Effect of filing of charge sheet by Police in undue haste in Arnab Goswami’s case.
Effect of filing of charge sheet by Police in undue haste in Arnab Goswami’s case.
Excerpts from interview of Adv. Nilesh Ojha
The
filing of charge sheet will not affect the hearing before the High Court
because court can quash the Charge Sheet
also. On the contrary the concerned IO will be held for action under sec
211,166,220 120(B) of IPC and Sec 145(2) of Maharashtra Police Act. The undue
haste is itself a ground to order investigation through CBI against the
concerned police officials.
Chief
Justice of India Sharad Bobde’s bench in a recent judgment had made the law
clear that the abuse of process
caused by FIR stands aggravated if the FIR has taken the form of a charge sheet
after investigation.
In the case of Anand Kumar Mohta Vs
State (2019) 11 SCC 706 it is ruled as under;
“There is nothing in the words of this
Section which restricts the exercise of the power of the Court to prevent the
abuse of process of court or miscarriage of justice only to the stage of the
FIR. It is settled principle of law that the High court can exercise
jurisdiction under Section 482 of Cr.P.C even when the discharge application is
pending 2 (2011) 7 SCC 59 7 with the trial court. Indeed, it would be a
travesty to hold that proceedings initiated against a person can be interfered
with at the stage of FIR but not if it has advanced, and the allegations have
materialized into a charge sheet. On the contrary it
could be said that the abuse of process caused by FIR stands aggravated if the
FIR has taken the form of a charge sheet after investigation.
The power is undoubtedly conferred to prevent abuse of process of power of any court.”
UNDUE HASTE IN FILING CHARGE SHEET PROVES
MALAFIDES
Firstly
the act of filing charge sheet is itself an offence of contempt for two
reasons;
the petition for
quashing the FIR and proceedings is subjudice before the Bombay High Court and the
issue regarding the police’s power to
reinvestigate the case is still not decided and therefore the undue haste is
itself proves the malafides .
In Sudhir Vora vs
commissioner of Police Mumbai 2004 Cr. L. J. 2278, it is ruled that during
pendency of the petition when matter is adjourned, the police should not do
anything which will prejudice the cause before the High Court. It was further
ruled that the Public Prosecutor cannot represent such delinquent police
officer. It is ruled as under;
“Moreover, when the question regarding
arrest of the petitioner in connection with the original complaint filed by
K.A. Rashid was incidentally subjudice in the writ petition which was pending
before this Court and the matter having been adjourned at the instance of the
Respondents, in our opinion, there can be no tangible justification for causing
arrest of the petitioner on 14th January, 2001. The explanation given by the
Respondents in our opinion, is unacceptable and is obviously an after thought.
Understood thus, we hold that the action of arrest of the petitioner is
inappropriate.
17. While parting, we may observe that although concerned police officer
(Respondent No. 2) has been impleaded in writ petition as respondent by name
and the allegations against him are personal to him, nevertheless, the Public
Prosecutor has thought it appropriate to defend the respondent No. 2. In such a
situation, in our view, the Public
Prosecutor ought not to defend the officer against whom the allegations of acts
of commission or omission are made. (See: 1986 Cr.L.J. 1022 (Ker.) Kannapan
v. Abbas).”
Here the case was fixed
for hearing on 10 th December. The Supreme Court already passed the strictures
against the police. The Magistrate after perusing the case diary and all the
material on record also refused the police custody observing that there is no
material to connect Mr. Arnab Goswami and others with the offence of abatement
to suicide.
FULL BENCH OF THE Supreme
Court in S. Abdul Karim v. M.
K. Prakash
, AIR 1976 SUPREME COURT 859, had ruled that when petition is pending in the
High Court and even if no stay is granted then the in such a situation, the prudent course for the public servant
including the Judge of Subordinate court was to postpone the making of any final order
in regard to the subject matter till the final disposal of the petition by the
High Court. If undue haste coupled with malafide intention is shown then it is a contempt.
Furthermore the Supreme Court in its judgment releasing Mr. Arnab Goswami, in a categorical term has made it clear that no offence under sec 306 etc of IPC is made out.
Then
the act of filing of charge sheet is a gross Contempt.
The
judgment of Supreme Court binds the both i.e. the parties and also the Bombay High
Court.
In State Of
West Bengal & Ors vs Shivananda Pathak 1998(5)SCC 513, it is ruled as under;
27. Judges, unfortunately, are not infallible. As
human beings, they can commit mistakes even in the best of their judgements
reflective of their hard labour, impartial thinking and objective assessment of
the problem put before them. In the matter of interpretation of statutory
provisions of while assessing the evidence in a particular case or deciding
questions of law or facts, mistakes may be committed bona fide which are corrected
at the appellate stage. This explains the philosophy behind the hierarchy of
courts. Such a mistake can be committed even by a Judge of the High Court which
are corrected in the Letters Patent Appeal, if available.
28.
If a judgment is over-ruled by the higher court, the judicial discipline
required that the Judge whole judgment is over-ruled must submit to that
judgment. He cannot, in the same proceedings or in collateral proceedings
between the same parties, re-write the over-ruled judgment. Even if it was a
decision on a pure question of law which came to be over-ruled, it cannot be
reiterated in the same proceedings at the subsequent stage by reason of the
fact that the judgment of the higher court which has over-ruled that judgment,
not only binds the parties to the proceedings but also the Judge who had
earlier rendered that decision. That Judge may have his occasion to reiterate
his dogmatic views on a particular question of common law or constitutional law
in some other case but not in the same case. If it is done, it would be
exhibitive of his bias in his own favour to satisfy his egoistic judicial
obstinacy.
POLICE OFFICER GUILTY OF CONTEMPT OF COURT:
In Legrand Pvt. Ltd . 2007 (6) Mh.L.J.146 it is ruled as
under;
9(c). 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 in Section 2(b) of the Contempt of
Courts Act, 1971.
In Badrakanta Mishra (1973) 1 SCC 446, it is ruled as under;
‘‘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 Polyester Ltd. and Anr. Vs. The State of Maharashtra and Ors. 2010 SCC OnLine 2223 ,
“ In view thereof, the refusal to follow and implement the judgment of this Court by Mr. Dubey in our considered view prima facie; amounts to contempt of this Court. In view thereof, issue show cause notice to Mr. MoreshwarNathuji Dubey, Dy.Commissioner, LTU, Aurangabad, returnable after four weeks to show cause, as to why action under the provisions of the Contempt of Courts Act should not be initiated against him.
3. Mr.
Nair, AGP accepts notice and undertakes to communicate this order to Mr. Dubey.
Registry to issue independent show cause notice to Mr. Dubey. “
Relevant Sections of IPC reads thus;
Section 220 in The
Indian Penal Code
220. Commitment for trial or confinement by person having authority
who knows that he is acting contrary to law.—Whoever, being in any office which
gives him legal authority to commit persons for trial or to confinement, or to
keep persons in confinement, corruptly or maliciously commits any person for
trial or to confinement, or keeps any person in confinement, in the exercise of
that authority knowing that in so doing he is acting contrary to law, shall be
punished with imprisonment of either description for a term which may extend to
seven years, or with fine, or with both.
Section 166 in The
Indian Penal Code
166. Public servant disobeying law, with intent to cause injury to
any person.—Whoever, being a public servant, knowingly disobeys any direction
of the law as to the way in which he is to conduct himself as such public
servant, intending to cause, or knowing it to be likely that he will, by such
disobedience, cause injury to any person, shall be punished with simple
imprisonment for a term which may extend to one year, or with fine, or with
both. Illustration A, being an officer directed by law to take property in
execution, in order to satisfy a decree pronounced in Z’s favour by a Court of
Justice, knowingly disobeys that direction of law, with the knowledge that he
is likely thereby to cause injury to Z. A has committed the offence defined in
this section.
Section 211 in The
Indian Penal Code
211. False charge of offence made with intent to injure.—Whoever,
with intent to cause injury to any person, institutes or causes to be
instituted any criminal proceeding against that person, or falsely charges any
person with having committed an offence, knowing that there is no just or
lawful ground for such proceeding or charge against that person, shall be
punished with imprisonment of either description for a term which may extend to
two years, or with fine, or with both; and if such criminal proceeding be
instituted on a false charge of an offence punishable with death,
1[imprisonment for life], or imprisonment for seven years or upwards, shall be
punishable with imprisonment of either description for a term which may extend
to seven years, and shall also be liable to fine.
(2) …….. (c) is guilty of
any wilful-breach or neglect of any provision of law or of any rule or order
which as such Police officer, it is his duty to observe or obey, or (d) is
guilty of any violation of duty for which no punishment is expressly provided
by any other law in force, shall, on conviction, be punished with imprisonment for a term which may extend to
three months, or with fine which may extend to one hundred rupees, or with
both.
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