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 . 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 ” 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 . The power is undoubtedly conferred to prevent abuse of of 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.