Court No. - 7
AFR Case :- CONTEMPT APPLICATION (CIVIL) No. - 3030 of 2021 Applicant :- Rakesh Kumar Chatri And Another Opposite Party :- Ashok Kumar Yadav Iii, Learned Chief Judicial Magistrate Counsel for Applicant :- Prabhakar Awasthi
Hon'ble Ajit Kumar,J.
1. Heard Sri Prabhakar Awasthi, learned counsel for the applicants and Sri Sudhir Mehrotra, learned counsel for the opposite party.
2. By means of this contempt application filed under Section 12 of Contempt of Courts Act, 1971, the summoning order issued by the Chief Judicial Magistrate, Jhansi in connection with the charge sheet submitted before the court relating to Case Crime No.276 of 2018, under Sections 420, 467, 468, 471 IPC, Police Station Nawabad, District Jhansi, it is pleaded to have amounted to breach of the mandate contained in the order dated 11.09.2018 passed in Criminal Misc. Writ Petition No.24679 of 2018 modified on 23.11.2020 by the Division Bench and hence contempt.
3. It is submitted by the learned counsel for the applicants that since the order was initially passed to the effect that further proceedings pursuant to the First Information Report dated 20.06.2018 shall remain stayed, the modification of the stay order to the effect that investigation in the case shall continue but no coercive steps shall be taken against the petitioner- applicants would mean that the Investigation Officer could have proceeded with the investigation only and could not have submitted the charge sheet without taking leave of the court. He submits that the words and expressions "the interim order will continue" are quite indicative that the earlier interim order passed was made to continue in spite of the modification permitting the investigation to follow.
4. He further submits that the no coercive steps means neither the Police, nor the Magistrate could have issued order for arrest or summoning respectively.
5. Per contra, it is argued by the learned counsel for the opposite party that the modification of the earlier order of stay dated 11.09.2018 vide order dated 23.11.2020 should be taken to mean that the Police was permitted to continue with the investigation to bring the same to a logical end. He submits that the procedure prescribed under the Code of Criminal Procedure, 1973 (for short 'CrPC') is that after the Police completes investigation it shall submit report within a prescribed period of time. He submits that unless and until there is a specific order for the Police not to submit report under Section 173(2) CrPC, by no stretch of imagination can it be meant, in the background of this case, to suggest that the order of the Division Bench restrained the Police from submitting the charge sheet and it was as of necessity to seek leave. It is thus submitted that there is no contempt by the learned Magistrate as he has proceeded to take cognizance upon the charge sheet submitted by the Police in connection with the case crime in question.
6. He next submits that the criminal miscellaneous writ petition was confined to the prayer for quashing of the First Information Report and, therefore, if the charge sheet has come to be submitted, either the writ petition should have been amended seeking addition of further prayer in respect of the proceedings following the submission of the charge sheet or an application under Section 482 CrPC should have been filed so as to seek an appropriate relief against the submission of the charge sheet and the cognizance taken by the learned Magistrate upon the same.
7. Having heard learned counsel for the petitioner and the learned counsel appearing for the opposite party and the arguments raised across the Bar, I find that the Division Bench very cautiously modified its earlier order dated 11.09.2018 vide order dated 23.11.2020.
8. It is a fact admitted to the parties that in writ petition the final relief claimed was for quashing of the First Information Report in respect of which initially the writ petition was entertained and an order was passed restraining the Police from proceeding further in connection with the case crime in question. The operative portion of the order dated 11.09.2018 as contained in its paragraph 5 runs as under:-
"5. Until further orders, further proceedings pursuant to First Information Report dated 20.6.2018 in Case Crime No. 0276 of 2018 under Sections 420, 467, 468 and 471 IPC, Police Station Nawabad, District Jhansi shall remain stayed."
9. This order came to be modified on 23.11.2020 by the Division Bench and the operative portion of the said modified order runs as under:-
"In the meantime, interim order will continue, but with the modification that the investigation in the case shall continue, but no coercive steps shall be taken against the petitioners."
10. From a bare reading of the order initially passed it is quite explicit that the Court restrained the police from proceeding any further in connection with the First Information Report dated 20.06.2018. However, with modification the investigation was directed to be proceeded with.
11. The argument that the further proceedings stayed was an interim order and was made to continue in the order dated 23.11.2020 with only modification for the Police to investigate into the matter would amount to continuance of the earlier order staying further proceedings as a consequence of filing of report by Police under Section 173(2) CrPC seems to be beyond any comprehension.
12. The argument that the proceedings would mean every consequential action in relation to and in connection with the First Information Report questioned in the writ petition and a mere opening up a window for investigation to continue would not amount to a permission to the Investigating Officer to conclude the investigation and submit the Police Report seems to be something reading in between the lines.
13. This argument raised by learned counsel for the petitioner has an inherent fallacy in itself for the simple reason that the court while permitting investigation in a writ petition where quashing of the First Information Report is the only relief sought for, does not mean that the court restrained any consequential action of the investigation enlarging the scope of writ petition sans any pleadings to that effect. Investigation is conducted by the Police taking recourse to the provisions contained under the Code of Criminal Procedure, 1973 which permits the Police to investigate into a matter of complaint or the First Information Report and then to submit a report. It is meant to conclude investigation within the prescribed period provided for. Had it been a case that the court proceeded to restrain the Police from submitting the final report, the court could have expressed the same in the modification order by directing that no charge sheet shall be submitted without leave of the Court, but I do not find any such order.
14. The argument that no coercive steps will amount to the same effect as an order initially passed on 11.09.2018 is also not acceptable. The coercive measure means that the Police will not take any coercive steps in furtherance of the First Information Report, where however, the Police has submitted a report under Section 173(2) CrPC, the domain of authority of the Investigating Officer runs out. Now the case comes to be pending in terms of the report before the Magistrate concerned.
15. It is further to be noticed as to whether there is any element of wilful and deliberate intention on the part of the police and/ or learned Magistrate so as to treat the submission of report under Section 173(2) of Cr.P.C., 1973 and insurance of summoning order as a contempt of writ court's order. I do not find any such element present. Police submitted report in routine course and the Magistrate was left with no option but to proceed upon the chargesheet.
16. In my above view, I find support in the judgement of the Supreme Court in the case of Ashok Paper Kamgar Union v. Dharam Godha & Others (2003) 11 SCC 1, where the words and expression wilful disobedience and concept behind the same has come to be defined. The Court observed "'wilful' means an act or omission which is done voluntarily and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that it is to say, with bad purpose either to disobey or to disregard the law"
17. In such above view of the matter, therefore, I do not find any element of deliberate or wilful disobedience present in the act and conduct on the part of the opposite parties insofar as the compliance of the order dated 23.11.2020 is concerned.
18. Thus no case of contempt is made out and accordingly this contempt application is consigned to records.
19. It is, however, always open for the applicant to seek such remedy against the order of the learned Magistrate, as may be available and/or as he may be advised.
Order Date :- 24.8.2021 Shahroz