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Monday, April 18, 2011

In the present case, time and again, the respondent has stated that she wants this marriage to continue, especially in order to secure the future of their minor daughter, though her husband wants it to end. She has stated that from the beginning, she never wanted the marriage to be dissolved. Even now, she states that she is willing to live with her husband putting away all the bitterness that has existed between the parties. In light of these facts and circumstances, it would be travesty of justice to dissolve this marriage as having broken down. Though there is bitterness amongst the parties and they have not even lived as husband and wife for the past about 11 years, we hope that they will give this union another chance, if not for themselves, for the future of their daughter. We conclude by quoting the great poet 16 George Eliot "What greater thing is there for two human souls than to feel that they are joined for life - to strengthen each other in all labour, to rest on each other in all sorrow, to minister to each other in all pain, to be one with each other in silent, unspeakable memories at the moment of the last parting."


                                                                      REPORTABLE




                  IN THE SUPREME COURT OF INDIA

                   CIVIL APPEALATE JURISDICTION


                     CIVIL APPEAL NO. 6288 OF 2008



Hitesh Bhatnagar                                            .............. Appellant




                                         versus




Deepa Bhatnagar                                             ..............Respondent




                                 J U D G M E N T




H.L. Dattu, J.




1)    Marriages are made in heaven, or so it is said. But we are more often


      than   not   made   to   wonder   what   happens   to   them   by   the   time   they


      descend   down to  earth.  Though  there  is  legal  machinery  in  place  to


      deal with such cases, these are perhaps the toughest for the courts to


      deal with.  Such is the case presently before us.




2)    The appellant-husband and the respondent-wife got married according


      to the Hindu Marriage Act, 1955 [hereinafter referred to as `the Act']


      in 1994, and are blessed with a daughter a year thereafter. Some time


      in the year 2000, due to differences in their temperaments, they began




                                                                                       1


      to   live   separately   from   each   other   and   have   been   living   thus   ever


      since.  Subsequently, in 2001, the parties filed a petition under Section


      13B of the Act before the District Court, Gurgaon, for dissolution of


      the   marriage   by   grant   of   a   decree   of   divorce   by   mutual   consent.


      However, before the stage of second motion and passing of the decree


      of divorce, the respondent withdrew her consent, and in view of this,


      the   petition   came   to   be   dismissed   by   the   Ld.   Addl.   District   Judge,


      Gurgaon, though the appellant insisted for passing of the decree.  The


      appellant,   being   aggrieved,   has   filed   appeal   No.   F.A.O.   No.   193   of


      2003,   before   the   High   Court   of   Punjab   and   Haryana.     The   Learned


      Judge, by his well considered order, dismissed the appeal vide order


      dt. 08.11.2006.   Being aggrieved by the same, the appellant is before


      us in this appeal.




3)    We have heard the learned counsel for the parties and since the parties


      wanted to ventilate their grievances, we have heard them also.




4)    The issues that arise for our consideration and decision are as under:




         (a) Whether the consent once given in a petition for divorce

             by mutual consent can be subsequently withdrawn by one

             of the parties after the expiry of 18 months from the date

             of   the   filing   of   the   petition   in   accordance   with   Section

             13B (1) of the Act.





                                                                                            2


         (b) Whether   the   Court   can   grant   a   decree   of   divorce   by

             mutual consent when the consent has been withdrawn by

             one of the parties, and if so, under what circumstances.


5)    In   order   to   answer   the   issues   that   we   have   framed   for   our


      consideration   and   decision,   Section   13B   of   the   Act   requires   to   be


      noticed :-




         13B.   Divorce   by   mutual   consent.   -   (1)  Subject   to   the

         provisions of this Act a petition for dissolution of marriage

         by a decree of divorce may be presented to the district court

         by   both   the   parties   to   a   marriage   together,   whether   such

         marriage was solemnized before or after the commencement

         of the Marriage Laws (Amendment) Act, 1976, (68 of 1976.)

         on   the   ground   that   they   have   been   living   separately   for   a

         period of one year or more, that they have not been able to

         live   together   and   that   they   have   mutually   agreed   that   the

         marriage should be dissolved.


         (2) On the motion of both the parties made not earlier than

         six  months  after the  date of the presentation  of the petition

         referred   to   in   sub-section   (1)   and   not   later   than   eighteen

         months after the said date, if the petition is not withdrawn in

         the   meantime,   the   court   shall,   on   being   satisfied,   after

         hearing the parties and after making such inquiry as it thinks

         fit,   that   a   marriage   has   been   solemnized   and   that   the

         averments  in  the  petition   are  true,  pass  a  decree   of divorce

         declaring  the  marriage   to  be  dissolved   with  effect  from the

         date of the decree.





6)    Admittedly,   the   parties   had   filed   a   petition   for   divorce   by   mutual


      consent   expressing   their   desire   to   dissolve   their   marriage   due   to


      temperamental   incompatibility   on   17.08.2001.     However,   before   the





                                                                                           3


      stage of second motion, the respondent withdrew her consent by filing


      an application dated 22.03.2003.  The withdrawal of consent was after


      a   period   of   eighteen   months   of   filing   the   petition.   The   respondent,


      appearing in-person, submits that she was taken by surprise when she


      was   asked   by   the   appellant   for   divorce,   and   had   given   the   initial


      consent   under   mental   stress   and   duress.   She   states   that   she   never


      wanted divorce and is even now willing to live with the appellant as


      his wife.




7)    The appellant, appearing in-person, submits that at the time of filing


      of the petition, a settlement was reached between the parties, wherein


      it was agreed that he would pay her  `3.5 lakhs, of which he states he


      has already paid  `1.5 lakhs in three installments. He further states in


      his appeal, as well as before us, that he is willing to take care of the


      respondent's   and   their   daughter's   future   interest,   by   making   a


      substantial   financial   payment   in   order   to   amicably   settle   the   matter.


      However, despite repeated efforts for a settlement, the respondent is


      not agreeable to a decree of divorce.   She says that she wants to live


      with the appellant  as his wife, especially for the future of their only


      child, Anamika.





                                                                                         4


8)    The   question   whether   consent   once   given   can   be   withdrawn   in   a


      proceeding for divorce by mutual consent is no more res integra. This


      Court,   in   the   case   of   Smt.  Sureshta   Devi   v.   Om   Prakash,   (1991)   2


      SCC 25, has concluded this issue and the view expressed in the said


      decision as of now holds the field.  




9)    In the case of Sureshta Devi (supra.), this Court took the view:




         "9. The `living separately' for a period of one year should be

         immediately preceding the presentation of the petition. It is

         necessary   that   immediately   preceding   the   presentation   of

         petition,   the   parties   must   have   been   living   separately.   The

         expression   `living   separately',   connotes   to   our   mind   not

         living like husband and wife. It has no reference to the place

         of living. The parties may live under the same roof by force

         of circumstances, and yet they may not be living as husband

         and wife. The parties may be living in different houses and

         yet  they  could live as  husband and wife. What  seems to be

         necessary   is   that   they   have   no   desire   to   perform   marital

         obligations   and   with   that   mental   attitude   they   have   been

         living   separately   for   a   period   of   one   year   immediately

         preceding   the   presentation   of   the   petition.   The   second

         requirement   that  they   `have   not  been  able  to  live  together'

         seems to indicate the concept of broken down marriage and

         it   would   not   be   possible   to   reconcile   themselves.   The   third

         requirement   is   that   they   have   mutually   agreed   that   the

         marriage should be dissolved.


         10. Under sub-section (2) the parties are required to make a

         joint   motion   not   earlier   than   six   months   after   the   date   of

         presentation   of   the   petition   and   not   later   than   18   months

         after the said date. This motion enables the court to proceed

         with the case in order to satisfy itself about the genuineness

         of the averments in the petition and also to find out whether

         the   consent   was   not   obtained   by   force,   fraud   or   undue




                                                                                             5


            influence.   The   court   may  make   such   inquiry   as   it   thinks   fit

            including  the  hearing   or  examination   of  the   parties   for   the

            purpose   of   satisfying   itself   whether   the   averments   in   the

            petition are true. If the court is satisfied that the consent of

            parties was not obtained by force, fraud or undue influence

            and they have mutually agreed that the marriage should be

            dissolved, it must pass a decree of divorce."


         On   the   question   of   whether   one   of   the   parties   may   withdraw   the


consent at any time before the actual decree of divorce is passed, this Court


held:




            "13. From the analysis of the section, it will be apparent that

            the   filing   of   the   petition   with   mutual   consent   does   not

            authorise the court to make a decree for divorce. There is a

            period of waiting from 6 to 18 months. This interregnum was

            obviously   intended   to   give   time   and   opportunity   to   the

            parties   to   reflect   on   their   move   and   seek   advice   from

            relations   and  friends.   In   this   transitional   period   one  of   the

            parties may have a second thought and change the mind not

            to proceed with the petition. The spouse may not be a party

            to the joint motion under sub-section (2). There is nothing in

            the section which prevents such course. The section does not

            provide that if there is a change of mind it should not be by

            one   party   alone,   but   by   both.   The   High   Courts   of   Bombay

            and   Delhi   have   proceeded   on   the   ground   that   the   crucial

            time   for   giving   mutual   consent   for   divorce   is   the   time   of

            filing   the   petition   and   not   the   time   when   they   subsequently

            move   for   divorce   decree.   This   approach   appears   to   be

            untenable. At the time of the petition by mutual consent, the

            parties are not unaware that their petition does not by itself

            snap marital ties. They know that they have to take a further

            step to snap marital ties. Sub-section (2) of Section 13-B is

            clear on this point. It provides that "on the motion of both

            the   parties.   ...   if   the   petition   is   not   withdrawn   in   the

            meantime,   the   court   shall   ...   pass   a   decree   of   divorce   ...".

            What is significant in this provision is that there should also





                                                                                                  6


         be mutual consent when they move the court with a request

         to   pass   a   decree   of   divorce.   Secondly,   the   court   shall   be

         satisfied about the bona fides and the consent of the parties.

         If there is no mutual consent at the time of the enquiry, the

         court gets no jurisdiction to make a decree for divorce. If the

         view is otherwise, the court could make an enquiry and pass

         a  divorce  decree  even   at  the  instance   of  one   of  the   parties

         and against the consent of the other. Such a decree cannot

         be regarded as decree by mutual consent."


10)    In the case of Ashok Hurra v. Rupa Bipin Zaveri, (1997) 4 SCC 226,


       this Court in passing reference, observed:




         "16.  We are of opinion that in the light of the fact-situation

         present   in   this   case,   the   conduct   of   the   parties,   the

         admissions made by the parties in the joint petition filed in

         Court,   and   the   offer   made   by   appellant's   counsel   for

         settlement,   which   appears   to   be   bona   fide,   and   the

         conclusion reached by us on an overall view of the matter, it

         may not be necessary to deal with the rival pleas urged by

         the   parties   regarding   the   scope   of   Section   13-B   of   the   Act

         and   the   correctness   or   otherwise   of   the   earlier   decision   of

         this Court in  Sureshta Devi case  or the various High Court

         decisions   brought   to   our   notice,   in   detail.   However,   with

         great   respect   to   the   learned   Judges   who   rendered   the

         decision in  Sureshta Devi case, certain observations therein

         seem to be very wide and may require reconsideration in an

         appropriate case. In the said case, the facts were:


         The   appellant   (wife)   before   this   Court   married   the

         respondent   therein   on   21-11-1968.   They   did   not   stay

         together from 9-12-1984 onwards. On 9-1-1985, the husband

         and wife together moved a petition under Section 13-B of the

         Act   for   divorce   by   mutual   consent.   The   Court   recorded

         statements   of   the   parties.   On   15-1-1985,   the   wife   filed   an

         application in the Court stating that her statement dated 9-1-

         1985   was   obtained   under   pressure   and   threat.   She   prayed

         for   withdrawal   of   her   consent   for   the   petition   filed   under

         Section   13-B   and   also   prayed   for   dismissal   of   the   petition.




                                                                                             7


The District Judge dismissed the petition filed under Section

13-B of the Act. In appeal, the High Court observed that the

spouse   who   has   given   consent   to   a   petition   for   divorce

cannot   unilaterally   withdraw   the   consent   and   such

withdrawal, however, would not take away the jurisdiction of

the Court to dissolve the marriage by mutual consent, if the

consent was otherwise free. It was found that the appellant

(wife)   gave   her   consent   to   the   petition   without   any   force,

fraud   or   undue   influence   and   so   she   was   bound   by   that

consent. The issue that came up for consideration before this

Court   was,   whether   a   party   to   a   petition   for   divorce   by

mutual   consent   under   Section   13-B   of   the   Act,   can

unilaterally   withdraw   the   consent   and   whether   the   consent

once given is irrevocable. It was undisputed that the consent

was withdrawn within a week from the date of filing of the

joint petition under Section 13-B. It was within the time-limit

prescribed   under   Section   13-B(2)  of   the  Act.  On  the   above

premises, the crucial question was whether the consent given

could be unilaterally withdrawn. The question as to whether

a party to a joint application filed under Section 13-B of the

Act can withdraw the consent beyond the time-limit provided

under   Section   13-B(2)   of   the   Act   did   not   arise   for

consideration. It was not in issue at all. Even so, the Court

considered the larger question as to whether it is open to one

of the parties at any time till a decree of divorce is passed to

withdraw the consent given to the petition. In considering the

larger   issue,   conflicting   views   of   the   High   Courts   were

adverted   to   and   finally   the   Court   held   that   the   mutual

consent should continue till the divorce decree is passed. In

the   light   of   the   clear   import   of   the   language   employed   in

Section 13-B(2) of the Act, it appears that in a joint petition

duly filed  under  Section 13-B(1) of the Act,  motion of both

parties should be made six months after the date of filing of

the  petition  and  not later  than  18 months,  if  the petition   is

not withdrawn in the meantime. In other words, the period of

interregnum of 6 to 18 months was intended to give time and

opportunity   to   the   parties   to   have   a   second   thought   and

change the mind. If it is not so done within the outer limit of

18 months, the petition duly filed under Section 13-B(1) and

still pending shall be adjudicated by the Court as provided in




                                                                                   8


          Section 13-B(2) of the Act. It appears to us, the observations

          of   this   Court   to   the   effect   that   mutual   consent  should

          continue till the divorce decree is passed, even if the petition

          is not withdrawn by one of the parties within the period of 18

          months,   appears   to   be   too   wide   and   does   not   logically

          accord   with   Section   13-B(2)   of   the   Act.   However,   it   is

          unnecessary to decide this vexed issue in this case, since we

          have reached the conclusion on the fact-situation herein. The

          decision in  Sureshta Devi case  may require reconsideration

          in an appropriate case. We leave it there."


11)    These observations of this Court in the case of  Ashok Hurra (supra)


       cannot   be   considered   to   be   ratio   decidendi   for   all   purposes,   and   is


       limited to the facts of that case. In other words, the ratio laid down by


       this Court in the case of Sureshta Devi (supra) still holds the field.



12)    In   the   case   of  Smruti   Pahariya   v.   Sanjay   Pahariya,   (2009)   13   SCC


       338, a bench of three learned judges of this Court, while approving the


       ratio   laid   down   in   the   case   of  Sureshta   Devi   (supra),  has   taken   the


       view :-




          "40. In the Constitution Bench decision of this Court in Rupa

          Ashok Hurra this Court did not express any view contrary to

          the   views   of   this   Court   in  Sureshta   Devi.   We   endorse   the

          views taken by this Court in Sureshta Devi as we find that on

          a   proper   construction   of   the   provision   in   Sections   13-B(1)

          and 13-B(2), there is no scope of doubting the views taken in

          Sureshta   Devi.   In   fact   the   decision   which   was   rendered   by

          the two learned Judges of this Court in  Ashok Hurra  has to

          be treated to be one rendered in the facts of that case and it

          is also clear by the observations of the learned Judges in that

          case.





                                                                                            9


          41.  None   of   the   counsel   for   the   parties   argued   for

          reconsideration of the ratio in Sureshta Devi.


          42. We are of the view that it is only on the continued mutual

          consent of the parties that a decree for divorce under Section

          13-B of the said Act can be passed by the court. If petition

          for   divorce   is   not   formally   withdrawn   and   is   kept   pending

          then on the date when the court grants the decree, the court

          has   a   statutory   obligation   to   hear   the   parties   to   ascertain

          their consent. From the absence of one of the parties for two

          to   three   days,   the   court   cannot  presume   his/her   consent   as

          has   been   done   by   the   learned   Family   Court   Judge   in   the

          instant   case   and   especially   in   its   fact   situation,   discussed

          above.


          43.  In our view it is only the mutual consent of the parties

          which   gives   the   court   the   jurisdiction   to   pass   a   decree   for

          divorce under Section 13-B. So in cases under Section 13-B,

          mutual   consent   of   the   parties   is   a   jurisdictional   fact.   The

          court while passing its decree under Section 13-B would be

          slow   and   circumspect   before   it   can   infer   the   existence   of

          such jurisdictional fact. The court has to be satisfied about

          the existence of mutual consent between the parties on some

          tangible   materials   which   demonstrably   disclose   such

          consent."


13)    The   appellant   contends   that   the   Additional   District   Judge,   Gurgaon,


       was bound to grant divorce if the consent was not withdrawn within a


       period   of   18   months   in   view   of   the   language   employed   in   Section


       13B(2) of the Act.   We find no merit in the submission made by the


       appellant in the light of the law laid down by this Court in Sureshta


       Devi's case (supra).





                                                                                               10


14)    The   language  employed  in  Section  13B(2)  of  the  Act  is  clear.    The


       Court is bound to pass a decree of divorce declaring the marriage of


       the parties before it to be dissolved  with effect from the date of the


       decree, if the following conditions are met:




         a. A second motion of both the parties is made not before 6 months


             from   the   date   of   filing   of   the   petition   as   required   under   sub-


             section (1) and not later than 18 months;


         b. After hearing the parties and making such inquiry as it thinks fit,


             the Court is satisfied that the averments in the petition are true;


             and


         c. The petition is not withdrawn by either party at any time before


             passing the decree;




15)    In other words, if the second motion is not made within the period of


       18 months, then the Court is not bound to pass a decree of divorce by


       mutual consent. Besides, from the language of the Section, as well as


       the settled law, it is clear that one of the parties may withdraw their


       consent   at   any   time   before   the   passing   of   the   decree.   The   most


       important requirement for a grant  of a divorce  by mutual  consent is


       free   consent   of   both   the   parties.     In   other   words,   unless   there   is   a





                                                                                               11


       complete agreement between husband and wife for the dissolution of


       the   marriage   and   unless   the   Court   is   completely   satisfied,   it   cannot


       grant a decree for divorce by mutual consent.  Otherwise, in our view,


       the expression `divorce by mutual consent' would be otiose.  




16)    In   the   present   fact   scenario,   the   second   motion   was   never   made   by


       both the parties as is a mandatory requirement of the law, and as has


       been   already   stated,   no   Court   can   pass   a   decree   of   divorce   in   the


       absence of that. The non-withdrawal of consent before the expiry of


       the said eighteen months has no bearing. We are of the view that the


       eighteen month period was specified only to ensure quick disposal of


       cases of divorce by mutual consent, and not to specify the time period


       for withdrawal of consent, as canvassed by the appellant.




17)    In the light of the settled position of law, we do not find any infirmity


       with the orders passed by the Ld. Single Judge.




18)    As   a   last   resort,   the   appellant   submits   that   the   marriage   had


       irretrievably broken down and prays that the Court should dissolve the


       marriage   by   exercising   its   jurisdiction   under   Article   142   of   the


       Constitution   of   India.     In   support   of   his   request,   he   invites   our


       attention   to   the   observation   made   by   this   Court   in   the   case   of  Anil





                                                                                             12


       Kumar   Jain  v.   Maya  Jain,  (2009)   10  SCC   415,  wherein   though   the


       consent was withdrawn by the wife, this Court found the marriage to


       have been irretrievably broken down and granted a decree of divorce


       by   invoking   its   power   under   Article   142.     We   are   not   inclined   to


       entertain this submission of the appellant since the facts in that case


       are   not   akin   to   those   that   are   before   us.     In   that   case,   the   wife   was


       agreeable   to   receive   payments   and   property   in   terms   of   settlement


       from her husband, but was neither agreeable  for divorce, nor to live


       with   the   husband   as   his   wife.   It   was   under   these   extraordinary


       circumstances that this Court was compelled to dissolve the marriage


       as having irretrievably broken down.   Hence, this submission of the


       appellant fails.  




19)    In the case of Laxmidas Morarji v. Behrose Darab Madan, (2009) 10


       SCC 425, a Bench of three learned Judges (of which one of us was a


       party), took the view:




          "25.  Article   142   being   in   the   nature   of   a   residuary   power

          based   on   equitable   principles,   the   Courts   have   thought   it

          advisable   to   leave   the   powers   under   the   article   undefined.

          The   power   under   Article   142   of   the   Constitution   is   a

          constitutional   power   and   hence,   not   restricted   by   statutory

          enactments. Though the Supreme Court would not pass any

          order   under   Article   142   of   the   Constitution   which   would

          amount   to   supplanting   substantive   law   applicable   or





                                                                                                    13


          ignoring   express   statutory   provisions   dealing   with   the

          subject, at the same time these constitutional powers cannot

          in   any   way,   be   controlled   by   any   statutory   provisions.

          However,   it   is   to   be   made   clear   that   this   power   cannot   be

          used to supplant the law applicable to the case. This means

          that   acting   under   Article   142,   the   Supreme   Court   cannot

          pass an order or grant relief which is totally inconsistent or

          goes   against   the   substantive   or   statutory   enactments

          pertaining to the case. The power is to be used sparingly in

          cases which cannot be effectively and appropriately tackled

          by   the   existing   provisions   of   law   or   when   the   existing

          provisions   of   law   cannot   bring   about   complete   justice

          between the parties."


20)    Following   the   above   observation,   this   Court   in   the   case   of  Manish


       Goel v. Rohini Goel, (2010) 4 SCC 393, while refusing to dissolve the


       marriage on the ground of irretrievable breakdown of marriage, held:




          "19. Therefore, the law in this regard can be summarised to

          the effect that in exercise of the power under Article 142 of

          the Constitution, this Court generally does not pass an order

          in contravention of or ignoring the statutory provisions nor

          is the power exercised merely on sympathy."





21)    In   other   words,   the   power   under   Article   142   of   the   Constitution   is


       plenipotentiary.  However, it is an extraordinary jurisdiction vested by


       the   Constitution   with   implicit   trust   and   faith   and,   therefore,


       extraordinary   care   and   caution   has   to   be   observed   while   exercising


       this jurisdiction.  





                                                                                               14


22)    This Court in the case of V. Bhagat v. Mrs. D. Bhagat, (1994) 1 SCC


       337 held that irretrievable breakdown of a marriage cannot be the sole


       ground for the dissolution of a marriage, a view that has withstood the


       test of time.




23)    In the case of Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC


       73, this Court took the view:




          "17.  The marriage between the parties cannot be dissolved

          only on the averments made by one of the parties that as the

          marriage between them has broken down, no useful purpose

          would   be   served   to   keep   it   alive.   The   legislature,   in   its

          wisdom, despite observation of this Court has not thought it

          proper   to   provide   for   dissolution   of   the   marriage   on   such

          averments.  There may  be cases where, on facts,  it is found

          that   as   the   marriage   has   become   dead   on   account   of

          contributory acts of commission and omission of the parties,

          no useful purpose would be served by keeping such marriage

          alive. The sanctity of marriage cannot be left at the whims of

          one of the annoying spouses......."





24)    This   Court   uses   its   extraordinary   power   to   dissolve   a   marriage   as


       having irretrievably broken down only when it is impossible to save


       the marriage and all efforts made in that regard would, to the mind of


       the   Court,   be   counterproductive   [See  Samar   Ghosh   v.   Jaya   Ghosh,


       (2007) 4 SCC 511].





                                                                                             15


25)    It is settled law that this Court grants a decree of divorce only in those


       situations in which the Court is convinced beyond any doubt that there


       is   absolutely   no   chance   of   the   marriage   surviving   and   it   is   broken


       beyond repair. Even if the chances are infinitesimal for the marriage


       to survive, it is not for this Court to use its power under Article 142 to


       dissolve the marriage as having broken down irretrievably.   We may


       make it clear that we have not finally expressed any opinion on this


       issue.    




26)    In the present case, time and again, the respondent has stated that she


       wants   this   marriage   to   continue,   especially   in   order   to   secure   the


       future   of  their   minor   daughter,   though   her   husband   wants   it   to   end.


       She has stated that from the beginning, she never wanted the marriage


       to be dissolved.   Even now, she states that she is willing to live with


       her husband putting away all the bitterness that has existed between


       the   parties.   In   light   of   these   facts   and   circumstances,   it   would   be


       travesty  of justice  to dissolve  this  marriage as  having broken down.


       Though there is bitterness amongst the parties and they have not even


       lived as husband and wife for the past about 11 years, we hope that


       they will give this union another chance, if not for themselves, for the


       future   of   their   daughter.     We   conclude   by   quoting   the   great   poet




                                                                                            16


       George Eliot "What greater thing is there for two human souls than to


       feel   that   they   are   joined   for   life   -   to   strengthen   each   other   in   all


       labour, to rest on each other in all sorrow, to minister to each other


       in all pain, to be one with each other in silent, unspeakable memories


       at the moment of the last parting."




27)    Before parting with the case, we place on record our appreciation for


       the efforts made by Shri. Harshvir Pratap Sharma, learned counsel, to


       bring about an amicable settlement between the parties.




28)    In the result, the appeal fails.  Accordingly, it is dismissed.  No order


       as to costs.  




                                                             .................................J.

                                                                        [ D. K. JAIN]





                                                             .................................J.

                                                                      [ H. L. DATTU]

       New Delhi,

       April 18, 2011.





                                                                                                 17


Sunday, April 17, 2011

Contempt generally and criminal contempt certainly is a matter between the court and the alleged contemnor. No one can compel or demand as of right initiation of proceedings for contempt. The person filing an application or petition before the court does not become a complainant or petitioner in the proceedings. He is just an informer or relator.


                                                                 REPORTABLE

                                                              

                IN THE SUPREME COURT OF INDIA


               CRIMINAL APPELLATE JURISDICTION


              CRIMINAL APPEAL NO. 1376  OF 2004




Muthu Karuppan                                               .... Appellant(s)



             Versus



Parithi Ilamvazhuthi & Anr.                                    .... Respondent(s)









                              J U D G M E N T


P. Sathasivam, J.


1)     This   appeal   is   filed   against   the   final   judgment   and   order



dated   29.10.2004   passed   by   the   Division   Bench   of   the   High



Court of Judicature at Madras in Contempt Petition No. 397 of



2001   whereby   the   High   Court   held   the   respondents   therein



guilty   of   the   offence   punishable   under   Section   2   (c)   of   the



Contempt   of   Courts   Act,   1971   (in   short   `the   Act')   and



sentenced   to   undergo   simple   imprisonment   for   7   days   under



Section 12 of the Act.





                                                                                  1


2)     Brief Facts:


(a)    Parithi   Ilamvazhuthi-Respondent   No.   1   herein   was



elected   as   Member   of   Legislative   Assembly   (in   short   `MLA')   of



the   Egmore   Constituency,   Chennai   in   the   Elections   held   on



10.05.2001   to   the   Tamil   Nadu   State   Legislative   Assembly.



Large   scale   violence   and   several   attempts   of   booth   capturing



were reported on the day of election.   In respect of the same,



Crime   No.   958   of   2001   was   registered   against   his   opposite



party candidate John Pandian and others for various offences.



Similarly,   Crime   No.   960   of   2001   was   registered   against



Respondent   No.   1   by   one   David   for   various   offences.   John



Pandian was arrested on 10.05.2001 and remanded to judicial



custody.        Respondent   No.   1   filed   an   application   for



anticipatory   bail  being   Crl.   M.P.   No.   6244   of   2001   before   the



Sessions   Court,   Chennai   and   the   same   was   dismissed   on



16.05.2001   stating   that   the   investigation   is   at   an   early   stage



and enlargement would hamper the investigation.



(b)     On   17.05.2001,   Respondent   No.   1   was   arrested   and



remanded   to   judicial   custody.     On   the   same   day,   Muthu



Karuppan-the            appellant         herein         was         appointed         as





                                                                                        2


Commissioner   of   Police,   Greater   Chennai   City   and   assumed



charge.     On   21.05.2001,   Respondent   No.   1   moved   an



application for bail being Crl. M.P. No. 1379 of 2001 before the



XIV Metropolitan Magistrate which was dismissed on the same



day.   On 22.05.2001, Respondent No. 1 moved an application



for bail being Crl. M.P. No. 6277 of 2001 before the Principal



Sessions Court, Chennai mainly on the ground that he has to



attend the Assembly which has commenced on 22.05.2001 to



take   oath   as   MLA.     On   23.05.2001,   Respondent   No.   1   was



granted conditional bail by the Sessions Judge.



(c)     On   24.05.2001,   Rajendra   Kumar,   Inspector   of   Police,



(L&O),   Tamil   Nadu-Respondent   No.   2   herein,   filed   an



application for cancellation of bail being Crl. O.P. No. 9352 of



2001 before the High Court of Madras and sought for stay of



bail   granted   to   Respondent   No.   1   herein.     On   the   same   day,



learned   single   Judge   of   the   High   Court   stayed   the   order   of



grant   of   bail   and   ordered   notice   to   Respondent   No.   1   on   the



ground that the victim, namely, David is in a serious condition



and   the   accused   is   in   police   custody.     On   28.05.2001,   on



receipt   of   the   said   notice,   Respondent   No.   1   filed   a   counter





                                                                                3


affidavit   submitting   that   the   statement   of   Respondent   No.   2



regarding police custody is false.  On 29.05.2001, Respondent



No. 2 filed his reply affidavit admitting that it was a mistake by



oversight and the same is neither willful nor wanton.



(d)     On   30.05.2001,   the   petition   for   cancellation   of   bail   was



dismissed by the High Court holding that no ground was made



out   for   cancellation   of   the   bail.   After   the   order   dated



30.05.2001, Respondent No. 1 filed Contempt Application No.



397   of   2001   before   the   High   Court   stating   that   on   the



direction,   supervision   and   knowledge   of   the   appellant   herein,



Respondent   No.   2   moved   an   application   to   cancel   the   bail



granted   to   him   on   the   basis   of   false   statement   thereby



prevented him from attending the Assembly.  



(e)  On 29.10.2004, the Division Bench of the High Court held



the respondents therein guilty of the offence punishable under



Section 2(c) of the Act and  sentenced them to undergo simple



imprisonment for 7 days under Section 12 of the Act.



(f)     Aggrieved   by   the   judgment   and   order   of   the   High   Court,



appellant herein filed Criminal Appeal No. 1376 of 2004 before



this Court and on 13.12.2004, this Court admitted the appeal





                                                                               4


and   stayed   the   operation   of  the   impugned   order   insofar   as   it



relates  to the appellant.  Respondent  No. 2  also filed Criminal



Appeal No. 1500 of 2004 before this Court and by order dated



05.01.2005, this Court dismissed the appeal on merits holding



that the case of the Commissioner of Police stands entirely on



a different footing.    



3)    Heard   Mr.   A.K.   Ganguli,   learned   senior   counsel   for   the



appellant   and   Mr.   Altaf   Ahmed,   learned   senior   counsel   for



respondent No.1 and Mr. S. Ravi Shankar, learned counsel for



respondent No.2.



4)    Before   going   into   the   correctness   or   otherwise   of   the



impugned order of the Division Bench punishing the appellant



for   the   offence   under   Section   2(c)   of   the   Act   and   sentencing



him   under   Section   12   of   the   Act   to   undergo   simple



imprisonment for 7 days, it is useful to refer the facts leading



to   initiation   of   contempt   proceeding.     It   is   the   grievance   of



Respondent No. 1 that after the grant of bail,  Respondent No.



2  filed a false affidavit in Criminal O.P. No. 9352 of 2001 that



the  police   custody   had  been  ordered  by   the   XIV   Metropolitan



Magistrate on 23.05.2001, based on which, the learned single





                                                                               5


Judge   of   the   High   Court   stayed   the   order   of   grant   of   bail



passed   in   favour   of  Respondent   No.   1.     After   preliminary



examination,   the  Division   Bench,  by   order  dated   20.06.2001,



issued notice to  Respondent No. 2  herein to show cause as to



why contempt proceeding against him should not be initiated



for   having   made   false   statement   with   intent   to   mislead   the



Court.   In   the   same   proceeding,   the   Division   Bench   directed



issuance   of   notice   to   the   Commissioner   of   Police-appellant



herein  as  to  the  averments   of an   elected   MLA  being   in  police



custody   could   not   reasonably   have   been   made  prima   facie



without   the   knowledge   of   the   Commissioner,   more   so,   when



the election had just taken place and the elected member was



required to take oath, but by reason of his detention was being



prevented   from   taking   oath.     In   the   same   paragraph,   it   was



further stated that the extent to which the Commissioner had



knowledge   about   the   filing   of   the   petition   for   cancellation   of



bail, the instructions, if any, he had given in that regard, the



persons   to   whom   such   instructions   had   been   given   and   the



nature   of   instructions   shall   also   be   disclosed   by   the



Commissioner in his affidavit.





                                                                               6


5)     Based  on  the   notice   issued  by   the  Division  Bench  in  its



order dated 20.06.2001, the appellant-Commissioner of Police,



Chennai City, at the relevant time and the second respondent



Inspector   of   Police   (L&O),   Chennai   filed   separate   affidavits



explaining their stand.



6)     In  order   to  understand   the   above   issue,   it  is  relevant  to



refer   Section   2(c)   of   the   Act   which   defines   criminal   contempt



as:



       "(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)      scandalizes   or   tends   to   scandalize,   of   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."



7)     Giving   false   evidence   by   filing   false   affidavit   is   an   evil



which   must   be   effectively   curbed   with   a   strong   hand.



Prosecution should be ordered when it is considered expedient



in   the   interest   of   justice   to   punish   the   delinquent,   but   there



must   be   a  prima   facie  case   of   "deliberate   falsehood"   on   a





                                                                                       7


matter   of   substance   and   the   court   should   be   satisfied   that



there is a reasonable foundation for the charge.



8)    In   a   series   of   decisions,   this   Court   held   that   the



enquiry/contempt proceedings should be initiated by the court



in exceptional circumstances where the court is of the opinion



that   perjury   has   been   committed   by   a   party   deliberately   to



have   some   beneficial   order   from   the   court.     There   must   be



grounds of a nature higher than mere surmise or suspicion for



initiating   such   proceedings.     There   must   be   distinct   evidence



of   the   commission   of   an   offence   by   such   a   person   as   mere



suspicion   cannot   bring   home   the   charge   of   making   false



statement,   more   so,   the   court   has   to   determine   as   on   facts



whether it is expedient in the interest of justice to enquire into



offence which appears to have been committed.



9)    The contempt proceedings being quasi criminal in nature,



burden   and   standard   of   proof   is   the   same   as   required   in



criminal   cases.     The   charges   have   to   be   framed   as   per   the



statutory   rules   framed   for   the   purpose   and   proved   beyond



reasonable doubt keeping in mind that the alleged contemnor



is   entitled   to   the   benefit   of   doubt.     Law   does   not   permit





                                                                             8


imposing   any   punishment   in   contempt   proceedings   on   mere



probabilities,   equally,   the   court   cannot   punish   the   alleged



contemnor without any foundation merely on conjectures and



surmises.   As observed above, the contempt proceeding being



quasi  criminal   in   nature   require   strict   adherence   to   the



procedure   prescribed   under   the   rules   applicable   in   such



proceedings.



10)    In   exercise   of   the   powers   conferred   on   the   High   Court



under Articles 215 and 225 of the Constitution of India and in



terms   of   Section   23   of   the   Act,   the   Madras   High   Court



Contempt of Court Rules, 1975 (in short `the Rules') have been



framed.     The   said   Rules   prescribe   procedure   for   initiating



contempt and various steps to be adhered to.  By drawing our



attention to the Rules, Mr. Ganguli, learned senior counsel for



the   appellant   submitted   that   Rules   4   and   8   have   not   been



complied with.  By emphasizing the principles in paras 12 and



16 of the decision of this Court in  R.S. Sujatha  vs.  State of


Karnataka   &   Ors.,  2010   (12)   Scale   556,   learned   senior


counsel submitted that the contempt proceedings being  quasi



criminal   in   nature   require   strict   adherence   to   the   procedure





                                                                             9


prescribed under the rules applicable to such proceedings.  He



also pointed out that while sending notice, relevant documents



have   not   been   enclosed   and   the   consent   of  Advocate   General



was   not   obtained   for   initiating   contempt   proceedings   against



the   appellant.     Insofar   as   the   documents   referred   to   being



certain   orders   of   the   court,   no   serious   objection   was   taken



note of for not sending the same.




Consent of the Advocate General


11)    The   relevant   provision   which   deals   with   cognizance   of



criminal   contempt   in   other   cases   is   Section   15   of   the   Act



which reads as under:



       "15.  Cognizance   of   criminal   contempt   in   other

       cases.--(1)   In   the   case   of   a   criminal   contempt,   other

       than a contempt referred to in Section 14, the Supreme

       Court   or   the   High   Court   may   take   action   on   its   own

       motion or on a motion made by--

              (a) the Advocate-General, or

              (b) any other person, with the consent in writing to

              the Advocate-General, or

              (c)   in   relation   to   the   High   Court   for   the   Union

              territory of Delhi, such Law Officer as the Central

              Government   may,   by   notification   in   the   Official

              Gazette,   specify   in   this   behalf,   or   any   other

              person,   with   the   consent   in   writing   of   such   Law

              Officer."





                                                                                    10


The   whole   object   of   prescribing   procedural   mode   of   taking



cognizance is to safeguard the valuable time of the Court from



being   wasted   by   frivolous   contempt   petitions.  In  State   of


Kerala  vs.  M.S.   Mani   &   Ors.,  (2001)   8   SCC   82,   this   Court


held   that   the   requirement   of   obtaining   prior   consent   of   the



Advocate   General   in   writing   for   initiating   proceedings   of



criminal   contempt   is   mandatory   and   failure   to   obtain   prior



consent would render the motion non-maintainable.   In case,



a party obtains consent subsequent to filing of the petition, it



would not cure the initial defect and thus, the petition would



not become maintainable.




12)    In  Bal Thackrey  vs.  Harish Pimpalkhute & Anr.,  AIR



2005 SC 396, this Court held that in absence of the consent of



the Advocate General in respect of a criminal contempt filed by



a party under Section 15 of the Act, taking suo motu action for



contempt without a prayer, was not maintainable.




13)    However, in Amicus Curiae vs. Prashant Bhushan and


Anr., (2010) 7 SCC 592, this Court has considered the earlier


judgments and held that in a rare case, even if the cognizance





                                                                           11


is deemed to have been taken in terms of Rule 3(c) of the Rules



to   Regulate   Proceedings   for   Contempt   of   the   Supreme   Court,



1975,   without   the   consent   of   the   Attorney   General   or   the



Solicitor   General,   the   proceedings   must   be   held   to   be



maintainable in view of the fact that the issues involved in the



proceedings had far reaching greater ramifications and impact



on   the   administration   of   justice   and   on   the   justice   delivery



system   and   the   credibility   of   the   court   in   the   eyes  of   general



public.




14)    It   is   clear   from   the   recent   decision   of   this   Court   in


Prashant  Bhushan's  case   (supra)  that   if   the   issue   involved


in the proceedings had greater impact on the administration of



justice   and   on   the   justice   delivery   system,   the   court   is



competent   to   go   into   the   contempt   proceedings   even   without



the consent of the Advocate General as the case may be.




15)    Now,  coming  to the  merits of  the  impugned order  of the



High Court,  contempt   proceeding was initiated  mainly on the



basis of a false statement made on oath by  Respondent No. 2



which resulted in stay of the bail order passed by the Sessions





                                                                                12


Judge,   Chennai   in   favour   of   the  Respondent   No.   1,   and



prevented   him   from   taking   oath   in   the   Assembly.     Inasmuch



as   the   High   Court   has   dealt   with   the   issue   elaborately   on



factual aspects and we also adverted to the same in the earlier



part   of   our   judgment,   there   is   no   need   to   traverse   the   same



once   again.     In   respect   of   violence   on   the   day   of   election,



Respondent   No.   1  was   arrested   and   remanded   to   judicial



custody   on   17.05.2001.     On   the   same   day,   that   is,   on



17.05.2001,  the  appellant was appointed  as  Commissioner of



Police,   Greater   Chennai   City   and   assumed   charge.     On



21.05.2001, Respondent No. 1 moved an application for bail in



Crl.   M.P.   No.   1379   of   2001   before   the   XIV   Metropolitan



Magistrate   which   was   dismissed   on   the   same   day.     On



22.05.2001,  Respondent   No.   1  moved   an   application   for   bail



before   the   Sessions   Judge   in   Crl.   M.P.   No.   6277   of   2001



mainly   on   the   ground   that   as   the   new   Assembly   Session



commences   on   22.05.2001,   he   has   to   take   oath   and   further



the   victim,   namely,   David   has   also   been  discharged  from   the



hospital.     On   23.05.2001,  Respondent   No.   1  was   granted



conditional   bail  by   the   Sessions   Judge   mainly  on  the   ground





                                                                              13


that   he   has   to   take   oath   as   MLA.     It   is   further   seen   that



against grant of bail to  Respondent No. 1, Inspector of Police-



Respondent No. 2 filed an application being Crl. O.P. No. 9352



of 2001 on 24.05.2001 for cancellation of bail with application



for   stay   before   the   High   Court.     On   the   same   day,   vacation



Judge   of   the   High   Court   stayed   the   order   of   grant   of   bail   to



Respondent   No.   1  till   29.05.2001   on   the   ground   that   victim,



namely,   David   is   in   serious   condition   and   the   accused



Respondent   No.   1   is   in   police   custody.     By   pointing   out   that



the information furnished by Respondent No. 2 in his affidavit



filed in support of the application for stay of the order of grant



of bail regarding his police custody is false,  Respondent No. 1



filed a counter affidavit praying for vacation of the stay granted



by the High Court.  On 29.05.2001, Respondent No. 2 filed his



reply   affidavit   submitting   that   on   23.05.2001   application



seeking   police   custody   of   other   8   accused   were   made   and   in



the affidavit filed in support of the petition to cancel the bail,



by   oversight,   it   was   mentioned   that   police   custody   was   also



obtained in respect of the Respondent No. 1.  He also conveyed



to the court that it is a mistake by oversight and the same is





                                                                                 14


neither   willful   nor   wanton.     On   going   through   the   material



placed, the  learned Single Judge,  by order dated 30.05.2001,



dismissed Crl. O.P. No. 9352 of 2001 filed by  Respondent No.



2  to   cancel   the   bail   granted   to   the   first   respondent   by   the



Sessions Judge.



16)    The   Division   Bench,   based   on   the   materials   placed   by



Respondent   Nos.   1   and   2   concluded   that  Respondent   No.   2



has   filed   a   false   affidavit   knowing   well   the   contents   of   the



same are false in order to mislead the court for preventing the



petitioner therein, an MLA, from coming out of the jail thereby



restrained   him   from   attending   the   Assembly.     Though



Respondent No. 2 filed Crl. Appeal No. 1500 of 2004, the same



was dismissed by this Court on 05.01.2005.  While dismissing



the appeal of Respondent No. 2, this Court made the following



observation which is relevant and is reproduced hereunder:



       "Heard learned counsel for the appellant.



       It   has   been   pointed   out   that   the   appeal   filed   by   the

       Commissioner   of   Police   has   been   admitted   by   this

       Court.     In   our   view,   the   case   of   the   Commissioner   of

       Police   stands   entirely   on   a   different   footing.     So   far   as

       the appellant is concerned, we do not find any merit in

       his appeal.



       Accordingly, the appeal is dismissed."





                                                                                        15


17)    The   Division   Bench,   by   the   impugned   order,   proceeded



on   the   fact   that   the   Commissioner   of   Police-appellant   herein



was   aware   of   the   arrest   of  Respondent   No.   1  and   also   of   the



fact that as an elected MLA because of the wrong information



by  Respondent No. 2, the High Court stayed the order of bail



and he was prevented from assuming office as MLA and dealt



with the matter and finally convicted him under Section 2(c) of



the  Act.    It is   the  definite   stand  of  the   appellant  that  he  was



never consulted by the subordinate police officers before filing



of the application for cancellation of bail and he was not aware



of   the   contents   of   the   said   affidavit   and   as   such   he   was   not



responsible.     It   is   also   his   claim   that   when   the   incorrect



statement made in the affidavit filed in support of the petition



was brought to his notice by Mr. Christopher Nelson, Deputy



Commissioner of Police on 28.05.2001, he directed him to give



instruction   to  Respondent   No.   2  to   file   a   proper   affidavit   and



as  such,  he  was  never  a  party  to  the  said   false  affidavit   and,



therefore, he is not liable for contempt.





                                                                                 16


18)    It   is   seen   from   the   written   statement   made   by   the



appellant   before   the   High   Court   that   he   was   informed   about



the   arrest   of   MLA-Respondent   No.   1  and   the   same   has   been



conveyed to the  Speaker as well  as the Chief Secretary.   It is



the   stand   of   the   Division   Bench   that   the   Commissioner   of



Police   must   have   been   informed   by   the   subordinate   Police



Officers not only about the arrest of Respondent No. 1 but also



his release by the Sessions Judge to enable him to inform the



Speaker   and   the   Government.     However,   according   to   the



Division   Bench,   the   Commissioner   did   not   clearly   indicate



either in the counter affidavit or in the written statement that



he was informed about the bail order passed by the Sessions



Judge on 23.05.2001.  The High Court has also referred to the



general powers of the Commissioner of Police with reference to



certain   standing   orders   issued   by   the   Government.     There   is



no dispute that the Commissioner of Police being Head of the



Police Force of the City, if he comes across the arrest/release



of an elected MLA, he is duty bound to inform the Speaker as



well  as  the   Government.    However,  it  is  his  definite  case  and



asserted   that   he   was   not   aware   of   the   information   furnished





                                                                           17


by   Respondent   No.   2   for   cancellation   of   bail   granted   by   the



Sessions   Judge   and   the   ultimate   stay   order   passed   by   the



High Court.



19)    In order to refute the claim of the Commissioner of Police,



the   Division   Bench   heavily   relied   on   the   presence   of   K.



Anthonisamy,   Assistant   Commissioner   of   Police   and   C.



Chandrasekar, Deputy Commissioner of Police in the office of



the   Public   Prosecutor   along   with  Respondent   No.   2  who   filed



an affidavit praying for cancellation of the bail.   It is true that



both   Assistant   Commissioner   of   Police   and   Deputy



Commissioner   of   Police   in   their   respective   affidavits   admitted



their presence in the office of the Public Prosecutor and their



interaction   with   one   Mr.   Raja,   the   then   government   counsel.



It is relevant to refer the information furnished in the form of



an   affidavit   dated   04.04.2003   by   Christopher   Nelson.



According to him, he joined as Deputy Commissioner of Police,



Law   and   Order,   Triplicane,   District   Chennai   City   on



26.05.2001.   He asserted that he was not aware of the details



of   the   case   in   question   prior   to   26.05.2001.     The   last   two





                                                                            18


paragraphs, namely, paras 6 and 7 of his affidavit filed before



the Division Bench are relevant which read thus:



      "6.  I respectfully state that Thiru K. Antony Samy, who

      was   then   Assistant   Commissioner   of   Police,   (Law   &

      Order),   Kilpauk   Range,   Chennai-7   informed   me   on

      28052001,   that   the   aforesaid   Parithi   Ilamvazhuthi   had

      filed   a   counter   affidavit   before   the   Hon'ble   High   Court,

      seeking   to   reject   the   application   of   cancellation   of   bail

      on the ground that some incorrect information was filed

      by  the  first  respondent     I was  further  informed  that  in

      the   affidavit   filed   by   the   first   respondent   seeking

      cancellation   of   bail   on   24.05.2001.     It   has   been   stated

      that   for   granting   police   custody   the   XIV   Metropolitan

      Magistrate   by   his   order   dated   23.052001   had   directed

      that some accused to be produced on 28.052001.



      7     I,   respectfully   submit   that   on   the   very   same   day,   I

      informed   the   commissioner   of   Police,   the   second

      respondent   about   the   allegations   of   mistake   in   the

      affidavit   filed   by   the   investigation   officer,   the   first

      respondent   herein,   I   was   directed   by   the   second

      respondent        herein   to   instruct   the                Assistant

      Commissioner   of   Police   to   file   a   fresh   affidavit,   if

      necessary before the High Court, explaining the alleged

      mistake   in   the   affidavit   filed   by   the   first   respondent

      earlier.       In   compliance   thereof,   I   instructed   Thiru

      Antony   Samy,   the   Assistant   Commissioner   of   Police,

      Law   &   Order,   Kilpauk   Range,   to   see   that   a   proper

      affidavit   is   filed   by   the   inspector   concerned   before   the

      Hon'ble High Court, explaining the circumstances under

      which   alleged   mistake   appeared   in   the   affidavit   filed

      earlier by him.   Accordingly, such an affidavit was filed

      before the Hon'ble High Court on 29.052001."





It   is   clear   at   least   from   para   7   that   when   the   information



relating   to   making   wrong   statement   at   the   instance   of



Respondent   No.   2          was   brought   to   the   notice   of   the




                                                                                      19


Commissioner of Police, he directed the Deputy Commissioner



of Police to instruct the Assistant Commissioner of Police and



Inspector of Police to file fresh affidavit explaining the alleged



mistake in the affidavit filed by Respondent No. 2 earlier.  It is



also   seen   that   pursuant   to   the   said   direction   of   the



Commissioner   of   Police,   the   Deputy   Commissioner   of   Police



instructed   one   K.   Anthonisamy,   Assistant   Commissioner   of



Police   to   see   that   proper   affidavit   is   filed   by   the   Inspector



concerned before the High Court explaining the circumstances



under   which   the   mistake   appeared   in   the   affidavit   filed   on



earlier occasion.  Pursuant to the notice by the Division Bench



of the High Court, C. Chandrasekar, Deputy Commissioner of



Police at Triplicane also filed an affidavit to the effect that after



knowing   the   grant   of   bail   by   the   Principal   Sessions   Judge,



Chennai   releasing         Respondent   No.   1         after   considering



seriousness   of   the   case   and   after   discussion   with   "superior



officers"   it   has   been   decided   to   move   an   application   for



cancellation of the bail in the High Court.  The Division Bench



relying   on   the   statement   of   the   above   officer   concluded   that



the Commissioner  of Police was consulted and it was he who





                                                                              20


instructed   the   subordinate   Police   Officers   to   move   an



application   for   stay   of   grant   of   bail.     Though   in   para   4,   the



deponent   of   the   affidavit,   namely,   C.   Chandrasekar   has



mentioned   that   "after   discussion   with   superior   officers"   it   is



not clear whether he consulted the Commissioner of Police i.e.



appellant herein on the relevant issue.



20)    K. Anthonisamy, Deputy Commissioner of Police, CBCID,



Chennai   Range   who   was   working   as   an   Assistant



Commissioner   of   Police   at   Kilpauk   Chennai   during   the



relevant period also swore an affidavit on 24.09.2004.  In para



4,   he   also   mentioned   that   after   discussion   with   "superior



officers"   and   on   instructions,   it   was   decided   to   file   an



application   for   cancellation   of   bail   in   the   High   Court.     Here



again,   the   Division   Bench   has   concluded   that   the



Commissioner   of   Police   ought   to   have   been   consulted   by   the



Assistant Commissioner of Police and only with his knowledge



petition was filed for cancellation of bail.   The above averment



in  para  4  merely  mentions  discussion  with  "superior  officers"



and   there   is   no   specific   reference   to   the   Commissioner   of



Police who is the Head of the Police Force in the Chennai City.





                                                                                 21


In the same way, in para 5 also, the deponent of the affidavit



has mentioned that after the grant of stay by the High Court,



he   intimated   the   development   to   his   superior   officers.     Here



again,  he  has  not specifically  informed  the   court  that he  had



intimated   to   the   Commissioner   of   Police.     Like   Mr.   Nelson,



Deputy   Commissioner   of   Police,   he   also   informed   the   court



that on coming to know the discrepancy in the affidavit dated



24.05.2001   filed   by   the   Inspector   of   Police   for   cancellation   of



the   bail,   he   was   directed   by   the   Commissioner   of   Police   to



rectify the discrepancy immediately.   Accordingly,  Respondent



No.   2  filed   the   reply   affidavit   narrating   all   the   facts   on



29.05.2001.



21)    The   analysis   of   affidavits   of   the   Inspector   of   Police,



Assistant   Commissioner   and   Deputy   Commissioner   of   Police



show   that   there   is   no   acceptable   material   that   the   affidavit



containing   wrong   information   filed   by  Respondent   No.   2  for



cancellation   of   bail   and   stay   of   bail   order   was   made   at   the



instance   of   the   Commissioner   of   Police.     We   have   already



pointed   out   that   the   appellant   has   assumed   charge   as   the



Commissioner of Police only on 17.05.2001 i.e. after formation





                                                                              22


of the new government.  The violence in respect of election that



took place on 10.05.2001, particularly, the incident relating to



Respondent No. 1  was one week before his taking over charge



as Commissioner of Police.   It is brought to our notice that at



the relevant time i.e. in 2001, the office of the Commissioner of



Police   was   headed   by   him   and   there   were   4   Joint



Commisioners   of   Police,   15   Deputy   Commissioners   of   Police,



64   Assistant   Commissioners   of   Police   besides   235   Inspectors



of Police including SHOs of 83 Police Stations, 6 out posts and



under whom there were 803 Sub-Inspectors of police and Spl.



Sub-Inspectors   and   9665   Head   Constables   and   Police



Constables.  It is further brought to our notice that the City of



Chennai   is   divided  into  six   districts   and   each   one   of   them   is



headed   by   Deputy   Commissioner   of   Police   of   the   rank   of



Superintendent   of   Police.     It   is   also   clear   that   when   the



information about mentioning wrong statement in the affidavit



filed by  Respondent No. 2  against the grant of bail order was



brought   to   the   notice   of   the   appellant   on   28.05.2001   by



Deputy   Commissioner   of   Police,   namely,   Christopher   Nelson,



the   appellant   herein   immediately   asked   him   to   direct





                                                                              23


Respondent No.2 to file proper affidavit before the High Court



and clarify the matter by placing proper facts.   It is also clear



from   the   affidavit   of   the   government   counsel   E.   Raja   that   he



himself   drafted   the   affidavit   purely   on   the   instructions   of



Respondent   No.   2   and   that  the   appellant   herein   had   no



personal knowledge nor did he instruct the counsel to prepare



affidavit   or   petition   to   move   for   cancellation   of   the   bail.     As



rightly pointed out by Mr. Ganguli, learned senior counsel for



the appellant, in the later part of the order dated 20.06.2001,



the then Division Bench ordered notice to the Commissioner of



Police (the appellant herein) seeking an explanation about the



serious   allegations   made   by  Respondent   No.   1  in   para   12   of



the   contempt   petition.     Pursuant   to   the   same,   the   appellant



filed   counter   affidavit   setting   out   hierarchy   of   officials



functioning   under   the   Commissioner   of   Police,   Greater



Chennai   City,   the   circumstances   under   which   he   was



informed about the incorrect affidavit filed by  Respondent No.



2  in the case and the directions issued by him to correct  the



mistake in the proceedings relating to the cancellation of bail



of  Respondent   No.   1.     We   have   already   pointed   out   that   the





                                                                                 24


author   of   the   affidavit,   namely,  Respondent   No.   2  has   not



stated that it was filed under the instructions of the appellant



herein, in fact,  this  fact was accepted  by  the  Division Bench.



As  a  matter   of fact,  Respondent   No.  2  has  specifically   denied



the allegation that the application for cancellation of bail was



moved  under  the direction,  supervision  and knowledge of the



appellant.     The   two   officers,   namely,   Assistant   Commissioner



of   Police   and   Deputy   Commissioner   of   Police   without



specifying   the   name   of   Commissioner   of   Police   have   merely



mentioned   that   they   had   consulted   their   "superior   officers"



before filing the application for cancellation of bail.



22)    Apart from specific information in the form of an affidavit



highlighting   his   stand   before   the   Division   Bench   which   dealt



with   the   contempt   petition,   the   appellant   had   also   tendered



unconditional   apology   which   was   not   even   referred   to   before



passing   orders   sentencing   the   appellant   herein   to



imprisonment.     When   a   city   like   Chennai   is   managed   by



several police officers from the level of police constable to the



Commissioner   of   Police,   in   the   absence   of   specific   reference



about   consultation   with   the   Commissioner   of   Police   or





                                                                          25


direction   to the  two  officers,  namely,  Assistant  Commissioner



of   Police   and   Deputy   Commissioner   of   Police   merely   because



both   of   them   attended   the   office   of   the   Public   Prosecutor   for



preparation of an application for cancellation of bail based on



the affidavit of the Inspector of Police, it cannot be presumed



and   concluded   that   the   appellant   was   responsible   for   giving



incorrect   information   by  Respondent   No.   2  before   the   High



Court.



23)     We   have   already   pointed   out   that   while   dealing   with



criminal   contempt   in   terms   of   Section   2(c)   of   the   Act,   strict



procedures   are   to   be   adhered.   In   a   series   of   decisions,   this



Court   has   held   that   jurisdiction   to   initiate   proceedings   for



contempt   as   also   the   jurisdiction   to   punish   for   contempt   are



discretionary with the court.  Contempt generally and criminal



contempt   certainly   is   a   matter   between   the   court   and   the



alleged contemnor.   No one can compel or demand as of right



initiation   of   proceedings   for   contempt.     The   person   filing   an



application   or   petition   before   the   court   does   not   become   a



complainant   or   petitioner   in   the   proceedings.     He   is   just   an



informer   or   relator.     His   duty   ends   with   the   facts   being





                                                                              26


brought to the notice of the court.  It is thereafter for the court



to act on such information or not. [Vide Om Prakash Jaiswal



vs.  D.K. Mittal, (2000) 3 SCC 171]   Further Section 15 of the



Act as well as the Madras High Court Contempt of Court Rules



insist   that,   particularly,   for   initiation   of   criminal   contempt,



consent   of   the   Advocate   General   is   required.     Any   deviation



from the prescribed Rules should not be accepted or condoned



lightly   and   must   be   deemed   to   be   fatal   to   the   proceedings



taken to initiate action for contempt.   In the present case, the



above   provisions   have   not   been   strictly   adhered   to   and   even



the notice issued by the then Division Bench merely sought for



explanation from the appellant about the allegations made by



Respondent No. 1.



24)    We have already noted that Rajendra Kumar, Inspector of



Police, (L&O), G-1, Vepery Police Station, Chennai-7 who made



an   incorrect/false   statement   for  cancellation  of  bail  has  been



rightly punished by the Division Bench of the High Court and



this   Court   affirmed   the   same   by   dismissing   his   special   leave



petition.





                                                                            27


25)    In view of the above discussion and conclusion, the order



of the High Court  convicting the appellant  under  Section  2(c)



of   the   Act   and   sentencing   him   under   Section   12   to   undergo



simple imprisonment for seven days is set aside.  The appeal is



allowed.                        



                                                              



                                        .................................................J.

                                      (P. SATHASIVAM)

                                                          

                                      





                                       ...............................................J.

                                       (H.L. GOKHALE)

NEW DELHI;

APRIL 15, 2011.            





                                                                           28