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Saturday, August 2, 2014

Contempt of court - Giriraj Kishore 96 years- not in a position to respond to the query because of hearing impairment and feeble mental condition. - Apex court held that We are also not oblivious of the fact that the Court was not satisfied prima facie with the initial response filed by contemner No. 3, Giriraj Kishore and ordered on 06.05.1994 to initiate the contempt proceedings against respondent Nos. 1 to 3. But, the fact of the matter is that despite the order passed on 06.05.1994, the notice accompanied by charges on contemner No. 3 has not been served so far. In this view of the matter, at this distance of time, when the subject matter remained dormant for almost two decades and now contemner No.3 is 96 years and he is not able to respond to the charges due to old age and illness, we do not think that this is a fit case where we should deal with the matter further. - closed the contempt case = CONTEMPT PETITION (CRL.) NO. 2 OF 1994 Rajeev Dhawan …… Petitioner Vs. Gulshan Kumar Mahajan & Ors. …… Respondents = 2014 July. Part – http://judis.nic.in/supremecourt/filename=41785

      Contempt of court -  Giriraj Kishore 96  years- not in a position to respond  to  the
query because of hearing impairment and feeble mental condition. - Apex court held that We are also not oblivious of the  fact  that  the  Court was not satisfied prima facie with the initial response filed  by  contemner No. 3, Giriraj Kishore and ordered on 06.05.1994 to  initiate  the  contempt proceedings against respondent Nos. 1 to 3.  But, the fact of the matter  is that despite the order passed  on  06.05.1994,  the  notice  accompanied  by charges on contemner No. 3 has not been served so far.  In this view of  the matter, at this distance of time, when the subject matter  remained  dormant for almost two decades and now contemner No.3 is 96  years  and  he  is  not able to respond to the charges due to old age and illness, we do  not  think that this is a fit case where we should deal with the matter further.  - closed the contempt case =

On 26.03.2014, contemner No.3, Giriraj Kishore was  brought
to the Court on wheel chair by his attendant.
 Learned  senior  counsel  for
the  contemner  No.3  reiterated  that  notice   for   personal   appearance
accompanied by charges as directed by the Court on 06.05.1994 has  not  been
served on the contemner.
He also submitted that contemner No.3 is 96  years
and is not able to respond due to severe physical and mental  illness.  
The
attendant accompanying contemner No.3, Giriraj Kishore, on the query of  the
Court, informed that contemner No.3 is not in a position to respond  to  the
query because of hearing impairment and feeble mental condition.
11.         One thing is clear from the record that the notice for  personal
appearance accompanied by charges as directed by this  Court  in  the  order
dated 06.05.1994, after cognizance of  contempt  was  taken,  has  not  been
served on contemner No.3 so far.
 In a situation such as this, the  question
that arises immediately for our consideration is, whether the  Court  should
direct the service of notice accompanied by charges now.
Dr. Rajeev  Dhawan
vehemently contended that the backdrop to these cases is the destruction  of
the Babri Masjid on 06.12.1992.  According to  him,  this  had  resulted  in
injury to the secular fabric of India.
He submitted that tension  persisted
as the Vishwa Hindu Parishad held a Sansad on 03-04.04.1994  while  hearings
were taking place before this Court.  
Contemner  No.  3  made  contemptuous
statements about the Court at that  time  and,  therefore,  matter  of  this
gravity should not be left undecided.
12.         We appreciate the gravity of the subject matter  highlighted  by
Dr. Rajeev Dhawan.
We are also not oblivious of the  fact  that  the  Court
was not satisfied prima facie with the initial response filed  by  contemner
No. 3, Giriraj Kishore and ordered on 06.05.1994 to  initiate  the  contempt
proceedings against respondent Nos. 1 to 3.
But, the fact of the matter  is
that despite the order passed  on  06.05.1994,  the  notice  accompanied  by
charges on contemner No. 3 has not been served so far.  
In this view of  the
matter, at this distance of time, when the subject matter  remained  dormant
for almost two decades and now contemner No.3 is 96  years  and  he  is  not
able to respond to the charges due to old age and illness, we do  not  think
that this is a fit case where we should deal with the matter further.
 Now,
since contempt proceedings  are  not  being  pursued  further  to  find  out
criminality against the author  (contemner  No.3)  who  made  the  offending
statements, we are of the view that contempt matter does not deserve  to  be
pursued as against contemner Nos. 1 and 2 as well.
 The contemner Nos.1  and
2 have also tendered unconditional apology.   Insofar as contemner Nos.4  to
6 are concerned,  the  Court  has  not  yet  taken  cognizance  of  criminal
complaint against them.
In what has been said above, we think the  contempt
matters deserve to be closed.  We order accordingly.

2014 July. Part – http://judis.nic.in/supremecourt/filename=41785

CHIEF JUSTICE, ANIL R. DAVE, SUDHANSU JYOTI MUKHOPADHAYA, DIPAK MISRA, SHIVA KIRTI SINGH
                                                 REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL ORIGINAL JURISDICTION

                   CONTEMPT PETITION (CRL.) NO. 2 OF 1994



Rajeev Dhawan                                              ……  Petitioner

                   Vs.

Gulshan Kumar Mahajan & Ors.                         ……  Respondents

                                    WITH


                   CONTEMPT PETITION (CRL.) NO. 4A OF 1994




                                  JUDGMENT

R.M. LODHA, CJI.

            As a result of the  incidents  at  Ayodhya  on  06.12.1992,  the
President  of  India  issued  a  Proclamation  under  Article  356  of   the
Constitution  of  India  assuming  to  himself  all  the  functions  of  the
Government of Uttar Pradesh, dissolving the U.P. Vidhan  Sabha.   Initially,
the Acquisition of Certain Area at Ayodhya Ordinance, 1993  (No.8  of  1993)
was promulgated.  The said Ordinance was later on  replaced  by  Acquisition
of Certain Area at Ayodhya Act, 1993 (No.33 of 1993) (for short,  ‘the  1993
Act’).  On the same day, i.e. on 07.01.1993, when  Act  No.33  of  1993  was
enacted, Special Reference (being Special Reference No.1 of 1993)  was  made
to this Court by the President  of  India  under  Article  143  (1)  of  the
Constitution of India.  The constitutional validity of the 1993 Act and  the
maintainability of the Special Reference No.1 of 1993  were  being  examined
by the Constitution Bench of this Court.  It  is  alleged  that  the  Vishwa
Hindu Parishad (VHP), which was banned at that time, held Dharam  Sansad  in
the first week of April, 1994 and after the  Dharam  Sansad  was  over,  its
President, Vishnu Hari Dalmia and Joint General Secretary,  Giriraj  Kishore
made certain  derogatory  statements  concerning  this  Court  in  the  news
conference.  The statements to the media made  by  Vishnu  Hari  Dalmia  and
Giriraj  Kishore  were  published  in  Indian  Express  in  its  edition  of
10.04.1994.  Dr. Rajeev Dhawan, designated Senior  Advocate  filed  Contempt
Petition (Crl.) before this Court against Vishnu  Hari  Dalmia  and  Giriraj
Kishore, President and Joint General Secretary of the Vishwa Hindu  Parishad
and Indian Express by invoking the jurisdiction of this Court under  Article
129 of the Constitution of India.  It is averred that  the  statements  made
by Vishnu Hari Dalmia and Giriraj Kishore and published  in  Indian  Express
were malicious and tantamount to scandalizing this Court  and  lowering  its
authority.   In  the  contempt  petition,  the  petitioner  had  drawn   the
attention to the following extracts from Indian Express news report:
"VHP warns SC not to 'exceed limits'

"Addressing to media  persons  here  on  Saturday  Vishnu  Hari  Dalmia  and
Giriraj Kishore VHP  President  and  joint  general  Secretary  respectively
assailed the apex Court  for  attempting  to  "arrogate  the  power  of  the
executive.”
"The Ayodhya issue had so far eluded a solution only because  of  the  delay
in pronouncing the judgment." "Justice delayed is justice denied"
"The judiciary has no  jurisdiction  over  the  Ram  Janam  Bhoomi  "Kishore
cautioned the court not to overstep its limits"
" He (Kishore) remarked  that  the  Supreme  Court  had  lost  its  prestige
because of the delay in adjudicating the Ayodhya dispute".

      The above report in Indian  Express  is  attributed  to  Express  News
Service.
2.          It is also averred that Giriraj Kishore also  gave  a  statement
in Khabardar India (11-17 April, 1994) that the  Government  influences  the
Court and quotes an anonymous Minister to have said, he  has  the  Court  in
one pocket and leaders in another.  The contempt petition also  states  that
the news item in the Indian Express constitutes a  gross  criminal  contempt
for which the authors of the  statement,  namely,  Vishnu  Hari  Dalmia  and
Giriraj Kishore, the  Editor  and  Publisher  of  the  Indian  Express,  the
persons in-charge of  the  Express  News  Service  and  the  reporters,  are
answerable to this Court.
3.          On 12.04.1994, upon motion  by  Dr.  Rajeev  Dhawan  before  the
Constitution  Bench  presided  over  by  the  Chief  Justice,  the  Contempt
Petition was taken on board.  The Constitution Bench, on  that  day,  passed
the following order:

      “This application is moved by Dr. Rajeev Dhawan,  a  learned  advocate
drawing attention of the Court  to  certain  statements  attributed  to  Sri
Giriraj Kishore published in the newspaper Indian  Express  of  10th  April,
1994 and in the Periodical styled "Khabardar India" of 11-17th April,  1994,
which, it is contended, tend to lower the image of the Court in the mind  of
the public and constitute an affront to the dignity and  authority  of  this
Court.

      The utterances of Sri  Giriraj  Kishore,  if  true,  might  amount  to
criminal contempt.

      In the first instance  we  direct  issue  of  notice  to  Sri  Giriraj
Kishore and to the Editor, Printer, Publisher  as well as  the  Reporter  of
the particular news item of the said    issue of Indian Express.

      For the present we defer initiation of proceedings against Sri  Vishnu
Hari Dalmia against whom also the petitioner  seeks  action.  That  will  be
considered after the returns are  filed  by  Sri  Giriraj  Kishore  and  the
Editor, Printer, Publisher and reporter of the Newspaper.

      So far as the second publication, viz. "Khabardar India"  referred  to
in Annexure-II to the petition is concerned, Dr. Dhawan has  not  been  able
to furnish the names or addresses of the Editor, Printer, Publisher and  the
reporter  of  the  publication,  as,  according  to  the  submission,  these
particulars are not discernable  from  the  publication.  Dr.  Dhawan  shall
furnish these particulars after which notices will go to them.

      However, in regard to the statement in Annexure-II attributed  to  Sri
Giriraj Kishore, he will file his return. After the returns  are  filed  the
question whether the Court  will  initiate  suo  motu  contempt  proceedings
shall be considered. Notices are returnable by 26th April, 1994.”

4.          On 13.04.1994, the petitioner Dr. Rajeev  Dhawan  filed  a  memo
setting out the names and addresses of the editor, printer and publisher  of
the periodical “Khabardar India”.  The cause title of the contempt  petition
was amended and the following were impleaded  as  contemners:   (1)  Gulshan
Kumar Mahajan, Owner, Publisher, Printer and Editor of Khabardar India,  (2)
Pradeep Thakur, Reporter, Khabardar India, (3) Giriraj Kishore,  (4)  Prabhu
Chawla, Editor, Indian  Express  (5)  V.K.  Kapur,  Printer  and  Publisher,
Indian Express and (6) Bhaskar Roy, Reporter, Express News Service.
5.          On 13.04.1994, the Court issued notice to  show  cause  (but  no
cognizance was taken on that date) to the  editor,  printer,  publisher  and
reporter of  Khabardar  India  as  well  making  the  notice  returnable  on
26.04.1994.
6.          On 26.04.1994, the Court noted that  all  six  respondents  were
served. On behalf of respondent Nos.4, 5  and  6,  counter  affidavits  were
filed, which were taken on record.  The counsel for respondent Nos.1  and  2
and so also counsel for respondent No.3 sought time, which  was  granted  to
file their counter affidavits.  In the  course  of  proceedings  before  the
Constitution Bench on 26.04.1994, Dr. Rajeev Dhawan sought to bring  to  the
notice of the Court that even after notices were served on respondent  No.3,
he had continued to make  provocatory  utterances  holding  the  process  of
Court to contempt.  He referred  to  certain  newspaper  publications.   The
Court observed that after respondent No.3 had filed his  counter  affidavit,
it would be open to the petitioner to  place  on  record  any  statement  or
conduct attributable to respondent No.3.   The  matter  was  then  kept  for
06.05.1994.
7.          On 06.05.1994, the Court took suo motu  cognizance  of  criminal
contempt against respondent No.1, Gulshan Kumar Mahajan,  owner,  publisher,
printer and editor of “Khabardar India”, respondent  No.2,  Pradeep  Thakur,
Reporter, “Khabardar India” and respondent No.3 Giriraj Kishore.  The  Court
directed that appropriate notices in the prescribed form shall be served  on
the three contemners by the Registry, fixing the  date  for  their  personal
appearance in Court.  Shri Dipankar P. Gupta, learned Solicitor General  (as
he then was) was  requested  to  assist  the  Court  as  prosecutor  in  the
proceedings for criminal contempt.  The Court directed that before issue  of
the notice accompanied by the charges, the Registry  will  have  the  matter
shown to the Prosecutor (Solicitor General).  Insofar as, respondents  4,  5
and  6  are  concerned,  the  Court  kept  the  question   for   examination
separately.  The order of 06.05.1994 reads as under:
      "We have heard learned counsel for  the  persons  to  whom  show-cause
notices had been ordered as to why proceedings of criminal  contempt  should
not be initiated against them on the Court’s own motion.

      We have perused the counter-affidavits filed by them.

       On  a  consideration,  we  find  at  the  outset  that  there  is  no
justification for issue of any show-cause notice or  initiating  proceedings
against Sri Vishnu Hari Dalmia.  The proceedings as against Sri Vishnu  Hari
Dalmia are dropped.

      Suo motu proceedings for criminal contempt of Court  are  directed  to
be initiated against the first-accused, Sri Gulshan  Kumar  Mahajan,  Owner,
Publisher, Printer &  Editor  of  “Khabardar  India”,  against  the  second-
accused, Sri Pradeep Thakur, Reporter, “Khabardar  India”;  and  the  third-
accused, Sri Giriraj Kishore.

      Appropriate notices in the prescribed form shall be served on them  by
the Registry, fixing the date for their personal appearance in Court.

      Sri Dipankar P. Gupta, learned  Solicitor  General,  is  requested  to
assist the Court as Prosecutor in the proceedings for criminal contempt.

      Before issue of the notices accompanied by the charges,  the  Registry
will have the matter shown to the Prosecutor.

      So far as Respondent Nos.4,  5  &  6  are  concerned,  we  propose  to
examine the question whether in the interest of maintaining  an  appropriate
balance  between  the  fundamental  right  under  Article  19(1)(a)  of  the
Constitution on the one hand, and the need  to  protect  the  authority  and
dignity  of  courts  on  the  other,  the  Court  should  initiate   similar
proceedings  for  criminal  contempt  against  respondents  4,   5   and   6
particularly in the light of the fact that  these  respondents  had  carried
the publication pertaining to the Press-interview  of  accused  No.  3,  Sri
Giriraj Kishore in the newspaper along with a comment on the impropriety  of
such utterances   and  statements,   followed-up  by  an  Editorial  in  the
Newspaper  condemning  such  conduct.  This   aspect   shall   be   examined
separately.”


8.          The  matters  remained  dormant  for  almost  two  decades.   On
25.03.2014, when the matters were called  by  the  Constitution  Bench,  Mr.
Pallav  Sisodia,  learned  senior  counsel  appearing  for  contemner  No.3,
Giriraj Kishore submitted that notices for personal  appearance  accompanied
by charges, as directed by the Court are not yet served  on  the  contemner.
In light of this, the  Constitution  Bench  sought  clarification  from  the
office regarding service on the contemners and  also  directed  advocate  on
record for contemner No.3 to keep present Giriraj Kishore in  the  Court  on
the next day, i.e., 26.03.2014.
9.           In  compliance  of  the  order  dated  25.03.2014,  the  office
submitted its report on 26.03.2014 which reads as follows:
      “It is submitted that in pursuance of Hon’ble  Court’s  order    dated
6.5.1994 notices to the Contemnors i.e.  Pradeep     Thakur  (R-2),  Giriraj
Kishore (R-3), and Gulshan Kumar  Mahajan (R-1) were issued on 20.6.1994  to
appear in person       before the Hon’ble Court on 8th  August,  1994.   The
copy of the said notices were also sent  to   the    counsel     for     the
contemnors  which were acknowledged  by  the  counsel  for  the  contemnors.
However, no AD Cards in respect of the notices sent to the  contemnors  have
been received.

      It  is  further  submitted  that  the  matters  mentioned  above  were
not to be listed on 8th August, 1994 so the notices were again      sent  on
6.8.1994 to the contemnors with its copy to the counsel for  the  contemnors
through Registered  A/D  cover.    The  said  notices  were  served  on  the
contemnor No.1 on      8.8.94, contemnor no.2 on 8.8.94 and  contemnor  no.3
on    12.8.94.”

10.              On 26.03.2014, contemner No.3, Giriraj Kishore was  brought
to the Court on wheel chair by his attendant.  Learned  senior  counsel  for
the  contemner  No.3  reiterated  that  notice   for   personal   appearance
accompanied by charges as directed by the Court on 06.05.1994 has  not  been
served on the contemner.  He also submitted that contemner No.3 is 96  years
and is not able to respond due to severe physical and mental  illness.   The
attendant accompanying contemner No.3, Giriraj Kishore, on the query of  the
Court, informed that contemner No.3 is not in a position to respond  to  the
query because of hearing impairment and feeble mental condition.
11.         One thing is clear from the record that the notice for  personal
appearance accompanied by charges as directed by this  Court  in  the  order
dated 06.05.1994, after cognizance of  contempt  was  taken,  has  not  been
served on contemner No.3 so far.  In a situation such as this, the  question
that arises immediately for our consideration is, whether the  Court  should
direct the service of notice accompanied by charges now.  Dr. Rajeev  Dhawan
vehemently contended that the backdrop to these cases is the destruction  of
the Babri Masjid on 06.12.1992.  According to  him,  this  had  resulted  in
injury to the secular fabric of India.  He submitted that tension  persisted
as the Vishwa Hindu Parishad held a Sansad on 03-04.04.1994  while  hearings
were taking place before this Court.   Contemner  No.  3  made  contemptuous
statements about the Court at that  time  and,  therefore,  matter  of  this
gravity should not be left undecided.
12.         We appreciate the gravity of the subject matter  highlighted  by
Dr. Rajeev Dhawan.  We are also not oblivious of the  fact  that  the  Court
was not satisfied prima facie with the initial response filed  by  contemner
No. 3, Giriraj Kishore and ordered on 06.05.1994 to  initiate  the  contempt
proceedings against respondent Nos. 1 to 3.  But, the fact of the matter  is
that despite the order passed  on  06.05.1994,  the  notice  accompanied  by
charges on contemner No. 3 has not been served so far.  In this view of  the
matter, at this distance of time, when the subject matter  remained  dormant
for almost two decades and now contemner No.3 is 96  years  and  he  is  not
able to respond to the charges due to old age and illness, we do  not  think
that this is a fit case where we should deal with the matter further.   Now,
since contempt proceedings  are  not  being  pursued  further  to  find  out
criminality against the author  (contemner  No.3)  who  made  the  offending
statements, we are of the view that contempt matter does not deserve  to  be
pursued as against contemner Nos. 1 and 2 as well.  The contemner Nos.1  and
2 have also tendered unconditional apology.   Insofar as contemner Nos.4  to
6 are concerned,  the  Court  has  not  yet  taken  cognizance  of  criminal
complaint against them.  In what has been said above, we think the  contempt
matters deserve to be closed.  We order accordingly.
       ….………..……………………CJI.
(R.M. Lodha)


       …….………..……………………J.
(Anil R. Dave)


                 …….………..……………………J.                     (Sudhansu      Jyoti
Mukhopadhaya)


       …….………..……………………J.
(Dipak Misra)


NEW DELHI;                          …….………..……………………J.
JULY 23, 2014.   (Shiva Kirti Singh)

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