RAJEEV DHAWANversusGULSHAN KUMAR MAHAJAN & ORS.

                         [2014] 8 S.C.R. 930


A                        RAJEEV DHAWAN
                                   v.
              GULSHAN KUMAR MAHAJAN & OR$.
             (Contempt Petition (CRL.) No. 2 of 1994)
                            JULY 23, 2014.
B
     [R.M. LODHA, CJI., ANIL R. DAVE, SUDHANSU JYOTI
            MUKHOPADHAYA, DIPAK MISRA AND
                  SHIVA KIRTI SINGH, JJ.]

C        CONTEMPT OF COURT:

         Contempt proceedings - Notice not served on alleged
    contemner - Derogatory remarks stated to have been made
    by third contemner against Supreme Court, published in a
b   news paper on 10.4.1994 and in a periodical (11-17 April,
    1994) - Held: Court appreciates the gravity of the subject
    matter - It is also not oblivious of the fact that it was not
    satisfied prima facie with the initial response filed by third
    contemner and ordered on 06.05.1994 to initiate the.contempt
E   proceedings against first to third respondents - However, the
    notice accompanied by charges on third contemner has not
    been served so far - Thus, at this distance of time, when the
    subject matter remained dormant for almost two decades and
    third contemner is 96 years of age and is not able to respond
    to the charges due to old age and illness, this is not a fit case
F   where Court should deal with the matter further - Since
    contempt proceedings are not being pursued further to find
    out criminality against the author (third contemner who made
    the offending statements}, contempt matter does not deserve
    to be pursued as against first and second contemners as well,
G   who have also tendered unconditional apology - Insofar as
    other contemners are concerned, Court has not yet taken
    cognizance of criminal complaint against them - Therefore,
    the contempt matters deserve to be closed -            Ordered

H                                 930
 RAJEEV DHAWAN v. GULSHAN KUMAR MAHAJAN 931


accordingly - Acquisition of Certain Area at Ayodhya Act,         A
1993- Constitution of India, 1950 - Art. 129.

        Contempt Petition (Crl.) No. 2 of 1994 was filed
 alleging that the alleged contemners made derogatory
  remarks with regard to the Supreme Court while
                                                                  B
  constitutional validity of the Acquisition of Certain Area
  at Ayodhya Act, 1993 was being examined by it in Special
  Reference No.1 of 1993. The said remarks were published
  in a r:iews paper on 10.4.1994 and in a periodical (11-17
  April, 1994). On 06.05.1994, ·the Court took suo motu
  cognizance of criminal contempt against the owner,              C
  publisher, printer and editor of the periodical, its Reporter
 and respondent No.3. The Court directed appropriate
  notices. in the prescribed form to be served on the three
  contemners by the Registry, fixing the date for their
  personal appearance in Court. Insofar as respondents 4,         D
  5 and 6 were concerned, the Court kept the question for
  examination separately. The Court further observed that
  there was no justification for issue of any show-cause
  notice
    .    . or initiating proceedings against the President,
  Vishwa Hindu Parishad and dropped the proceedings as            E
  against him. On 25.03.2014, when the matters were called
  by the Constitution Bench, it was pointed on behalf of
  contemner No.3 that notices for personal appearance
  accompanied by charges, as directed by the Court were
  not served on him. The Constitution Bench, therefore,           F
  sought clarification from the office regarding service on
 .the contemners and also directed advocate on record for
, contemner No.3 to keep him present in the Court on the
  next day, i.e., 26.03.2014. On 26.03.2014, contemner No.3
  was brought to the Court on wheel chair. It was reiterated      G
  that notice for personal appearance accompanied by
  charges as directed by the Court on 06.05.1994 was not
  served on the contemner who had by then attained 96
  years of age and was not able to respond due to severe
  physical and mental illness.                                    H
    932       SUPREME COURT REPORTS               [2014] 8 S.C.R.


A         Disposing of the matters, the Court .

         HELD: The Court appreciates the gravity of -~he
    subject matter. The Court is also not oblivious of the fact
    that it was not satisfied prima facie with the initial
    response filed by contemner No. 3, and ordered on
B
    06.05.1994 to initiate the contempt proceedings against
    respondents 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 contemnet No. 3 has not
    been served so far. In this view of the matter, at this
C   distance of time, when the subject matter remained
    dormant for almost two decades and contemner' No.3 is
    of 96 years and is not able to respond to the charges due
    to old age and illness, this is not a fit case· where the
    Court should deal with the matter fui;ther. Since contempt
D   proceedings are not being pursued further to find out
    criminality against the author (contemner No.3 who made
    the offending statements), the Court is of the view that
    contempt matt~r does not deserve to be pursued as
    against contemner Nos. 1 and 2 .as welL Contemner
E   Nos.1 and 2 have also tendered unconditional apology.
    Insofar as contemner Nos. 4 to 6 are concerned, the
    Court has milt yet taken cognizance of criminal con:iplaint
    against them. Therefore, the contempt matters deserve to
    be closed. Ordered accordingly. [para 12] [940-C-F]
F
          CRIMINAL ORIGINAL JURISDICTION : Contempt Petition
    (Crl.) No. 2 of 1994.

                                 WITH.

G Contempt Petition (Criminal) No. 4A of 1994.

      Soliciter General of India, Pallav Sisodia, Ram Jethmalani,
  Maninder Singh Gopal Jain, Prasant Bhushan, Sanjay R.
  Hegde, Sandhya Goswami, C.D. Singh, Vikram Banerjee,
H Sakshi Kakkar, Ankur Chawla, Sarvesh Singh Baghel, Nandini
RAJEEV DHAWAN v. GULSHAN KUMAR MAHAJAN                        933


Gore, Neha Khandelwal, Avijit Saxena, Manik Karanjawala,              A
Pranav Diesh, Varun Kr. Tikmani, Payal Chandra, Shobha, Jyoti
Rana for the appearing parties.

     Dr. Rajeev Dhawan (Petitioner-In-Person).

     The Judgment of the Court was delivered by                       B

     R.M. LODHA, CJI. 1. 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      c
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,         D
i.e. on 07.01.1993, when Act No.33 of 1993 was enacted,
Special Reference (being Special Reference 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
                                                                      E
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
                                                                      F
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
Cc;mtempt Petition (Crl.) before this Court against Vishnu Hari       G
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        H
    934       SUPREME COURT REPORTS                [2014] 8 S.C.R.


A 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:

B         "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 Secretary respectively assailed the apex Court for
          attempting to "arrogate the power of the executive."
c
          "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
D         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
E         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
F 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
G 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.

H         3. On 12.04.1994, upon motion by Dr. Rajeev Dhawan
RAJEEV DHAWAN v. GULSHAN KUMAR MAHAJAN 935
            [R.M. LODHA, CJI.]

before the Constitution Bench presided over by the Chief                A
Justice, the Contempt Petition was taken on board. The
Constitution Bench, on that day, passed the following order:

    "This application is moved by Dr. Rajeev Dhawan, a
    learned advocate drawing attention of the Court to certain          8
    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          C
    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      D
    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             E
    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"            F
    referred to in Annexure-11 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.           G
    Dhawan shall furnish these particulars after which notices
    will go to them.

    However, in regard to the statement in Annexure-11
    attributed to Sri Giriraj Kishore, he will file his return. After
                                                                        H
    936       SUPREME COURT REPORTS                [2014] 8 S.C.R.


A         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 Or. Rajeev Dhawan filed
B 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 contemners: (1) Gulshan Kumar
  Mahajan, Owner, Publisher, Printer and Editor of Khabardar
C 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
D {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
E 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, Or. Rajeev Dhawan sought to bring to
F 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
G 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.

        7. On 06.05.1994, the Court took suo motu cognizance
H of criminal contempt against respondent No.1, Gulshan Kumar
RAJEEV DHAWAN v. GULSHAN KUMAR MAHAJAN 937
            [R.M. LODHA, CJI.]

Mahajan, owner, publisher, printer and editor of "Khabardar          A
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
snail be served on the three contemners by the Registry, fixing
the date for their personal appearance in Court. Shri Dipankar       6
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      c
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                    D
    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.
                                                                     E
    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 Oalmia. The
    proceedings as against Sri Vishnu Hari Dalmia are
    dropped.
                                                                     F
    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         G
    third-accused, Sri Giriraj Kishore.

    Appropriate notices in the prescribed form shall be served
    on them by the Registry, fixing the date for their personal
    appearance in Court.                                             H
    938       SUPREME COURT REPORTS                 [2014) 8 S.C.R.


A         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.
B
          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
c         on the one hand, and the need to protect the authority and
          dignity of courts on the other, the Court should initiate
          similar proceedings fo.r criminal contempt against
          respondents 4, 5 and 6 particularly in the light of the fact
          that these respondents had carried the publication
D         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."
E             '
          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
F   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.
G
        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
H
RAJEEV DHAWAN v. GULSHAN KUMAR MAHAJAN 939
            [R.M. LODHA, CJI.]

    Thakur (R-2), Giriraj Kishore (R-3), and Gulshan Kumar     A
    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 B
    the notices sent to the contemhors 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 C
    copy to the counsel for the contemnors through Registered
    AJD 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 D
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 E
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.                          F

     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 G
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 H
    940       SUPREME COURT REPORTS                  [2014] 8 S.C.R.


A   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
s   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
C   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,
D   when the subject matter remained dormant for almost two
    decades and now contemner No.3 is 96 years and 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
E   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
F   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.
    Rajendra Prasad                                  Matters disposed of.
G