SADHNA UPADHYAYA Vs. STATE OF U P

JUDGEMENT

(1.) THIS appeal is an offshoot of the proceedings of ex-facie contempt drawn against the appellant in Contempt Application No. 21 of 2007. The order questioned in this Appeal is dated 23.10.2008, passed by the learned single Judge on a miscellaneous application filed in Contempt Case No.21 of 2007, whereby the learned single Judge has directed that the application moved by the appellant, tendering apology, should be placed before this Full Bench for its consideration. The Appeal has been preferred on the ground that the learned single Judge has not appreciated the observations of the Full Bench in the order dated 13.10.2008 which is to the effect that the contempt is one under Section 14 and not under Section 15 of the Act; and secondly, the learned single Judge could not have reiterated his view taken earlier in the order dated 11.12.2007 relying on the order of the Division Bench of the same date. The appeal was taken up by the Division Bench on 1.12.2008; on which date, the matter was heard and the following order was passed:- "Heard Sri Sant Sharan Upadhyaya, learned counsel for the appellant. Learned Standing Counsel, who is present for the respondents, has stated that he has not to make any submission in the matter. Learned counsel for the appellant prays that the appeal be finally decided, which has been filed against the judgment of learned single Judge dated 23rd October, 2008. The submissions have been made basically on two grounds firstly with regard to the maintainability of the appeal under Section 19 of the Contempt of Courts Act, 1971 and secondly that the order dated 23rd October, 2008 passed by learned single Judge in essence is an order refusing to exercise jurisdiction, which is vested in the learned single Judge while proceeding with contempt proceedings under Section 14 of the Contempt of Courts Act, 1971. Learned counsel for the appellant submits that the judgments of the Apex Court on which reliance is being placed shall be submitted by tomorrow. The appeal is admitted and heard finally. Put up on 8th December, 2008 for orders. Thereafter, a detail order has been delivered on 8.12.2008 holding that the appeal is maintainable. It raises a question of jurisdiction pertaining to the acceptance of apology or otherwise by the learned single Judge and further that the question as to whether the contempt is one of Section 14 or Section 15 is yet to be considered by the Full Bench which question should be decided by the Full Bench itself. Accordingly, the Hon'ble Senior Judge was pleased to pass an order directing this appeal to be placed for disposal before us. The matter was heard by us along with the Contempt Application No.21 of 2007. The aforesaid issue was advanced and after having considered the observations made in the order of the Full Bench dated 22.8.2008 in Contempt Appeal No.25 of 2007 which stands reported in 2008 (7) ADJ 336, Smt. Sadhna Upadhyaya Vs. State, it was concluded by us that the nature of the contempt alleged against the appellant is one which was in facie curiae and was, therefore, an ex-facie contempt cognizable under Section 14. The aforesaid conclusion was drawn on the basis of the recital contained in the order of the learned single Judge dated 10.12.2007 where the appellant is alleged to have wilfully and deliberately obstructed the proceedings of the Court and had also simultaneously cast aspersions on the court, that were stated to be clearly calculated to undermine the authority of the Court and to put it in disrepute. THIS would be evident from a perusal of the order dated 10.12.2007 passed by the learned single Judge drawing the proceedings for contempt. We have absolutely no doubt in our mind that the recital contained in the order dated 10.12.2007 clearly reflects and exhibits an incident of ex-facie contempt which was in the direct perception of the Judge presiding over the Court and was an act committed during court hours. While considering this question and having drawn the aforesaid conclusion, we have re-framed the charges by substituting Section 14 in place of Section 15 vide our order dated 22.1.2009 passed in Contempt Application No.21 of 2007. The conclusion drawn by us is quoted herein below:- "............From the facts narrated in the order, it appears that actually the case would be covered under Section 14 of the Contempt of Court Act, as it relates to an incident which took place in the presence of the learned Single Judge. Smt. Sadhna Upadhaya, who appeared in person, also stated that the Section, under which cognizance had been taken, required to be altered to Section 14. Learned A.G.A. also submits to the same effect. Therefore, the contempt alleged was cognizable under Section 14 of the Contempt of Courts Act 1971 and not under Section 15. Having considered the aforesaid aspects, we are of the considered opinion that while issuing notice to the contemnor, the learned Single Judge had inadvertently mentioned Section 15 of the Contempt of Courts Act 1971 instead of Section 14, as the matter relates to an incident which took place in the presence of the learned single Judge himself. Accordingly, the charge framed by the learned Single Judge on 10.12.2007 against the contemnor stands modified and it shall be read to be a charge under Section 14 of the Contempt of Courts Act." The issue of the jurisdiction of the learned single Judge to entertain the apology of the contemnor, need not detain us, as once the contempt is held to be one cognizable under Section 14 of the Act, we have no doubt that the learned single Judge continued to enjoy the jurisdiction to entertain the same, unless and until the contemnor chooses to exercise the option of being tried by another Judge. We do not find anything on record which had disqualified the learned single Judge of this count, but we do find as a fact that the contemnor was not present in person before the learned single Judge either on 11.12.2007 or on 23.10.2008. However, the situation is somewhat peculiar in the sense that while the matter was placed before the Division Bench on the premise that it was a contempt under Section 15 of the Act, the Division Bench referred it to a larger Bench whereupon the entire matter stood placed before this Full Bench under the orders of Hon'ble the Chief Justice dated 2.4.2008 under Chapter-V Rule 6of the High Court Rules. Thus, on account of this uncommon and distinguishable intervening factor, we fully approve and endorse the views of the learned single Judge in his order dated 23.10.2008 and that of the Division Bench dated 8.12.2008 to the extent that propriety and judicial discipline demands that the apology of the contemnor be considered by the Full Bench itself. In view of what has been stated aforesaid, the question as to whether the contempt drawn was cognizable under Section 14 of the Act is put to rest. However, the Appeal has been placed before us under an order of the Hon'ble Senior Judge dated 22.1.2009 to be disposed of in view of the judicial order of the Division Bench. We, accordingly, dispose of the Appeal with the aforesaid observations inasmuch as no further orders are required keeping in view the fact that the main Contempt Case No. 21 of 2007 has also been heard and finally disposed of by us.