Execution of warrant of Arrest against person who residing in USA.

Priyambada Tripathi vs Onkar Nath Khandelwal And Ors. on 4 August, 2004
Equivalent citations: 2005 CriLJ 1014
Author: B S Chauhan
Bench: B Chauhan, D Gupta

JUDGMENT

B. S. Chauhan, J.

1. The petitioner, facing the failure of her family life, feeling cheated and disgusted by her husband who solemnized the alleged second marriage, lodged the criminal complaint against her husband Sri Adya Shanker Tripathi and his alleged second wife Smt. Asha Tripathi, who had left this country for residing in United States of America. At the very initial stage in 1989-90, the Trial Court granted exemption of personal appearance allowing their applications under Section 205 of the Code of Criminal Procedure (hereinafter called the Cr. P. C.). They had been represented throughout by their counsel. In 1997, the Court issued warrants of arrest against the said accused persons for securing their appearance. The said order was challenged by the said accused before this Court as well as before the Hon’ble Apex Court but they could not succeed in getting any relief. This petition for initiating the criminal contempt proceedings against six officers of the Registry including the Registrar General of this High Court has been filed on the ground that they had been in connivance with the said accused and intentionally got the process delayed by not sending the warrants of arrest in accordance with law.

2. The grievance of the petitioner had been that attempt had been made since 1997 by the trial Court to secure the presence of the said accused and for that purpose, warrants of arrest have been issued several times. As per Rule 16 of the General Rules (Criminal), warrants of arrest have to be sent through the Ministry of Foreign Affairs and the High Court. As the High Court failed to forward the said warrants of arrest, it had committed criminal contempt as defined under Section 2(c) of the Contempt of Courts Act, 1971, hereinafter called ‘the Act 1971’, as it is tantamount to obstruction with the administration of justice of the Trial Court.

3. At the time of argument on 16-7-2004, Ms. Seema Mishra, learned counsel for the petitioner had made a reference to the large number of representations and applications filed by the petitioner, wherein the allegations of taking bribe by the officers of this Registry had been levelled and she had vehemently submitted that the warrants could not be forwarded for extraneous consideration as the officers of this Court are taking bribe that’s too in Dollars.

4. We have gone through the said representations but considering the allegations to be very vague but of grave nature, we thought it proper that the petitioner-applicant be called in the Court and as per the directions issued by this Court, the petitioner appeared before us on 3-8-2004. Her statements had been that as she had been running from pillar to post and the warrants of arrest could not be executed, it is only on the basis of circumstances, she inferred that the officers of this Registry must be getting the bribe in Dollars being in collusion with the pairokar of the accused. She had met officers of the Registry about one and half years ago. She does not know the name of the officers she had met except opposite party No. 6 who had told her that the needful had been done by him for forwarding the warrants and sent the letters to the Section Officer who had already sent the warrants of arrest to State Government (Lucknow) to forward to the Foreign Ministry (New Delhi) (or execution. Petitioner herself had annexed the copy of the letter written by the Deputy Registrar dated 29-8-2003 showing that the warrants of arrest had been forwarded to the Joint Secretary (Grih Police Anubhag-9), Government of U. P., Lucknow for getting them executed through the Government of India Ministry of Foreign Affairs, New Delhi.

5. The question does arise as to whether this Court can initiate the proceedings of criminal contempt merely because the applicant has suspicion that the officers of the Registry are in collusion with the accused and thus intentionally delaying the execution of the warrants of arrest.

6. The proceedings of criminal contempt are quasi-criminal in nature. It is settled law that in a case where the order is passed by mistake, inadvertence or by misunderstanding of the meaning and purport of the order, unless it is intentional, no charge of contempt can be brought home.

7. In B. K. Kar v. Hon’ble the Chief Justice and his companion Justices of the Orissa High Court, AIR 1961 SC 1367 : (1961 (2) Cri LJ 438), the Hon’ble Supreme Court has observed as under (at p. 1370) :–

“There may perhaps be a case where an order disobeyed could be reasonably construed in two ways and the subordinate Court construed it in one of those ways but in a way different from that intended by the superior Court. Surely, it cannot be said that disobedience of the order by the subordinate Court was contempt of the superior Court. There may possibly be a case where disobedience is accidental. If that is so, there would be no contempt.”

8. Similarly, in Debabrata Bandopadhyay v. State of West Bengal, AIR 1969 SC 189 : (1969 Crl LJ 401), the Hon’ble Supreme Court has observed as under (at p. 193) :–

“A question whether there is contempt of Court or not is a serious one. The Court is both the accuser as well as the judge of the accusation. It behoves the Court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in Courts and Tribunals. It is only when a clear case of contumacious conduct not explainable otherwise, arises that the contemnor must be punished ……………. …… Punishment under the law of Contempt is called for when the lapse is deliberate and in disregard of one’s duty and in defiance of authority. To take action in an unclear case is to make the law of contempt do duty for other measures and is not to be encouraged.”

9. The same view had been taken by the Hon’ble Apex Court in Bharat Coking Coal Ltd. v. State of Bihar, AIR 1988 SC 127 : (1988 Cri LJ 396); Capt. Dushyant Somal v. Sushma Somal, AIR 1981 SC 1026 : (1981 Cri LJ 719); Niaz Mohammed v. State of Haryana, (1994) 6 SCC 332 : (AIR 1995 SC 308) and K. J. Pathare v. S. J. Pathare, (1971) 73 Bom LR 616.

10. Thus, there has to be a clear-cut direction and if there is a wilful disobedience in compliance thereof, a party may lodge the grievance otherwise not. There may be a case where contempt petition may be filed that the judgment and order had been compiled with only partially. In such a case the Court has to examine : what were the circumstances under which the judgment could not be given effect to fully. In Lt. Col. K. D. Gupta v. Union of India, AIR 1989 SC 2071 : (1989 Cri LJ 2204), this aspect was considered, as the petition was filed that the entire amount, as directed by the Hon’ble Supreme Court, had not been paid to him. The Union of India took the plea that before making the payment to the applicant therein, it was under an obligation to deduct the Income-tax at source. The Hon’ble Supreme Court rejected the plea of contempt and held that in such a case neither the plea of mala fide nor of wilful disobedience can be entertained as the Authority had acted bona fide in compliance of the law in force. If the order is capable of being interpreted in two different ways, the Court should not resort to the contempt proceedings.

11. In the case of Manish Gupta v. Gurudas Roy, (1995) 3 SCC 559 : (AIR 1995 SC 1359), the Apex Court observed that where an Authority passes the order in pursuance of the judgment of a Court and the order is to be passed in accordance with the Rules holding the field and the party is aggrieved of such an order, it is not permissible for such a party to bring a contempt petition if he is aggrieved of such an order. If the party feels that the order has not been made in accordance with the relevant rules, he may pursue the remedy available to him in law for enforcing his rights.

12. A Constitution Bench of the Hon’ble Supreme Court, in State of Bihar v. Rani Sonabati Kumari, AIR 1961 SC. 221, has categorically held that the provisions of Contempt Act deal with the wilful defiance of the order passed by the Court. The Apex Court held that there must be wilful disobedience of the injunction order passed by the Court and order of punishment be not passed if the Court is satisfied that the party was, in fact, under a misapprehension as to the scope of the order or there was an unintentional wrong for the reason that the order was ambiguous and reasonably capable of more than one interpretation or the party never intended to disobey the order but conducted himself in accordance with the interpretation of the order.

13. The proceedings under the Act 1971 are purely quasi-criminal in nature and are, thus, punitive. Even the corporate body like municipality/government can be punished though no officer of it be a party by name. A similar view has been reiterated by the Hon’ble Supreme Court in Aligarh Municipal Board v. Ekka Tonga Mazdoor Union, AIR 1970 SC 1767 : (1970 Cri LJ 1520), by the Allahabad High Court, in Ratan Narain Mulla v. The Chief Secretary, Govt. of U. P., 1975 Cri LJ 1283; and by the Delhi High Court in Jyoti Ltd. v. Smt. Kanwaljit Kaur Bhasin, 1987 Cri LJ 1281.

14. In Andre Paul Terence Ambard v. The Attorney-General of Trinidad and Tabago, AIR 1936 PC 141, the Privy Council has observed that the proceedings under the Contempt of Courts Act are quasi-judicial in nature and orders passed in those proceedings are to be treated as orders passed in criminal cases. In Sukhdev Singh v. Hon’ble C. J., S. Teja Singh The Hon’ble Judges of the Pepsu High Court at Patiala, AIR 1954 SC 186 : (1954 Cri LJ 460), the Supreme Court has taken the same view.

15. A Full Bench of Punjab and Haryana High Court in S. Sher Singh, s/o. Hukam Singh v. Raghupati Kapur, AIR 1968 Punj & Har 217, has held that the contempt proceedings are, by all means, a quasi-criminal in nature. The applicant must prove his allegations beyond reasonable doubt and the alleged contemnors are entitled to the benefit of doubt. The same view has been taken by the Division Bench of Madras High Court in re B. Yegnanarayaniah, AIR 1974 Mad 313; and by the Lahore High Court in Homi Rustom G. Pardiawala v. Sub-Inspector Baig, AIR 1941 Lah

196.

16. In S. Abdul Karim v. M. K. Prakash, AIR 1976 SC 859 : (1976 Cri LJ 641), the Hon’ble Apex Court has held that the standard of proof required to establish a charge in contempt proceedings is the same as in any other criminal proceedings. It is all the more necessary to insist upon strict proof of such charged act complained of is committed by a person performing judicial/ quasi-Judicial proceedings.

17. In Jawand Singh Hukam Singh v. Om Prakash Aggarwal, Sub-Judge, 1st Class, Jagadhri, AIR 1959 Punj & Har 632 : (1959 Cri LJ 1469), the Punjab & Haryana High Court, while dealing with a contempt matter, had observed that guilt of a person of having committed contempt of Court, must rest on reasonable certainty. Suspicion, no matter how strong and speculative, however, suspicions must not form the basis for contempt.

18. In Chhotu Ram v. Urvashi Gulati, (2001) 7 SCC 530 : (AIR 2001 SC 3468 : 2001 Cri LJ 4204); and Daroga Singh v. B. K. Pandey, (2004) 5 SCC 26 : (AIR 2004 SC 2579) : (2004 Cri LJ 2084), the Hon’ble Supreme Court held that burden and standard of proof in contempt proceeding, being quasi criminal in nature, is the standard of proof required in criminal proceedings, for the reason that contempt proceedings are quasi-criminal in nature.

19. Similarly in Mrityunjoy Das v. Sayed Hasibur Rahaman, AIR 2001 SC 1293 : (2001 Cri LJ 1702) the Hon’ble Supreme Court placing reliance upon a large number of its judgments, including, Murray & Co. v. Ashok Kumar Newatia, AIR 2000 SC 833 : (2000 Cri LJ 1394); V. G. Nigam v. Kedar Nath Gupta, AIR 1992 SC 2153 : (1992 Cri LJ 3576), has held that jurisdiction of the contempt has been conferred on the Court to punish an offender for his contemptuous conduct or obstruction to a majesty of law, but in the case of quasi-criminal in nature, charges have to be proved beyond reasonable doubt and alleged contemnor becomes entitled to the benefit of doubt. It would be very hazardous to impose sentence in contempt on some probabilities.

20. A litigant should also not lose sight out of his sheer frustration that making scandalous allegation against any officer of the Court which are without any foundation merely on conjectures and surmises and furnishing false information to the Court also amounts to criminal contempt (Vide D. R. Dhananjaya v. J. Vasudevan, AIR 1996 SC 302 : (1996 Cri LJ 426); Afzal v. State of Haryana, AIR 1996 SC 2326 : (1996 Cri LJ 1679); Prem Surana v. Additional Munsif & Judicial Magistrate, AIR 2002 SC 2956 ; (2002 Cri LJ 4092); Contemnor In re: Arundhati Roy, AIR 2002 SC 1375 : (2002 Cri LJ 1792); Radha Mohan Lal v. Rajasthan High Court (Jaipur Bench), AIR 2003 SC 1467 : (2003 Cri LJ 1207); and S. R. Ramraj v. Special Court, Bombay, AIR 2003 SC 3039 ; (2003 Cri LJ 3863).

21. In Daroga Singh (supra) the Hon’ble Supreme Court considered the issue at length rejecting the plea of the contemnors that the High Court cannot initiate the contempt proceedings in respect of the Contempt of the Courts subordinate to it and while deciding the said issue reliance has been placed upon its earlier judgment in Bathian Ramakrishna Reddy v. State of Madras, AIR 1952 SC 149 : (1952 Cri LJ 832); Brahma Prakash Sharma v. State of U. P., AIR 1954 SC 10 : (1954 Cri LJ 238); and State of Madhya Pradesh v. Revishankar, AIR 1959 SC 102 : (1959 Cri LJ 251). The Hon’ble Supreme Court further explained the scope of contempt proceedings and observed as under :–

“………………….For the survival of the rule of law the orders of the Courts have to be obeyed and continue to be obeyed unless overturned, modified or stayed by the appellate or revisional Courts. The Court does not have any agency of its own to enforce its orders. The executive authority of the State has to come to the aid of the party seeking implementation of the Court orders. The might of the State must stand behind the Court orders for the survival of the rule of the Court in the country. Incidents which undermine the dignity of the Courts should be condemned and dealt with swiftly ….. ……………… If the judiciary has to perform its duties and functions in a fair and free manner, the dignity and the authority of the Courts has to be respected and maintained at all stages and by all concerned failing which the very constitutional scheme and public faith in the judiciary runs the risk of being lost ……………….The judges are — as a jurist calls them — “paper tigers”. They do have any machinery of their own for implementing their orders. People, while approaching the Court of law which they regard as the temple of justice, feel safe and secure whilst they are in the Court.”

22. In view of the above, the law can be summarized that the High Court has a power to initiate the contempt proceedings in respect of the criminal contempt of Subordinate Court. However, contempt proceedings being quasi-criminal in nature, the standard of proof requires in the same manner as in other criminal cases. The alleged contemnor is entitled to the protection of all safeguards rights which are provided in the Criminal Jurisprudence, including the benefit of doubt. There must be a clear-cut case of obstruction of administration of justice by a party intentionally to bring the matter within the ambit of the said provision. The case should not rest only on surmises and conjectures. Moreso, applicant should be careful in the language and allegations and he/she has to substantiate the allegations by adducing evidence in support of the case.

23. The issue is to be examined in the light of the aforesaid settled legal propositions. The petitioner herself was confronted as on what basis she has impleaded the opposite parties, she could not submit any explanation, other than that those are the officers posted today in the Registry nor she could furnish any explanation as how respondent No. 2. Shri Girish Kumar Srivastava, Deputy Registrar has been impleaded, if in order to delay, the process of warrants of arrest has been sent to Joint Secretary by an officer other than Girish Kumar Srivastava; nor she is aware as on what date, the present Registrar General was posted in the High Court. She has submitted that the Registrar General is responsible being the Head of the Registry, therefore by nature of his official duties of over-all supervision, he is liable to be punished. Though, she had admitted that she had never met him.

24. A bald statement has been made that there is no extradition treaty between India and the United States of America without verifying the same as the Indo-U.S. Extradition Treaty 1999 is in existence. It may be pertinent to mention here that Chapter VII-A has been introduced in the Code of Criminal Procedure by amendment Act No. 40 of 1993 with effect from 20-7-1994. It provides a full-fledged procedure for securing the transfer of accused persons as per the procedure prescribed by the Central Government by issuing a notification. The copy of the notification has not been produced before us. Therefore, the procedure adopted by the Registry of this Court in sending the summons to the Foreign Ministry through Home Ministry of the State Government cannot be held to be illegal, unwarranted or uncalled for. It may be a practice adopted by this Court throughout in such cases.

25. We have asked the Registrar General to produce the relevant documents of this case before us and to examine before issuing any notice to them as to whether there is some dereliction of duty on the part of any official of the Registry of this Court. The record produced by the Registrar General shows that all the letters sent by the Registry of this Court to the State of Uttar Pradesh for executing the warrants of arrest had been received by the Ministry of Home Affairs, Government of India. However, the Foreign Ministry has been insisting that the warrants of arrest cannot be executed as per the Indo US Extradition Treaty, 1999, and for securing the presence of the accused persons, the request for extradition has to be processed. The Registry has always informed the trial Court through the learned District Judge, Mirzapur about the said correspondence, as is evidence from the letters dated 4-8-1999, 16-8-2002 and 14-6-2004. As the trial Court had been informed by the Registry of this Court vide letters dated 31-10-2002 and 13-7-2004 about the procedure required for securing the presence of the said accused persons before the trial Court through the District Judge, it cannot be held that there has been dereliction of duty on the part of the official of the Registry of this Court, what to talk about intentionally obstructing cause of justice of the said trial Court.

26. It is evident from the aforesaid correspondence that Rule 16 of the General Rules (Criminal) does not lay down any specific procedure for service by the High Court. However, this Court has always forwarded the warrants of arrest in all the cases to the Foreign Ministry of the Government of India through the State of Uttar Pradesh.

27. We fail to understand under what circumstances, merely on misconception and surmises and conjectures, the criminal contempt petition has been filed. It appears that because of the frustration, the petitioner has lost the reason to differentiate in right and wrong. It appears that being the victim of alleged offence under Section 494, I.P.C., petitioner has become so much frustrated and disgusted as her dreams of happy married life could not be true, after her husband solemnized alleged second marriage that she had not spared any person from making scandalous allegations right from the trial Court, the District Judge and the officers of the Registry, without any sense of responsibility. The conduct of the petitioner is reprehensible and is censured. We are not taking serious view of the matter as petitioner has already suffered a lot because of the nature consequence of alleged bigamy and ill advice of her counsel(s).

28. The petitioner tried her best to serve the accused persons but could not succeed. She filed a Writ Petition No, 7951 of 2003, which was dismissed as withdrawn, as not being maintainable. Petitioner subsequently, filed the Petition No. 813 of 2004 under Section 482, Cr.P.C., wherein also she could not succeed. As she failed to get the redressal of her grievance anywhere, she has approached this Court by filing this Contempt Petition.

20. In view of the above, we do not find I any force in the petition. It is, accordingly, dismissed. However, the trial Court is requested to seek extradition of the said accused persons.

30. The Registrar General, may send the certified copy of the judgment and order along with the photo copies of the letters received by the Foreign Ministry of the Government of India. The only remedy to secure their presence is moving for extradition by the investigating agency/Court and the warrant of arrest cannot be executed in view of the provisions of Indo-US Extradition Treaty, 1999, may also be sent to him forthwith.

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