1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 684 OF 2006
R. S. Sehrawat … Appellant(s)
:Versus:
Rajeev Malhotra & Ors. …. Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. The instant appeal under Section 19 (1) (b) of the
Contempt of Courts Act, 1971, assails the judgment and
orders passed by the Division Bench of the High Court of Delhi
at New Delhi in C.M. No.820 of 2001 in C.W.P. No.6734 of
2000 dated 1st June, 2001 and in R.A. No.6600 of 2001 in
C.W.P. No.6734 of 2000 dated 10th May, 2006 whereby the
appellant has been found guilty of filing false affidavit and
attempting to mislead the Court, thus committing contempt of
2
court by his acts which were of such a nature that they tended
to substantially interfere with the due course of justice. The
appellant has been sentenced to undergo simple imprisonment
for a period of 30 (Thirty) days and to pay a fine of Rs.25,000/-
(Twenty Five Thousand Only). Review petition against the said
decision came to be dismissed on 10th May, 2006.
2. Briefly stated, the appellant was working as a Junior
Engineer in Municipal Corporation of Delhi (MCD). The writ
petitioner (respondent No.1 herein) had alleged that the
appellant and other officials, including police officials had, by
their act of commission and omission, first permitted the writ
petitioner to carry on unauthorised construction on the
property bearing Plot No.37-C measuring 834 square yards at
Asoka Avenue, Sainik Farms, New Delhi and later on
unilaterally demolished the said structure. This was the
grievance made in Civil Writ Petition No.6734 of 2000 filed by
respondent No.1. Respondent No.1 had prayed for taking
action against the appellant and other officials including police
officials involved in the alleged incident of demolition of the
3
structure. The Division Bench of the High Court adverting to
the direction issued in Public Interest Litigation bearing
C.W.P. No.7441 of 1993 dated November 3, 1997 restraining
unauthorised constructions in unauthorised colonies, issued
notice on 6th December, 2000 in the present writ petition to
the officers of the MCD and the police personnel who were
posted during the time the construction was raised on the plot
belonging to respondent No.1, to show cause as to why
proceedings for contempt of court should not be initiated
against them.
3. After receipt of notice, the appellant, as well as other
officials, filed their respective affidavits. The appellant filed his
detailed affidavit on 3rd January, 2001 inter alia pointing out
the primary responsibility of the officials who were expected to
comply with the directions issued on November 3, 1997 by the
High Court. As regards his role in the capacity of Junior
Engineer, the appellant asserted that he discharged the task
assigned to him from time to time by his superior officers and
submitted compliance reports to them in that behalf. He
4
further asserted that he had undertaken 14 major demolition
actions in Sainik Farms alone between 7th March, 2000 and
27th September, 2000 and razed these constructions to the
ground. It was asserted that the writ petitioner illegally
constructed the building at the same location inspite of the
demolition action taken on the earlier occasions. In support of
the contention that he had resorted to the demolition of
concerned structure, he placed reliance on the office
submission made by him to his superiors as well as the
photographs of the structures taken before and after the
demolition drive. The stand taken by the appellant was
contested by respondent No.1. To verify the factual position,
the High Court vide order dated 12th January, 2001 appointed
a Committee of advocates to inspect the site and submit a fact
finding report. That report was submitted to the High Court by
the Committee of advocates on 23rd January, 2001.
4. The High Court vide order dated 24th January, 2001 after
recording its prima facie opinion issued show cause notice to
the concerned officials including the appellant as to why they
5
should not be convicted and punished for contempt of court.
After the said order, the appellant filed a further affidavit
dated 8th February, 2001 and reiterated the stand taken in the
earlier affidavit as also explained the position of possibility of
reconstruction on the same location after the demolition was
done on 7th June, 2000 and 14th/15th September, 2000. The
appellant also relied on contemporaneous evidence such as
the report and photographs of the demolition. The High Court,
however, was not impressed by the explanation offered by the
appellant and proceeded to record finding of guilt against the
appellant for filing false affidavit on January 3, 2001. The
appellant preferred a review petition which was dismissed on
10th May, 2006. As a result, the appellant has challenged both
the orders by way of the present appeal.
5. The principal grievance of the appellant is that no proper
charge was framed and conveyed to the appellant. The first
show cause notice issued to the appellant in terms of order
dated 6th December, 2000 was presumably for non-compliance
of the direction given on November 3, 1997 in C.W.P. No.7441
6
of 1993; whereas the second show cause notice issued to the
appellant pursuant to order dated 24th January, 2001 was for
filing an incorrect and misleading affidavit dated 3rd January,
2001. The appellant had revealed the factual position in his
affidavit dated 3rd January, 2001 and further affidavit dated
8th February, 2001. The factual position stated in the said
affidavits has not been analysed by the High Court at all,
much less in its proper perspective. On the contrary, the High
Court, proceeded to record a finding of guilt, being swayed
away by the factual position recorded in the report submitted
by the Committee of advocates, completely overlooking the
plausible explanation offered by the appellant that the
unauthorised structure in question was demolished on 7th
June, 2000 and again on 14th/15th September, 2000. The
contemporaneous record regarding the extent of demolition in
the form of office submission, press reports and photographs
was also brought to the notice of the High Court. However,
that has been overlooked. The grievance of the appellant is
that in the affidavit dated 8th February, 2001 a specific
disclosure was made about the video recording done by news
7
channels and liberty to play the video clippings was sought
but the High Court did not deal with this request of the
appellant at all. The time period between the demolition and
the inspection by the Committee of advocates being quite
substantial, the possibility of reconstruction of the structures
in question could not be ruled out. However, the High Court
has not dealt with this aspect.
6. The respondent No.1 and the Amicus Curiae espousing
the cause of the respondent No.1, would, however, contend
that there is no error in the approach or the conclusion
recorded by the High Court.
7. We have heard Mr. Ashok Mathur advocate for the
appellant, Mr. K. Radhakrishnan, learned senior counsel
appearing as amicus curiae and Mr. Ashok Kumar Panda,
learned senior counsel for the respondent.
8. As noted earlier, action against the appellant and other
officials was initiated by the High Court in terms of order
8
dated 6th December, 2000. The relevant portion of the said
order reads thus:
“............
In the instant petition, unauthorized construction was
carried out in Sainik Farm which happens to be an
unauthorized colony. It is not disputed that the petitioner
started construction on Plot No.37C measuring 834 Sq. Yds.
At Ashoka Avenue, Sainki Farm, New Delhi, in July 2000.
The building was allowed to come up and when it was
nearing completion the same was demolished on 30.10.2000.
We fail to understand as to how the building activity could
be permitted/allowed from July 2000 till October 2000 when
order of this court dated November 3, 1997 was in force. It
prima facie appears to us that the building in question could
not have come up unless the concerned officers of the MCD
and the Police connived with the petitioner. The allegation of
the petitioner is that he paid bribes to various offices for
raising the construction. He has named those officers.
In the circumstances, we consider it appropriate to
issue notices to the following officers of the MCD and the
Police, who were posted during the time the construction
was raised on the plot in question, to show cause why
proceedings for contempt of court be not initiated against
them:
1. Mr. R.S. Sherawat (JE) MCD
2. Mr. U.S. Chowhan (JE) MCD
3. Mr. S.R. Bhardwaj, A.E. South zone Building Department
MCD.
4. Mr. Puran Singh Rawat, Baildar, MCD
5. Mr. Rakesh Baildar, MCD
6. Mr. Man Mohan, S.I. Chowki Incharge, Sainik Farms
7. Mr. V.K. Malhotra, Ex. Engineer MCD
8. Mr. Vir Singh, SHO.
The aforesaid officers are present and they accept notice.
They are granted two weeks time to file affidavits in reply to
the show cause notice. Pleadings in the writ petition be
completed before the next date.”
9
9. On a bare perusal of this order, it is evident that the High
Court took suo motu action as it was prima facie convinced
that unauthorised construction was carried out in Sainik
Farms despite the direction contained in order dated
November 3, 1997 in C.W.P. No.7441 of 1993. The order also
records that the show cause notice was accepted by the
officers present in Court. The appellant, like other officers,
filed his affidavit revealing the relevant facts concerning him
vide affidavit dated 3rd January, 2001. The appellant had
explained the factual position as to the action of demolition of
unauthorised structures in Sainik Farms during the relevant
period as per the task assigned to him by his superior officers
and reporting of that fact to his superiors by way of
contemporaneous office submission. The correctness of the
said contemporaneous office reports could not be and has not
been questioned or doubted as such. The reply affidavit makes
it amply clear that the Commissioner of the Corporation was
personally supervising the demolition work of unauthorised
constructions and, therefore, there was no reason to doubt the
10
contemporaneous record in the form of office submissions and
photographs reinforcing the fact of demolition. The report of
the Committee of advocates, however, was based on the site
visit made in January, 2001 after a gap of more than 6
months from 7th June, 2000 and 3 months from 14th
September, 2000 when the demolition was actually carried
out. The factual position stated in the said report, therefore,
may not be the actual position as obtained on the date of
demolition i.e. 7th June, 2000 and 14th September, 2000. It is
not unknown that such unauthorised structures could be and
were reconstructed overnight after the demolition work is
undertaken by the officials. That was done by unscrupulous
persons clandestinely and without notice. The factual position
stated in the reply affidavit filed by the appellant also reveals
that continuous follow-up action was being taken in respect of
unauthorised structures including those which were
demolished. Furthermore, the appellant was transferred from
the concerned ward w.e.f. 27th September, 2000 and any
development or illegal activity unfolding after that date cannot
11
be attributed to the appellant. All these aspects have not been
considered by the High Court.
10. During the pendency of this appeal the appellant has
also brought on record a fact that he had faced departmental
action on the basis of same set of facts regarding his acts of
commission and omission for the following three charges:
“Shri R.S. Sehrawat while functioning as JE (B) in Building
Department, South Zone and remained incharge of the area
of Sainik Farm w.e.f. 07.03.2000 to 27.09.2000, committed
gross misconduct on the following counts:
1. He is connivance with the owner/builders allowed them to
carry out and complete the unauthorized construction in
P.Nos 37-C, 49, H-541, Sainik Farms unabatedly and did not
take effective action to stop/demolish the same at its
initial/ongoing stage.
2. He also did not book the said unauthorized construction in
Sainik Farm just to avoid demolition action u/s 343/344 of
the DMC Act.
3. He also submitted wrong affidavit in the High Court
mentioning therein that unauthorized construction in
P.No.49 and H-541, Sainik Farms were demolished but the
same were found still existing at site. Thus, he mislead the
Hon‟ble High Court.
He, thereby contravened Rule 3 (I) (i) (ii) & (iii) of the CCS
(Conduct) Rules, 1964 as made applicable to the employees
of the MCD.”
12
Notably, the appellant has been exonerated in the said enquiry
by a detailed report analysing all the official records
supporting the stand of the appellant.
11. Be that as it may, the law relating to contempt
proceedings has been restated in the case of Sahdeo Alias
Sahdeo Singh Versus State of Uttar Pradesh and Others1
in paragraph 27 as follows:
“27. In view of the above, the law can be summarised that
the High Court has a power to initiate the contempt
proceedings suo motu for ensuring the compliance with the
orders passed by the Court. However, contempt proceedings
being quasi-criminal in nature, the same standard of proof is
required in the same manner as in other criminal cases. The
alleged contemnor is entitled to the protection of all
safeguards/rights which are provided in the criminal
jurisprudence, including the benefit of doubt. There must be
a clear-cut case of obstruction of administration of justice by
a party intentionally to bring the matter within the ambit of
the said provision. The alleged contemnor is to be informed
as to what is the charge, he has to meet. Thus, specific
charge has to be framed in precision. The alleged contemnor
may ask the Court to permit him to cross-examine the
witnesses i.e. the deponents of affidavits, who have deposed
against him. In spite of the fact that contempt proceedings
are quasi-criminal in nature, provisions of the Code of
Criminal Procedure, 1973 (hereinafter called “CrPC”) and the
Evidence Act are not attracted for the reason that
proceedings have to be concluded expeditiously. Thus, the
trial has to be concluded as early as possible. The case
should not rest only on surmises and conjectures. There
must be clear and reliable evidence to substantiate the
allegations against the alleged contemnor. The proceedings
1 (2010) 3 SCC 705
13
must be concluded giving strict adherence to the statutory
rules framed for the purpose.”
We may usefully refer to two other decisions dealing with
the issue under consideration. In Muthu Karuppan,
Commissioner of Police, Chennai Vs. Parithi Ilamvazhuthi
and Anr.,
2 this Court observed thus:
“15. Giving false evidence by filing false affidavit is an evil
which must be effectively curbed with a strong hand.
Prosecution should be ordered when it is considered
expedient in the interest of justice to punish the delinquent,
but there must be a prima facie case of „deliberate falsehood‟
on a matter of substance and the court should be satisfied
that there is a reasonable foundation for the charge.”
“17. The contempt proceedings being quasi-criminal in
nature, burden and standard of proof is the same as
required in criminal cases. The charges have to be framed as
per the statutory rules framed for the purpose and proved
beyond reasonable doubt keeping in mind that the alleged
contemnor is entitled to the benefit of doubt. Law does not
permit imposing any punishment in contempt proceedings
on mere probabilities, equally, the court cannot punish the
alleged contemnor without any foundation merely on
conjectures and surmises. As observed above, the contempt
proceeding being quasi-criminal in nature require strict
adherence to the procedure prescribed under the rules
applicable in such proceedings.”
2
(2011) 5 SCC 496
14
In Mrityunjoy Das and Anr. Vs. Syed Hasibur Rahaman
and Ors.,
3 this Court observed thus:
“14. The other aspect of the matter ought also to be noticed
at this juncture, viz., the burden of standard of proof. The
common English phrase „he who asserts must prove‟ has its
due application in the matter of proof of the allegations said
to be constituting the act of contempt. As regards the
„standard of proof‟, be it noted that a proceeding under the
extraordinary jurisdiction of the court in terms of the
provisions of the Contempt of Courts Act is quasi-criminal,
and as such, the standard of proof required is that of a
criminal proceeding and the breach shall have to be
established beyond reasonable doubt....”
12. In the present case, going by the material on record it is
not possible to conclude beyond reasonable doubt that the
appellant had contributed to the reconstruction of the
unauthorised structure before or after 27th September, 2000.
Furthermore, the appellant was not served with any charges
muchless specific charge which he was expected to meet. Yet,
the final conclusion in the impugned judgment is that the acts
of the appellant tended to substantially interfere with the due
course of justice and amounted to committing criminal
3
(2001) 3 SCC 739
15
contempt of court for having filed incorrect affidavit. The High
Court made no attempt to verify or examine the
contemporaneous record relied upon by the appellant in
support of his plea that the factual position stated in the
affidavit filed by him was borne out and reinforced from the
said record. The affidavit so filed cannot be termed as
incorrect or misleading by relying on the report of the
advocates‟ committee, which was prepared after a gap of 6
months from the date of first demolition (7th June, 2000) and 3
months from the second demolition (14th September, 2000).
13. The finding recorded by the High Court that the property
was not razed to the ground based on the report prepared in
January, 2001, therefore, is not the correct approach and is
manifestly wrong. The High Court ought to have tested the
authenticity and veracity of the contemporaneous record in
the form of office submissions, Misel Band register, office files,
notices, photograph and press reports etc. relied upon by the
appellant. It would be a different matter if the
contemporaneous record did not support the stand taken by
16
the appellant in the affidavits filed by him dated 3rd January,
2001 and 8th February, 2001 respectively. As a matter of fact,
the appellant has already faced departmental enquiry in which
the matter in issue has been exhaustively dealt with and the
plea taken by the appellant has been found to be correct.
14. Be that as it may, the appellant has been found guilty in
reference to the notice issued in terms of order dated 24th
January, 2001, the relevant portion whereof reads thus:
“Learned counsel for the petitioner also pointed out in the
affidavit of Mr. R.S. Sehrawat, it is mentioned that property
Nos.49 and H-541 were demolished on 7th June, 2000 and
14th September, 2000 respectively. Mr. Awasthy has shown
photographs of these properties. From the photographs, it
appears that the properties are intact and were not
demolished, therefore we are prima facie of the opinion that
even Mr. Sehrawat has taken liberties with truth. Issue
notices to Mr. U.S. Chauhan and Mr. R.S. Sehrawat, Junior
Engineers, MCD, to show cause why they should not be
convicted and punished for contempt of Court. Let the
affidavits in response be filed by 6th February, 2001.”
15. In response to the second notice given to the appellant,
he filed a further affidavit dated 8th February, 2001 to urge as
under:
17
“3. That the deponent submits that the deponent had not
filed any false affidavit, nor did the deponent take liberties
with truth while filing the affidavit on 3.1.2001 before this
Hon‟ble Court. I state that in the order dated 24.1.2001, qua
the deponent it has been recorded that properties No.49 and
H-541, which were demolished by the deponent on 7.6.2000
and on 14.9.2000/15.9.2000 were not demolished as per the
report of the committee appointed by this Hon‟ble Court and
the photographs of these properties.
4. That the deponent submits that property No.49 was
demolished on 7.6.2000 and the photo copies of the
photographs of the existing building before demolition and
after demolition have already been filed by the deponent
along with the deponent‟s affidavit filed on 3.1.2001. The
deponent is filing photocopies of further photographs of the
demolished property. I further state that the press had prior
information for the demolition to be carried out at Sainik
Farms on 7.6.2000 and the press photographers and
reporters were at Sainik Farms. The photograph of the
demolished building at 49, Sainik Farm was taken by the
photographers of some news papers. The times of India,
edition dated 8.6.2000 showed the demolished structure.
This is independent evidence which corroborates the stand of
the deponent. I further state that the video team of the
Doordarshan video taped the demolition of 49 Sainik Farms
and the clippings were shown in the programme “Aaj Tak” on
7.6.2000 itself at 10 P.M. I crave indulgence of this Hon‟ble
Court to summon the video film from the Doordarshan
Authorities prepared for the programme Aaj Tak telecasted
on 7.6.2000. I state that the owner of the property has
reconstructed the same after its earlier demolition. I state
that as stated by me in the earlier affidavit filed by the
deponent, I was no longer assigned the work of Junior
engineer for Sainik Farms after 27.9.2000 and the structure
has been re-erected, only thereafter. I state that during my
tenure as Junior Engineer incharge of Sainik Farms only one
property was bearing No.49 Sainik Farms, which was
demolished by me.
5. That as regards property No. H-541, Sainik Farms, I
state that the committee report has not referred to the same.
However, 29.1.2001, I visited the site of the said property
and state that the said property has also been reconstructed
after the earlier demolition carried out by me. I state that the
reconstructed property is still in the process of finishing and
18
painting work is still going on in the property. I state that the
committee members should be requested by this Hon‟ble
Court to immediately report whether the buildings are in the
process of being painted or has been recently completed and
painted as the same would show and prove its
reconstruction. I have already filed the photographs showing
the demolished property by me along with my earlier
affidavit.
6. That I state that as already stated by me in my
affidavit filed before this Hon‟ble Court on 3.1.2001, the
Commissioner of the Corporation was weekly reviewing the
activities at Sainik Farms and the Zonal Engineer and the
Executive Engineer of the Zone were also personally
supervising the demolition operations carried out by me. The
reports of the said Zonal Engineer and Executive Engineers
should also be called.
7. That I state that I should be given an opportunity to
lead evidence of the press photographers, Doordarshan team
which video taped the demolitions on 7.6.2000 as also the
evidence of the Zonal Engineer and Executive Engineer to
prove that I had carried out the demolitions and have not
filed any affidavit nor have taken liberties with truth.”
16. This specific stand taken by the appellant has not been
considered by the High Court at all. The appellant made this
grievance in the review petition, but of no avail. In our opinion,
it is not possible to hold that the demolition work undertaken
on 7th June, 2000 and 14th September 2000 was not in
conformity with the position reflected in the contemporaneous
office submissions/record and photographs submitted by the
appellant to his superior authority.
19
17. As a matter of fact, the appellant ought to succeed on the
singular ground that the High Court unjustly proceeded
against him without framing formal charges or furnishing
such charges to him; and moreso because filing of affidavit by
the appellant was supported by contemporaneous official
record, which cannot be termed as an attempt to obstruct the
due course of administration of justice. Accordingly, this
appeal ought to succeed.
18. In view of the above, the impugned judgment and orders
passed by the Division Bench of High Court of Delhi at New
Delhi in C.M. No.820 of 2001 in C.W.P. No.6734 of 2000 dated
1st June, 2001 and in R.A. No.6600 of 2001 in C.W.P. No.6734
of 2000 dated 10th May, 2006 are quashed and set aside and
the show cause notices issued to the appellant pursuant to the
order of the Division Bench of the High Court dated 6th
20
December, 2000 and dated 24th January, 2001 are hereby
dropped. Appeal is allowed in the aforementioned terms.
…………………………….CJI.
(Dipak Misra)
…………………………..….J.
(A.M. Khanwilkar)
New Delhi;
September 05, 2018.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 684 OF 2006
R. S. Sehrawat … Appellant(s)
:Versus:
Rajeev Malhotra & Ors. …. Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. The instant appeal under Section 19 (1) (b) of the
Contempt of Courts Act, 1971, assails the judgment and
orders passed by the Division Bench of the High Court of Delhi
at New Delhi in C.M. No.820 of 2001 in C.W.P. No.6734 of
2000 dated 1st June, 2001 and in R.A. No.6600 of 2001 in
C.W.P. No.6734 of 2000 dated 10th May, 2006 whereby the
appellant has been found guilty of filing false affidavit and
attempting to mislead the Court, thus committing contempt of
2
court by his acts which were of such a nature that they tended
to substantially interfere with the due course of justice. The
appellant has been sentenced to undergo simple imprisonment
for a period of 30 (Thirty) days and to pay a fine of Rs.25,000/-
(Twenty Five Thousand Only). Review petition against the said
decision came to be dismissed on 10th May, 2006.
2. Briefly stated, the appellant was working as a Junior
Engineer in Municipal Corporation of Delhi (MCD). The writ
petitioner (respondent No.1 herein) had alleged that the
appellant and other officials, including police officials had, by
their act of commission and omission, first permitted the writ
petitioner to carry on unauthorised construction on the
property bearing Plot No.37-C measuring 834 square yards at
Asoka Avenue, Sainik Farms, New Delhi and later on
unilaterally demolished the said structure. This was the
grievance made in Civil Writ Petition No.6734 of 2000 filed by
respondent No.1. Respondent No.1 had prayed for taking
action against the appellant and other officials including police
officials involved in the alleged incident of demolition of the
3
structure. The Division Bench of the High Court adverting to
the direction issued in Public Interest Litigation bearing
C.W.P. No.7441 of 1993 dated November 3, 1997 restraining
unauthorised constructions in unauthorised colonies, issued
notice on 6th December, 2000 in the present writ petition to
the officers of the MCD and the police personnel who were
posted during the time the construction was raised on the plot
belonging to respondent No.1, to show cause as to why
proceedings for contempt of court should not be initiated
against them.
3. After receipt of notice, the appellant, as well as other
officials, filed their respective affidavits. The appellant filed his
detailed affidavit on 3rd January, 2001 inter alia pointing out
the primary responsibility of the officials who were expected to
comply with the directions issued on November 3, 1997 by the
High Court. As regards his role in the capacity of Junior
Engineer, the appellant asserted that he discharged the task
assigned to him from time to time by his superior officers and
submitted compliance reports to them in that behalf. He
4
further asserted that he had undertaken 14 major demolition
actions in Sainik Farms alone between 7th March, 2000 and
27th September, 2000 and razed these constructions to the
ground. It was asserted that the writ petitioner illegally
constructed the building at the same location inspite of the
demolition action taken on the earlier occasions. In support of
the contention that he had resorted to the demolition of
concerned structure, he placed reliance on the office
submission made by him to his superiors as well as the
photographs of the structures taken before and after the
demolition drive. The stand taken by the appellant was
contested by respondent No.1. To verify the factual position,
the High Court vide order dated 12th January, 2001 appointed
a Committee of advocates to inspect the site and submit a fact
finding report. That report was submitted to the High Court by
the Committee of advocates on 23rd January, 2001.
4. The High Court vide order dated 24th January, 2001 after
recording its prima facie opinion issued show cause notice to
the concerned officials including the appellant as to why they
5
should not be convicted and punished for contempt of court.
After the said order, the appellant filed a further affidavit
dated 8th February, 2001 and reiterated the stand taken in the
earlier affidavit as also explained the position of possibility of
reconstruction on the same location after the demolition was
done on 7th June, 2000 and 14th/15th September, 2000. The
appellant also relied on contemporaneous evidence such as
the report and photographs of the demolition. The High Court,
however, was not impressed by the explanation offered by the
appellant and proceeded to record finding of guilt against the
appellant for filing false affidavit on January 3, 2001. The
appellant preferred a review petition which was dismissed on
10th May, 2006. As a result, the appellant has challenged both
the orders by way of the present appeal.
5. The principal grievance of the appellant is that no proper
charge was framed and conveyed to the appellant. The first
show cause notice issued to the appellant in terms of order
dated 6th December, 2000 was presumably for non-compliance
of the direction given on November 3, 1997 in C.W.P. No.7441
6
of 1993; whereas the second show cause notice issued to the
appellant pursuant to order dated 24th January, 2001 was for
filing an incorrect and misleading affidavit dated 3rd January,
2001. The appellant had revealed the factual position in his
affidavit dated 3rd January, 2001 and further affidavit dated
8th February, 2001. The factual position stated in the said
affidavits has not been analysed by the High Court at all,
much less in its proper perspective. On the contrary, the High
Court, proceeded to record a finding of guilt, being swayed
away by the factual position recorded in the report submitted
by the Committee of advocates, completely overlooking the
plausible explanation offered by the appellant that the
unauthorised structure in question was demolished on 7th
June, 2000 and again on 14th/15th September, 2000. The
contemporaneous record regarding the extent of demolition in
the form of office submission, press reports and photographs
was also brought to the notice of the High Court. However,
that has been overlooked. The grievance of the appellant is
that in the affidavit dated 8th February, 2001 a specific
disclosure was made about the video recording done by news
7
channels and liberty to play the video clippings was sought
but the High Court did not deal with this request of the
appellant at all. The time period between the demolition and
the inspection by the Committee of advocates being quite
substantial, the possibility of reconstruction of the structures
in question could not be ruled out. However, the High Court
has not dealt with this aspect.
6. The respondent No.1 and the Amicus Curiae espousing
the cause of the respondent No.1, would, however, contend
that there is no error in the approach or the conclusion
recorded by the High Court.
7. We have heard Mr. Ashok Mathur advocate for the
appellant, Mr. K. Radhakrishnan, learned senior counsel
appearing as amicus curiae and Mr. Ashok Kumar Panda,
learned senior counsel for the respondent.
8. As noted earlier, action against the appellant and other
officials was initiated by the High Court in terms of order
8
dated 6th December, 2000. The relevant portion of the said
order reads thus:
“............
In the instant petition, unauthorized construction was
carried out in Sainik Farm which happens to be an
unauthorized colony. It is not disputed that the petitioner
started construction on Plot No.37C measuring 834 Sq. Yds.
At Ashoka Avenue, Sainki Farm, New Delhi, in July 2000.
The building was allowed to come up and when it was
nearing completion the same was demolished on 30.10.2000.
We fail to understand as to how the building activity could
be permitted/allowed from July 2000 till October 2000 when
order of this court dated November 3, 1997 was in force. It
prima facie appears to us that the building in question could
not have come up unless the concerned officers of the MCD
and the Police connived with the petitioner. The allegation of
the petitioner is that he paid bribes to various offices for
raising the construction. He has named those officers.
In the circumstances, we consider it appropriate to
issue notices to the following officers of the MCD and the
Police, who were posted during the time the construction
was raised on the plot in question, to show cause why
proceedings for contempt of court be not initiated against
them:
1. Mr. R.S. Sherawat (JE) MCD
2. Mr. U.S. Chowhan (JE) MCD
3. Mr. S.R. Bhardwaj, A.E. South zone Building Department
MCD.
4. Mr. Puran Singh Rawat, Baildar, MCD
5. Mr. Rakesh Baildar, MCD
6. Mr. Man Mohan, S.I. Chowki Incharge, Sainik Farms
7. Mr. V.K. Malhotra, Ex. Engineer MCD
8. Mr. Vir Singh, SHO.
The aforesaid officers are present and they accept notice.
They are granted two weeks time to file affidavits in reply to
the show cause notice. Pleadings in the writ petition be
completed before the next date.”
9
9. On a bare perusal of this order, it is evident that the High
Court took suo motu action as it was prima facie convinced
that unauthorised construction was carried out in Sainik
Farms despite the direction contained in order dated
November 3, 1997 in C.W.P. No.7441 of 1993. The order also
records that the show cause notice was accepted by the
officers present in Court. The appellant, like other officers,
filed his affidavit revealing the relevant facts concerning him
vide affidavit dated 3rd January, 2001. The appellant had
explained the factual position as to the action of demolition of
unauthorised structures in Sainik Farms during the relevant
period as per the task assigned to him by his superior officers
and reporting of that fact to his superiors by way of
contemporaneous office submission. The correctness of the
said contemporaneous office reports could not be and has not
been questioned or doubted as such. The reply affidavit makes
it amply clear that the Commissioner of the Corporation was
personally supervising the demolition work of unauthorised
constructions and, therefore, there was no reason to doubt the
10
contemporaneous record in the form of office submissions and
photographs reinforcing the fact of demolition. The report of
the Committee of advocates, however, was based on the site
visit made in January, 2001 after a gap of more than 6
months from 7th June, 2000 and 3 months from 14th
September, 2000 when the demolition was actually carried
out. The factual position stated in the said report, therefore,
may not be the actual position as obtained on the date of
demolition i.e. 7th June, 2000 and 14th September, 2000. It is
not unknown that such unauthorised structures could be and
were reconstructed overnight after the demolition work is
undertaken by the officials. That was done by unscrupulous
persons clandestinely and without notice. The factual position
stated in the reply affidavit filed by the appellant also reveals
that continuous follow-up action was being taken in respect of
unauthorised structures including those which were
demolished. Furthermore, the appellant was transferred from
the concerned ward w.e.f. 27th September, 2000 and any
development or illegal activity unfolding after that date cannot
11
be attributed to the appellant. All these aspects have not been
considered by the High Court.
10. During the pendency of this appeal the appellant has
also brought on record a fact that he had faced departmental
action on the basis of same set of facts regarding his acts of
commission and omission for the following three charges:
“Shri R.S. Sehrawat while functioning as JE (B) in Building
Department, South Zone and remained incharge of the area
of Sainik Farm w.e.f. 07.03.2000 to 27.09.2000, committed
gross misconduct on the following counts:
1. He is connivance with the owner/builders allowed them to
carry out and complete the unauthorized construction in
P.Nos 37-C, 49, H-541, Sainik Farms unabatedly and did not
take effective action to stop/demolish the same at its
initial/ongoing stage.
2. He also did not book the said unauthorized construction in
Sainik Farm just to avoid demolition action u/s 343/344 of
the DMC Act.
3. He also submitted wrong affidavit in the High Court
mentioning therein that unauthorized construction in
P.No.49 and H-541, Sainik Farms were demolished but the
same were found still existing at site. Thus, he mislead the
Hon‟ble High Court.
He, thereby contravened Rule 3 (I) (i) (ii) & (iii) of the CCS
(Conduct) Rules, 1964 as made applicable to the employees
of the MCD.”
12
Notably, the appellant has been exonerated in the said enquiry
by a detailed report analysing all the official records
supporting the stand of the appellant.
11. Be that as it may, the law relating to contempt
proceedings has been restated in the case of Sahdeo Alias
Sahdeo Singh Versus State of Uttar Pradesh and Others1
in paragraph 27 as follows:
“27. In view of the above, the law can be summarised that
the High Court has a power to initiate the contempt
proceedings suo motu for ensuring the compliance with the
orders passed by the Court. However, contempt proceedings
being quasi-criminal in nature, the same standard of proof is
required in the same manner as in other criminal cases. The
alleged contemnor is entitled to the protection of all
safeguards/rights which are provided in the criminal
jurisprudence, including the benefit of doubt. There must be
a clear-cut case of obstruction of administration of justice by
a party intentionally to bring the matter within the ambit of
the said provision. The alleged contemnor is to be informed
as to what is the charge, he has to meet. Thus, specific
charge has to be framed in precision. The alleged contemnor
may ask the Court to permit him to cross-examine the
witnesses i.e. the deponents of affidavits, who have deposed
against him. In spite of the fact that contempt proceedings
are quasi-criminal in nature, provisions of the Code of
Criminal Procedure, 1973 (hereinafter called “CrPC”) and the
Evidence Act are not attracted for the reason that
proceedings have to be concluded expeditiously. Thus, the
trial has to be concluded as early as possible. The case
should not rest only on surmises and conjectures. There
must be clear and reliable evidence to substantiate the
allegations against the alleged contemnor. The proceedings
1 (2010) 3 SCC 705
13
must be concluded giving strict adherence to the statutory
rules framed for the purpose.”
We may usefully refer to two other decisions dealing with
the issue under consideration. In Muthu Karuppan,
Commissioner of Police, Chennai Vs. Parithi Ilamvazhuthi
and Anr.,
2 this Court observed thus:
“15. Giving false evidence by filing false affidavit is an evil
which must be effectively curbed with a strong hand.
Prosecution should be ordered when it is considered
expedient in the interest of justice to punish the delinquent,
but there must be a prima facie case of „deliberate falsehood‟
on a matter of substance and the court should be satisfied
that there is a reasonable foundation for the charge.”
“17. The contempt proceedings being quasi-criminal in
nature, burden and standard of proof is the same as
required in criminal cases. The charges have to be framed as
per the statutory rules framed for the purpose and proved
beyond reasonable doubt keeping in mind that the alleged
contemnor is entitled to the benefit of doubt. Law does not
permit imposing any punishment in contempt proceedings
on mere probabilities, equally, the court cannot punish the
alleged contemnor without any foundation merely on
conjectures and surmises. As observed above, the contempt
proceeding being quasi-criminal in nature require strict
adherence to the procedure prescribed under the rules
applicable in such proceedings.”
2
(2011) 5 SCC 496
14
In Mrityunjoy Das and Anr. Vs. Syed Hasibur Rahaman
and Ors.,
3 this Court observed thus:
“14. The other aspect of the matter ought also to be noticed
at this juncture, viz., the burden of standard of proof. The
common English phrase „he who asserts must prove‟ has its
due application in the matter of proof of the allegations said
to be constituting the act of contempt. As regards the
„standard of proof‟, be it noted that a proceeding under the
extraordinary jurisdiction of the court in terms of the
provisions of the Contempt of Courts Act is quasi-criminal,
and as such, the standard of proof required is that of a
criminal proceeding and the breach shall have to be
established beyond reasonable doubt....”
12. In the present case, going by the material on record it is
not possible to conclude beyond reasonable doubt that the
appellant had contributed to the reconstruction of the
unauthorised structure before or after 27th September, 2000.
Furthermore, the appellant was not served with any charges
muchless specific charge which he was expected to meet. Yet,
the final conclusion in the impugned judgment is that the acts
of the appellant tended to substantially interfere with the due
course of justice and amounted to committing criminal
3
(2001) 3 SCC 739
15
contempt of court for having filed incorrect affidavit. The High
Court made no attempt to verify or examine the
contemporaneous record relied upon by the appellant in
support of his plea that the factual position stated in the
affidavit filed by him was borne out and reinforced from the
said record. The affidavit so filed cannot be termed as
incorrect or misleading by relying on the report of the
advocates‟ committee, which was prepared after a gap of 6
months from the date of first demolition (7th June, 2000) and 3
months from the second demolition (14th September, 2000).
13. The finding recorded by the High Court that the property
was not razed to the ground based on the report prepared in
January, 2001, therefore, is not the correct approach and is
manifestly wrong. The High Court ought to have tested the
authenticity and veracity of the contemporaneous record in
the form of office submissions, Misel Band register, office files,
notices, photograph and press reports etc. relied upon by the
appellant. It would be a different matter if the
contemporaneous record did not support the stand taken by
16
the appellant in the affidavits filed by him dated 3rd January,
2001 and 8th February, 2001 respectively. As a matter of fact,
the appellant has already faced departmental enquiry in which
the matter in issue has been exhaustively dealt with and the
plea taken by the appellant has been found to be correct.
14. Be that as it may, the appellant has been found guilty in
reference to the notice issued in terms of order dated 24th
January, 2001, the relevant portion whereof reads thus:
“Learned counsel for the petitioner also pointed out in the
affidavit of Mr. R.S. Sehrawat, it is mentioned that property
Nos.49 and H-541 were demolished on 7th June, 2000 and
14th September, 2000 respectively. Mr. Awasthy has shown
photographs of these properties. From the photographs, it
appears that the properties are intact and were not
demolished, therefore we are prima facie of the opinion that
even Mr. Sehrawat has taken liberties with truth. Issue
notices to Mr. U.S. Chauhan and Mr. R.S. Sehrawat, Junior
Engineers, MCD, to show cause why they should not be
convicted and punished for contempt of Court. Let the
affidavits in response be filed by 6th February, 2001.”
15. In response to the second notice given to the appellant,
he filed a further affidavit dated 8th February, 2001 to urge as
under:
17
“3. That the deponent submits that the deponent had not
filed any false affidavit, nor did the deponent take liberties
with truth while filing the affidavit on 3.1.2001 before this
Hon‟ble Court. I state that in the order dated 24.1.2001, qua
the deponent it has been recorded that properties No.49 and
H-541, which were demolished by the deponent on 7.6.2000
and on 14.9.2000/15.9.2000 were not demolished as per the
report of the committee appointed by this Hon‟ble Court and
the photographs of these properties.
4. That the deponent submits that property No.49 was
demolished on 7.6.2000 and the photo copies of the
photographs of the existing building before demolition and
after demolition have already been filed by the deponent
along with the deponent‟s affidavit filed on 3.1.2001. The
deponent is filing photocopies of further photographs of the
demolished property. I further state that the press had prior
information for the demolition to be carried out at Sainik
Farms on 7.6.2000 and the press photographers and
reporters were at Sainik Farms. The photograph of the
demolished building at 49, Sainik Farm was taken by the
photographers of some news papers. The times of India,
edition dated 8.6.2000 showed the demolished structure.
This is independent evidence which corroborates the stand of
the deponent. I further state that the video team of the
Doordarshan video taped the demolition of 49 Sainik Farms
and the clippings were shown in the programme “Aaj Tak” on
7.6.2000 itself at 10 P.M. I crave indulgence of this Hon‟ble
Court to summon the video film from the Doordarshan
Authorities prepared for the programme Aaj Tak telecasted
on 7.6.2000. I state that the owner of the property has
reconstructed the same after its earlier demolition. I state
that as stated by me in the earlier affidavit filed by the
deponent, I was no longer assigned the work of Junior
engineer for Sainik Farms after 27.9.2000 and the structure
has been re-erected, only thereafter. I state that during my
tenure as Junior Engineer incharge of Sainik Farms only one
property was bearing No.49 Sainik Farms, which was
demolished by me.
5. That as regards property No. H-541, Sainik Farms, I
state that the committee report has not referred to the same.
However, 29.1.2001, I visited the site of the said property
and state that the said property has also been reconstructed
after the earlier demolition carried out by me. I state that the
reconstructed property is still in the process of finishing and
18
painting work is still going on in the property. I state that the
committee members should be requested by this Hon‟ble
Court to immediately report whether the buildings are in the
process of being painted or has been recently completed and
painted as the same would show and prove its
reconstruction. I have already filed the photographs showing
the demolished property by me along with my earlier
affidavit.
6. That I state that as already stated by me in my
affidavit filed before this Hon‟ble Court on 3.1.2001, the
Commissioner of the Corporation was weekly reviewing the
activities at Sainik Farms and the Zonal Engineer and the
Executive Engineer of the Zone were also personally
supervising the demolition operations carried out by me. The
reports of the said Zonal Engineer and Executive Engineers
should also be called.
7. That I state that I should be given an opportunity to
lead evidence of the press photographers, Doordarshan team
which video taped the demolitions on 7.6.2000 as also the
evidence of the Zonal Engineer and Executive Engineer to
prove that I had carried out the demolitions and have not
filed any affidavit nor have taken liberties with truth.”
16. This specific stand taken by the appellant has not been
considered by the High Court at all. The appellant made this
grievance in the review petition, but of no avail. In our opinion,
it is not possible to hold that the demolition work undertaken
on 7th June, 2000 and 14th September 2000 was not in
conformity with the position reflected in the contemporaneous
office submissions/record and photographs submitted by the
appellant to his superior authority.
19
17. As a matter of fact, the appellant ought to succeed on the
singular ground that the High Court unjustly proceeded
against him without framing formal charges or furnishing
such charges to him; and moreso because filing of affidavit by
the appellant was supported by contemporaneous official
record, which cannot be termed as an attempt to obstruct the
due course of administration of justice. Accordingly, this
appeal ought to succeed.
18. In view of the above, the impugned judgment and orders
passed by the Division Bench of High Court of Delhi at New
Delhi in C.M. No.820 of 2001 in C.W.P. No.6734 of 2000 dated
1st June, 2001 and in R.A. No.6600 of 2001 in C.W.P. No.6734
of 2000 dated 10th May, 2006 are quashed and set aside and
the show cause notices issued to the appellant pursuant to the
order of the Division Bench of the High Court dated 6th
20
December, 2000 and dated 24th January, 2001 are hereby
dropped. Appeal is allowed in the aforementioned terms.
…………………………….CJI.
(Dipak Misra)
…………………………..….J.
(A.M. Khanwilkar)
New Delhi;
September 05, 2018.
