[Arnab Goswami] Bombay High Court's judgment is anticipatorily overruled, per incuriam and Contempt of the Supreme Court.
[Arnab Goswami] Bombay High Court's judgment is per incuriam and Contempt of the Supreme Court. Such judgments are called as anticipatorily overruled in US legal fraternity.
The Division Bench of headed by Justice S. S. Shinde in its judgment observed that police need not totake any permission of the Magistrate for further investigation when case is closed earlier and report is submitted in the Court and accepted by the Magistrate.
Said view is already over-ruled by the three Judge Bench judgment in Vinubhai Haribhai Malaviya vs The State Of Gujarat 2019 SCC ON LINE 1346 making clear that it is mandatory for the Police officer to take permission of the Magistrate. The police has to seek permission of the court to continue “further investigation” and the condition for Police to seek such leave of the court would meet the ends of justice and ‘also provide adequate safeguard against a suspect/accused’
Hence the contrary view in the High Court judgment judgment is anticipatorily overruled and per incuriam and therefore vitiated.
Shocking observations of the High Court are that, the order accepting the summary report of the police by the Magistrate was without hearing the Complainant, therefore the complainant without approaching the Higher Court to challenge the said order can approach the State against the wrong committed by the Judge and pray for investigation ignoring the jurisdiction of the Courts of law and the order of Minister directing reinvestigation against the order of the court is not wrong.
It is settled law that an order even if wrong to the perception of the parties and even if it be erroneous is still binding between the parties until it is set aside by an appropriate proceeding in appeal or revision. Because if parties are allowed to take decision as to not to follow the order then everyone as per their perception can find that the order against them is wrong and whole Justice system will collapse.
In Vinubhai Haribhai's case , it is ruled by the three judge Bench of the Supreme Court as under;
" 40.6. It has been a procedure of propriety that the police has to seek permission of the court to continue “further investigation” and file supplementary charge- sheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case.”
xxx xxx xxx
49. Now, we may examine another significant aspect which is how the provisions of Section 173(8) have been understood and applied by the courts and investigating agencies. It is true that though there is no specific requirement in the provisions of Section 173(8) of the Code to conduct “further investigation” or file supplementary report with the leave of the court, the investigating agencies have not only understood but also adopted it as a legal practice to seek permission of the courts to conduct “further investigation” and file “supplementary report” with the leave of the court. The courts, in some of the decisions, have also taken a similar view. The requirement of seeking prior leave of the court to conduct “further investigation” and/or to file a “supplementary report” will have to be read into, and is a necessary implication of the provisions of Section 173(8) of the Code. The doctrine of contemporanea expositio will fully come to the aid of such interpretation as the matters which are understood and implemented for a long time, and such practice that is supported by law should be accepted as part of the interpretative process.
50. Such a view can be supported from two different points of view: firstly, through the doctrine of precedent, as afore noticed, since quite often the courts have taken such a view, and, secondly, the investigating agencies which have also so understood and applied the principle. The matters which are understood and implemented as a legal practice and are not opposed to the basic rule of law would be good practice and such interpretation would be permissible with the aid of doctrine of contemporanea expositio. Even otherwise, to seek such leave of the court would meet the ends of justice and also provide adequate safeguard against a suspect/accused."
1.3. In Re: Madhu Limaye (1969) 1 SCC 292, full bench of the Supreme Court had ruled that when order of the Magistrate in sending accused to judicial remand is a mechanical order without any judicially accepted reasons then the High court and Supreme Court are bound to invoke the inherent powers under Habeas Corpus directing immediate release of the said person. There is no contrary judgment of larger Bench to overrule the said law. Therefore there was no discretion to High Court except to pass an order as directed by the Full Bench.
1.4. Division bench of Bombay High Court in Sonu Yogi Vs State MANU/ MH/ 1992/2011 (BOM), followed said law and released an accused in a serious case of rape and other offences.
1.5. In Prem Kaur’s case (2013) 14 SCC 653, the Supreme Court made it clear that the order passed by ignoring arguments of the Counsel and material on record is a ‘perverse judgment/order’ and it is vitiated.
2. The Supreme Court made it clear that the Judges deliberately ignoring earlier binding precedents of the Supreme Court and passing whimsical orders/judgments will be guilty of ;
(i) ‘Judicial adventurism as per law laid down in Dwarikesh Sugar Industries Ltd. (1997) 6 SCC 450,Mathew K.C. MANU/SC/0054/2018.
(ii) ‘ Fraud on Power’ as per ratio laid down in Vijay Shekhar (2004) 4 SCC 666
(iii) guilty of ‘Legal Malice’ or ‘Malice in Law’ as per Kalabharati Advertising Vs. Hemant Vimalnath Narichania (2010) 9 SCC 437 West Bengal State Electricity Board Vs. Dilip Kumar Ray AIR 2007 SC 976 , Selvi J. Jayalalithaa Vs. State (2014) 2 SCC 401
iv) Guilty of passing order contrary to law with ulterior motive as per sec 219,166 r/w 120(B) 34 etc of IPC.
If order is passed to save the Minister and other guilty persons then Judge is liable to be punished for offence under sec 218 of IPC
If order is passed to send any accused for trial without jurisdiction or authorising wrongful confinement and illegal detention then Judge is liable to be punished for offence under sec 220, 167 etc of IPC.
Making wrong and incorrect observations in the order sheet makes the Judge liable for action under sec 466, 471,474, 192,193 etc of IPC.[Govind Mehta AIR 1971 SC 1708, K.Rama Reddy Vs. State (1998) 3 ALD 305, State Of Maharashtra …Vs… Kamlakar Nandram Bhawsar 2002 ALLMR(CRI) 2640 , 2003(I)B. CR. C. 289]
v) Judge is guilty of passing perverse order in contempt of law laid down in Prem Kaur’s case (2013) 14 SCC 653.
2. Bench made wrong observations that the investigation in the case is a ‘further investigation’ under sec 173(8) of Cr. P. C., but in fact it is a ‘reinvestigation’ for following reasons;
a) The order by the Home Minister was to conduct ‘reinvestigation’ but the Bench tried to find out the ways to bring the case under further investigation by refusing to follow the binding precedents.
b) The further investigation under sec 173(8) comes after cognizance is taken and fresh material is received by the IO. The representation made by the complainant on which the Home Minister passed the order of 'reinvestigation' makes it clear that there was no fresh material and only on the basis of earlier material the investigation started and it is a 'reinvestigation' even if the title of further investigation is given by the the IO.
In a similar case in the matter between Sri Balaji v. The State of Karnataka & Others 2008 SCC On Line Kar , the case similar to that of Arnab Goswami was held to be vitiated and it was quashed for initiating the proceedings by doing ‘reinvestigation’ by wiping out the earlier investigation report which was accepted by the Magistrate.
“ In the instant case it is not in dispute that after completion of investigation the respondent police submitted a report to the Jurisdictional Magistrate on 29.01.2003 and the same was accepted and proceeded against seven accused. Further it is not in dispute that at the first investigation the IO recorded the statement of one Dr. K. Jogigowda. It is not in dispute that based on the statement of this witness, the name of petitioner was excluded in the first charge sheet filed by the police. After a lapse of more than two years the respondent police again recorded the statement of this witness, Dr. K. Jogigowda for the second time and filed the additional charge sheet against the petitioner by wiping out the earlier statement of the witness. This act on the part of the respondent police amounts to reinvestigating the case. The Criminal Procedure Code do not provide for reinvestigation. Therefore the impugned order taking cognizance of additional charge sheet based on reinvestigation is liable to be set aside.”
Hence the whole judgment of the Bombay High court is illegal and vitiated.
In Rabindra Nath Singh Vs. Pappu Yadav case (2010 (3) SCC (Cri) 165, Hon’ble Supreme Court held that, the Judge of the High Court committed contempt of Court in not following the guidelines of Supreme Court in the concerned matter.
In the case of Baradakanta Mishra Ex-Commissioner of Endowments Vs. Bhimsen Dixit reported as (1973) 1 SCC 446, it was held that:
‘‘15. The conduct of the appellant in not following the previous, decision of the High Court is calculated to create confusion in the administration of law. It will undermine respect for law laid down by the High Court and impair the constitutional authority of the High Court. His conduct is therefore comprehended by the principles underlying the law of Contempt. The analogy of the inferior court's disobedience to the specific order of a superior court also suggests that his conduct falls within the purview of the law of Contempt. Just as the disobedience to a specific order of the Court undermines the authority and dignity of the court in a particular case, similarly the deliberate and malafide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is calculated not only to undermine the constitutional authority and respect of the High Court, generally, but is also likely to subvert the Rule of Law 'and engender harassing uncertainty and confusion in the administration of law.’’
In New Delhi Municipal Council Vs. M/S Prominent Hotels Limited 2015 SCC Online Del 11910, it is ruled as under;
“22. Consequences of the Trial Court disregarding well settled law - If the Trial Court does not follow the well settled law, it shall create confusion in the administration of justice and undermine the law laid down by the constitutional Courts - It is immaterial that in a previous litigation the particular petitioner before the Court was or was not a party, but if a law on a particular point has been laid down by the High Court, it must be followed by all authorities and tribunals in the State - and they cannot ignore it either in initiating proceedings or deciding on the rights involved in such a proceeding - If in spite of the earlier exposition of law by the High Court having been pointed out and attention being pointedly drawn to that legal position, in utter disregard of that position, proceedings are initiated, it must be held to be a wilful disregard of the law laid down by the High Court and would amount to civil contempt as defined insection 2(b) of the Contempt of Courts Act, 1971 . The consequence of the Trial Court not following the well settled law amounts to contempt of Court. Reference in this regard may be made to the judgments given below.
It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working; otherwise there would be confusion in the administration of law and respect for law would irretrievably suffer. We, therefore, hold that the law declared by the highest Court in the State is binding on authorities, or tribunals under its superintendence, and that they cannot ignore it either in initiating a proceeding or deciding on the rights involved in such a proceeding. If that be so, the notice issued by the authority signifying the launching of proceedings, contrary to the law laid down by the High Court would be invalid and the proceedings themselves would be without jurisdiction."(Emphasis supplied)
22.6. In T.N. Godavarman Thirumulpad v. Ashok Khot, (2006) 5 SCC 1, the Supreme Court held that disobedience of the orders of the Court strike at the very root of rule of law on which the judicial system rests and observed as under:-
"5. Disobedience of this Court's order strikes at the very root of the rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. Hence, it is not only the third pillar but also the central pillar of the democratic State. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs. Otherwise, the very cornerstone of our constitutional scheme will give way and with it will disappear the rule of law and the civilised life in the society. That is why it is imperative and invariable that courts' orders are to be followed and complied with."(Emphasis supplied)
22.7. In Maninderjit Singh Bitta v. Union of India, (2012) 1 SCC 273, the Supreme Court held as under:-
"26. ... Disobedience of orders of the court strikes at the very root of the rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs...
29. Lethargy, ignorance, official delays and absence of motivation can hardly be offered as any defence in an action for contempt. Inordinate delay in complying with the orders of the courts has also received judicial criticism. ... Inaction or even dormant behaviour by the officers in the highest echelons in the hierarchy of the Government in complying with the directions/orders of this Court certainly amounts to disobedience. ... Even a lackadaisical attitude, which itself may not be deliberate or wilful, have not been held to be a sufficient ground of defence in a contempt proceeding.
22.8. In Mohammed Ajmal Mohammed Amir Kasab v. State of Maharashtra (2012) 9 SCC 1, the Supreme Court directed that it is the duty and obligation of the Magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, it should be provided to him from legal aid at the expense of the State. The Supreme Court further directed that the failure of any magistrate to discharge this duty would amount to dereliction in duty and would made the concerned magistrate liable to departmental proceedings.
22.9. In Priya Gupta v. Addl. Secy. Ministry of Health and Family Welfare and others, (2013) 11 SCC 404, the Supreme Court held as under:-
"12. The government departments are no exception to the consequences of wilful disobedience of the orders of the Court. Violation of the orders of the Court would be its disobedience and would invite action in accordance with law. The orders passed by this Court are the law of the land in terms of Article 141 of the Constitution of India. No court or tribunal and for that matter any other authority can ignore the law stated by this Court. Such obedience would also be conducive to their smooth working, otherwise there would be confusion in the administration of law and the respect for law would irretrievably suffer. There can be no hesitation in holding that the law declared by the higher court in the State is binding on authorities and tribunals under its superintendence and they cannot ignore it. This Court also expressed the view that it had become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have a grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty are important hallmarks of judicial jurisprudence developed in this country, as discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and to abide by the rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.
13. These very principles have to be strictly adhered to by the executive and instrumentalities of the State. It is expected that none of these institutions should fall out of line with the requirements of the standard of discipline in order to maintain the dignity of institution and ensure proper administration of justice.
xxx xxx xxx
19. It is true that Section 12 of the Act contemplates disobedience of the orders of the court to be wilful and further that such violation has to be of a specific order or direction of the court. To contend that there cannot be an initiation of contempt proceedings where directions are of a general nature as it would not only be impracticable, but even impossible to regulate such orders of the court, is an argument which does not impress the court. As already noticed, the Constitution has placed upon the judiciary, the responsibility to interpret the law and ensure proper administration of justice. In carrying out these constitutional functions, the courts have to ensure that dignity of the court, process of court and respect for administration of justice is maintained. Violations which are likely to impinge upon the faith of the public in administration of justice and the court system must be punished, to prevent repetition of such behaviour and the adverse impact on public faith. With the development of law, the courts have issued directions and even spelt out in their judgments, certain guidelines, which are to be operative till proper legislations are enacted. The directions of the court which are to provide transparency in action and adherence to basic law and fair play must be enforced and obeyed by all concerned. The law declared by this Court whether in the form of a substantive judgment inter se a party or are directions of a general nature which are intended to achieve the constitutional goals of equality and equal opportunity must be adhered to and there cannot be an artificial distinction drawn in between such class of cases. Whichever class they may belong to, a contemnor cannot build an argument to the effect that the disobedience is of a general direction and not of a specific order issued inter se parties.
Such distinction, if permitted, shall be opposed to the basic rule of law.
23. ... The essence of contempt jurisprudence is to ensure obedience of orders of the Court and, thus, to maintain the rule of law. History tells us how a State is protected by its courts and an independent judiciary is the cardinal pillar of the progress of a stable Government. If over-enthusiastic executive attempts to belittle the importance of the court and its judgments and orders, and also lowers down its prestige and confidence before the people, then greater is the necessity for taking recourse to such power in the interest and safety of the public at large. The power to punish for contempt is inherent in the very nature and purpose of the court of justice. In our country, such power is codified...(Emphasis supplied)
22.10. In Subrata Roy Sahara v. Union of India (2014) 8 SCC 470, the Supreme Court held that the decisions rendered by the Supreme Court have to be complied with by all concerned. Relevant portion of the said judgment is as under: -
17. There is no escape from, acceptance, or obedience, or compliance of an order passed by the Supreme Court, which is the final and the highest Court, in the country. Where would we find ourselves, if the Parliament or a State Legislature insists, that a statutory provision struck down as unconstitutional, is valid? Or, if a decision rendered by the Supreme Court, in exercise of its original jurisdiction, is not accepted for compliance, by either the Government of India, and/or one or the other State Government(s) concerned? What if, the concerned government or instrumentality, chooses not to give effect to a Court order, declaring the fundamental right of a citizen? Or, a determination rendered by a Court to give effect to a legal right, is not acceptable for compliance? Where would we be, if decisions on private disputes rendered between private individuals, are not complied with? The answer though preposterous, is not far-fetched. In view of the functional position of the Supreme Court depicted above, non-compliance of its orders, would dislodge the cornerstone maintaining the equilibrium and equanimity in the country's governance. There would be a breakdown of constitutional functioning, It would be a mayhem of sorts.
185.2. Disobedience of orders of a Court strikes at the very root of the rule of law on which the judicial system rests. Judicial orders are bound to be obeyed at all costs. Howsoever grave the effect may be, is no answer for non-compliance with a judicial order. Judicial orders cannot be permitted to be circumvented. In exercise of the contempt jurisdiction, courts have the power to enforce compliance with judicial orders, and also, the power to punish for contempt.