Mumbai and others (supra) , prior sanction of the Competent

¶158

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¶159

Authority will be required to initiate prosecution. Once it is noticed that there is no prior sanction, no Special Judge or Magistrate will have the jurisdiction to order an investigation against a Judge by invoking section 156(3) of the Code of Criminal procedure, 1973. In view of the above settled legal position, in such a case, neither a Court of Sessions nor a Magistrate's Court shall take any steps under section 156(3) of the Code of Criminal Procedure, 1973 even for the purpose of recording statement of complainant or his witness.

¶160

Subject to the above directions, this criminal writ petition is dismissed.

¶161

The Registrar General shall circulate a copy of this judgment to all the Sessions Judges and all the Magistrates in States of Maharashtra and Goa, Union Territories of Daman, Diu, Dadra and Nagar Haveli.

¶162

(CHIEF JUSTICE)

¶163

(B.P.COLABAWALLA, J.)

¶164

MST

Adv. Nilesh Ojha v. the State of Maharashtra and Ors.

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Adv. Nilesh Ojha v. the State of Maharashtra and Ors.

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