Hon'ble Y.C. Gupta, J.
(Delivered by Hon'ble Vinod Prasad J.) Smt. Alka Rai,widow of slained Bhartiya Janta Party MLA Krishna Nand Rai from Mohammadabad Constituency, district Ghazipur and herself an Ex. MLA, has knocked the door of this court under Contempt of Court's Act, 1971( herein after referred to as the Act) through instant Criminal Misc. Contempt Application, clamouring and praying that opposite party Miss Mayawati, Chief Minister of the State of U.P., be punished under section 12 of the Act for committing criminal contempt as is defined under section 2 (c) (ii) of the Act by making such a scurrilous speech in a public rally favouring Mukhtar Ansari, an accused murderer of her slained husband,which "scandalises and lower the authority of the court" and "interferes or tends to interfere with due course of judicial proceeding" of S.T.No. 253 and 254 of 2006, relating to crime number 589 of 2005, U/S 147,148,149,302,307,404,120B , IPC and 7 Criminal Law Amendment Act , PS Bhawarkol, district Ghazipur.
Preceding input facts generating instant contempt application,unfolded briefly and gathered from the pleadings made in the instant Application are that by hatching up a criminal conspiracy Mukhtar Ansari, a MLA from district Mau and Afzal Ansari,a member of Parliament, from Ghazipur, got murdered husband of the applicant on 29.11.2005 at 2.45 p.m. regarding which an FIR, annexure no. 1, was lodged by Ram Narayan Rai, elder brother of the deceased, at police station Bhawarkol, as crime no. 589 of 2005, under Sections 147, 148, 149, 307, 302, 404, 120-B I.P.C. and 7 Criminal Law Amendment Act same day at 5.25 p.m. Six persons including Mukhtar Ansari and Afzal Ansari were arrayed as accused in that FIR along with 7 and 8 unknown persons.
Usual investigation ensued after registration of crime concluded in submission of two charge sheets against accused including aforesaid two Ansaris on 21.2.2006 and 15.3.2006.
Not being satisfied with the investigation conducted by the local police, applicant widow Smt. Alka Rai approached this court through Crl. Misc. Writ Petition No. 1552 of 2006 for getting the investigation of the aforesaid murder transferred to some independent agency. This court allowed her prayer and vide order dated 23.5.2006, investigation in respect of Krishna Nand Rai murder was transferred to CBI. In pursuance of the order by this court State of U.P. also issued notification on 27.7.2006 facilitating investigation by CBI.
CBI, after being anointed with investigatory power by this court, registered R.C.8.S/2006/SCB/New Delhi, investigated the offences and concluding the same laid three charge sheets on 31.8.2006, 12.12.2006 and 22.3.2007 in the court of Special Judicial Magistrate, Lucknow.
Afzal Ansari, one of the malefactors in that murder of Krishna Nand Rai surrendered in the Court in November, 2005 and was released on bail on 7.1.2009 by this Court in his second attempt vide Second Bail Application No. 18774 of 2008. Challenge to the said bail granting order was made before the Apex Court in SLP No. 1201 of 2009, which is stated to be pending. Another accused Mukhtar Ansari also surrendered and is languishing in jail since 29.11.2005 as he was denied bail by all the courts including this court in his Bail Application No. 9042 of 2006.Remaining accused, but for five or six absconders, are also stated to be incarcerated in jail.
Pleadings made in this Application reveal that subsequent to their incarceration, Ansari brothers, Afzal and Mukhtar, joined BSP political party headed by respondent, and were rewarded with parliamentary constituency tickets by BSP from Ghazipur and Varanasi constituencies for ensuing parliamentary elections.
During election campaign, in a rally organized by BSP for alluring and vowing voters in favour of Afzal Ansari, on 12.4.2009, respondent, opposite party, who was holding the chair of Chief Minister of the State, besides being BSP supremo, made a speech,the objectionable portion of which, as is referred to in this contempt petition, were as follows;-
"Afzal and Mukhtar Ansari were falsely implicated by previous Government in Krishna Nand Rai murder case inspite of there being no evidence against them."
According to the pleadings in paragraph 15 onwards of this Application, the aforesaid words by the Chief Minister had not only hurted the sentiments of the applicant but was also an "act of contempt of Courts, as defined under section 2 (c) of the Contempt of Courts Act 1971". Aforesaid statement was published in Hindi daily 'Danik Jagran" on 13.4.2009 vide annexure no. 2. According to the applicant, above statement of opposite party "scandalize and lower the authority of the Courts, where the aforesaid proceedings are pending and further prejudices and interferes the due course of the aforesaid judicial proceeding, which amounted to interfering and obstructing the aforesaid judicial proceedings". Applicant consulted her lawyers and served a legal notice, annexure no. 3, on opposite party Miss Mayawati on 13.4.2009 and simulteneously lodged a complaint, annexure no. 4, with the Election Commission of India against opposite party for "committing an offence of influencing voters of the District Ghazipur". In the estimation of the applicant, aforesaid statement was given by opposite party without looking to the FIR and the collected evidences by the investigating agencies and, therefore, her conduct is "an irresponsible behaviour by the person who is Incharge of the whole State of U.P".It is on the basis of aforesasid utterences that this contempt application has been moved in this court. It was averred in paragraph 22 of the Application that the aforesaid speech of the Chief Minister was recorded by the District Administration of District Ghazipur and the applicant was making an effort to collect the C.D. Subsequently aforesaid C.D. was filed before us and now is part of the record of present Criminal Contempt Application.
Notice dated 13.4.2009 sent by fax by the applicant was received to the opposite party on 14.4.2009 through her Information Adviser on Fax No. 0522-2239303. Service of notice was also a NEWS item in English Daily News Paper (Pioneer) on 15.4.2009, photo copy of which is annexure no. 5. Inspite of service of notice, no response was received by the applicant from respondent nor she had withdrawn her aforesaid statement nor made any public apology for making such a statement without verifying the facts and consequently "a very casual act of the opposite party and amounted to committing contempt of court". In applicant's opinion opposite party had no respect for the courts and for enhancing her vote bank she could measure any extent by making "such casual statement favouring her candidates of Bahujan Samaj Party".
In the backdrop of aforesaid factual senario that instant Criminal Misc. Contempt Application has been filed by the applicant hankered with the aim that respondent be punished for committing criminal contempt.
Annexed with this Criminal Misc. Contempt Application is another Crl. Misc. Application No. 104841 of 2009 with the prayer that the aforesaid application be allowed and applicant be permitted by the Advocate General to initiate contempt proceedings against opposite party.
A second Crl. Misc. (Exemption) Application No. 104825 of 2009 was also appendaged herewith for the prayer that the present Criminal Misc.Contempt Application was extremely urgent and "hence the present contempt petition be entertained even without / pending consent of the Advocate General".
This Criminal Contempt Application came up before us on 24.4.2009. Scanning of the paper book revealed that it was stated in the exemption application in paragraph no. 1 that the applicant had already submitted an application before Advocate General on 17.4.2009 through registered post and e-mail but she had not received any reply regarding the permission, that we thought it appropriate to get that fact of grant of permission verified and, therefore, directed the applicant to obtain the permission from the Advocate General for filing this criminal contempt or file an affidavit why such permission has been refused and / or was not granted.In our aforesaid order dated 24.4.2009, we have recorded that the affidavit filed along with this Criminal Contempt Application was not enough to entertain this Crl. Contempt Application in absence of permission from the Advocate General as is mandatoraly required U/S 15 (1) (b) of the Act. That permission was granted by us also for the reason that it was submitted that obtaining permission from Advocate General will be a futile exercise as he is a man of respondent Chief Minister and has been appointed by her and therefore out come of seeking permission is pre determined and therefore we should take suo moto action. This course we adopted in tune with the decision of apex court in Conscientious Group v. Mohammed Yunus: AIR 1987 SUPREME COURT 1451, wherein it has been held as follows:-
"4. Subsequently, the petitioner filed Criminal Miscellaneous Petition No. 5244 of 1986 praying for recalling the aforesaid order dated December 12, 1986 on the ground that at the time when he applied to the Court for withdrawal of the petition he was not aware that under Rule 3(c) of the Rules framed by this Court, the contempt petition could be maintained with the consent of the Solicitor General, if the Attorney General was, for any reason, not in a position to give consent to the filing of the petition. That application for recalling the order came up before the same Bench on December 19, 1987 and it was disposed of by the following order :-
"The petitioner has made the present application for recalling the order made by us on 12th December, 1986 on the ground that at the date when he applied for withdrawal of the petition for contempt, he was not aware that under Rule 3(c) of the Rules made by this Court to regulate proceedings for contempt of the Supreme Court, if the Attorney General was for any reason not in a position to give consent to the filing of the petition for contempt, he, that is, the petitioner could obtain the consent of the Solicitor General and maintain the petition for contempt. Now it is no doubt true that under Rule 3(c) a petitioner can file a petition for contempt with the consent either of the Attorney General or of the Solicitor General and the petitioner could have therefore obtained the consent of the Solicitor General and sustained the petition. But obviously he was not aware of this provision and indeed we too were not aware of it. If the petitioner had stated that in view of the stand taken by the Attorney General, he would like to approach the Solicitor General for his consent, we would have certainly adjourned the petition in order to enable the petitioner to approach the Solicitor General with a view to obtaining his consent. But no such application was made by the petitioner and we were also not aware that the consent of the Solicitor General would be enough to initiate the petition for contempt and we had therefore no occasion to adjourn the petition. We accordingly allow the petitioner to withdraw the petition for contempt with the observation that the petitioner may revive the petition after obtaining the consent of the Attorney General as soon as the National, Anthem case is over.
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8. Thus, as matters now stand, in the light of the events that have transpired and the prior orders aforesaid passed in the matter by the Bench of three Judges, the position is that the prayer for revival will be maintainable only in case the petitioner has obtained the written consent of the Solicitor General or in case he is able to make out that the refusal of consent by the Solicitor General was on any irrelevant ground. As already stated, the Solicitor General by his letter dated February 14, 1987 has declined to grant consent to institution of the contempt proceedings in question. Elaborate reasons have been stated by the learned Solicitor General in support of his conclusion that it would not be in the public interest to give his consent to the initiation of the contempt proceedings. After scrutinising the reasons given by the learned Solicitor General, we are of opinion that the grounds stated by the Solicitor General for declining to grant consent cannot be said to be irrelevant in the eye of law; nor ran the view expressed by the Solicitor General be characterised as arbitrary, illegal or unreasonable.
9. In the circumstances it has to be held that the petitioner is not entitled to succeed in his prayer for revival of the contempt petition since neither of the conditions precedent specified in the order dated December 19, 1986 for maintainability of the prayer for revival can be said to be fulfilled. We accordingly dismiss these applications."
Pursuant to the said order dated 24.4.2009, applicant appeared before the Advocate General on 5.5.2009 and on 12.5.2009 for obtaining his consent for proceeding with Criminal Contempt. On the later date, learned Advocate General gave a patient hearing to the applicant's counsel and also accepted the C.D. containing the controversial speech given by opposite party on 12.4.2009, on the basis of which instant Contempt Application has been filed.
Vide order dated 16.5.2009, learned Advocate General refused to accord permission to the applicant to file Contempt Application, copy of which refusal order is annexure no. 2 to the first Crl. Misc. Application No. 137587 of 2009 filed by the applicant on 21.5.2009. For assailing the refusal by the learned Advocate Genaral various grounds have also been inked in paragraph 6 to the affidavit filed in support of that application.
On above facts, we have heard Sri D.K. Singh, learned counsel appearing on behalf of applicant in support of this Crl.Misc. Contempt Application. We have reserved the order but due to unavoidable circumstances, order could not be pronounced and hence the matter was posted for re-hearing on 1.10.2010.We again heard Sri D.K. Singh in support of this application on the said date.We have also heard the original C.D. as was supplied to us and got the transcript contents recorded, which are as follows;-
"gekjh vki yksxksa dh xkthiqj yksdlHkk dh lhVsa gekjh ikVhZ ds mEehnokj Jh vQty valkjh ftuds lkFk lektoknh ikVhZ ds 'kkludky esa ch0ts0ih0 ds fo/kk;d jgs Jh d`".kkuUn jk; dh gq;h gR;k ds ekeys esa fcuk fdlh iq[rk lcwr ds dkQh vU;k; gqvk gS] fdUrq vki yksx igys ls Hkh T;knk oksVksa ls ftrkdj t:j balkQ fnyk,axsA"
Sri D.K. Singh, learned counsel representing applicant Smt. Alka Rai raised those very submissions, which are contained in the instant Crl. Misc. Contempt Application. According to his submissions fact of criminal trial regarding murder of husband of applicant was known to the respondent and she was well aware of the fact that Afzal Ansari was accused in that murder case and his bail granting order was under challenge before the apex court, yet, deliberately and knowingly opposite party Miss Mayawati made such a speech, which tends to affect the judicial proceedings and interferes with the course of dispensation of justice. Sri Singh argued that aforesaid speech by opposite party had the tenure and texture of affecting the minds of public who must have gathered the impression that Afzal Ansari was falsely implicated without any legal evidences, although on the date when such a speech was made, Afzal Ansari was an under trial accused of the murder of late Krishna Nand Rai and was facing prosecution. Sri Singh further contended that a Chief Minister is for the whole State and she was not a sepoy of a political party only. He submits that the conduct of respondent as Chief Minister should have been above board and she should have conducted herself in a more dignified manner and should not have identified herself with the murderers and commented upon judicial proceedings by uttering words capable in being interpreted and understood as exonerating that accused whose guilt was yet to be finalized by a judicial pronouncement by a competent court of law in a proper trial. It was further rued that the intention of opposite party was to influence the proceedings of the court and, therefore, she deserves punishment under Section 12 of the Act as her uttered words referred to above were capable of interfering with due course of judicial proceedings.
Sri Singh next submitted that the Advocate General had refused permission because he was prejudiced and biased as he was appointed by the Chief Minister and, therefore, he acted on her dictates. He further pointed out that the learned Advocate General while refusing to accords permission had given a clean chit to the respondent without even noticing her and seeking a clarification from her. Further castigating arguement raised by Mr. Singh was that learned Advocate General wrongly interpreted "controversial statement to the suiting of the opposite party". It was vehemently canvassed that learned Advocate General should not have refused permission without asking an explanation from opposite party. Much argument was also raised regarding the observations made by learned Advocate General in respect of admissibility and / or inadmissibility of the NEWS papers reports. It was further submitted that while refusing permission, learned Advocate General had misapplied the provisions of the Act specially the definition clause under Section 2 (c) (ii). It was submitted that refusal order dated 16.5.2009 is a perverse order and, therefore, this Court should exercise it's suo moto powers under Section 14 of the Act. He therefore submitted that notices be issued to Miss Mayawati calling her to show cause why she should not be punished for committing criminal contempt for making aforesaid scandalizing speech and she be punished suitably. Sri D.K. Singh also referred following decisions in support of his contentions - (i) M.R. Parashar and others Vs. Dr. Farooq Abdullah and others: (1984) 2 SCC 343 (paras 8, 9 and 10); (ii) Bal Thackrey Vs. Harish Pimpalkhute and others : (2005) 1 SCC 254; (iii) S.K. Sarkar, Member, Board of Revenue, U.P., Lucknow Vs. Vinay Chandra Misra: (1981) 1 SCC 436 and lastly(iv) In re: P.C. Sen,:AIR 1970 SC 1821 (paragraph 8). On the strength of the aforesaid judgments, learned counsel buttressed his contentions for his ultimate submissions.
We have given our anxious consideration to the arguements advanced by counsel for the applicant and have gone through the record of this Criminal Misc. Contempt Application as well as have carefully heard the speech contained in the C.D., which was supplied to us and now form part of the record of this Criminal Contempt Application.
Before adverting to the submissions, a small resume of some relevant provisions of the Act are reproduced below:-
"2. Definitions.- In this Act, unless the context otherwise requires.
(a) "Contempt of Court" means civil contempt or criminal contempt;
(b) "civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court;
(c) "criminal contempt" means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which-
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any Court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;
(d) "High Court" means the High Court for a State or a Union territory, and includes the Court of the Judicial Commissioner in any Union territory.
10. Power of High Court to punish contempts of subordinate courts.- Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself:
provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code.
12. Punishment for contempt of Court.- (1) Save as otherwise expressly provided in this Act or in any other law, a contempt of Court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both:
Provided that the accused may be discharged or the punishment awarded may be remitted On apology being made to the satisfaction of the Court.
Explanation.- An apology shall not be rejected merely on the ground that it is qualified or conditional if accused makes it bona fide.
(2) Notwithstanding anything contained in any law for the time being in force, no Court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a Court subordinate to it.
(3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the Court, if it considers that a fine will not meed the ends of justice and that a sentence of imprisonment is necessary, shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.
(4) Where the person found guilty of contempt of Court in respect of any undertaking given to a Court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the Court, by the detention in civil prison of each such person:
Provided that nothing contained in this sub-section shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission.
(5) Notwithstanding anything contained in sub-section (4), where the contempt of Court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company' such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the Court, by the detention in civil prison of such director, manager, secretary or other officer.
Explanation.- For the purpose of sub-section (4) and (5),-
(a) "company" means any body corporate and includes a firm or other association of individuals; and
(b) "director", in relation to a firm, means a partner in the firm.
15. Cognizance of criminal contempt in other cases.- (1) In the case of a criminal contempt, other than a contempt referred to in section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by-
(a) the Advocate-General, or
(b) any other person, with the consent in writing of the Advocate-General, a(or)
(c) in relation to the High Court for the Union territory of Delhi, such law officer as the Central Government may, by notification in the Official Gazette, specify in this behalf, or any other person, with the consent in writing of such law officer.
(2) In the case of any criminal contempt of a subordinate Court the High Court may take action on a reference made to it by the subordinate Court or on a motion made by the Advocate-General or, in relation to a Union territory,by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.
(3) Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty.
Explanation.- In this section, the expression "Advocate-General" means-
(a) in relation to the Supreme Court, the Attorney-General or the Solicitor-General;
(b) in relation to the High Court, the Advocate-General of the State or any of the States for which the High Court has been established;
(c) in relation to the Court of a Judicial Commissioner, such Law Officer as the Central Government may; by notification in the Official Gazette, specify in this behalf.
[a] Inserted by the Contempt of Courts (Amendment) Act, (45 of 1976), S. 2 (30-3-76)."
An analysis of the aforesaid provisions ordains that if a criminal contempt of court, whether of this court or subordinate court, has been committed, then this Court has the statutory power to punish the contemnor under Section 12 of the Act. Section 15 lays down sine qua non requirement for taking cognizance on a Criminal Contempt Application by this court , if the same has not been moved by the Advocate General or where this court has not taken suo moto cognizance.It enacts that in case of a contempt petition being filed by an individual , other than Advocate General or suo moto cognizance, then written permission from the Advocate General has to be obtained by the applicant prior to filing of such Criminal Contempt Application. Here we eschew further deliberation on the other provisions of the Act just to shorten the controversy and abjure valuminizing this order. Thus a motion for criminal contempt can not be entertained without over coming such a rider. Here we add a caveat that if the permission of the Advocate General has been refused illegally and wrongly, then High Court can entertain criminal contempt application suo moto.Refusal by Advocate General in according or not according permission itself is justiciable and can be examined and determined by the court. This has been so held by the apex court in the case of P.N.Duda Vs P.Shiv Shankar : AIR 1988 SC 1208 wherein it has been laid down as follows:-
"Indeed, in the case of Conscientious Group (AIR 1987 SC 1451) (supra) precisely this was done, where an application for contempt was filed and which was revived pursuant to the previous order and the Court while doing so had reserved the right to consider on the previous occasion the question if the Solicitor General refuses to give consent improperly or on irrelevant ground the Court could consider that question. In the case of Conscientious Group, (supra) the Court went into the reasons given by the Solicitor General declining consent. This Court in that case held on examination that such consent was properly refused. This is a complete answer to the contention that in a contempt petition the grounds for either giving consent or not giving consent or for not considering the application for consent are justiciable and that question cannot be gone into in that proceeding..................".
However, the general rule is that a motion of criminal contempt moved by any other persons but for Advocate General should be entertained only when a permission is sought from the Advocate General.
On such exposition of statutory provisions when we revert back to present Application it is revealed that this Criminal Contempt Application was filed by an individual Smt. Alka Rai and she had mentioned that she had applied for permission but had not received any reply from the Advocate General. In such a view to know the correct fact as to whether the permission was accorded or not, we granted her liberty to intimate us the said fact by our order dated 24.4.2009. Subsequently, as stated above, permission to her was denied by learned Advocate General, which order dated 16.5.2009 has also been assailed by the applicant through Crl. Misc. Application No. 137587 of 2009 dated 21.5.2009. We now proceed to examine said refusal as once the said order is found to be genuine and valid no further deliberation is required.
Perusal of the order passed by learned Advocate General, indicates that he has taken into consideration the fact that the statement alleged to have been made by respondent opposite party, does not amount to scandalization of the Court nor does it interferes or tend to interfere with due course of judicial proceedings. He has recorded his reasons in paragraphs 5 to 7 of his order dated 16.5.2009 and has concluded his opinion in paragraph 8 thereof. For a ready reference, we reproduced the said paragraphs as under:-
"5- The petitioner has submitted copy of the CD containing the alleged speech of the opposite party. I have heard the contents of the C.D. and noted that. It may be pointed out that there is a glaring difference between the alleged speech as reported in the news paper and the C.D. submitted by the petitioner. The relevant portion of the C.D. is as follows:-
"blds vykok geus vkidh **xkthiqj** yks- lHkk lhV ls gekjh ikVhZ ds mEehnokj **Jh vQtky vUlkjh** dks]
------------- ftuds lkFk] lik ds 'kkludky esa chtsih ds fo/kk;d jgs **Jh d`".kk uUn jk;** dh gq;h gR;k ds ekeys esa
----------- fcuk fdlh iq[rk lcwr ds dkQh vU;k; gqvk gSA
----------- budks vki yksx igys ls Hkh T;knk oksVksa ls ftrkdj t:j bUlkQ fnyk;saxsA
----------- vFkkZr buds lkFk vki yksx gj **lq[k] nq%[k** dh ?kM+h esa t:j [kM+s jgsaxsA** 6- A comparison of the speech as published in the news paper or as alleged by the petitioner in her petition is vastly different from the above referred speech contained in the C.D. The opposite party has never said that accused person Afzal Ansari and Mukhtar Ansari were falsely implicated in the murder case inspite of there being no evidence against them. Rather the opposite party had only said that injustice has been done to Afzal Ansari without any credible evidence in regard to the said murder case. The opposite party never made any mention about "false implication" of accused persons or about the fact of "there being no evidence". No such categorical statement regarding the implication or about the absence of evidence were made by the opposite party and the same has been wrongly attributed to her in the petition or in the publication of the news papers. This amply slows that the speech of the opposite party has been wrongly published and the facts of the speech have been twisted in a wrong manner. Since the alleged speech as mentioned in the petition or as published in the news paper is not true it cannot be made bases for initiating criminal contempt under Section 15 of the Contempt of the Courts Act 1971 as far as the opposite party is concerned.
7. Although the petitioner has not disclosed the source from where the C.D. has been obtained and no proof has been submitted to testify the authenticity of the C.D. yet even assuming that the contents of the C.D. are true no prima-facie case of criminal contempt can be made out on the basis of the statement of opposite party as contained in C.D. As per the contents of the C.D. the opposite party has allegedly stated that injustice has been done to Sri Afzal Ansari without credible evidence in the aforesaid murder case. The opposite party has not talk about the implication or about the criminal case which may be pending in the concerned court about the said murder case. The opposite party has also not stated anything in regard to the judicial proceedings or about the authority of the courts. Not even a iota of facts has been stated by the opposite party which may at all impinge upon about the authority of the court or which may be said to have interfered with the judicial proceedings. The statement as contained in C.D. cannot be said to amount to obstructing the judicial proceedings in any manner. No mention about the case pending against the accused person has been mentioned by the opposite party in alleged speech. The speech as contained in he C.D. Does not refer to the court of judicial proceedings in any manner. It only talks about injustice been met to Sri Afzal Ansari which is a very general statement and cannot be termed as scandalizing the authority of the court or prejudicing and interfering with the due curse of any judicial proceedings or obstructing the administration of justice in any manner within the meaning of Section 2 of the Contempt of Courts Act 1971.
8- In view of the above mentioned facts and circumstances I am of considered opinion that the provision of Section 2 of the Contempt of Courts Act 1971 are not attracted to the factual matrix of this case. The alleged speech of the opposite party as contained in the C.D. does not amount to scandalizing the authority of the court or to interfere the judicial proceedings or obstructing the administration of justice in any manner whatsoever. Hence, the present case does not merit initiation of criminal contempt under Section 15 of the Contempt of Courts Act 1971 consent is hereby declined."
Above order is conspicuous indication that speech by respondent reported in Newspaper were neither true nor correct statements of fact and were wrongly quoted and published. It were twisted as well in a wrong manner. We note here that the speech supplied to us in the CD contains some different words and we have already reproduced it's contents herein above. Contents of that speech in the CD also does not indicate that while making that speech respondent had any intention to lower or scandalise the authority of the Court or she ever intended to interfere or tend to interfere with due course of judicial proceeding. Words spoken by her had no potentiality to interfere with due course of justice. We repeatedly heard the CD and we fail to understand how the script referred to above had the character or tendency of interfering with pending trial or course of justice in any manner. The objectionable words contained in the CD neither indicates the stage nor does it makes any reference regarding any court proceedings. The aforesaid contents taken in its entirety only indicates this much that during the tenure of Samajwadi Party without authentic evidence injustice has been done to Afjal Ansari. The aforesaid statement in no way effect the judicial proceeding or had the potentiality of it. Stage of reference of injustice is also not known as to whether aforesaid statement was with reference to the investigation stage or subsequently thereto after charge sheet was submitted by the CBI. The respondent was only vowing the voters to vote for the candidate belonging to her party. In our country we have a democratic set up of which adult franchise is an integral part. It is the right of every political party to do its best with the ambit of law to convince the electorate to elect its party members to power and position of governance authority. They cannot be denied this right as our constitution itself provide that we are a democratic republic. In such a view, when speeches are made subject matter of contempt, one has to consider what was the prefix and suffix for making any statement. A single sentence statement separated from the context in which it was made cannot be utilized to draw the proceeding for criminal contempt unless it is ex facie established that the said sentence was intended to lower the prestige of the Court and scandalize it and had the potentiality to do so. Such is not the case here. We further note that besides a single line sentence of the words "Jh d`".kkuUn jk; dh gq;h gR;k ds ekeys esa fcuk fdlh iq[rk lcwr ds dkQh vU;k; gqvk gS," no other part of the speech by the respondent opposite party is objectionable or fall within the ambit of criminal contempt U/S 2 (c) (ii) of the Act. The aforesaid five words, in our opinion, are too meagre and insignificant words to anoint liability of criminal contempt on the maker those words. They are capable of different interpretations as opposite party was not only the Chief Minister but the head of a political party contesting an election. The speech by opposite party, was more as a president of a political party rather than as a Chief Minister. In this respect, we draw support from the words used by opposite party such as "gekjh ikVhZ mEehnokj T;knk oksVksa ls ftrkdj". As a Chief Minister, respondent could not have used those words.
Learned Advocate General, in the above quoted portion also took note of these and had come to a conclusion, which he has recorded in paragraph 7 of his order. He has also observed that the opposite party had not stated anything with regard to any judicial proceeding or about the authority of the courts. He had also opined that not even an iota of fact has been stated by the opposite party, which may at all impinge upon the authority of the Court or which have the tendecy to interfere with the judicial proceedings. The statements as contained in CD cannot be taken to obstructing course of judicial proceedings in any manner.
In our view, the opinion of the learned Advocate General on the merits of the matter cannot be said to be biased or irrelevant.
Coming to the criticism that Advocate General since appointed by the State Government, has not exercised his authority fairly and judiciously, We repelled the said contentions outright by pointing out that it is the case of the applicant herself in paragraph 4 of her affidavit dated 21st May 2009 that "Learned Advocate General had given patient hearing to the applicant's counsel and also accepted the CD containing the controversial speech by the opposite party on 12.4.2009." Not only the aforesaid statement by the applicant is contrary to the charge levelled against the Advocate General but the said averment indicate the bonafides on his part. Further we point out that in the estimation of the applicant, the speech alleged to be the pivotal of drawing proceeding of criminal contempt, itself was a "controversial speech". Such a speech which is capable of two interpretations cannot be a subject matter of criminal contempt and we say no more.
Before we part with this order, we would like to observe that in a political scenario like the one which we have, it is always desirable for the persons in authority not to give an impression that they belong only to political party specially when they are in power. It would have been much better if such controversial statements are kept at bay while exercising right to vow voters. Every political party has got a right to allure the electorate but within the parameters of law keeping the interest of the entire society. We express our grave concern that to grab power crime and criminals are now playing a major role. To gain the power on the strength of such persons is neither suited for the political system and the country nor our constitutional framers and freedom fighters ever dreamt of it like that.
Coming to the various decisions cited by Sri D.K. Singh, learned counsel for the applicant, we find that all those decisions were rendered on different facts and circumstances. So far as the case of M.R. Parashar and others (supra) is concerned, paragraph 8 relied upon by the learned counsel for the applicant itself creates big distinction between that case and present Application.However we think it appropriate to reproduced the caveat by the Apex Court in the aforesaid judgement as was contained in paragraphs 9 and 10 thereof, which are as follows:-
"9. But we record the finding of 'not guilty' with a caveat. It is not for us to advise a chosen representative of the people as to how he should conduct his public affairs and what precautions he should take in order to protect himself from similar allegations in future. But, it causes us some surprise that there is no official record whatsoever of the speeches made by the Chief Minister at the two functions. He was invited at those functions in his capacity as the Chief Minister. And, admittedly, he spoke at those functions. With the little knowledge that we have of these matters, we suppose that when a Chief Minister makes a formal speech, an official record of the speech is generally available. If he speaks from a prepared text, that forms the record of what he spoke. But, whether he speaks from a text or speaks extempore, it is unlikely, in the times in which we live, that a speech made by a Chief Minister on a formal occasion will not be taken down or tape-recorded. Tapes have become a part of our life, public and private, sometimes to the point of annoyance. In times when mechanical gadgets have become the order of the day and 'taping.' especially, has become a common practice, it is surprising that no one taped or took down the speeches of a person as important as the Chief Minister. No written record, kept contemporaneously or prepared soon after, is cited to contradict the allegation that the Chief Minister scandalized the Courts and assailed the character of Judges. As we said, it is not for us to advise any one, least of all those who, in the discharge of their onerous responsibilities, have their own select group of advisers. But, we cannot restrain the observation that it is so much safer for persons who have to make frequent public appearances to have their utterances duly put on paper, before or soon after the event. For those who have nothing to conceal or fear, that is a prudent course of action. For the rest, a constant friction with the law of contempt is inevitable. The former will lay their cards on the table and be cleared. The latter have to live in the hope that the rigorous standard of 'Proof beyond a reasonable doubt' will act as their saviour. The latter course of conduct leaves much to be desired from the point of view of men of honour. Courts are not astute to resort to their power to punish any one for criminal contempt. But that reluctance should not be overtaxed.
10. The reluctance of courts to resort to the provisions of the Contempt of Courts Act springs from their regard for the rule of law. The role of a prosecutor is incompatible with the role of a judge. In matters involving allegations of criminal contempt of Court, these roles are combined and the Court has to act both as a prosecutor, and as a judge. True, that it acts in order to uphold the authority of law and not in defence of this or that particular judge. But an order punishing a person for such contempt is likely to create the impression, more so in the mind of lay observers, that the judges have acted in defence of themselves. Courts do not like to create such an impression even unwittingly. Secondly, the right of free speech is an important right of the citizen, in the exercise of which he is entitled to bring to the notice of the public at large the infirmities from which any institution suffers, including institutions which administer justice. Indeed, the right to offer healthy and constructive criticism which is fair in spirit must be left unimpaired, in the interest of public institutions themselves. Critics are instruments of reforms, not those actuated by malice but those who are inspired by the spirit of public weal. Bona fide criticism of any system or institution is aimed at inducing the administrators of that system or institution to look inwards and improve its public image. Courts do not like to assume the posture that they are above criticism and that their functioning needs no improvement. But it is necessary to make it clear that though law does not restrain the expression of disapprobation against what is done in or by courts of law, the liberty of free expression is not to be confounded with a licence to make unfounded allegations of corruption against the judiciary. The abuse of the liberty of free speech and expression carries the case nearer the law of contempt.
11. We would also like to remind those who criticise the judiciary that it has no forum from which to defend itself. The legislature can act in defence of itself from the floor of the House. It enjoys privileges which are beyond the reach of law. The executive is all powerful and has ample resources and media at its command to explain its actions and, if need be to counter-attack. Those who attack the judiciary must remember that they are attacking an institution which is indispensable for the survival of the rule of law but which has no means of defending itself. In the very nature of things, it cannot engage itself in an open war, nor indulge in releasing contradictions. The sword of justice is in the hands of the Goddess of Justice, not in the hands of mortal Judges. Therefore, Judges must receive the due protection of law from unfounded attacks on their character."
Coming to another case of Bal Thackrey (supra) the same is relevant for the propositions as to whether the permission by the Advocate General is required or not and if refused what will be it's effect.
Another decision in P.C. Sen (supra), the same is distinguished on facts. Further we have opinied that speech by respondent cannot be calculated to interfere with the administration of justice nor it can be said that it was attempted to be so that the ratio of that decision does not help the case of the applicant at all. It was a speech, which was given during the course of election meeting and, therefore, as a head of a party, speech by Miss Mayawati cannot be considered to have the colour of interfering with the course of justice.As stated above context in which words are uttered are a guiding factor to conclude as to whether they make out a case for contempt or not? Here we rely upon the decision of Narain Das versus Government of M.P.: AIR 1974 SC 1252. In the baforesaid decision apex court has held as under :-
"6. The petition for contempt is directed against two condemners, Arjun Singh and Y. N. Chaturvedi. The charge against Arjun Singh is that he made several statements in the Press Note issued by the State Government which had the effect of interfering with the due course of the appeal and the writ petition by creating prejudice against the appellant. The appellant relied on four statements contained in the Press Note which according to him were calculated to cause prejudice to him in regard to the appeal and the writ petition. We have carefully gone through these four statements but we fail to see how they can at all be regarded as prejudicing in any manner whatsoever fair trial and hearing of the appeal and the writ petition. The State Government by the Press Note announced the postponement of the reopening of the schools in Madhya Pradesh from 2nd July, 1973 and made certain statements in the Press Note explaining why it had become necessary to make such postponement. It may be that some of the statements made in the Press Note were not correct - for example, the statement that the State Government has formally prescribed the books prepared by the Text Books Corporation in exercise of the powers vested in it under Section 4 (1) of Act 13 of 1973 was incorrect, because barring the order dated 24th May, 1973 which prescribed certain books printed and published by private publishers, there was no other order made by the State Government prescribing text books under S. 4 (1) of Act 13 of 1973. But mere making of incorrect statements in justification of a decision to postpone the reopening of the schools could not possibly have any prejudicial effect on the due course of justice so far as the appeal and the writ petition were concerned. It is quite possible that some of the statements made in the Press Note, If incorrect, might prejudicially affect the business of the appellant by bringing down sales of the text books printed and published by him, but that is very much different from saving that he would be prejudiced in the appeal or the writ petition. What we have to consider for the purpose of determining whether any of these statements constitutes contempt of court is whetherthese statements interfere or have a tendency to interfere with the due course of the appeal or the writ petition by creating prejudice against the appellant which would affect the fair bearing and disposal of the appeal or the writ petition. That effect, we are afraid, the statements in the Press Note complained of by the appellant do not have. It is not possible to hold that any of these statements constitutes contempt of court."
Concluding our discussion and wrapping up the whole argument we do not find it a fit case to exercise our suo muto power to draw a proceeding for criminal contempt against respondent Miss Mayawati. The permission has already been refused by learned Advocate General for initiating criminal contempt proceeding against her and therefore, present Criminal Misc. Contempt Application being devoid of substance is hereby dismissed.
Dt. 22.10.2010 RK/AKG