Tapan Kumar Sahoo State of Odisha and another … v. …
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P. (CRL) No.56 of 2023 Tapan Kumar Sahoo State of Odisha and another ….. Vs. ….. Petitioner Mr.Devashis Panda, Advocate Opposite Parties Ms.S.Patnaik, AGA CORAM: JUSTICE S.TALAPATRA JUSTICE SAVITRI RATHO ORDER 11.05.2023 Order No. 02. 1. 2. This matter is taken up through hybrid mode.
Legal Reasoning
Heard Mr.Devashis Panda, learned counsel appearing for the petitioner and Ms.S.Patnaik, learned Addl. Government Advocate appearing for the opposite parties-State. 3. It appears that the learned Single Judge of this Court while dealing with a bail application relating to one Srinath Rana, the purported accused, being BLAPL No.9586 of 2021 has come across the statement of the petitioner in respect of ailments of the petitioner’s maternal aunt supported by some purported documents. It appears from the order dated 15.02.2023 passed in BLAPL No.9586 of 2021 that when it was ‘discovered’ by the Court that the medical records those are apparently issued by the SCB, Medical College & Hospital, Cuttack were completely forged, the petitioner had denied his Page 1 of 7 //2// signatures on the affidavit which was attached to the said petition for bail. He had also stated that he had not sworn that affidavit. But one Advocate’s clerk had identified him as Tapan Kumar Sahoo as the person who had sworn the affidavit. On the face of such development, the learned Single Judge has observed that the criminal contempt under Section 2 (c) of the Contempt of Courts Act, 1971 has been committed by the petitioner by way of fabrication and production of forged documents in order to obstruct the course of justice. According to the learned Single Judge that was an affront to the majesty of law and hence the said conduct attracts punishment for contempt. 4. Learned Single Judge had issued notice to one Suresh Chandra Sundaray (the referred advocate’s clerk) to show cause as to why a contempt proceeding would not be drawn against him as well. A show cause notice was issued to the petitioner asking him to explain why a contempt proceeding in view of his conduct shall not be drawn up against him. Thereafter, this case was fixed to 28.02.2023, when the learned Single Judge has passed the following order: “Till the next date, Tapak Kumar Sahoo is remanded to judicial custody. He shall be produced before the learned S.D.J.M. (Sadar), Cuttack by the Inspector in-charge of Khaira police station who shall remand him to Circle Jail, Choudwar. The deponent Tapan Kumar Sahoo shall be produced before this Court on the next date i.e. 28.02.2023 at 10.30 a.m.” Page 2 of 7 //3// 5. Thereafter, another order (the order No.19) was passed on 28.02.2023 by the learned Single Judge in the same BLAPL No.9586 of 2021. On that day, the petitioner was produced in the court of the learned Single Judge as per the order. On the said date, the learned Single Judge passed a specific order directing that the Deputy Commissioner of Police, Cuttack shall depute a responsible senior Police Officer in the rank of Deputy Superintendent of Police to enquire into the matter by examining the concerned doctors and staffs of the S.C.B. Medical College and Hospital, Cuttack, verify the OPD register or any other documents and examine Mr.Tapan Kumar Sahoo, his maternal aunt-Madhumita Rana and Mr.Suresh Chandra Sundaray, Advocate’s Clerk and if necessary, examine any other witnesses and verify documents as he deemed fit and proper and furnish a report within a period of one week from the date of the order. It has been directed to indicate the source from which the forged document was procured. Later on, the following observation has been made in the said order : “In view of section 18 of the Contempt of Courts Act, 1971 that every case of criminal contempt under section 15 is to be heard and determined by a Bench of not less than two Judges, this matter be placed before the appropriate Bench with the approval of the Hon’ble the Chief Justice.” Page 3 of 7 //4// Further it has been directed as follows: “Mr. Tapan Kumar Sahoo shall be produced before the learned S.D.J.M. (Sadar), Cuttack today who shall remand him to judicial custody until further orders.” 6. Mr. Panda, learned counsel appearing for the petitioner has contended that the procedure that has been followed to remand the petitioner to the so-called judicial custody is grossly unconstitutional and illegal, as the detention is not authorized by any law. Mr. Panda, learned counsel has stated that no criminal proceeding for contempt of courts has been so far drawn up against the petitioner. Hence, the detention is unrelated to any proceeding or case. 7. Per contra, Ms.S.Patnaik, learned Addl. Government Advocate has submitted that the court has power to send a person like the petitioner to judicial custody as his conduct is overwhelmingly contumacious. In other words, the petitioner has taken the court proceeding for a ride. According to her, the order by which the petitioner has been remanded to the judicial custody is lawful. In support of her contention, Ms.Patnaik, learned Addl. Government Advocate has referred a decision of the Apex Court in the case of Sukhdev Singh Sodhi v. Hon’ble Chief Justice S.Teja Singh and the Hon’ble Judges of the Pepsu High Court of Patiala : AIR 1954 SC 186. In that decision, Hon’ble Bose, J. has lucidly laid down the Page 4 of 7 //5// interpretation of law relating to interplay of the Code of Civil Procedure and the Contempt of Courts Act, [the Act of 1952], as it then was. For the purpose of reference, we would reproduce paragraph-21 of the said report. Paragraph-21 reads as under: “21. On reflection it will be apparent that the Code could not be called in aid in such cases, for if the Code applies it must apply in its entirety and in that event how could such proceedings be instituted ? The maximum punishment is now limited to six month's simple imprisonment or a fine of Rs. 2,000 or both because of the 1952 Act. Therefore, under the second schedule to the Code contempt would be triable by a Magistrate and not by a High Court and the procedure would have to be a summons procedure. That would take away the right of a High Court to deal with the matter summarily and punish, a right which was well established by the case law up to 1945 and which no subsequent legislation has attempted to remove. So also Section 556 could not apply, nor would the rule which prohibits a judge from importing his own knowledge of the facts into the case. We hold therefore that the Code of Criminal Procedure does not apply in matters of contempt triable by the High Court. The High Court can deal with it summarily and adopt its own procedure. All that is necessary is that the procedure is fair and that the contemner is made aware of the charge against him and given a fair and reasonable opportunity to defend himself. This rule was laid down by the Privy Council in In re Pollard and was followed in India and in Burma in In re Vallabhdas and Ebrahim Mamoojee Parekh v. King Emperor. In our view that is still the law.” It has been further observed that if the Code of Criminal Page 5 of 7 //6// Procedure does not apply, then there is no other power which the court can exercise. Therefore, it is very clear that the criminal contempt has to be tried by the High Court only, by devising its own procedure after giving a fair opportunity of defence to the alleged contemnor. 8. From reading of both the orders passed by the learned Single Judge dated 15.02.2023 and 28.02.2023, it transpires that the purported process of collecting the evidence has been initiated. 9. With all humility to the order dated 15.02.2023, we are persuaded to hold that the petitioner’s detention cannot be allowed to continue for absence of prosecution against him. He is not even booked in any specific case as yet. A person’s liberty cannot be curtailed except in accordance with procedure established by law.
Decision
Hence, we direct immediate release of the petitioner from the judicial custody, but such release shall be subject to furnishing of a personal bond. In the bond, it shall be undertaken by the petitioner that if the Hon’ble High Court draws up a contempt proceeding against the petitioner, he shall appear before this Court, without fail. On failing to do so, appropriate action, as would be decided, shall follow. We would like to make it abundantly clear that the observation made above has nothing to do with the proceeding as contemplated, or the prosecution as may be launched against him for his conduct, as referred above. 10. Having observed thus, this WPCRL stands disposed of. Page 6 of 7 //7// 11. A copy of this order be sent to the learned S.D.J.M. (Sadar), Cuttack to do the needful in terms of the above direction. That apart, a copy of this order be supplied to Ms.S.Patnaik, learned Addl. Government Advocate appearing for the State. 12. Urgent certified copy of this order be granted on proper application. (S.Talapatra) Judge Bichi BICHITRANANDA SAHOO Digitally signed by BICHITRANANDA SAHOO Date: 2023.05.12 13:54:15 +05'30' (Savitri Ratho) Judge Page 7 of 7