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Priyambada Tripathi v. Sri O.N. Khandelwal, Ex. R.G., High Court, Allahabad & Other - CONTEMPT APPLICATION (CRIMINAL) No. 12 of 2005 [2005] RD-AH 1699 (19 July 2005)


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Court No. 32.

Crl.Compt. No. 12 of 2005


Priyambada Tripathi                                 Petitioner


Sri O.N.Khandelwal & others.                    Respondents



Hon. S.Rafat Alam, J.

Hon. Vikram Nath,

We have heard Smt. Seema Mishra, learned counsel for the petitioner.

This petition under Section 15 of the contempt of Courts Act 1971 (in short hereinafter referred to as the Act) has been filed with a prayer to punish the opposite parties for committing criminal contempt by causing interference in judicial proceedings and also on account of non-compliance of direction dated 12.12.2003 passed in Misc. Writ Petition No. 7951 of 2003. The cause of action is stated to have arisen on 25.11.2004 on account of order passed by the Additional Chief Judicial Magistrate-II, Mirzapur in Case No. 860 of 1989 Priyambada Tewari vs. Adya Shankar, whereby the learned Magistrate directed the complainant in the said case (petitioner) to deposit the expenses for summoning the accused opposite party from USA to India, Allahabad.

The grievance of the petitioner is that despite the fact that summons were issued in the year 1989 but still the opposite party has been absconding and despite repeated warrants having been issued the opposite parties have failed to execute the warrants for some reasons or the other, as a  result of which the opposite party accused is successful in avoiding his presence before the trial court and thereby causing obstruction in dispensation of justice and disturbing the judicial proceedings.

It is not in dispute that Adya Shankar, opposite party in criminal case pending before the II Additional Chief Judicial Magistrate, Mirzapur is residing in United States. It is also not in dispute that the summon/warrants issued to effect service on the opposite parties Adya Shankar had to be processed through the Registrar General of this Court, the State Government, External Affairs Ministry and the Indian Embassy in the United States.

Earlier the petitioner had filed Criminal Misc. Contempt Petition No. 15 of 2004 before this Court against various officers and staff of the High Court Registry, which was dismissed by a Division Bench of this Court vide judgment dated 04.08.2004. It was however, observed in the said judgment that the trial court was requested to seek extradition of the accused persons and that was the only remedy to secure the presence of the accused. Counsel for the petitioner has informed that a review application is filed against the order dated 04.08.2004 and the same is pending.

Pursuant the judgment dated 04.08.2004 the trial court issued warrants for securing the presence of the accused but the same was returned vide letter dated 16.12.2004 from the Registry of this Court with a noting that " Since it is a complainant case in bailable and non- cognizable offence. The expenses of arresting the accused persons and bringing them from out side of India to be borne out by the state, is not justified. However, the court may issue other process for appearance in accordance with law."

Upon receipt of the said letter from the High Court the trial court passed an order dated 15.11.2004 that in view of the order of the High Court the expenses for securing presence of accused Adya Shankar from USA to India at Allahabad is to be borne by the complainant- petitioner and accordingly fixed 18.12.2004 for further orders. Aggrieved by the said order of the 2nd Additional Chief Judicial Magistrate dated 25.11.2004 the petitioner filed a Criminal Misc. Application under section 482 Cr.P.C., which was registered as Criminal Misc. Application No. 1667 of 2005, it was entertained by this Court and vide order dated 28.02.2005 time was granted to the counsel for the respondents to file counter affidavit within three weeks, petitioner was allowed two weeks thereafter to file rejoinder affidavit and the petition was directed to be listed after expiry of the said period.

In view of the fact that the petitioner has already challenged the order dated 25.11.2004 passed by the 2nd Additional Chief Judicial Magistrate, Mirzapur, before this Court in appropriate forum, the validity of the said order is to be judged in those proceedings. The learned Magistrate has passed an order on the judicial side and jurisdiction of criminal contempt is not the appropriate forum to test the correctness of the said order, which can be done only in appropriate proceedings, which admittedly the petitioner is already pursuing.

In view of the same, we are not convinced that any case for criminal contempt is made out and that the opposite parties can be said to be guilty of any criminal contempt.

The petition, therefore, lacks merit and is liable to be dismissed. It is accordingly dismissed.

Dated: 19.07.2005

v.k.updh. (115)  


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