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JUDGMENT
VINOD SURHA &ANR. .... Petitioners
Advocates who appeared in this case:
For the Petitioner : Mr.Rishi Sood, Advocate.
For the Respondents : Mr.Deepak Khosla, Respondent
No.2 in person
Crl.M.A. No.7289/2017 in Crl.M.C. No. 1143/2017
1 The present application, though styled as a “Criminal Misc. Application”, is essentially in the nature of a contempt petition. This contempt petition, which has been moved by Respondent No.2, (Mr Deepak Khosla), alleges commission of civil, and criminal contempt, by the petitioners (who shall, therefore, 2017:DHC:3423 referred to hereinafter, as “alleged contemnors”). The prayers in the application read thus: “It is therefore most respectfully and humbly prayed that this Hon‟ble Court may be pleased to: (a) Punish the two Petitioners for civil contempt, of Court, for having consciously and deliberately violated the orders dated 31.03.3017 and 10.04.2017 passed by this Hon‟ble Court in the present proceedings. (b) Refer the matter for initiation of criminal contempt of Court proceedings to the Division Bench of this Hon‟ble Court.
(c) Pass ex parte orders as prayed for above.
(d) And pass such order or further order or orders as this Hon‟ble Court may deem fit and proper under the circumstances of the case”.
2 Mr Deepak Khosla was heard by this Court on the present application on 07th July, 2017.
3 Inasmuch as the prayer, for initiation of contempt proceedings against the alleged contemnors, is premised on alleged disobedience, by them, of orders dated 31st March, 2017 and 10th April, 2017, passed by this Court, in Crl.M.A. 5648/2017 it would be appropriate to reproduce the said orders, dated 31st March, 2017 and 10th April, 2017, before proceeding further.
4 On 31st March, 2017, a learned Single Judge of this Court ordered thus, in Crl M.A. No. 5648/2017: “This is an application under Section 482 Cr.P.C. filed by the respondent No.2 seeking inter alia recall of ex parte order dated 20.032017 passed in Crl.M.A. No. 1143/2017. Respondent No.2 in person submits that the order passed in Crl.M.C. No.1018/2017 amounts to reviewing of the earlier order passed by this Court in Crl.M.A. N.4261/2017. Respondent No.2 present in person further submits that the documents may be ordered to be sized by the Police or by the Local Commissioner today itself. He further submits hat if the documents are not ordered to be seized today, the same could be destroyed by the accused. Issue notice of this application to the nonapplicant/petitioners, on the applicant/respondent No.2 taking the necessary steps, returnable on10th April, 2017. Since notice in the application has been issued to the non-applicants/petitioner, this Court does not consider the prayer made in the application at this stage. However, the nonapplicant are directed to place on record the original documents, if in their possession, till the next date of hearing, ie.10th April, 2017”. (Emphasis supplied)
5 The subsequent order in Crl.M.A.No.4628/2017, passed on 10th April, 2017, reads thus:- “Vide order dated 31.03.2017, it was ordered that the non-applicants will place on record the original documents, if the same are in their possession, till the next date of hearing i.e on 10.04.2017. However, learned senior Advocate appearing for the petitioners sub mitted that they have not filed the documents and be given time to file the available documents within a week. Respondent No.2 submitted that the same should be seized by the police. Let the original documents, if in possession, be filed within a week by the non-applicants. Reply to the application be filed within four weeks. Rejoinder, if any, be filed within two weeks thereafter”.
6 A reading of the above orders, dated 31st March 2017 and 10th April 2017, passed by this court, reveals that two directions were issued, to the alleged contemnors, therein, viz.(i) to place on record the original documents, “if in their possession” and “if available”, and (ii) to file their response to Crl.M.A NO. 5648/2017.
7 Inasmuch as the second direction, i.e. for the alleged contemnors to file their response to the application of Mr Khosla, is concerned, this Court has, vide order dated 06th July 2017, granted further time of 3 days, to them, to file their response to Crl.M.A.5648/2017. In any event, insofar as the aspect of alleged contempt is concerned, the grievance of Mr Khosla relates, not to the non-filing of reply to the application by the alleged contemnors, but to their having placed, on record only 3, out of 27 documents, to which, in his submission, the order passed by this Court related. In other words, the submission of Mr Khosla, to justify his prayer for proceedings against the alleged contemnors in contempt, is that, despite directions having been issued by this Court, to the alleged contemnors to place on record, the original documents, they have complied with the said directions only to a very limited extent by filing only 3 out of 27 documents.
8 The factual basis, for the said prayers of Mr Khosla as contained in the present application, is supposedly to be found in paras 2 to 12 thereof, which read thus:-
3. That vide order dated 31.03.2017, this Hon‟ble Court had been pleased to direct the Petitioners, to file the originals of all the documents appended by them as Annexure “Q” to their petition by 10.04.2017, if available with them.
4. That though the counsel for the Petitioners was not present “formally” on 31.03.2017 (on account of the advocates strike), however, the team of counsels that represents the Petitioners (namely, Mr.Anand Mohan Mishra, Rishi Sood, etc.) was very much present in Court, as would undoubtedly be proved by the video recording of the hall outside the courtroom.
5. That on 10.04.2017, upon filing of an application which sought directions to the police to seize the forged documents in light of the failure of the Petitioners to file the original documents within the time stipulated by this Hon‟ble Court on 31.03.2017, this Hon‟ble Court, on specific request of learned counsel appearing for the petitioners, was pleased to allow them one more week i.e. by 17.04.2017.
6. That when the matter was listed again on 17.04.2017, again, there was no compliance by the petitioners.
7. That in this view of the matter, it is clear that the Petitioners have not complied with a binding direction of this Hon‟ble Court.
8. That it is specifically averred by the applicant that the non-compliance is deliberate and strategic, because they know that the documents are forged, and the compliance with the order of this Hon‟ble Court will put the Petitioners in deeper trouble than they already are.
9. That in the instant case, the documents filed at Annexure „Q‟ are alleged MOUs, Agreements, etc. executed between Connaught Plaza Restaurants (P) Ltd. Are Ascot Hotels & Restaurants (P) Ltd., and have been filed by the Petitioners as they form the bed-rock of their case to purport that they have not committed criminal breach of trusts in who was, earlier, the Managing Director of Connaught Plaza Restaurants (P) Ltd.
10. That even assuming without admitting that the documents are not with the Petitioners, even though they are Directors of Ascot Hotels & Restaurants (P) Ltd., nonetheless, they are very much with the other company that is allegedly party to the same i.e. Connaught Plaza Restaurants (P) Ltd., whose directors are Vikram Bakshi and his wife Madhurima Bakshi, and which individuals are also Directors of the same company of which the Petitioners are directors i.e. Ascot Hotels & Restaurants (P) Ltd.
11. This being, so since the Petitioners, face distinct risk of having their present petition dismissed in absence of filing original documents. Even assuming without admitting that these documents were not in their possession, nonetheless, they can very easily obtain original (for certified copies) from the company that is the other party to these contracts i.e. Connaught Plaza Restaurants (P) Ltd.
12. That the fact they are not doing so is clear evidence of the fact that these documents are forged, and do not exist in the records of that other company.
13. That this being so, the Petitioners, are in civil contempt of the order dated 31.03.2017 and 10.04.2017 passed by this Hon‟ble Court”. (Emphasis supplied)
9 Though the present application does not say so, Mr Khosla submitted, in Court, that the alleged contemnors had, in fact, filed 3 documents, purportedly in compliance with the directions issued by this Court, on 01st May 2017, under an index. This, however, in his submission, would not purge the contempt committed by the alleged contemnors, as the total number of documents required to be filed was 27.
10 A plain reading of the directions issued by this Court in its order dated 31st March, 2017 (supra) and 10th April, 2017 (supra) makes it apparent that the alleged contemnors were only required to file those documents which were available with them. Per sequitur, any petition, complaining of contempt of the said direction, would necessarily have to aver that the petitioners had not filed all the documents available with them, that is, in the present case, that the 24 documents, not filed by the alleged contemnors, were actually available with them.
12 On this aspect of the matter being brought to the notice of Mr Khosla, his response is that para 7 of his application contains sufficient factual material to constitute the basis for alleging contempt. On the attention of Mr Khosla being drawn to the fact of paras 9 and 10 of the application, in fact, were somewhat ambivalent regarding the availability of the documents with the alleged contemnors, the submission of Mr Khosla was that the said paras only constitute a “fall back” submission, and could not, therefore, detract from the specific allegation of contempt contained in para 7 of the application.
13 Ambivalence and prevarication are antithetical to contempt proceedings. Issuance of notice, on a contempt petition, to the alleged contemnors, is a serious matter, as an allegation of contempt represents an affront not only to the dignity of the Court, but is also reflective of the respect of the citizen towards the orders passed by it. Notice, on contempt petitions, is not, therefore, to be issued in a routine manner and would be justified only where, on the facts alleged before it - which, in turn, must be backed by sufficient evidentiary material, which must itself inspire confidence - the Court feels, prima facie, that possible contempt might have been committed.
14 Mr Khosla exhorts this Court to issue notice on the present application, submitting that the response, of the alleged contemnors, to such notice, would disclose whether they had, in fact, filed all the documents available with them, or not.
15 Contempt proceedings cannot be used as a vehicle for a roving enquiry to ascertain whether there has, or has not, been compliance, with the directions issued by the Court. It is, therefore, absolutely essential that every petition, seeking initiation of contempt proceedings, not only alleges, in clear and unambiguous terms, contumacious, disobedience with the directions issued by the Court, but also contains adequate and sufficient factual material to support the said allegation.
16 It would be worthwhile, in this context, to recall the following words, in Oswald’s celebrated work on Contempt of Court, which have become locus classicus: "It should always be borne in mind in considering and dealing with contempt of Court that it is an offence purely sui generis, and that its punishment involves in most cases an exceptional interference with the liberty of the subject, and that, too, by a method or process which would in no other case be permissible, or even tolerated. It is highly, necessary, therefore, in all questions of this nature, where the functions of the Court have to be exercised in a summary manner, that the Judge in dealing with the alleged offence should not proceed otherwise than with great caution and deliberation, and only in the cases where the administration of justice would be hampered by the delay in proceeding in the ordinary course of law; and that when any antecedent process has to be put in motion every prescribed step and rule, however, technical should be carefully taken, observed, and insisted upon. The jurisdiction should be exercised the more carefully in view of the fact that the defendant is usually reduced or pretends to be reduced, to such a state of humility in fear of more severe consequences if he shows any recalcitrancy that he is either unable or unwilling to defend himself as he otherwise might have done."
17 Contempt proceedings, even if accorded the appellation “civil”, remain, at the very least, quasi-criminal in nature. The following words of Dr B.S.Chauhan, J., speaking for the Bench in Sahdeo v State of U.P., (2010) 3 SCC 705, authoritatively adumbrate the contours and textures of contempt jurisdiction:
18 Multiplication of authorities, demonstrating the above propositions, which may rightfully be regarded as trite and well settled, is neither necessary nor expedient. Suffice it to state that, even before issuing notice to the alleged contemnor on a contempt petition, it is the duty of the Court to be satisfied that
(i) there is a clear, unambiguous and unequivocal allegation, in the petition, that (a) the contemnor is guilty of disobeying the order of the court, and (b) such disobedience is wilful and contumacious in nature, and
(ii) the factual matrix and background for the said allegation is, equally clearly and unambigously, set out in the petition.
19 In the absence of the above indicia, no proceeding, seeking initiation of contempt proceedings, would merit even a preliminary consideration. Notice, on a contempt petition, cannot blindly be issued so as to coax information out of the alleged contemnor, and to determine, on the basis of such information, whether there has been obedience with the order passed by the court, or not. By requesting this Court to issue notice to the alleged contemnor in the present case, so as to determine whether all documents available with the alleged contemnor have, or have not, been filed, this is precisely what Mr Khosla would have this Court do. This is not permissible in contempt proceedings. Contempt proceedings cannot be likened to proceedings inviting interrogatories.
20 Tested on the above touchstone, it is clear that the application filed by Mr Khosla does not make out any case for issuance of notice, to the respondents, to answer the allegation of having committed civil contempt of this Court. There is no averment, therein, that the alleged contemnors have not filed all the documents available with them, as directed by this Court. Neither is there any material, forthcoming, on the basis whereof the Court could arrive at a conclusion, even prima facie, that the said 24 documents were available with the alleged conclusions. As noticed elsewhere in the present order, paras 9 and 11 of the application, in fact, suggest otherwise.
21 It is also disquieting to note that, though, on the date of filing of the present Miscellaneous Application by Mr Khosla (01st May 2017), 3 documents were, admittedly, filed by the alleged contemnors, no effort was made to amend the present application and disclose the said fact, despite the fact that over 2 months have passed since then. Not only is the instant application silent on the above issue; paras 9 and 10 thereof impliedly accept that the documents which have allegedly not been filed by the petitioners might be available elsewhere, and seek to make out a case that the alleged contemnors could “very easily” have obtained the said documents. The failure, on their part, to do so, would, in the perspective of Mr Khosla, constitute “contempt”.
22 The orders dated 31st March, 2017 and 10th April, 2017 (supra) passed by this Court do not call upon the alleged contemnors to obtain any document from any other source and file them before this Court. The direction is, clearly, categorically and unambiguously, that the alleged contemnors are to file the original documents available with them. The submissions in para 9 to 11 of the present application, therefore, entirely defeat the prayers contained therein. The submission of Mr Khosla that the said paras constitute only a “fall back” argument is, quite obviously, itself only a “fall back argument”; essentially a submission of desperation.
24 Prayer (b), in the application, for referring the matter for initiation of criminal contempt proceedings, against the alleged contemnors, to the Division Bench of this Court, is founded, facially, on para 13 of the application, which reads thus:-
25 In view of the fact that the application filed by Mr Khosla does not, in categorical terms, even allege that the alleged contemnors had failed to furnish all original documents available with them, far less refer to any material which could be regarded as evidence in that direction, there is no justification for prayer (b) in the application, either.
26 No case can, therefore, be said to have been made out by Mr Khosla for issuance of notice to the alleged contemnors, on the present application.
27 Before parting with this order, a word deserves to be said, regarding prayer (c) in the application. It is inconceivable how – and, more pertinently, why – Mr Khosla would desire that the alleged petitioners be punished for contempt “ex parte”. The very incorporation of such a prayer, in the application, casts a shadow on the bona fides thereof, as it essentially amounts to a prayer, to the Court, to throw to the winds the most elementary principles of natural justice, and to punish the contemnors without even hearing them.
28 As the application has been filed, and argued, in person, by Mr Khosla, this Court desists from making any further observations in this regard.
C. HARI SHANKAR
(JUDGE) Dated: 11th July, 2017 neelam