A.S. Naidu, J.
1. The petitioners, who languished in custody in spite of the specific direction issued by this Court are constrained to approach once again invoking the jurisdiction Under Section 482 of the Code of Criminal Procedure. They have inter alia prayed to quash the order dated June
12. 2001 and June 14, 2001 passed in G. R. Case No. 105 of 2001 by the learned S.D.J.M., Udala.
2. By order dated 22.6.2001 notice was issued and it was directed that the matter is likely to be disposed of finally at the stage of admission. The lower Court records were also called for. After receipt of the L.C.R. the matter was listed for admission. On the consent of the parties, the case was heard.
3. For proper appreciation of the orders passed by the learned S.D.J.M., short facts, which are necessary, are stated hereinbelow.
The two petitioners, aged about 69 and 64 years respectively, filed Criminal Misc. Case No. 3334 of 2001 Under Section 438 of the Code of Criminal Procedure praying for grant of anticipatory bail. It was averred in the petition and submitted by the learned counsel for the petitioners that being enraged by a proceeding initiated by the husband (son of the petitioners) under Sees. 13(1) and l(a) of the Hindu Marriage Act which was registered as Original Suit No. 12 of 2001 in the Court of learned Civil Judge (Senior Division), Udala, the informant-wife (daughter- in-law) filed an F.I.R. on April 11, 2001 at Kaptipada Police Station on the basis of which P.S. Case No. 22 of 2001 was initiated under Sees. 498A, 506, and 314 read with Section 34 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. The said case was later on converted to G.R. Case No. 105 of 2001 on the file of the learned S.D.J.M., Udala. Learned counsel for the petitioners further submitted that charge Under Section 314, I.P.C. is not sustainable in law, as the informant was alive.
4. After hearing the learned counsel for the State and' taking into consideration the facts and circumstances, this Court by order June 8, 2001 in Crl. Misc. Case No. 3334 of 2001 directed as follows :
"x x x x x I am not inclined to entertain the petition for anticipatory bail. However, taking into consideration the age factor of the petitioners, I direct that if the petitioners surrender before the learned S.D.J.M., Udala, in connection with G.R. Case No. 105 of 2001 (arising out of Kaptipada P.S. Case No. 22 of the 2001), the learned Magistrate would do well to release the petitioners on bail on such terms and conditions, as he deems just and proper x x x x x"
5. It appears that in consonance with the order quoted above the petitioners after obtaining the certified copy were on their way to surrender before the Court on June 12, 2001, but unfortunately they were arrested and were produced before the said Court on the same day. Thereafter, a petition was filed on behalf of the petitioners enclosing the certified copy of the order dated June 8, 2001 of the aforesaid Criminal Misc. Case to release the petitioners on bail, in consonance with the direction passed in Crl.Misc. Case No. 3334 of 2001.
The learned S.D.J.M., Udala refused to accept the certified copy of the order dated June 8, 2001 on the ground that the same was not duly certified by the Assistant Registrar. Thereafter, instead of allowing time to the petitioners to produce another certified copy, the learned S.D.J.M. disposed of the bail petition dated June 12, 2001 observing as follows :
"x x x On perusal of the F.I.R. Forwarding Report of the I.O. and 161 statements of the victim Srutimayee Mohapatra, Karunakar Parida and others and the seizure list and the medical document and marriage invitation card, I found that prima facie case against the present accused persons Pravakar Mohapatra, Pulak Mohapatra and Smt. Tukumani Mohapatra Under Section 506/314 of I.P.C. and Under Section 4 of D.P. Act out of which offence Under Section 314, I.P.C. is exclusively triable by the Court of Sessions.
On further perusal of the Xerox copy of Order dated 8.6.2001 Criminal Misc. Case No. 3334/2001 reveals that in the said order, the Hon'ble High Court passed order to release the accused persons on bail but the copy is not duly certified by the Assistant Registrar. As such the said copy is not authentic one to be the certified true copy of the order of the Hon'ble High Court in C.M.C. No. 3334/2001 of dtd. 8.6.2001 and the same is not accepted. The petition filed by the accused persons as per 437, Cr.P.C. bars the power of this Court to release the accused persons on bail if it appears that the accused persons have been guilty of offence punishable with death or imprisonment for life. In the present case, though the F.I.R. was registered Under Section 506/314/34 of I.P.C. and Section 4 of D.P.Act and also forwarding report is also under the above section but 161 statements and the F.I.R. reveals a case Under Section 314 2nd clause of I.P.C. which is punishable with imprisonment for life. Though the accused persons mentioned that they were aged persons but they have not filed any document such as photo identity card to reflect their actual age before the Court. In consideration of the above facts and reason mentioned above. I have got no jurisdiction to "grant bail. Hence, the bail petition is rejected and the accused persons are remanded to the jail custody till 26.6.2001. Grant free copy of the rejection order, if applied for.
6. But then, only after taking into consideration all the materials, this Court by order dated June 8, 2001, had directed the learned S.D.J.M. to release the petitioners on bail and the learned S.D.J.M. was legally bound to obey the said order. Admittedly the certified copy of the order was produced before him. The said certified copy is available on record and I have the occasion to peruse the same. It reveals that the copy bears the round seal of the High Court in each of the pages both on front and reverse. It also carries the filing stamp of the High Court, signature of the Copying Assistant with stamp, date of notification and date of delivery of the certified copy etc. etc. However, the signature of the Assistant Registrar certifying the copy to be true was missing. If the learned S.D.J.M. entertained any doubt regarding the genuineness or otherwise of the certified copy produced before him along with the petition stating that the High Court has directed the petitioners to be released on bail, the only course open for him was to direct the petitioners to produce another certified copy. The learned S.D.J.M., however, acted illegally and with material irregularities in hearing the petition on merits and rejecting the petition for bail in spite of the fact that it was brought to his notice that the High Court has directed to release the petitioners on bail. The action of the learned S.D.J.M. not only smacks disobedience but also otherwise amounts to overreaching the orders passed by this Court. Deciding the petition on merit in spite of the direction of this Court amounts to holding a parallel adjudication interfering with the due process of justice.
7. The matter did not end there. On June 14, 2001 on behalf of the accused-petitioners a fresh certified copy of the order dated June 8, 2001 was produced before the learned Magistrate. Another petition was also filed praying to release the petitioners in consonance with the direction issued by this Court. Unfortunately even after production of the certified copy, the learned S.D.J.M. had the impudence not to release the petitioners on bail and rejected the petition once again observing as follows :
"x x x x The accused persons were forwarded by the I.O. and not surrendered as per the direction of the High Court. The accused persons also moved bail petition on 12.6.2001, I have passed a detailed order and rejected the bail petition Under Section 437(1) of Cr.P.C. as the offence Under Section 314, IPC is exclusively triable by the Court of Session and as such, their second bail petition before this Court, i.e. today bear no merit and the same is rejected, x x x"
9. The action of the learned S.D.J.M. who tried his level best not to comply with the direction issued by this Court by taking recourse to flimsy grounds amounts to gross disobedience, indiscipline and lowering the dignity of the High Court. The learned S.D.J.M. has exhibited defiant attitude which is unbecoming of a subordinate judicial officer. Non-compliance of the order passed by this Court after coming to know about the same, not only amounts to flagrant violation of the direction issued by this Court, but also reveals that the Magistrate has scant regard to the rule of law. Such conduct, according to me, would lead to disastrous impact if not dealt with in consonance with law. Disobedience of the present nature is also likely to subvert the rule of law and create harassment, uncertainty and confusion in the administration of justice. The conclusion is thus irresistible that the learned Sub-Divisional Judicial Magistrate is liable for Contempt of this Court and it is a fit case where a proceeding Under Section 16 of the Contempt of Courts Act should be initiated against the erring officer.
I, therefore, direct the Registry to initiate a proceeding Under Section 16 of the Contempt of Courts Act and issue notice to Sri J. Mishra, S.D.J.M., Udala to show cause as to why he shall not be punished under the Contempt of Courts Act for deliberately flouting and disobeying the direction dated June 8, 2001 issued by this Court in Crl. Misc. Case No. 3334 of 2001 and for passing derogatory remarks in Court against the procedure adopted by this Court while granting bail.
10. In the present petition Under Section 482 of the Code of Criminal Procedure, several allegations have been levelled against the learned S.D.J.M. For the sake of brevity, only one of the allegations made in para 12 of the petition is quoted hereinbelow
"12. That the petitioners also respectfully submit that the learned Magistrate has acted being otherwise biased in the matter. The residential quarter of the learned S.D.J.M. is situated at a short distance from the house of father of the informant. On 12.6.2001 when the bail petition of the petitioners was moved the learned S.D.J.M. to the hearing of petitioners and others gave some demeanour against the Hon'ble Court which indicates his prejudicial mind. The father of the informant who is a Constable before order was passed on 12.6.2001 was found for some times in the chamber of the learned Magistrate. The facts and circumstances indicated above unhesitatingly indicates that the orders passed under Annexures-2 and 3 are based on personal antipathy of the learned S.D.J.M. and therefore the same must be quashed."
11. This Court at the time of admission of the above petition had directed the petitioners to substantiate the allegations by filing affidavits. Five affidavits have been filed before this Court in the meanwhile by different persons. A perusal of the averments made in the affidavits, primafacie, reveal that the learned S.D.J.M. had made certain derogatory remarks against the order passed by the High Court as well as the procedure adopted while dealing with the bail applications. Such remarks put a dent on the dignity and authority of the High Court. I feel, it is a fit case where the allegations levelled against the learned S.D.J.M. should be suitably dealt with in the administrative side.
I, also direct the Registry of this Court to bring the allegations levelled against the learned S.D.J.M. in the petition and affidavit as well as the explanation submitted by the learned S.D.J.M. to the notice of the Hon'ble Chief Justice in administrative side for proper action. The registry is to prepare the Xerox copies of the entire order-sheet of G.R. Case No. 105 of 2001 and retain the same for the said purpose.
12. In course of the hearing, learned counsel for the petitioners further submitted that due to deliberate latches of the learned S.D.J.M. who intentionally did not comply with the direction of this Court, the petitioners who are old persons remained under illegal confinement from 12.6.2001 to 23.6.2001 and suitable action should be taken against the learned Magistrate. While restraining from making any comments as to whether the learned S.D.J.M. is liable for being proceeded against and as to whether the detention of the petitioners for the aforesaid period would amount to illegal confinement or not, I observe that it is open for the petitioners to initiate a separate proceeding for the said purpose, if they are so advised before the competent Court and if such a proceeding is initiated, the same shall be dealt with in accordance with law.
I am also satisfied that the impugned orders dated June 12, 2001 and June 14, 2001 are illegal and without jurisdiction. The said orders have been passed not only in violation to the direction issued by this Court but also suffer from errors apparent on the face of the record inasmuch as charge Under Section 314, I.P.C. is not sustainable as the informant is alive and the accused persons are aged persons and to add to it petitioner No. 2 is a woman. Therefore, I have no hesitation to quash the said orders. It appears that in consonance with the interim direction issued by this Court on June 22, 2001 in this case, the petitioners have been released on bail. They will continue on bail till disposal of the G.R. Case Net, 105 of 2001 pending in the file of learned S.D.J.M. Udala.
Criminal Misc. Case is accordingly allowed.