In recent times, the number of incidents of recalling the order by courts has spiked dramatically. A similar incident happened in Punjab and Haryana high court on 4thJune. Justice Jaswant Singh and Justice Sant Prakash, a day after framing charges against a lower court clerk in Mansa for scandalizing the judicial system through a Youtube account, recalled their order. In an amended order, the hon’ble high court observed that the charges were framed inadvertently.
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Facts in Brief:
- In 2009, Harmeet Singh joined as a clerk in district and sessions division Ludhiana. He was posted at jagroan, but he kept pressuring to transfer him back to Ludhiana.
- Later, he was transferred to Mansa. This posting was not of his liking. As he was not happy, he allegedly started filing frivolous RTI’s and opened an account on Youtube to criticize judges.
- The court took suo moto cognizance of the same and started contempt proceedings against him in 2013.
- Singh is accused of making a page ‘Ugly face of Indian Judiciary, Ludhiana’ and uploading videos lambasting judicial officers by leveling ‘false allegations and conveying wrong message’ to the public. He is also accused of scandalizing the names of sitting judges, including that of the high court, by concocting stories of corruption, bribery, and nepotism. The court had termed his act as an “attack on the judges.”
- On 3rd June, HC passed the order framing the charge against the accused when he or his lawyer was not even present. A total of five charges has been framed against him. Accused’s counsel termed it as “perversity of the procedure.”
- On 4th June, HC recalled its order saying it was passed inadvertently.
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Legal Stand Point:
Section 10, 14 & 17 of Contempt of Court Act, 1971 states that
- Power of High Court to punish contempts of subordinate courts. Every High Court shall have and exercise the same jurisdiction, powers, and authority, in accordance with the same procedure and practice, in respect of contempt of courts subordinate to it as it has and exercises in respect of contempts of itself:
Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code (45 of 1860).
- Procedure where contempt is in the face of the Supreme Court or a High Court.
(1) When it is alleged, or appears to the Supreme Court or the High Court upon it own view, that a person has been guilty of contempt committed in its presence or hearing, the court may cause such person to be detained in custody, and, at any time before the rising of the court, on the same day, or as early as possible thereafter, shall
(a) cause him to be informed in writing of the contempt with which he is charged;
(b) afford him an opportunity to make his defence to the charge;
(c) after taking such evidence as may be necessary or as may be offered by such person and after hearing him, proceed, either forthwith or after adjournment, to determine the matter of the charge; and
Procedure after cognizance.
(1) Notice of every proceeding under Section 15 shall be served personally on the person charged, unless the court for reasons to be recorded directs otherwise.
(2) The notice shall be accompanied
(a) in the case of proceedings commenced on a motion, by a copy of the motion as also copies of the affidavits, if any, on which such motion is founded; and
(b) in case of proceedings commenced on a reference by a subordinate court, by a copy of the reference.
(5) Any person charged with contempt under Section 15 may file an affidavit in support of his defence, and the court may determine the matter of the charge either on the affidavits filed or after taking such further evidence as may be necessary, and pass such order as the justice of the case requires.
Section 228 of The Code of Criminal Procedure, 1973
- Framing of charge.
(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
(2) Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.
In the case of V.C. Shukla v. State, it was held that “the purpose of framing a charge is to give intimation to the accused of clear, unambiguous and precise notice of the nature of the accusation that the accused is called uon to meet in the course of a trial.”
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Provisions of Contempt of Courts Act, 1971 and Crpc makes it clear that charge must be read over to the accused before framing any against him. Framing any charge against him in his absence violates not only these provisions but also defeat the very purpose of framing of charges. The Supreme Court in VC Shukla v. State has made it clear that the purpose of framing of charge is to give notice to the accused of the nature of allegations against him. Thus, in the pertinent case, the high court violated the above provisions and defeated the purpose of framing of charge.
Moreover, it was a violation of the principles of natural justice. Natural justice means to make a sensible and reasonable decision making procedure on a particular issue. It mainly has three principles. The first principle is “Hearing rule,”which states that the person or party who is affected by the decision made by the panel of expert members should be given a fair opportunity to express his point of view to defend himself. As in the pertinent case, no order was passed in the absence of the accused, it was a blatant violation of principles of natural justice.
The hon’ble high court soon recognized its inadvertent mistake and recalled its order. While recalling the order, the bench of justice Jaswant Singh and justice Sant Prakash said the order was passed presuming that Singh would be present, and the charge-sheet would be read over to him. However, due to the COVID-19 outbreak, his presence or the lawyers’ presence could not be ensured. “Inadvertently, the aforesaid charge was framed, and it was ordered to be read over and explained, but the requirement of the law is that the charge should be read over and explained to the respondent in person,” the bench recorded, adding that ‘mistake’ took place due to hearing being conducted through video conferencing. It added that to impart fair and substantial justice, Singh needed to be given an opportunity of hearing. The matter stands adjourned for 24th September.
The amended order has also observed that it would have been appropriate to pronounce the order of framing of charges in the presence of the respondent.
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For case specific advice, please contact Punjab Haryana High Court Best/Expert Lawyers Advocates Chandigarh Panchkula Mohali. Zirakpur Kharar Derabassi
This post is written by Gourav Kathuria
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