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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

CONTEMPT PETITION (CRL.) NO. 2 OF 1994

Rajeev Dhawan                      ……  Petitioner  

   Vs.

Gulshan Kumar Mahajan & Ors.                    ……  Respondents

WITH

CONTEMPT   PETITION (CRL.) NO. 4A OF 1994   

JUDGMENT

R.M. LODHA, CJI.  

As a result  of  the incidents  at  Ayodhya on 06.12.1992,  the  

President  of  India  issued  a  Proclamation  under  Article  356  of  the  

Constitution  of  India  assuming  to  himself  all  the  functions  of  the  

Government of Uttar Pradesh, dissolving the U.P. Vidhan Sabha.  Initially,  

the Acquisition of Certain Area at Ayodhya Ordinance, 1993 (No.8 of 1993)  

was  promulgated.   The  said  Ordinance  was  later  on  replaced  by  

Acquisition  of  Certain  Area at  Ayodhya Act,  1993 (No.33  of  1993)  (for  

short,  ‘the 1993 Act’).   On the same day, i.e. on 07.01.1993, when Act  

No.33 of 1993 was enacted, Special Reference (being Special Reference  

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No.1 of  1993)  was made to this Court  by the President  of  India  under  

Article 143 (1) of the Constitution of India.  The constitutional validity of the  

1993 Act and the maintainability of the Special Reference No.1 of 1993  

were being examined by the Constitution Bench of this Court.  It is alleged  

that the Vishwa Hindu Parishad (VHP), which was banned at that time,  

held Dharam Sansad in the first week of April, 1994 and after the Dharam  

Sansad was over,  its  President,  Vishnu Hari  Dalmia and Joint  General  

Secretary, Giriraj Kishore made certain derogatory statements concerning  

this Court in the news conference.  The statements to the media made by  

Vishnu Hari Dalmia and Giriraj Kishore were published in Indian Express in  

its edition of 10.04.1994.  Dr. Rajeev Dhawan, designated Senior Advocate  

filed Contempt Petition (Crl.) before this Court against Vishnu Hari Dalmia  

and Giriraj Kishore, President and Joint General Secretary of the Vishwa  

Hindu  Parishad  and  Indian  Express  by  invoking  the  jurisdiction  of  this  

Court under Article 129 of the Constitution of India.  It is averred that the  

statements made by Vishnu Hari Dalmia and Giriraj Kishore and published  

in  Indian  Express  were  malicious  and  tantamount  to  scandalizing  this  

Court and lowering its authority.   In the contempt petition,  the petitioner  

had drawn the attention to the following extracts from Indian Express news  

report:

"VHP warns SC not to 'exceed limits'  

"Addressing to media persons here on Saturday Vishnu Hari  Dalmia and Giriraj Kishore VHP President and joint general  

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Secretary  respectively  assailed  the  apex  Court  for  attempting to "arrogate the power of the executive.” "The  Ayodhya  issue  had  so  far  eluded  a  solution  only  because of the delay in pronouncing the judgment." "Justice  delayed is justice denied" "The  judiciary  has  no  jurisdiction  over  the  Ram  Janam  Bhoomi  "Kishore  cautioned  the  court  not  to  overstep  its  limits" " He (Kishore) remarked that the Supreme Court had lost its  prestige because of the delay in adjudicating the Ayodhya  dispute".

The above report in Indian Express is attributed to Express News  

Service.

2. It is also averred that Giriraj Kishore also gave a statement in  

Khabardar India (11-17 April,  1994) that the Government  influences the  

Court and quotes an anonymous Minister to have said, he has the Court in  

one pocket and leaders in another.  The contempt petition also states that  

the news item in the Indian Express constitutes a gross criminal contempt  

for which the authors of the statement, namely, Vishnu Hari Dalmia and  

Giriraj Kishore, the Editor and Publisher of the Indian Express, the persons  

in-charge of the Express News Service and the reporters, are answerable  

to this Court.

3. On 12.04.1994,  upon motion by Dr.  Rajeev Dhawan before  

the Constitution Bench presided over by the Chief Justice, the Contempt  

Petition was taken on board.  The Constitution Bench, on that day, passed  

the following order:

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“This application is moved by Dr. Rajeev Dhawan, a  learned advocate drawing attention of the Court to certain  statements attributed to Sri Giriraj Kishore published in the  newspaper  Indian  Express of  10th  April,  1994 and in  the  Periodical  styled "Khabardar India"  of  11-17th April,  1994,  which, it is contended, tend to lower the image of the Court  in  the  mind of  the  public  and constitute  an  affront  to  the  dignity and authority of this Court.

The  utterances  of  Sri  Giriraj  Kishore,  if  true,  might  amount to criminal contempt.

In the first  instance we direct  issue of  notice to  Sri  Giriraj Kishore and to the Editor, Printer, Publisher  as well  as  the  Reporter  of  the  particular  news  item  of  the  said  issue of Indian Express.

For  the  present  we  defer  initiation  of  proceedings  against  Sri  Vishnu  Hari  Dalmia  against  whom  also  the  petitioner  seeks  action.  That  will  be  considered  after  the  returns are filed by Sri Giriraj Kishore and the Editor, Printer,  Publisher and reporter of the Newspaper.

So  far  as  the  second  publication,  viz.  "Khabardar  India" referred to in Annexure-II to the petition is concerned,  Dr.  Dhawan  has  not  been  able  to  furnish  the  names  or  addresses of the Editor, Printer, Publisher and the reporter  of  the  publication,  as,  according  to  the  submission,  these  particulars  are  not  discernable  from  the  publication.  Dr.  Dhawan shall  furnish these particulars after  which notices  will go to them.

However,  in  regard  to  the statement  in  Annexure-II  attributed to Sri Giriraj Kishore, he will file his return. After  the  returns  are  filed  the  question  whether  the  Court  will  initiate suo motu contempt proceedings shall be considered.  Notices are returnable by 26th April, 1994.”

4. On  13.04.1994,  the  petitioner  Dr.  Rajeev  Dhawan  filed  a  

memo  setting  out  the  names  and  addresses  of  the  editor,  printer  and  

publisher  of  the  periodical  “Khabardar  India”.   The  cause  title  of  the  

contempt  petition  was  amended  and  the  following  were  impleaded  as  

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contemners:  (1) Gulshan Kumar Mahajan, Owner, Publisher, Printer and  

Editor of Khabardar India, (2) Pradeep Thakur, Reporter, Khabardar India,  

(3)  Giriraj  Kishore,  (4)  Prabhu  Chawla,  Editor,  Indian  Express  (5)  V.K.  

Kapur,  Printer  and  Publisher,  Indian  Express  and  (6)  Bhaskar  Roy,  

Reporter, Express News Service.   

5. On 13.04.1994, the Court issued notice to show cause (but no  

cognizance was taken on that date) to the editor,  printer,  publisher and  

reporter  of  Khabardar  India  as  well  making  the  notice  returnable  on  

26.04.1994.

6. On 26.04.1994, the Court noted that all six respondents were  

served. On behalf of respondent Nos.4, 5 and 6, counter affidavits were  

filed, which were taken on record.  The counsel for respondent Nos.1 and  

2 and so also counsel for respondent No.3 sought time, which was granted  

to file  their  counter  affidavits.   In  the course of  proceedings before the  

Constitution Bench on 26.04.1994, Dr. Rajeev Dhawan sought to bring to  

the notice of the Court that even after notices were served on respondent  

No.3,  he  had  continued  to  make  provocatory  utterances  holding  the  

process  of  Court  to  contempt.   He  referred  to  certain  newspaper  

publications.  The Court observed that after respondent No.3 had filed his  

counter affidavit, it would be open to the petitioner to place on record any  

statement  or  conduct  attributable  to respondent  No.3.   The matter  was  

then kept for 06.05.1994.   

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7. On  06.05.1994,  the  Court  took  suo  motu cognizance  of  

criminal  contempt  against  respondent  No.1,  Gulshan  Kumar  Mahajan,  

owner, publisher, printer and editor of “Khabardar India”, respondent No.2,  

Pradeep Thakur, Reporter, “Khabardar India” and respondent No.3 Giriraj  

Kishore.  The Court directed that appropriate notices in the prescribed form  

shall be served on the three contemners by the Registry, fixing the date for  

their  personal  appearance  in  Court.   Shri  Dipankar  P.  Gupta,  learned  

Solicitor General (as he then was) was requested to assist the Court as  

prosecutor in the proceedings for criminal contempt.  The Court directed  

that before issue of the notice accompanied by the charges, the Registry  

will have the matter shown to the Prosecutor (Solicitor General).  Insofar  

as, respondents 4, 5 and 6 are concerned, the Court kept the question for  

examination separately.  The order of 06.05.1994 reads as under:      

"We have heard learned counsel for the persons to  whom  show-cause  notices  had  been  ordered  as  to  why  proceedings  of  criminal  contempt  should  not  be  initiated  against them on the Court’s own motion.

We have perused the counter-affidavits filed by them.

On a consideration, we find at the outset that there is  no  justification  for  issue  of  any  show-cause  notice  or  initiating proceedings against Sri Vishnu Hari Dalmia.  The  proceedings as against Sri Vishnu Hari Dalmia are dropped.

Suo motu proceedings for criminal contempt of Court  are  directed  to  be  initiated  against  the  first-accused,  Sri  Gulshan Kumar Mahajan, Owner, Publisher, Printer & Editor  of  “Khabardar  India”,  against  the  second-accused,  Sri  Pradeep Thakur, Reporter, “Khabardar India”; and the third- accused, Sri Giriraj Kishore.

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Appropriate  notices  in  the  prescribed  form shall  be  served  on  them by  the  Registry,  fixing  the  date  for  their  personal appearance in Court.

Sri  Dipankar P. Gupta, learned Solicitor  General,  is  requested  to  assist  the  Court  as  Prosecutor  in  the  proceedings for criminal contempt.

Before  issue  of  the  notices  accompanied  by  the  charges,  the  Registry  will  have  the  matter  shown  to  the  Prosecutor.

So  far as Respondent Nos.4,  5 & 6 are concerned,  we propose to examine the question whether in the interest  of  maintaining  an  appropriate  balance  between  the  fundamental right under Article 19(1)(a) of the Constitution  on the one hand, and the need to protect the authority and  dignity of courts on the other, the Court should initiate similar  proceedings for criminal contempt against respondents 4, 5  and  6  particularly  in  the  light  of  the  fact  that  these  respondents  had  carried  the  publication  pertaining  to  the  Press-interview of accused No. 3, Sri Giriraj Kishore in the  newspaper along with a comment on the impropriety of such  utterances   and statements,  followed-up by an Editorial in  the Newspaper condemning such conduct. This aspect shall  be examined separately.”                  

8. The matters remained dormant for almost two decades.  On  

25.03.2014, when the matters were called by the Constitution Bench, Mr.  

Pallav  Sisodia,  learned  senior  counsel  appearing  for  contemner  No.3,  

Giriraj  Kishore  submitted  that  notices  for  personal  appearance  

accompanied by charges, as directed by the Court are not yet served on  

the contemner.  In light of this, the Constitution Bench sought clarification  

from the  office  regarding  service  on  the  contemners  and  also  directed  

advocate on record for contemner No.3 to keep present Giriraj Kishore in  

the Court on the next day, i.e., 26.03.2014.   

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9. In  compliance  of  the  order  dated  25.03.2014,  the  office  

submitted its report on 26.03.2014 which reads as follows:     

“It is submitted that in pursuance of Hon’ble Court’s  order dated  6.5.1994  notices  to  the  Contemnors  i.e.  Pradeep Thakur  (R-2),  Giriraj  Kishore  (R-3),  and  Gulshan Kumar Mahajan  (R-1)  were  issued  on  20.6.1994 to appear in person before  the  Hon’ble  Court  on 8th August, 1994.  The copy of the said notices were also  sent  to   the    counsel    for    the  contemnors which  were  acknowledged by the counsel for the contemnors.  However,  no  AD  Cards  in  respect  of  the  notices  sent  to  the  contemnors have been received.  

It  is  further  submitted  that  the  matters  mentioned  above were not  to  be  listed  on  8th August,  1994  so  the  notices were again sent on 6.8.1994 to the contemnors with  its  copy  to  the  counsel  for  the  contemnors  through  Registered A/D cover.   The said notices were served on the  contemnor No.1 on 8.8.94,  contemnor  no.2  on  8.8.94  and  contemnor no.3 on 12.8.94.”

10.    On 26.03.2014, contemner No.3, Giriraj Kishore was brought  

to the Court on wheel chair by his attendant.  Learned senior counsel for  

the  contemner  No.3  reiterated  that  notice  for  personal  appearance  

accompanied by charges as directed by the Court on 06.05.1994 has not  

been served on the contemner.  He also submitted that contemner No.3 is  

96 years and is not able to respond due to severe physical and mental  

illness.  The attendant accompanying contemner No.3, Giriraj Kishore, on  

the query of the Court, informed that contemner No.3 is not in a position to  

respond to the query because of hearing impairment and feeble mental  

condition.

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11. One thing is clear from the record that the notice for personal  

appearance accompanied by charges as directed by this Court in the order  

dated 06.05.1994, after cognizance of contempt was taken, has not been  

served on contemner No.3 so far.  In a situation such as this, the question  

that arises immediately for our consideration is, whether the Court should  

direct  the  service  of  notice  accompanied  by  charges  now.   Dr.  Rajeev  

Dhawan vehemently contended that the backdrop to these cases is the  

destruction of the Babri Masjid on 06.12.1992.  According to him, this had  

resulted in injury to the secular fabric of India.  He submitted that tension  

persisted as the Vishwa Hindu Parishad held a Sansad on 03-04.04.1994  

while  hearings  were  taking  place  before  this  Court.   Contemner  No.  3  

made  contemptuous  statements  about  the  Court  at  that  time  and,  

therefore, matter of this gravity should not be left undecided.   

12. We appreciate the gravity of the subject matter highlighted by  

Dr. Rajeev Dhawan.  We are also not oblivious of the fact that the Court  

was not satisfied  prima facie  with the initial response filed by contemner  

No. 3, Giriraj Kishore and ordered on 06.05.1994 to initiate the contempt  

proceedings against respondent Nos. 1 to 3.  But, the fact of the matter is  

that despite the order passed on 06.05.1994, the notice accompanied by  

charges on contemner No. 3 has not been served so far.  In this view of  

the  matter,  at  this  distance of  time,  when the  subject  matter  remained  

dormant for almost two decades and now contemner No.3 is 96 years and  

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he is not able to respond to the charges due to old age and illness, we do  

not think that this is a fit case where we should deal with the matter further.  

Now, since contempt proceedings are not being pursued further to find out  

criminality against the author (contemner No.3) who made the offending  

statements, we are of the view that contempt matter does not deserve to  

be pursued as against contemner Nos. 1 and 2 as well.  The contemner  

Nos.1  and  2  have  also  tendered  unconditional  apology.    Insofar  as  

contemner  Nos.4  to  6  are  concerned,  the  Court  has  not  yet  taken  

cognizance of  criminal  complaint  against  them.  In what  has been said  

above, we think the contempt matters deserve to be closed.  We order  

accordingly.   

      ….………..……………………CJI.  (R.M. Lodha)

      …….………..……………………J.  (Anil R. Dave)

      …….………..……………………J.        (Sudhansu Jyoti Mukhopadhaya)

      …….………..……………………J.  (Dipak Misra)

NEW DELHI;        …….………..……………………J. JULY 23, 2014. (Shiva Kirti Singh)

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