It is true that the doctrine does not confer any title on the person who took possession of the property in part performance of a written contract of sale, but it affords protection to the person against the transferor or any person claiming under him. In the instant case, admittedly, the plaintiff obtained possession of the schedule mentioned land in part performance of Ex.A.1- agreement to sell, dated 30.7.1985. Merely because the suit for specific performance of contract is barred by limitation, it cannot be said that he has not been ready and willing to perform his part of contract. The very fact that he paid the entire sale consideration indicates that there was nothing remained to be performed on his part. The plaintiff has not only a right to defend his possession in an action brought by the transferor or any person claiming under him, he can also institute a suit for injunction for the purpose of protecting his possession. The trial court, therefore, obviously in error in holding that since the r

THE HON'BLE SRI JUSTICE R.KANTHA RAO      
S.A.NO.368 OF 2006 AND S.A.NO.369 OF 2006    

29-03-2011

Kuruvakotapaty Chinna Linganna

Alla Mallikarjuna Reddy and others

Counsel for the Appellant: Sri K.Rathanga Pani Reddy

Counsel for the Respondent :Sri G.Ramachandra Reddy  

:COMMON JUDGMENT:      


        S.A.No.368 of 2006 is filed against the decree and judgment dated
02.01.2006 passed in A.S.No.7 of 2004 by the V Additional District Judge, (Fast
Tract Court), Kurnool at Nandyal whereby and whereunder the learned V Additional
District Judge reversed the decree and judgment dated 26.12.2003  passed by the
Principal Junior Civil Judge, Nandyal in O.S.No.154 of 1998.

        S.A.No.369 of 2006 is filed against the decree and judgment dated
02.01.2006 passed in A.S.No.6 of 2004 by the V Additional District Judge, (Fast
Tract Court), Kurnool at Nandyal whereby and whereunder the learned V Additional
District Judge reversed the decree and judgment dated 26.12.2003 passed by the
Principal Junior Civil Judge, Nandyal in O.S.No.136 of 1998.
        These two appeals are between the same parties. The subject matter of
dispute being the same and the substantial questions of law that arise for
consideration in these second appeals being the same, both these appeals are
disposed of by the following common judgment.
        I have heard Sri K.Rathangapani Reddy, learned counsel appearing for the
appellants in both the appeals and Sri G.Ramachandra Reddy, learned counsel
appearing for the respondents in both the appeals.
        O.S.No.136 of 1998 is filed for the relief of permanent injunction in
respect of the land of an extent of Ac.1.52 cents in Survey No.195 of Peda
Davalam Village, Bandi Atmakur Mandal, locally known as Vegula chenu,
hereinafter will be referred to as 'the schedule mentioned land', against the
defendants 1, 2 and 4 and subsequently, he filed O.S.No.154 of 1998 seeking the
relief of specific performance of agreement to sell dated 30.07.1985 against the
defendants 1 to 4.
        The learned trial Court tried both the suits jointly, recorded evidence in
O.S.No.136 of 1998 and delivered common judgment referring the parties as
plaintiff and defendants, as arrayed in O.S.No.154 of 1998.  For the sake of
convenience, I would like to refer the parties in the same fashion.
        The brief facts relevant for considering the substantial questions of law
involved in these second appeals are stated as follows:
        The plaintiff purchased the schedule mentioned land under an agreement to
sell dated 30.07.1985 from the defendants 1 and 2, who executed the agreement to
sell in his favour by receiving the entire sale consideration on the same day.
The plaintiff was put in possession of the schedule mentioned land under Ex.A.1-
agreement to sell dated 30.07.1985.  According to the plaintiff, Sri Karimaddela
Sivalingam, 4th defendant, having colluded with the defendants 1 and 2 tried to
trespass in to the schedule mentioned land, then he filed O.S.No.136 of 1998
seeking the relief of permanent injunction against the defendants 1, 2 and 4.
Subsequently, he also filed O.S.No.154 of 1998 seeking specific performance of
contract in terms of Ex.A.1-agreement to sell, dated 30.07.1985 against the
defendants 1 to 4. Both the suits are based on Ex.A.1-agreement to sell, dated
30.07.1985 said to have been executed by the defendants 1 and 2.
        Before the trial Court, PWs.1   to 3 were examined and Exs.A.1 to 15 were
marked on behalf of the plaintiff.  Whereas, DWs.1 to 4 were examined and
Exs.B.1 to 19 were marked on behalf of the defendants.
        The learned Principal Junior Civil Judge, Nandyal, decreed both the suits
granting relief of specific performance in O.S.No.154 of 1998 and also granting
the relief of permanent injunction in O.S.No.136 of 1998 against the defendants.
In both the suits, the first defendant remained
ex parte. The learned trial Court basing on the evidence of PW.1-plaintiff,
PW.2-scribe of Ex.A.1-agreement to sell, dated 30.07.1985, PW.3-attestor of
Ex.A.1 held that Ex.A.1-agreement to sell, dated 30.07.1985 is proved by the
plaintiff and that the plaintiff was put in possession of the schedule mentioned
land under the said agreement by the defendants 1 and 2 after receiving entire
sale consideration.  The learned trial Court as well as the first appellate
Court, concurrently held that Ex.A.1-agreement to sell, dated 30.07.1985 is true
and valid.  The theory put-forth by the second defendant was rejected by both
the Courts below. Subsequently, the defendants 1 and 2 executed Ex.B.19-
registered sale deed, dated 30.03.1998 in favour of the 4th defendant in respect
of the suit land.  It was contended by the defendants before the trial Court
that Ex.B.3-legal notice dated 13.12.1993 sent by the defendants was received by
the plaintiff which is evident from Ex.B.5-acknowledgment and the plaintiff
filed the suit seeking the relief of specific performance i.e. O.S.No.154 of
1998 on 09.04.1998 i.e. after a period of 8 years and therefore, the suit is
barred by limitation by virtue of Article 54 of the Limitation Act.

        It was contended inter alia before the trial Court by the defendants that
in view of Ex.B.3-legal notice, dated 13.12.1993 issued by the second defendant
to the first defendant (brother of the second defendant), third defendant
(mother of the second defendant), Sugali Narayana and the plaintiff stating that
the first defendant having colluded with the plaintiff obtained the signatures
of the defendants on some blank papers on the pretext of executing lease deeds
in respect of their landlords, created some documents and alienated the property
to the plaintiff and therefore, the plaintiff had not obtained any sale deed
from the defendants 1 and 3 in respect of the schedule mentioned land.        
According to Article 54 of the Limitation Act, the suit for specific performance
of contract of sale has to be filed within three years from the date fixed for
performance of contract and if no such date is fixed, it shall be filed within
three years from the date when the plaintiff refused notice of specific
performance.
        The learned trial Court, however, took the view that there is no reference
in Ex.B.3-registered legal notice, dated 13.12.1993 about the Ex.A.1-agreement
to sell, dated 30.07.1985, the plaintiff came to know about the refusal of
performance only on 09.04.1998, when the written statement was filed by the
defendants 2 and 3 in O.S.No.136 of 1998 mentioning that they executed Ex.B.19-
sale deed in favour of the 4th defendant.  Limitation according to the learned
trial Court commences from 09.04.1998, but not from 15.12.1993 the date on which
Ex.B.3 -notice, dated 13.12.1993 was served on the plaintiff.
        As to this, it may be stated that though there is no reference to Ex.A.1-
agreement to sell, dated 30.07.1985 in Ex.B.3-legal notice sent by the second
defendant, he made his intention clear therein by stating that the plaintiff has
not obtained any registered sale deed from defendants 1 and 3 and they were
trying to make such alienation jeopardizing rights of the second defendant in
the schedule mentioned land.  From the contents of Ex.B.3-legal notice,
therefore, it is obvious that the second defendant communicated to the plaintiff
in vivid terms that he is not going to join defendants 1 and 3 in executing
registered sale deed in favour of the plaintiff.  From this, the plaintiff, who
was in possession of Ex.A.1-agreement to sell, must have understood that the
specific performance of contract contained in the said agreement was refused by
the second defendant.  The trial Court, therefore, went wrong in arriving at the
finding that the limitation for specific performance of contract under Ex.A.1-
agreement to sell commences from 09.04.1998 when the plaintiff had knowledge
about execution of Ex.B.19-sale deed by the defendants 2 and 3 in favour of the
4th defendant and not from 15.12.1993, the date on which Ex.B.3 legal notice
dated 13.12.1993 was received by the plaintiff.
        One of the substantial questions of law raised by the plaintiff in these
appeals is the decision of the first appellate court that the cause of action in
the suit for perpetual injunction as well as in the suit for specific
performance of agreement to sell is one and the same and on failure by the
plaintiff to include the relief of specific performance in the first suit for
perpetual injunction filed by him debars him from filing the subsequent suit for
specific performance is contrary to the settled principles of law and the same
is liable to be set aside in these second appeals.
As to this contention, I would like to emphasize that the suit for perpetual
injunction was filed when there was an attempt by the defendants to trespass in
to the schedule mentioned land, whereas the suit for specific performance was
filed by the plaintiff to get a regular sale deed executed by the defendants in
terms of Ex.A.1-agreement to sell dated 30.07.1985.  The cause of actions in
both the suits is different for which separate suits may be brought by the
plaintiff.  The learned trial Court was right in holding that since both the
suits are based on different causes of action, the suit for specific performance
is not barred under Order 2 Rule 2(3) of C.P.C.  The finding, therefore recorded
by the learned first appellate Court according to which it reversed the finding
of the trial Court holding that the suit for specific performance is barred
under Order 2 Rule 2 C.P.C. being contrary to the provisions of Order 2 Rule 2
C.P.C. is set aside in these second appeals.  However, it does not change the
result of the suit since this Court upheld the finding of the first appellate
Court that the suit for specific performance of agreement to sell in terms of
Ex.A.1 filed by the plaintiff is barred by limitation.
        Thus, the substantial question of law raised by the plaintiff in the
appeals that the decision rendered by the first appellate Court reversing the
finding of the trial Court and holding that the suit is barred by limitation is
contrary to law and also to the material evidence on record has absolutely no
foundation. This Court, therefore, affirms the finding of the first appellate
Court that the suit for specific performance of agreement to sell filed by the
plaintiff is barred by limitation and answers the said point against the
plaintiff.
        Another substantial question of law which was raised by the plaintiff for
consideration in the second appeals is that the first appellate Court having
found that the plaintiff has been in possession of the schedule mentioned land
ever since the date of Ex.A.1-agreement to sell having taken possession of the
same under the said agreement, he is not entitled for the relief of permanent
injunction since the suit for specific performance of contract is barred by
limitation, is contrary to the provisions envisaged under Section 53-A of the
Transfer of Property Act, the same being wholly erroneous, is liable to be set
aside in these second appeals and O.S.No.136 of 1998 filed by the plaintiff for
the relief of permanent injunction has to be decreed by setting aside the
finding of the first appellate Court.
A combined reading of Section 19 of the Specific Relief Act and Section 53-A of
the Transfer of Property Act makes it clear that the rights of a subsequent
transferee for consideration, who has no notice of the earlier contract are not
affected in an action brought by a person, who was put possession of immoveable
property under an earlier written contract.

        In the instant case, it is to be seen that whether the 4th defendant is a
bona fide purchaser for value without notice of the earlier contract of sale
i.e. Ex.A.1-agreement to sell, dated 30.07.1985.  The parties to the suit i.e.
plaintiff as well as the defendants are residents of one and the same village.
From various documents filed by the plaintiff, such as, Exs.A2 to A.4-land
revenue receipts, Exs.A.5 and A.6 pattedar passbook and the title deed, Exs.A.8
to A.14-certified copies of extracts of adangal clearly indicate that the
plaintiff has been in possession of the schedule mentioned land.  The learned
first appellate Court also concurred with the findings of the learned trial
Court on this aspect and held that the plaintiff having obtained the schedule
mentioned land under Ex.A.1-agreement to sell has been in possession and
enjoyment of the same and that there was no iota of documentary evidence adduced
by the defendants to show that subsequent to Ex.A.1-agreement to sell either
defendants 1 to 3 or defendant No.4 who is the subsequent purchaser are in
possession of the schedule mentioned land.  Considering the long uninterrupted
possession of the plaintiff over the schedule mentioned land and the fact that
the plaintiff as well as the 4th defendant are residents of one and the same
village and also the fact that all the revenue records in respect of the
schedule mentioned land are maintained in the name of the plaintiff, the learned
first appellate Court recorded a positive finding that the 4th defendant must
have been aware of Ex.A.1-agreement to sell and the possession of the plaintiff
in pursuance thereof and that he cannot plead ignorance of the earlier
transaction.  The learned first appellate Court further emphasized that any
little attempt on the part of the 4th defendant would have revealed about the
earlier transaction and the maintenance of all relevant records in the name of
the plaintiff in respect of the suit land.  Therefore, the learned first
appellate Court recorded categorical finding that the 4th defendant is not a
bona fide purchaser for value without notice of the earlier Ex.A.1-agreement to
sell executed by defendants 1 and 2 in favour of the plaintiff and putting him
in possession of the schedule mentioned land under the said agreement.
       
Having recorded a finding that the plaintiff is not a bona fide purchaser for
value without notice of the earlier contract of sale and that the plaintiff is
in possession of the schedule mentioned land having been put in possession of
the same by the defendants 1 and 2 under Ex.A.1 agreement to sell misdirected
itself in holding that since the suit for specific performance of contract of
sale filed by the plaintiff is barred by limitation, he is not entitled for the
decree of permanent injunction.  The learned first appellate Court was also
under the erroneous impression that a person in possession having obtained the
same under a valid written contract of sale can protect his possession having
recourse to the doctrine of part performance of contract embodied in Section 53-
A of the Transfer of Property Act, but cannot, as the plaintiff file a suit for
permanent injunction.

        The view taken by the learned first appellate Court is contrary to the
settled legal position in relation to the doctrine of part performance under
Section 53-A of the Transfer of Property Act.  It has been laid down in large
number of decisions that even if the plaintiff's remedy for specific performance
is barred by limitation, he can still has a right to invoke the doctrine of part
performance envisaged under Section 53-A of the Transfer of Property Act and
protect his possession even by instituting a suit seeking relief of perpetual
injunction.

       
It is true that the doctrine does not confer any title on the person who took
possession of the property in part performance of a written contract of sale,
but it affords protection to the person against the transferor or any person
claiming under him.  In the instant case, admittedly, the plaintiff obtained
possession of the schedule mentioned land in part performance of Ex.A.1-
agreement to sell, dated 30.7.1985.  Merely because the suit for specific
performance of contract is barred by limitation, it cannot be said that he has
not been ready and willing to perform his part of contract.  The very fact that
he paid the entire sale consideration indicates that there was nothing remained
to be performed on his part.  The plaintiff has not only a right to defend his
possession in an action brought by the transferor or any person claiming under
him, he can also institute a suit for injunction for the purpose of protecting
his possession.  The trial court, therefore, obviously in error in holding that
since the relief of specific performance of contract is not available to the
plaintiff as it was barred by time, he is not entitled to protect his possession
by filing a suit for permanent injunction against his transferors and the 4th
defendant, who subsequently obtained ExB.19 sale deed from the defendants 2 and
3.   Both the Courts have found concurrently that the 4th defendant is not a
bona fide purchaser for value, without notice of Ex.A.1-agreement to sell.  If
that is so, the plaintiff can enforce his defence available to him under Section
53-A of the Transfer of Property Act against his transferors as well as against
the defendant No.4, who obtained the registered sale deed -Ex.B.19 from the
defendants 2 and 3 and claiming rights through them.  The defendants, therefore,
in the circumstances, indicated hereinabove cannot resist the suit of permanent
injunction filed by the plaintiff and the plaintiff is certainly entitled for a
decree of permanent injunction against the defendants, despite the fact that the
suit for specific performance is dismissed being barred by limitation.  The
learned first appellate Court went wrong on this aspect in reversing the decree
and judgment passed by the learned trial Court in favour of the plaintiff
granting perpetual injunction against the defendants.  This is a manifest error
of law committed by the first appellate Court, which is in the nature of
substantially affecting rights of the plaintiff to protect his possession and
therefore, it raises a substantial question of law in the second appeal.
       
For the foregoing reasons, the decree and judgment dated 02.01.2006 passed by
the V Additional District Judge (Fast Tract Court) Kurnool at Nandyal in
A.S.No.7 of 2004 is confirmed and the decree and judgment dated 02.01.2006
passed by the V Additional District Judge (Fast Tract Court) Kurnool at Nandyal
in A.S.No.6 of 2004 is set aside affirming the decree and judgment dated
26.12.2003 passed by the Principal Junior Civil Judge, Nandyal granting
perpetual injunction in favour of the plaintiff.
S.A.No.368 of 2006 fails and the same is dismissed. S.A.No.369 of 2006, however,
succeeds and the same is allowed.  There shall be no order as to costs.

Santosh Jagwayan (PW.13) lodged an FIR on 17.12.1996 at 8.30 A.M., that in the intervening night between 16th and 17th December, 1996 on hearing the noise, he sent his Chowkidar Gopal Nepali (deceased) to the roof of his house. Gopal Nepali went upstairs and opened the gate of the roof and found that 8 to 10 accused persons were trying to enter into the house by breaking upon the door of the roof. They immediately fired shot at Gopal Nepali (deceased) and entered into the house. The accused persons locked Shashi Devi (PW.12) wife of complainant, Preeti (PW.14) and Sandhya (PW.15), his daughters, in the bathroom and started looting the moveable properties. In the meanwhile, his neighbours raised their voice. Thus, the accused immediately fired a shot at Mrs. Anita Yadav, as a result of which, she died on the spot. Kripa Dayal Yadav (PW.2), husband of Anita Yadav (deceased) caught hold of one of the accused but he was beaten with the butt of the gun by the other accused persons and they got the accused released from his clutches. The accused decamped with cash, jewellery and silver wares etc. B. On the basis of the said complaint, an FIR No. 240 of 1996 (Ex.P-30) was registered under Sections 395, 396, 397 and 398 IPC and investigation ensued. The dead bodies of Gopal Nepali and Anita 2 the sole question remains to be decided whether adverse inference could be drawn against the accused merely on the basis of recoveries made on their disclosure statements.

                                                                  REPORTABLE


                 IN THE SUPREME COURT OF INDIA

              CRIMINAL APPELLATE JURISDICTION


                  CRIMINAL APPEAL NO. 937 of 2005




State of Rajasthan                                                         ...Appellant


                                       Versus


Talevar & Anr.                                                              ...Respondents


                                  J U D G M E N T


Dr. B.S. CHAUHAN, J.




1.      This appeal has been preferred by the State of Rajasthan against


the judgment and order dated 27.10.2004 passed by the High Court of


Judicature for Rajasthan, Jaipur Bench, in Criminal Appeal No. 1579


of 2002 acquitting the respondents, setting aside their conviction and


the sentence passed by Additional District and Sessions Judge, (Fast


Track), Laxmangarh, Alwar, dated 2.11.2002 in Sessions Case No. 4


of   2002   (14/2000)   for   the   offences   punishable   under   Sections   395,


396   and   397   of   the   Indian   Penal   Code,   1860   (hereinafter   called   the


IPC).




2.      The   facts   and   circumstances   giving   rise   to   this   case   are   as


under:


A.     Santosh   Jagwayan   (PW.13)   lodged   an   FIR   on   17.12.1996   at


8.30   A.M.,   that   in   the   intervening   night   between   16th  and   17th


December,  1996 on hearing the noise, he sent his Chowkidar Gopal


Nepali   (deceased)   to   the   roof   of   his   house.     Gopal   Nepali   went


upstairs and opened the gate of the roof and found that 8 to 10 accused


persons were trying to enter into the house by breaking upon the door


of the roof.   They immediately fired shot at Gopal Nepali (deceased)


and entered into the house.  The accused persons locked Shashi Devi


(PW.12) wife of complainant, Preeti (PW.14) and Sandhya (PW.15),


his   daughters,   in   the   bathroom   and   started   looting   the   moveable


properties.  In the meanwhile, his neighbours raised their voice.  Thus,


the accused immediately fired a shot at Mrs. Anita Yadav, as a result


of which, she died on the spot.  Kripa Dayal Yadav (PW.2), husband


of Anita Yadav (deceased) caught   hold of one of the accused but he


was beaten with the butt of the gun by the other accused persons and


they   got   the   accused   released   from   his   clutches.   The   accused


decamped with cash, jewellery and silver wares etc.




B.     On   the   basis   of   the   said   complaint,   an   FIR   No.   240   of   1996


(Ex.P-30) was registered under Sections 395, 396, 397 and 398 IPC


and investigation ensued.  The dead bodies of Gopal Nepali and Anita





                                                                                      2


Yadav were recovered and sent for post-mortem examination.  Kuniya


-   accused/respondent   was   arrested   on   24.12.1996.   He   made   a


disclosure statement (Ex.P-76) on 29.12.1996 on the basis of which a


silver   glass   and   one   thousand   rupees   were   recovered   vide   recovery


memo   (Ex.P-53).   Further,   on   his   disclosure   statement,     a   scooter


bearing   No.   RJ-05-0678   was   recovered   vide   recovery   memo   (Ex.P-


52) on 2.1.1997.




C.     Another   accused   Talevar   -   respondent,   was   arrested   on


19.1.1997   and   on   his   disclosure   statement   made   on   26.1.1997,   two


thousand rupees, a silver key ring and a key of Ambassador car was


recovered vide seizure memo (Ex.P-45).




D.     Some   more   recoveries   were   made   from   the   other   accused


persons.   After   completing   the   investigation   chargesheet   was   filed


against   9   accused   persons   including   the   two   respondents.   As   all   of


them   pleaded   not   guilty,   they   were   put   to   trial   for   the   offences


punishable under Sections 395, 396 and 398 IPC.




E.         In   the   Sessions   trial   prosecution   examined   34   witnesses   in


support of its case. The ornaments and stolen articles were identified


by   Shashi  Devi  (PW.12)   and  Santosh  Jagwayan  (PW.13).    The  trial





                                                                                   3


court  vide  judgment  and  order  dated  2.11.2002  convicted  8 accused


including   the   two   respondents.   One   accused   named   Ram   Krishan,


died during the trial.  All of them stood convicted under the provisions


of   Sections   395,   396   and   397   IPC.     All   the   accused   were   awarded


punishment to undergo life imprisonment and a fine of Rs. 1,000/- and


in default of payment of fine, to further undergo six months rigorous


imprisonment under Section 396 IPC. All of them were convicted for


the   offence   punishable   under   Section   397   IPC   and   a   sentence   to


undergo rigorous imprisonment for seven years and a fine of Rs.500/-


and   in   default   of   payment   of   fine,   to   further   undergo   three   months


rigorous   imprisonment.     They   were   further   convicted   under   Section


395   IPC,   awarded   life   imprisonment   and   fine   of   Rs.   1,000/-   and   in


default   of   payment   of   fine,   to   further   undergo   six   months   rigorous


imprisonment.     Accused   namely,   Ghurelal,   Chunchu   @   Bhagwan


Singh, Kallu, Rajpal and Samay Singh were further convicted under


Sections 3/25 and 3/27 of the Arms Act and sentence was awarded to


undergo   three   years   rigorous   imprisonment   and   a   fine   of   Rs.   500/-


each of them, in default of payment of fine, to further undergo three


months rigorous imprisonment.





                                                                                     4


F.      Being aggrieved by the said decision, all the accused including


the   two   respondents   preferred   Criminal   Appeal   No.   1579   of   2002,


which has been decided by the High Court vide judgment and order


dated   27.10.2004   acquitting   the   two   respondents/accused   though


maintaining the conviction and sentence in respect of other accused.


Hence, this appeal by the State against their acquittal.




3.      Dr. Manish  Singhvi, learned  Additional  Advocate  General  for


the   State   of   Rajasthan,   has   submitted   that   recovery   of   some   of   the


looted   property   had   been   made   on   the   basis   of   the   disclosure


statements   made   by   the   said   respondents.   The   law   provides   for   a


presumption that they had participated in the crime and, therefore, the


High   Court   has   wrongly   acquitted   the   said   accused   and   thus,   the


appeal deserves to be allowed.




4.      On the contrary, Shri Altaf Hussain, learned counsel appearing


for   the   said   two   accused,   has   vehemently   opposed   the   appeal


contending   that   mere   recovery   of   looted   property   on   the   disclosure


statement of the accused, is not enough to bring home the charges of


offence of loot or dacoity,  when the recovery is made after expiry of


a considerable period from the date of incident and particularly when


the   nature   of   the   looted   property   is   such   which   can   change   hands




                                                                                     5


easily.  Thus, no inference can be drawn against the respondents. The


order of acquittal made by the High Court has been passed on proper


appreciation   of facts   and  application  of  law.  The  appeal   lacks   merit


and is liable to be dismissed.


5.        We have considered the rival submissions made by the learned


counsel for the parties and perused the record.




6.      Admitted facts remained so far as the two respondents/accused


are   concerned,   that   no   test   identification   parade   was   held   at   all.


Further none of the eye witnesses, particularly, Shashi Devi (PW.12),


Santosh   Jagwayan   (PW.13),   Kripa   Dayal   Yadav   (PW.2),   Preeti


(PW.14)   and   Sandhya   (PW.15),   identified   either   of   the   said


respondents   in   the   court.     Therefore,   there   is   no   evidence   so   far   as


their identification is concerned.




7.      Thus, the sole question remains to be decided whether adverse


inference could be drawn against the accused merely on the basis of


recoveries made on their disclosure statements.




7.1.       In  Gulab   Chand   v.   State   of   M.P.,   AIR   1995   SC   1598,   this


Court   upheld   the   conviction   for   committing   dacoity   on   the   basis   of


recovery   of   ornaments   of   the   deceased   from   the   possession   of   the





                                                                                        6


person   accused   of   robbery   and   murder  immediately  after   the


occurrence.




7.2.         In  Geejaganda Somaiah  v. State of Karnataka, AIR 2007


SC 1355,  this Court relied on the judgment in Gulab Chand (supra)


and   observed   that     simply   on   the   recovery   of   stolen   articles,   no


inference   can   be   drawn   that   a   person   in   possession   of   the   stolen


articles is guilty of the offence of murder and robbery. But culpability


for the aforesaid offences will depend on the facts and circumstances


of the case and the nature of evidence adduced.




        It has been indicated by this Court in Sanwat Khan v. State of


Rajasthan, AIR 1956 SC 54,  that no hard and fast rule can be laid


down   as   to   what   inference   should   be   drawn   from   certain


circumstances.




7.3.    In  Tulsiram   Kanu   v.   State,   AIR   1954   SC   1,  this   Court   has


indicated   that   the   presumption   permitted   to   be   drawn   under   Section


114, Illustration (a) of the Evidence Act 1872  has to be drawn under


the  'important   time   factor'.  If   the   ornaments   in   possession   of   the


deceased are found in possession of a person soon after the murder,


a   presumption   of   guilt   may   be   permitted.   But   if   a   long   period   has





                                                                                      7


expired   in   the   interval,   the   presumption   cannot   be   drawn   having


regard to the circumstances of the case.




7.4.     In Earabhadrappa v. State of Karnataka AIR 1983 SC 446,


this Court held that the nature of the presumption under Illustration (a)


of Section 114 of the Evidence Act must depend upon the nature of


evidence adduced. No fixed time-limit can be laid down to determine


whether possession is recent or otherwise. Each case must be judged


on its own facts. The question as to what amounts to recent possession


sufficient to justify the presumption of guilt varies according "as the


stolen article is or is not calculated to pass readily from hand to hand".


If the stolen articles were such as were not likely to pass readily from


hand to hand, the period of one year that elapsed could not be said to


be   too   long   particularly   when   the   appellant   had   been   absconding


during that period.




7.5.   Following such a reasoning, in Sanjay @ Kaka etc. etc. v. The


State   (NCT   of   Delhi),  AIR   2001   SC   979,  this   Court   upheld   the


conviction by the trial court since disclosure statements were made by


the accused persons on the next day of the commission of the offence


and the property of the deceased was recovered at their instance from


the places where they had kept such properties, on the same day. The





                                                                               8


Court   found   that  the   trial   Court   was   justified   in   holding   that   the


disclosure statements of the accused persons and huge recoveries from


them at their instance by itself was   a sufficient circumstance on the


very   next   day   of   the   incident   which   clearly   went   to   show   that   the


accused persons had joined hands to commit the offence of robbery.


Therefore, recent and unexplained possession of stolen properties will


be taken to be presumptive evidence of the charge of murder as well.




7.6.        In  Ronny  Alias   Ronald   James   Alwaris  &   Ors.   v.   State   of


Maharashtra, AIR 1998 SC 1251,  this Court held that apropos the


recovery of articles belonging to the family of the deceased from the


possession of the appellants soon after the robbery and the murder of


the   deceased   remained   unexplained   by   the   accused,   and   so   the


presumption under Illustration (a) of Section 114 of the Evidence Act


would be attracted :




     "It needs no discussion to conclude that the murder and the

     robbery   of   the   articles   were   found   to   be   part   of   the   same

     transaction.   The   irresistible   conclusion   would   therefore,   be

     that the appellants and no one else had committed the three

     murders and the robbery."


(See also:  Baijur v. State of Madhya Pradesh, AIR 1978 SC 522;

and   Mukund  alias   Kundu   Mishra  &   Anr.   v.   State   of   Madhya

Pradesh, AIR 1997 SC 2622).





                                                                                         9


7.7.     Thus, the law on this issue can be summarized to the effect that


where   only   evidence   against   the   accused   is   recovery   of   stolen


properties, then although the circumstances may indicate that the theft


and murder might have been committed at the same time, it is not safe


to   draw   an   inference   that   the   person   in   possession   of   the   stolen


property had committed the murder. It also depends on the nature of


the property so recovered, whether it was likely to pass readily from


hand to hand. Suspicion should not take the place of proof.




8.     In the instant case, accused Kuniya was arrested on 24.12.1996


and a silver glass and one thousand rupees were alleged to have been


recovered   on   his   disclosure   statement   on   29.12.1996.   Again   on


disclosure   statement   dated   2.1.1997,   a   scooter   alleged   to   have   been


used   in   the   dacoity,   was   recovered.     Similarly,   another   accused


Talevar was arrested on 19.1.1997 and on his disclosure statement on


26.1.1997,   two   thousand   rupees,   a   silver   key   ring   and   a   key   of


Ambassador   car   alleged   to   have   been   used   in   the   crime   were


recovered.   Thus,   it   is   evident   that   recovery   on   the   disclosure


statements   of   either   of   the   respondents/accused   persons   was   not   in


close proximity of time from the date of incident.  More so, recovery


is either of cash, small things or vehicles which can be passed from





                                                                                  10


one person to another without any difficulty.  In such a fact situation,


we   reach   the   inescapable   conclusion   that   no   presumption   can   be


drawn   against   the   said   two   respondents/accused   under   Section   114


Illustration   (a)   of   the   Evidence   Act.   No   adverse   inference   can   be


drawn on the basis of recoveries made on their disclosure statements


to connect them with the commission of the crime.




9.     The  instant   appeal  has   been  prepared   by   the  State  against   the


judgment and order of acquittal of the respondents by the High Court.


The law on the issue is settled to the effect that only in exceptional


cases   where   there   are   compelling   circumstances   and   the   judgment


under appeal is found to be perverse, the appellate court can interfere


with the  order   of  acquittal.  The   appellate  court   should  bear  in mind


the presumption of innocence of the accused and further that the trial


Court's   acquittal   bolsters   the   presumption   of   his   innocence.


Interference   in   a   routine   manner   where   the   other   view   is   possible


should be avoided, unless there are good reasons for interference.


(See : Brahm Swaroop & Anr. v. State of  U.P., AIR 2011 SC 280;

V.S.   Achuthanandan   v.   R.   Balakrishna   Pillai   &   Ors.,   (2011)   3

SCC 317; and Rukia Begum & Ors. v. State of Karnataka, (2011)

4 SCC 779).





                                                                                 11


      10.       In   view   of   the   above,   we   do   not   find   any   reason   to   interfere


      with   the   well   reasoned   judgment   and   order   of   the   High   Court


      acquitting   the   said   respondents.     The   appeal   lacks   merit   and   is


      accordingly dismissed.


                                                                       ....................................

      J.

                                                               (Dr. B.S. CHAUHAN)




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

                                                               (SWATANTER KUMAR)

      New Delhi,            

      June 17, 2011





 





                                                                                                           12

a beautiful lesson to the arrogant advocate = Appellant is an advocate practising for last 30 years in the District Court, Etawah (U.P.). On 25.7.1998, he produced one Om Prakash for the purpose of surrender, impersonating him as Ram contempt of court has various kinds, e.g. insult to Judges; attacks upon them; comment on pending proceedings with a tendency to prejudice fair trial; obstruction to officers of Courts, witnesses or the parties; scandalising the Judges or the courts; conduct of a person which tends to bring the authority and administration of the law into disrespect or disregard. Such acts bring the court into disrepute or disrespect or which offend its dignity, affront its majesty or challenge its authority. In a given case, such a conduct be committed "in respect of the whole of the judiciary or judicial system".

                                                                  REPORTABLE


                 IN THE SUPREME COURT OF INDIA

              CRIMINAL APPELLATE JURISDICTION


                  CRIMINAL APPEAL NO. 697 of 2006





Vishram Singh Raghubanshi                                                  ...Appellant


                                       Versus


State of U.P.                                                               ...Respondent





                                J U D G M E N T




Dr. B.S. CHAUHAN, J.


1.      This   appeal   has   been   preferred   under   Section   19   of   the


Contempt   of   Courts   Act,   1971,   (hereinafter   called   the   `Act   1971')


arising out of impugned judgment and order dated 5.5.2006 passed by


the Division Bench of the Allahabad High Court in Contempt of Court


Case No. 13 of 1999.




2.      FACTS:



A)      Appellant   is   an   advocate   practising   for   last   30   years   in   the


District   Court,   Etawah   (U.P.).     On   25.7.1998,   he   produced   one   Om


Prakash   for   the   purpose   of   surrender,   impersonating   him   as   Ram


Kishan S/o Ashrafi Lal who was wanted in a criminal case in the court


of  IInd  ACJM,  Etawah.   There  was  some   controversy  regarding  the


genuineness of the person who came  to surrender and therefore, the


Presiding Officer of the Court raised certain issues.  So, the appellant


misbehaved   with   the   said   officer   in   the   court   and   used   abusive


language.


B)      The  Presiding  Officer  of the  court   vide letter   dated 28.9.1998


made  a complaint against the appellant  to the U.P. Bar Council and


vide letter dated 27.10.1998 made a reference to the High Court for


initiating   contempt   proceedings   under   Section   15   of   the   Act,   1971


against him.   The High Court considered the matter and issued show


cause   notice   on   5.5.1999   to   the   appellant.     In   response   to   the   said


notice, the appellant submitted his reply dated 24.5.1999, denying the


allegations made against him, but, tendering an apology in the form of


an   affidavit   stating   that   he   was   keeping   the   court   in   the   highest


esteem.


C)      The   Bar   Council   of   U.P.   dismissed   the   complaint   referred   by


the   Presiding   Officer   vide   order   dated   18.3.2001,   but   the   Allahabad


High   Court   did   not   consider   it   proper   to   accept   the   explanation


submitted   by   the   appellant   or   accept   the   apology   tendered   by   him,


rather,  it  framed the   charges  against   the  appellant  on  27.9.2004.    In




                                                                                      2


response to the same, the appellant again submitted an affidavit dated


18.10.2005 tendering an apology similar to one in the affidavit filed


earlier.


D)      The   Division   Bench   of   Allahabad   High   Court   considered   the


matter   on   judicial   side,   giving   full   opportunity   to   the   appellant   to


defend himself.   The High Court ultimately held the appellant guilty


of committing the contempt and sentenced him to undergo 3 months


simple imprisonment with a fine of Rs.2,000/-.  Hence this appeal.




3.      This Court vide order dated 26.6.2006 suspended the operation


of sentence and directed the appellant to deposit the fine of Rs. 2,000/-


in this Court, which seems to have been deposited.




4.      Shri   Sanjeev   Bhatnagar,   learned   counsel   appearing   for   the


appellant, has submitted that he would not be in a position to defend


the   contemptuous   behaviour   of   the   appellant   but   insisted   that   the


appellant   is   aged   and   ailing   person   and   had   tendered   absolute   and


unconditional   apologies   several   times.   Thus,   the   apology   may   be


accepted   and   the   sentence   of   three   months   simple   imprisonment   be


quashed.





                                                                                    3


5.     On the contrary, Shri R.K. Gupta, learned counsel appearing for


the   respondent,   has   vehemently   opposed   the   prayer   made   by   Shri


Bhatnagar   and   contended   that   the   appellant   does   not   deserve   any


lenient   treatment   considering   the   language   used   by   him   to   the


Presiding Officer of the court and such a person does not deserve to


remain in a noble profession.   He further contended that the apology


has   not   been   tendered   at   the   initial   stage.   The   first   apology   was


tendered only after receiving show cause notice dated 5.5.1999 from


the High Court and under the pressure. More so, the language of the


apology   is   not   such   which   shows   any   kind   of   remorse   by   the


appellant,   thus,   considering   the   gravity   of   the   misbehaviour   of   the


appellant, no interference is wanted.  Therefore, the appeal is liable to


be rejected.




6.     We   have   considered   the   rival   contentions   made   by   learned


counsel for the parties and perused the record.




7.     Admittedly,   the   case   of   impersonification   of   the   person   to   be


surrendered   is   a   serious   one,   however   we   are   not   concerned   as   to


whether   the   appellant   had   any   role   in   such   impersonification,   but


being an officer of the court, if any issue had been raised in this regard


either by the court or opposite counsel, it was the duty of the appellant




                                                                                   4


to satisfy the Court and establish the identity of the person concerned.


The conduct of the appellant seems to have been in complete violation


and   in   contravention   of   the   "standard   of   professional   conduct   and


etiquette" laid in Section 1 of Chapter 2 (Part-VI) of the Bar Council


of   India   Rules   which,   inter-alia,   provides   that   an   advocate   shall


maintain towards the court a respectful attitude and protect the dignity


of   the   judicial   office.     He   shall   use   his   best   efforts   to   restrain   and


prevent his client from resorting to unfair practices etc. The advocate


would conduct himself with dignity and self respect in the court etc.


etc.


                 There may be a case, where a person is really aggrieved


of misbehaviour/conduct or bias of a judicial officer. He definitely has


a right to raise his grievance, but it should be before the appropriate


forum and  by  resorting  to the  procedure   prescribed  for  it. Under  no


circumstances, such a person can be permitted to become the law unto


himself   and   proceed   in   a   manner   he   wishes,   for   the   reason   that   it


would   render   the   very   existence   of   the   system   of   administration   of


justice at a stake.





                                                                                           5


8.      Before proceeding further with the case, it may be necessary to


make   reference   to   certain   parts   of   the   complaint   lodged   by   the


Presiding Officer to the High Court against the appellant:


(i)      During the course of cross examination in a criminal case on


         22.8.1998,   the   appellant   was   advised   that   he   should   ask


         questions   peacefully   to   the   witness   on   which   the   appellant


         stepped over dias of the court and tried to snatch the paper of


         statement from him and started abusing him that "Madarchod,


         Bahanchod,   make   reference   of   contempt   to   the   High   Court"


         and stepped  out, abusing similarly from the court room.


(ii)     In   another   incident   on   25.7.1998,   three   accused   persons


         namely,   Ram   Krishan,   Ram   Babu   and   Rampal   surrendered


         before   the   court   and   filed   an   application   no.   57Kha   for


         cancellation   for   non-bailable   warrants,   and   the   whole


         proceeding   was   completed   by   him.     Aforesaid   three   accused


         persons,   namely,   Ram   Krishan   and   Ram   Babu   were   real


         brothers   and   sons   of   Ashrafi   Lal.     On   30.7.1998   order   was


         passed   to   release   them   on   bail   but   before   they   could   be


         released,   it   came   to   the   knowledge   of   the   court   that   right


         accused Ram Krishan son of Ashrafi Lal had surrendered and


         sent   to   jail.     This   fact   was   brought   before   the   court   by   the


         mother of the person Om Prakash who was actually sent to jail


         on 1.8.1998, of which enquiry was done and after summoning


         from jail the person in the name of Ram Krishan  stated in the


         court that his name was Om Prakash, son of Sh. Krishan Jatav.


         The   complainant   Bhaidayal   was   also   summoned   who   also


         verified the above fact. Thereafter, an   inquiry was conducted



                                                                                        6


          by   the   Presiding   Officer   who   found   the   involvement   of   the


          appellant in the above case of impersonification.





9.      The   High   Court   examined   the   complaint   and   the   reply


submitted  by the appellant  to show  cause  notice issued by the High


Court.  The High Court did not find the explanation worth acceptable


and,   thus,   vide   order   dated   27.9.2004,   framed   charges   against   the


appellant   in   respect   of   those   allegations   dated   22.8.1998   and


25.7.1998 respectively.




10.       It   is   not   the   case   of   the   appellant   that   he   was   not   given   full


opportunity to defend himself or lead evidence in support of his case.


The   appellant   has   not  chosen   to  defend  himself   on  merit   before   the


High Court, rather he merely tendered apology thrice.  Even before us,


Shri Sanjeev Bhatnagar, learned counsel for the appellant, has fairly


conceded that the appellant had been insisting from the beginning to


accept his apology and let him off. Mr. Bhatnagar's case has been that


in the facts and circumstances of the case, particularly considering the


age   and   ailment   of   the   appellant,   apology   should   be   accepted   and


sentence of three months simple imprisonment be set aside.





                                                                                              7


11.     It   is   settled   principles   of   law   that   it   is   the   seriousness   of   the


irresponsible acts of the contemnor and degree of harm caused to the


administration  of justice, which would decisively determine whether


the matter should be tried as a criminal contempt or not. (Vide:  The


Aligarh Municipal Board & Ors. v. Ekka Tonga Mazdoor Union


& Ors., AIR 1970 SC 1767).


12.     The   court   has   to   examine   whether   the   wrong   is   done   to   the


judge personally or it is done to the public.  The act will be an injury


to the public if it tends to create an apprehension in the minds of the


people   regarding   the   integrity,   ability   or   fairness   of   the   judge   or   to


deter actual and prospective litigants from placing complete reliance


upon   the   court's   administration   of   justice   or   if   it   is   likely   to   cause


embarrassment in the mind of the judge himself in the discharge of his


judicial duties. (See: Brahma Prakash Sharma & Ors. v. The State


of U.P., AIR 1954 SC 10; and Perspective Publications (P.) Ltd. &


Anr. v. The State of Maharashtra, AIR 1971 SC 221).




13.     In the case of  Delhi Judicial Service Association v. State of


Gujarat & Ors., AIR 1991 SC 2176, this Court held that the power to


punish   for   contempt   is   vested   in   the   judges   not   for   their   personal


protection only, but for the protection of public justice, whose interest





                                                                                             8


requires   that  decency  and   decorum is   preserved   in  courts  of  justice.


Those who have to discharge duty in a Court of Justice are protected


by the law, and shielded in the discharge of their duties; any deliberate


interference with the discharge of such duties either in court or outside


the   court   by   attacking   the   presiding   officers   of   the   court   would


amount   to   criminal   contempt   and   the   courts   must   take   serious


cognizance of such conduct.


14.     In E.M.Sankaran Namboodiripad v. T.Narayanan Nambiar,


AIR   1970   SC   2015,   this   Court   observed   that   contempt   of  court   has


various kinds, e.g. insult to Judges; attacks upon them; comment on


pending   proceedings   with   a   tendency   to   prejudice   fair   trial;


obstruction to officers of Courts, witnesses or the parties; scandalising


the Judges or the courts; conduct of a person which tends to bring the


authority   and   administration   of   the   law   into   disrespect   or   disregard.


Such acts bring the court into disrepute or disrespect or which offend


its   dignity,   affront   its   majesty   or   challenge   its   authority.   In   a   given


case,   such   a   conduct   be   committed   "in   respect   of   the   whole   of   the


judiciary or judicial system".


                The   court   rejected   the   argument   that   in   particular


circumstances conduct of the alleged contemnor may be protected by


Article 19(1)(a) of the Constitution i.e. right to freedom of speech and




                                                                                         9


expression,   observing   that   the   words   of   the   second   clause,     of   the


same provision bring any existing law into operation, thus provisions


of the Act 1971 would come into play and each case is to be examined


on its own facts  and the decision must  be reached in the context of


what was done or said.  




15.    Thus, it is apparent that the contempt jurisdiction   is to uphold


majesty and dignity of the law courts and the image of such majesty in


the minds of the public cannot be allowed to be distorted. Any action


taken on contempt or punishment enforced is aimed at protection  of


the   freedom   of   individuals   and   orderly   and   equal   administration   of


laws and not for the purpose of providing immunity from criticism to


the judges. The superior courts have a duty to protect the reputation of


judicial   officers   of   subordinate   courts,   taking   note   of   the   growing


tendency   of   maligning   the   reputation   of   judicial   officers   by


unscrupulous   practising   advocates   who   either   fail   to   secure   desired


orders   or   do   not   succeed   in   browbeating   for   achieving   ulterior


purpose.  Such an issue touches upon the independence of not only the


judicial officers but brings the question of protecting the reputation of


the Institution  as a whole.





                                                                                   10


16.     The dangerous trend of making false allegations against judicial


officers and humiliating them requires to be curbed with heavy hands,


otherwise the judicial system itself would collapse. The Bench and the


Bar have to avoid unwarranted situations on trivial issues that hamper


the cause   of justice and are in the interest of none.   "Liberty of free


expression is not to be confounded or confused with license to make


unfounded   allegations   against   any   institution,   much   less   the


Judiciary".   A lawyer cannot be a mere mouthpiece of his client and


cannot   associate   himself   with   his   client   maligning   the   reputation   of


judicial officers merely because his client failed to secure the desired


order   from   the   said   officer.     A   deliberate   attempt   to   scandalise   the


court which would shake the confidence of the litigating public in the


system,   would   cause   a   very   serious   damage   to   the  Institution   of


judiciary.     An   Advocate   in   a   profession   should   be   diligent   and   his


conduct   should   also   be   diligent   and   conform  to   the   requirements   of


the law by which an Advocate plays a vital role in the preservation of


society   and   justice   system.   Any   violation   of   the   principles   of


professional  ethics   by   an  Advocate  is   unfortunate  and  unacceptable.


(Vide:  O.P. Sharma & Ors. v. High Court of Punjab & Haryana,


(2011) 5 SCALE 518).    





                                                                                     11


17.      This   Court   in  M.B.   Sanghi   v.   High   Court   of   Punjab   &


Haryana & Ors., (1991) 3 SCC 600, observed as under:


               "The foundation of our system which is based on the

       independence and impartiality  of those who man  it will  be

       shaken   if   disparaging   and   derogatory   remarks   are   made

       against   the   presiding   judicial   officer   with   impunity....It   is

       high   time   that   we   realise   that   much   cherished   judicial

       independence   has   to   be   protected   not   only   from   the

       executive or the legislature   but also from those who are an

       integral   part   of   the   system.   An   independent   judiciary   is   of

       vital importance to any free society".




18.      This   leads   us   to   the   question   as   to   whether   the   facts   and


circumstances     referred   hereinabove   warrant   acceptance   of   apology


tendered by the appellant.


        The   famous   humorist   P.G.   Wodehouse   in   his   work   "The   Man


 Upstairs (1914)" described apology :


                        "The   right   sort   of   people   do   not   want

        apologies, and the wrong sort take a mean advantage of

        them."


                  The   apology   means   a   regretful   acknowledge   or   excuse


for   failure.     An   explanation   offered   to   a   person   affected   by   one's


action that no offence  was intended,  coupled with the expression  of


regret   for   any   that   may   have   been   given.     Apology   should   be


unquestionable   in   sincerity.     It   should   be   tempered   with   a   sense   of





                                                                                         12


genuine   remorse   and   repentance,   and   not   a   calculated   strategy   to


avoid punishment




19.     Clause 1 of Section 12 and Explanation attached thereto enables


the   court   to   remit   the   punishment   awarded   for   committing   the


contempt   of   court   on   apology   being   made   to   the   satisfaction   of   the


court.   However,   an   apology   should   not   be   rejected   merely   on   the


ground that it is qualified or tempered at a belated stage if the accused


makes   it  bona   fide.  There   can   be   cases   where   the   wisdom   of


rendering an apology dawns only at a later stage.





20.     Undoubtedly, an apology cannot be a defence, a justification, or


an appropriate  punishment for an act which is in contempt  of court.


An apology can be accepted in case the conduct for which the apology


is   given   is   such   that   it   can   be   "ignored   without   compromising   the


dignity   of   the   court",   or   it   is   intended   to   be   the   evidence   of   real


contrition.  It should be sincere. Apology cannot be accepted in case it


is hollow; there is no remorse; no regret; no repentance, or if it is only


a device to escape the rigour of the law. Such an apology can merely


be termed as paper apology.





                                                                                         13


21.     In Re: Bal Thackeray, Editor Samna, (1998) 8 SCC 660, this


Court accepted the  apology  tendered  by  the contemnor as  the Court


came   to   conclusion   that   apology   was   unconditional   and   it   gave   an


expression of regret and realisation that mistake was genuine.




22.     In L.D. Jaikwal v. State of U.P., AIR 1984 SC 1374, the court


noted that it cannot subscribe to the 'slap-say sorry- and forget' school


of thought in administration of contempt jurisprudence. Saying 'sorry'


does not make the slapper poorer.


(See also: T.N. Godavarman Thirumulpad v. Ashok Khot & Anr.,

AIR 2006 SC 2007)



       So   an   apology   should   not   be   paper   apology   and   expression   of


sorrow should come from the heart and not from the pen; for it is one


thing to 'say' sorry-it is another to 'feel' sorry.




23.     An apology for criminal contempt of court must be offered at


the earliest since a belated apology hardly shows the "contrition which


is   the   essence   of   the   purging   of   a   contempt".   However,   even   if   the


apology   is   not   belated   but   the   court   finds   it   to   be   without   real


contrition   and   remorse,   and   finds   that   it   was   merely   tendered   as   a


weapon of defence, the Court may refuse to accept it.   If the apology


is offered at the time when the contemnor finds that the court is going





                                                                                      14


to impose punishment, it ceases to be an apology and becomes an act


of  a   cringing   coward.   (Vide   :  Mulkh   Raj   v.   The   State   of   Punjab,


AIR 1972 SC 1197; The Secretary, Hailakandi Bar Association v.


State of Assam & Anr., AIR 1996 SC 1925; C. Elumalai and Ors.


v. A.G.L. Irudayaraj and Anr.,  AIR 2009 SC  2214; and  Ranveer


Yadav v. State of Bihar,  (2010) 11 SCC 493).





24.    In  Debabrata   Bandopadhyay   &   Ors.   v.   The   State   of   West


Bengal & Anr.,  AIR 1969 SC 189, this Court while dealing with a


similar issue observed as under:



         ".....Of course, an apology must be offered and that too

         clearly   and   at   the   earliest   opportunity.   A   person   who

         offers a belated apology runs the risk that it may not be

         accepted   for   such   an   apology   hardly   shows   the

         contrition   which   is   the   essence   of   the   purging   of   a

         contempt.   However,   a   man   may   have   the   courage   of

         his convictions and may stake his on proving that he is

         not in contempt and may take the risk. In the present

         case   the   appellants   ran   the   gauntlet   of   such   risk   and

         may be said to have fairly succeeded."





25.    This Court has clearly laid down that apology tendered is not to


be accepted as a matter of course and the Court is not bound to accept


the same.  The court is competent to reject the apology and impose the


punishment   recording   reasons   for   the   same.   The   use   of   insulting


language does not absolve the contemnor on any count whatsoever. If





                                                                                     15


the words are calculated and clearly intended to cause any insult, an


apology if tendered and lack penitence, regret or contrition, does not


deserve   to   be   accepted.   (Vide:  Shri   Baradakanta   Mishra   v.


Registrar of Orissa High  Court & Anr.,   AIR 1974 SC 710;  The


Bar Council of Maharashtra v. M.V. Dabholkar etc., AIR 1976 SC


242;  Asharam M. Jain v. A.T. Gupta & Ors., AIR 1983 SC 1151;


Mohd. Zahir Khan v. Vijai  Singh & Ors.,    AIR 1992 SC 642; In


Re:   Sanjiv   Datta,   (1995)   3   SCC   619;   and  Patel   Rajnikant


Dhulabhai & Ors. v. Patel Chandrakant Dhulabhai & Ors., AIR


2008 SC 3016).


26.     In   the  instant   case,   the  appellant   has   tendered   the  apology   on


24.5.1999 after receiving the show cause notice from the High Court


as   to   why   the   proceedings   for   criminal   contempt   be   not   initiated


against   him.   It   may   be   necessary   to   make   the   reference   to   the   said


apology, the relevant part of which reads as under:



               "That   from   the   above   facts,   it   is   evident   that   the

       deponent has not shown any dis-regard nor abused the

       Presiding   Officer,   learned   Magistrate   and   so   far   as

       allegations against him regarding surrender of Om Prakash

       is the name of Ram Kishan are concerned, the deponent has

       no knowledge regarding fraud committed by Asharfi Lal in

       connivance with others and deponent cannot be blamed for

       any fraudulent act.



               That notwithstanding mentioned in this affidavit,

       the   deponent   tenders   unconditional   apology   to   Mr.   S.C.



                                                                                        16


        Jain,   IInd   Addl.   Chief   Judicial   Magistrate,   Etawah  if    for

        any conduct of the deponent the feelings of Mr. S.C. Jain

        are hurt. The deponent shall do everything and protect the

        dignity of judiciary.                                 (Emphasis added)





27.      On 24.11.2005, the appellant has submitted an affidavit saying


as under:



              "That the deponent expresses his unqualified remorse

       for   the   incident   giving   rise   to   the   present   contempt

       application. The deponent tenders his unconditional apology

       to this Hon'ble Court and to Shri Suresh Chandra Jain, the

       then A.C.J.M.-2 Etawah for the entire incident without any

       qualification   or   pre-condition.   The   deponent   gives   the

       following   solemn   undertaking   that   no   such   incident   would

       occur in future. The deponent has immense respect for this

       Hon'ble Court and all other Courts of Law in the land.



          The   deponent   also   expresses   bona   fide,   genuine   and

       heart-felt   regret   for   the   occurrence   which   the   deponent

       consider a blot on him".




28.      The   High   Court   considered   the   case   elaborately   examining


every   issue   microscopically   and   held   that   there   was   no   reason   to


disbelieve   the   facts   stated   by   the   judicial   officer   against   the


contemnor/appellant,   the   facts   were   acceptable,   and   it   was   clearly


proved that the contemnor was guilty of gross criminal contempt.  The


charges levelled against the appellant stood proved.   A Judge has to


discharge his duty and   passes order in the manner as he thinks fit to


the best of his capability under the facts and circumstances of the case




                                                                                      17


before him.  No litigant, far less an advocate, has any right to take the


law in his own hands.  The contemnor abused the Judge in most filthy


words  unworthy  of mouthing  by  an ordinary person  and that is true


without any justification for him ascending the dais   during the course


of the proceedings and then abusing the judicial officer in the words


"Maaderchod, Bahanchod, High Court Ko Contempt Refer Kar".  The


courts certainly  cannot be intimidated  to seek the favourable orders.


The   appellant   intimidated   the   presiding   officer   of   the   court   hurling


filthiest   abuses   and   lowered   the   authority   of   the   Court,   which   is


tantamount   to   interfere   with   the   due   course   of   judicial   proceedings.


The   charge   which   stood   proved   against   the   appellant   could   not   be


taken lightly and in such a fact-situation the apology tendered by him,


being not bona fide, was not acceptable.




29.    We   have   considered   the   facts   and   circumstances   of   the   case.


The show cause notice was given by the High Court on 5.5.1999. The


appellant submitted his reply on 24.5.1999.  The charges were framed


against him on 27.9.2004 and in his first affidavit dated 18.10.2005,


the appellant had denied all the allegations made against him. The so-


called apology contained ifs and buts.  Appellant is not even sure as to


whether   he   has   committed   the   criminal   contempt   of   the   court   or





                                                                                  18


whether   the   most   filthy   abuses   could   hurt   the   Presiding   Officer.


Appellant   has been of the view that the Officer was a robot and has


no heart at all, thus incapable of having the feelings of being hurt.




             The appellant filed second affidavit dated 24.11.2005 tendering


apology.   The apology has been tendered under pressure only   after


framing   of the charges by the High Court in the Criminal Contempt


when appellant realised that he could be punished.   The apology was


not tendered at the earliest opportunity, rather  tendered belatedly just


to   escape   the   punishment   for   the   grossest   criminal   contempt


committed by him.  The language used by the Advocate for a judicial


officer where he practices  regularly  and earns his  livelihood  is such


that   any   apology   would   fall   short   to   meet   the   requirement   of   the


statutory provisions. There has been no repent or remorse on the part


of the appellant at an initial stage.  Had it been so, instead of making


grossest and scandalous allegations against the judicial officer, writing


complaint against him to the Administrative Judge in the High Court


of Allahabad, the appellant could have gone to the concerned judicial


officer and tendered apology in open court.




         The   appellant   instead   of   yielding   to   the   court   honestly   and


 unconditionally, advanced a well guarded defence by referring to all




                                                                                  19


 the facts that led to the incident. Apology tendered by the appellant


 gives an impression that the same was   in the alternative and not a


 complete surrender before the law. Such attitude has a direct impact


 on the court's independence, dignity and decorum. In order to protect


 the   administration   of   public   justice,   we   must   take   action   as   his


 conduct and utterances cannot be ignored or pardoned. The appellant


 had no business to overawe the court.




            Thus,   we   are   of   the   view   that   the   apology   tendered   by   the


 appellant had neither been sincere nor bona fide and thus, not worth


 acceptance.




30.       The appeal lacks merit and is, accordingly, dismissed. A copy


of   the   judgment   and   order   be   sent   to   the   Chief   Judicial   Magistrate,


Etawah, for taking the appellant into custody and send him to the jail


to serve out the sentence.




                                                             ....................................

J.

                                                         (Dr. B.S. CHAUHAN)




                                                             .....................................

J.

                                                         (SWATANTER KUMAR)

New Delhi,            

June 15, 2011





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