ASHOK KUMAR AGGARWAL Vs NEERAJ KUMAR
Bench: B.S. CHAUHAN,S.A. BOBDE
Case number: Crl.A. No.-001839-001839 / 2013
Diary number: 32680 / 2007
Advocates: Vs
NIKHIL NAYYAR
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1839 OF 2013
Ashok Kumar Aggarwal …..Appellant
Versus
Neeraj Kumar & Anr. ..Respondents
J U D G M E N T
Dr. B.S. Chauhan, J.
1. This appeal has been preferred against the impugned judgment
and final order dated 30.07.2007 passed by the High Court of Delhi at
New Delhi in Contempt Case (Criminal) No. 8 of 2007 rejecting the
said application filed by the appellant.
2. Facts and circumstances as stated by the parties, giving rise to
this appeal are that:
A. The appellant had been working as Deputy Director,
Enforcement of Delhi Zone under the Directorate of Enforcement
from 6.11.1996, and in that capacity, he conducted raids on various
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suspects under the provisions of Foreign Exchange Regulation Act
(FERA), 1973 including one S.C. Barjatya, an alleged Hawala
operator, as he had received an information that an amount of US$
1.5 lakhs had been transferred from the account of Royalle
Foundation in Swiss Bank Corporation, Zurich to the account of one
S.K. Kapoor in HSBC Bank, Hong Kong. Subsequently, the said Shri
S.C. Barjatya filed a complaint that the above transaction is forged
and he is being falsely implicated. In view thereof, case No. RC
S18/E0001/1999 was registered on 29.1.1999 against unknown
officers of the Enforcement Directorate (hereinafter referred to as
`ED’) and while enquiring into this complaint, the statements of
various other persons were recorded. Passport of the appellant was
seized on 4.3.1999. The statement of one Abhishek Verma was
recorded under Section 161 of Code of Criminal Procedure, 1973,
(hereinafter referred to as `Cr.P.C.’), who had been arrested in that
case. He was later enlarged on bail by the court and his statement
under Section 164 Cr.P.C. was recorded, wherein he had stated that
the appellant had been threatening him and extorting money from him
while seeking information in respect of dealings in foreign exchange.
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B. A look out notice was issued against the appellant through the
Interpol as he was absconding. The appellant was arrested on
23.12.1999 from Saharanpur where he was staying in a hotel under a
fictitious name. The appellant was remanded to police custody for 5
days in the first instance, which was later extended to another 2 days
till 31.12.1999. During the police custody, the appellant alleged to
have been physically abused and humiliated.
C. The appellant moved a bail application on 24.12.1999 which
came for hearing on 3.1.2000 and 4.1.2000. During the course of
proceedings, the learned Special Judge was shown a document
purported to have been emanated from the Interpol Singapore on
29.12.1999 and sent to Interpol New Delhi in response to a requisition
sent by Central Bureau of Investigation (hereinafter referred to as the
`CBI’) through the Interpol Delhi on 16.12.1999. On the basis of the
said information received from Interpol Singapore, the respondents-
officers argued that the appellant had been in Singapore from
10.2.1999 to 14.2.1999 and though his passport which had been
impounded did not contain any such stamp, and therefore he was
possessing and using a forged passport with the same number. The
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Special Judge accepted the submissions and rejected the application of
the appellant for bail vide order dated 6.1.2000.
D. The respondents had been seeking more information from the
Interpol Singapore and in response to the same, a reply dated 7.1.2000
was received that earlier communication dated 29.12.1999 was
incorrect and the appellant did not enter into Singapore on the
aforesaid dates i.e. 10.2.1999 to 14.2.1999. The said information
dated 7.1.2000 was further confirmed by Interpol Singapore vide
letter dated 12.1.2000.
In further correspondence, the Interpol Singapore admitted
its mistake vide communication dated 12.1.2000.
E. Respondent No. 2 filed a remand application dated 13.1.2000
seeking further judicial custody of the appellant for 14 days. In that
application also, it was not disclosed that the respondents had
received a communication from Interpol Singapore that earlier
communication informing about the appellant being in Singapore
was not correct. The respondents continued to withhold the said
information and did not bring it to the notice of the court. Even in a
bail application filed by the appellant on 25.1.2000, claims were made
that the appellant had not gone to Singapore on the aforesaid dates.
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Reply to the said application was filed by the CBI on 27.1.2000
denying the said facts without bringing the real facts to the knowledge
of the court. It was only on 27.1.2000 when the appellant’s counsel
insisted that the appellant had not gone to Singapore in February 1999
that the respondent no. 2, the investigating officer, admitted that the
appellant did not visit Singapore on the dates as alleged earlier and the
investigating agency had subsequently received information from
Interpol Singapore that the information furnished earlier was not
factually correct. After taking into consideration the above fact, the
appellant was granted bail wherein all the aforesaid facts had been
incorporated in the bail order dated 29.1.2000.
F. As per the appellant, on 26.7.2000, in another case before the
Central Administrative Tribunal, he came to know about the
subsequent communication sent by Interpol Singapore in this respect
and thus, the appellant filed a Criminal Writ Petition No. 600 of 2001
before the High Court of Delhi to take action against the respondents
which was disposed of vide order dated 28.5.2001 observing that the
appellant may seek relief before the court of Special Judge where,
according to the appellant, the CBI had misrepresented or concealed
the correct information. Thus, in view of the observations made by
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the High Court, the appellant filed an application under Section 340
read with Section 195 Cr.P.C. on 1.6.2001 before the Special Judge
for taking action against the respondents for suppressing the material
facts. However, the said application was dismissed by the Special
Judge vide order dated 14.2.2002.
G. Aggrieved, the appellant took the matter to the High Court by
filing an Appeal No. 199 of 2002. The High Court disposed of the
said appeal vide judgment and order dated 16.12.2005 remanding the
matter to the Special Judge to hear the parties on the application dated
1.6.2001 only on the issue of initiation of contempt proceedings and
to answer the same in accordance with law. In view thereof, the
Special Judge heard the said application and dismissed the same vide
order dated 5.2.2007.
H. Aggrieved, the appellant filed Criminal Contempt Petition No.
8 of 2007 on 16.5.2007 before the High Court of Delhi under Article
215 of the Constitution read with the provisions of the Contempt of
Courts Act, 1971 (hereinafter referred to as the ‘Act 1971’). On
receiving notice in the said case, the respondents filed reply.
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I. The High Court disposed of the said petition after hearing the
parties vide impugned judgment and order dated 30.7.2007 observing
that the suppression or misrepresentation was not deliberate.
Hence, this appeal.
3. Shri Ram Jethmalani, learned senior counsel appearing on
behalf of the appellant has submitted that the respondents had been
fully aware, after receiving the communication from Interpol
Singapore, that information furnished to them earlier by the said
Singapore authorities was not factually correct. In spite of the fact that
the matter had been listed time and again before learned Special
Judge, such information was withheld and being under the same
impression that the appellant had travelled to Singapore, his judicial
custody was extended. Even in the application filed by the
respondents for remand for a further period, such a material fact had
not been disclosed. It was only at a much later stage when the
appellant had already suffered unwarranted judicial custody and the
counsel for the appellant had been insisting that appellant did not visit
Singapore between 10.2.1999 and 14.2.1999, the Investigating
Officer/Respondent no.2 revealed that they have received information
from the Interpol Singapore on 7.1.2000 that the version of the
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appellant was correct. Therefore, the appellant had been subjected to
humiliation, insult and remained in judicial custody for a long time.
Even the remand application dated 13.1.2000 was filed without
disclosing such a fact. The appellant could be bailed out only on
29.1.2000 after remaining in jail for 36 days. It was the solemn duty
of the investigating officer not to suppress the material fact from the
court and the appellant would not have to face 36 days judicial
custody in jail. The appellant had been approaching the authorities
and courts time and again, however, could not get any relief from any
authority or court. The application of contempt filed earlier was
rejected by the Special Court. When the appellant approached the
High Court by filing a criminal writ petition, the case was remanded
to the Special Court on a particular issue. After remand, the case was
considered and the same was also dismissed by the Special Judge.
The High Court while dealing with the case under Article 215 of the
Constitution, without giving any reason whatsoever, recorded a
findings of fact that there was no deliberate attempt to cause any
prejudice to the appellant. Hence, a finding not based on any
reasoning or substantiated by any evidence, is not a judgment-in-fact.
Therefore, the appeal deserves to be allowed.
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4. Shri Ranjit Kumar, learned senior counsel appearing on behalf
of both the respondents, has vehemently opposed the appeal raising a
large number of issues, inter-alia, issue of limitation, jurisdiction of
the court to entertain the contempt application; and referred to a large
number of judgments to submit that the findings of fact recorded by
the High Court that there was no deliberate attempt to cause any
prejudice to the appellant was correct. Respondents had been working
with all sincerity and their work has always been appreciated and a
large number of certificates to that extent had been issued to them.
Therefore, the appeal is liable to be dismissed.
5. We have considered the rival submissions made by the learned
counsel for the parties and perused the records.
6. There is no dispute on the factual matrix of the case. The
appellant had been arrested on the suspicion that he was having two
passports and on the strength of one of them, he had visited Singapore
between 10.2.1999 and 14.2.1999 and such a fact had been affirmed
by the Interpol Singapore on queries from the Indian authorities.
However, on 7.1.2000, the Interpol Singapore by a Memo dated
7.1.2000 informed the Indian investigating agency that the
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information furnished by them earlier was factually incorrect and the
appellant had not visited Singapore between 10.2.1999 and 14.2.1999.
Subsequent thereto, the appellant filed a Criminal Writ Petition No.
600 of 2001 before the Delhi High Court; a case before the Special
Judge, an appeal before the High Court and again the matter had been
agitated before the Special Judge. After loosing the battle, the
appellant approached the High Court under Article 215 of the
Constitution. The appellant was arrested on 23.12.1999 and was
released on bail on 24.1.2000, thus, he remained in jail for 36 days.
7. It is also on record that the Singapore authorities had
apologized for furnishing wrong information by them. The judgment
and order dated 5.2.2007 of the learned Special Judge makes it crystal
clear that the learned Special Judge had given an elaborate judgment
deciding two issues, namely, one relating to limitation under Section
20 of the Act 1971 and, secondly, as to whether the suppression of
material fact was intentional or motivated on the part of respondents
and after hearing the matter, the learned Special Judge negated both
the issues against the appellant holding that the application was barred
by limitation as provided under Section 20 of the Act 1971 as
cognizance could not be taken after one year of the date on which the
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contempt had been committed. On the second issue, a finding has
been recorded that there was no suppression of material fact by the
respondents intentionally and deliberately as there was no motive to
obstruct the administration of justice or to interfere with due course of
proceedings.
8. Earlier before the appellate court in Criminal Appeal No. 199 of
2002, the same issues had been agitated and the matter was remanded
to the learned Special Court to decide the specific issue so far as it
relates to the initiation of contempt proceedings vide its judgment and
order dated 16.12.2005. Even the order dated 29.1.2000 makes it
evident that the first bail application of the appellant was rejected on
6.1.2000 considering the issues raised by the investigating agency,
particularly the Interpol message suggesting that the appellant had
visited Singapore on his passport no. S-243227 and remained there
from 10.2.1999 to 14.2.1999, whereas the passport impounded by the
CBI during the investigation did not show any entry relating to his
aforesaid travel to Singapore. However, on 27.1.2000, the
investigating officer admitted before the said court that a message was
received from Interpol Singapore to the effect that the appellant did
not visit Singapore from 10.2.1999 to 14.2.1999.
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9. The High Court while dealing with the contempt petition under
Article 215 of the Constitution has taken note of the facts referred to
hereinabove as well as of the respective submissions advanced by the
learned counsel for the parties, inter-alia, the submissions advanced
by the respondents in respect of maintainability of the petition and
limitation etc. However, without adverting to any of the issues so
raised, the court abruptly came to the conclusion that the respondents
did not intentionally suppress the material facts. The relevant part of
the judgment reads as under:
“We find that although information was available with the CBI that the petitioner had not visited Singapore prior to 13.1.2000 yet there appears to be no deliberate attempt to cause any prejudice to the petitioner. The application for bail which came up before the Court was supported by an affidavit setting out the facts that the petitioner had not visited Singapore during the period when his passport was with the CBI which fact was duly confirmed by the public prosecutor. In that view of the matter, we are of the opinion that there was no deliberate concealment of material to the prejudice of the petitioner. The petition is, therefore, dismissed.” (Emphasis added)
10. The respondents before this Court had also adverted to the issue
of the procedure adopted by the appellant moving the Trial Court as
well as the High Court in contempt matter and the procedure adopted
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by those Courts and also to the issue of limitation. It is submitted that
the High Court could not have proceeded with the case under Article
215 of the Constitution ignoring the limitation prescribed under the
Act 1971. More so, in a criminal case where two views are possible
the court must decide in favour of the person proceeded against. In
order to fortify his submissions, Shri Ranjit Kumar, learned senior
counsel placed reliance on the judgments in Pallav Sheth v.
Custodian & Ors., (2001) 7 SCC 549; Chhotu Ram v. Urvashi
Gulati & Anr., (2001) 7 SCC 530; J.R. Parashar, Advocate & Ors.
v. Prasant Bhushan, Advocate & Ors., (2001) 6 SCC 735; and
Biman Bose v. State of W.B. & Ors., (2004) 13 SCC 95.
11. This Court in Sahdeo alias Sahdeo Singh v. State of Uttar
Pradesh & Ors., (2010) 3 SCC 705, after placing reliance on a large
number of earlier judgments of this Court, held that proceedings of
contempt are quasi criminal in nature and the burden and standard of
proof required is the same as in criminal cases. Charges have to be
proved beyond reasonable doubt and alleged contemnor becomes
entitled to the benefit of doubt as it would be very hazardous to
impose sentence in contempt proceedings on some probabilities.
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12. In Dr. L.P. Misra v. State of U.P., AIR 1998 SC 3337; Three
Cheers Entertainment Pvt. Ltd. & Ors. v. C.E.S.C. Ltd., AIR 2009
SC 735; and R.S. Sujatha v. State of Karnataka & Ors., (2011) 5
SCC 689, this Court held that the power under Article 215 of the
Constitution can be exercised only in accordance with the procedure
prescribed by law.
13. In view of the above, the High Court was required to examine
as to whether the proper procedure has been adopted in bringing the
petition under Article 215 of the Constitution and as to whether the
limitation as prescribed under Section 20 of the Act 1971 was
attracted in the case. The High Court did not advert to any of such
issue of paramount importance. More so, no reasoning has been given
to reach a conclusion that no deliberate attempt was made by the
respondents to cause any prejudice to the appellant.
Thus, we are of the considered opinion that as both the parties
had raised issues on facts as well as on law, the High Court ought to
have dealt with the case adverting to all relevant issues, particularly
when the appellant had made an allegation that his liberty had been
jeopardised by the respondents by interfering with the course of
justice by misleading the court.
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14. As a result, we set aside the judgment and order impugned and
remit the case to the High Court to decide afresh answering all the
factual and legal issues raised by the parties.
The appeal stands disposed of accordingly.
.........................………………..J. (DR. B.S. CHAUHAN)
............. ………………………J.
(S.A. BOBDE) New Delhi, November 22, 2013
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