IS INTERFERENCE WITH DUE ADMINISTRATION OF JUSTICE AMOUNTING TO CONTEMPT?

IS INTERFERENCE WITH DUE ADMINISTRATION OF JUSTICE AMOUNTING TO CONTEMPT?

YES. Substantial interference with the due administration of justice, amounts to contempt of court.

In Legal remembrancer v. Motilal Ghose, (1914) ILR 41 Cal 173 (1913-14 Crl LJ 321) his Lordships Chief Justice Jenkins observed that it was not enough that there should be a technical contempt of courts and that it must be shown that it was probable that the publication would substantially interfere with the due administration of justice.

In Ananta Lal Singh v. AH Watson, AIR 1931 Cal 257 : (1931-32 Cri LJ 675) Ranking C.J. observed that “A Court’s jurisdiction in contempt is not to be invoked unless there is real prejudice which can be regarded as a substantial interference with the due course of justice. It is not every theoretical tendency that will attract the action of the court in its very special jurisdiction. The purpose of the court’s action is a practical purposes and it is reasonably clear on the authorities this court will not exercise its jurisdiction upon the mere question of propriety where the tendency of a newspaper article to do harm is slight and the character and circumstances of a comment is otherwise such that is can properly be ignored.”

The above observations were approved by the SC in Rizwan-Ul-Hassan v. State of UP. 

In Andre Paul v. Attorney General, AIR 1936 PC 141, Lord Atkin observed that -- “Judges and courts are alike open to criticism, and if reasonable arguments or expostulation is offered against any judicial act as contrary to law or the public good no court would treat that as contempt of court. In applying the law the courts should not lose sight of local conditions. But whether the authority and position of an individual Judge or the due administration of justice is concerned, no wrong is committed by any member of the public who exercise the ordinary right of criticising in good faith in private or public, the public act done in the seat of justice. The path of criticism is a public way the wrong-headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice they are immune.”

In Emperor v. VB Kolte, AIR 1941 Nag 214, it was held that -- “Interference with the administration of justice is one of the well recognised heads of contempt. What has to be seen is whether the person sought to be proceeded for contempt did interfere or did intend to interfere with the administration of justice. Courts, no doubt have to be jealous to guard against any interference with their function but on the other hand they should not be too sensitive where no harm has been caused or was intended to be caused.”

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WHAT DISTINGUISHES "LAW & ORDER" FROM "PUBLUC ORDER"?

WHAT DISTINGUISHES “LAW & ORDER” FROM “PUBLIC ORDER”?

The Hon'ble Supreme Court over a period of years distinguishing "law and order" from "public order". 

In the judgment of the Hon'ble Apex Court in Mustakmiya Jabbarmiya Shaikh vs M.M.Mehta, Commissioner Of Police and Others, reported in (1995) 3 SCC 237 held as follows: 

"A distinction has to be drawn between law and order and maintenance of public order because most often the two expressions are confused and detention orders are passed by the authorities concerned in respect of the activities of a person which exclusively fall within the domain of law and order and which have nothing to do with the maintenance of public order. In this connection it may be stated that in order to bring the activities of a person within the expression of 'acting in any manner prejudicial to the maintenance of public order", the fall out and the extent and reach of the alleged activities must be for such a nature that they travel beyond the capacity of the ordinary law to deal with him or to prevent his subversive activities affecting the community at large or a large section of society. It is the degree of disturbance and its impact upon the even tempo of life of the society or the people of a locality which determines whether the disturbance caused by such activity amounts only to a 'breach of law and order' or it amounts to 'public order.' If the activity falls within the category of disturbance of 'public order' then it becomes essential to treat such a criminal and deal with him differently than an ordinary criminal under the law as his activities would fall beyond the frontiers of law and order, disturbing the even tempo of life of the community of the specified locality. 

In the case of Arun Ghose v. State of West Bengal, [1970] 1 SCC 98 this Court had an occasion to deal with the distinction between law and order and public order. Hidayatullah, C.J. (as he then was), speaking for the Court observed that public order would embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or eves a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public transquillity. It is the degree of disturbance and its affect upon the life of the community in a locality which determines whether the disturbance amounts only to breach of law and order. It has been further observed that the implications of public order are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different.

WHAT ARE PRECONDITIONS TO GRANT BAIL?

WHAT ARE THE PRE-CONDITIONS TO GRANT BAIL?

The Hon'ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496, has laid down the following principles to be kept in mind, while deciding petition for bail: 

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; 

(ii) nature and gravity of the accusation; 

(iii) severity of the punishment in the event of conviction; 

(iv) danger of the accused absconding or fleeing, if released on bail; 

(v) character, behaviour, means, position and standing of the accused; 

(vi) likelihood of the offence being repeated; 

(vii) reasonable apprehension of the witnesses being influenced; 

and 

(viii) danger, of course, of justice being thwarted by grant of bail. 

WHAT IS THE OBJECT OF BAIL?

WHAT IS THE OBJECT OF BAIL?

The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; held as under:- 

"The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson." 

ABATEMENT

Abatement set aside CPC

It is a settled position of law that a suit or an appeal abates automatically if the legal representatives, particularly of the sole plaintiff or appellant, are not brought on record within the stipulated period. 

Rule 1 of Order 22, CPC mandates that the death of a defendant or a plaintiff shall not cause the suit to abate if the right to sue survives. In other words, in the event of death of a party, where the right to sue does not survive, the suit shall abate and come to an end. In the event the right to sue survives, the concerned party is expected to take steps in accordance with provisions of this Order. 

Order 22 Rule 3, CPC therefore, prescribes that where the plaintiff dies and the right to sue has survived, then an application could be filed to bring the legal representatives of the deceased plaintiff/appellant on record within the time specified (90 days). 

Once the proceedings have abated, the suit essentially has to come to an end, except when the abatement is set aside and the legal representatives are ordered to be brought on record by the Court of Competent jurisdiction in terms of Order 22 Rule 9 (3), CPC. 

Order 22 Rule 9 (3) of the CPC contemplates that provisions of Section 5 of the Indian Limitation Act, 1963 shall apply to an application filed under Sub Rule 2 of Rule 9 of Order 22, CPC. In other words, an application for setting aside the abatement has to be treated at par and the principles enunciated for condonation of delay under Section 5 of the Limitation Act are to apply para materia. 

Section 3 of the Limitation Act requires that suits or proceedings instituted after the prescribed period of limitation shall be dismissed. However, in terms of Section 5, the discretion is vested in the Court to admit an appeal or an application, after the expiry of the prescribed period of limitation, if the appellant shows 'sufficient cause' for not preferring the application within the prescribed time. 

The expression 'sufficient cause' commonly appears in the provisions of Order 22 Rule 9 (2), CPC and Section 5 of the Limitation Act, thus categorically demonstrating that they are to be decided on similar grounds. The decision of such an application has to be guided by similar precepts. It will be appropriate for us to trace the law enunciated by this Court while referring, both the provisions of Order 22 Rule 9, CPC and Section 5 of the Limitation Act. 

In the case of Union of India v. Ram Charan, [AIR 1964 SC 215], a three Judge Bench of this Court was concerned with an application filed under Order 22 Rule 9, CPC for bringing the legal representatives of the deceased on record beyond the prescribed period of limitation. The Court expressed the view that mere allegations about belated knowledge of death of the opposite party would not be sufficient. The Court applied the principle of 'reasonable time' even to such situations. While stating that the Court was not to invoke its inherent powers under Section 151, C.P.C. it expressed the view that the provisions of Order 22 Rule 9, CPC should be applied. 

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CHEQUE DISHONOR CASE

CHEQUE DISHONOUR CASE:

In Jugesh Sehgal v. Shamsher Singh Gogi, (2009) 14 SCC 683, Hon'ble Supreme Court has noted:

" It is manifest that to constitute an offence under section 138 of the Act, the following ingredients are required to be fulfilled:

(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;

(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;

(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;

(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;

(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;

(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said CC No. 60282/2016 Neeraj Kumar v Asgar Ali Mondal Page No. 5 of 11 notice;

 Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under section 138 of the Act."

HE WHI SEEKS EQUITY MUST DO EQUITY

Whether a petitioner after withdrawing a writ petition filed by him in the HC under Art.226 without the permission to institute a fresh petition, can file a fresh writ petition in the HC under that Article? 

The principle underlying Rule 1 of Order 23 of CPC should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy. While withdrawal of writ petition without permission may not bar other remedies like a suit or a petition under Art.32 of the Constitution, since withdrawal does not amount to res judicata. The writ petition filed, challenging the very same impugned order, without disclosing the earlier writ, was a suppression of fact and such litigation cannot be allowed to continue (1996 II MLJ 283). 

The SC in 1997 (2) SCC 534 held that the second writ petition is not maintainable as the principle of constructive res judicata could apply. In Halsbury’s Law of England the law is stated “He who seeks equity must do equity.” 

The SC in 2008 (1) SCC 560 held that a writ remedy is an equitable one; a person approaching a superior court must come with a pair of clean hands. It not only should not suppress any material fact, but also should not take recourse to the legal proceedings over and over again which amounts to abuse of process of law.

FUNDAMENTAL RIGHT TO FORM AN ASSOCIATION

As per Art.19(1)(c) under Chapter III of the Fundamental rights of the Constitution, right to form an association or a Union in a co-operative society, is one of the fundamental rights of the employees.

Sec.22 of the Trade Union Act 1926 provides that outsiders not more than 50 per cent can be elected as officer bearers in every trade union, in addition to the persons actually engaged or employed in an industry with which the Trade Union is connected.

ABJ ORDER 38 RULE 5 OF CPC

Or 38 R5 Attachment before judgment

(1)At any stage the Court is satisfied by affidavit that the defendant with intent to obstruct or delay the execution of decree that may be passed – is about to dispose of his property; or is about to remove any part of his property from the local limits of the Court, - the Court may direct the defendant either to furnish security or to appear and show cause why he should not furnish security.

(2)The plaintiff shall specify the property required to be attached.

(3)The Court may also direct the conditional attachment;

(4)If an order is made without complying (1), such attachment is void.

Mere allegation that the defendant is selling off his properties is not sufficient. It must be stated as to the source of information should also be disclosed and the grounds of such belief should be stated.

Govindarao Mahadik v Devi Sahai

Padam Sen v State of UP

Manohar Singh v Hind Kumar Kohli

Premraj v Md Maneck Gazi

Nataraja v Bangaru

G.Kuppathi Mudaliar v Murugesan

Pappammal v Chidambaram

T.Srinivasan v V.Srinivasan

The sine qua non for an order of ABJ namely, the malafide intention and the conduct of the defendant in disposing of his property with the dishonest intention of defeating or delaying the decree is conspicuously absent. No ABJ should be ordered.

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FRAMING OF CHARGE & DISCHARGE OF THE ACCUSED

Framing of Charge & Discharge of the Accused:

In Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] , the Supreme Court on consideration of the various decisions about the scope of Sections 227 and 228 of the Code, laid down the following principles: 

"(i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.

(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.

(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.

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