Prof. Abdul Gani Bha vs Mohammad Ashraf Qadiri

Appellant present in person.

This is an appeal in terms of Clause 12 of Letters Patent directed against the order and judgment dated 29.4.2016 passed by learned Single Judge in

CMP No. 01R/2015.

Briefly stated, the facts leading to the filing of this appeal are that an application in terms of Section 476 of Cr. P. C. was filed by the appellant for

initiating contempt proceedings against one Mohammad Ashraf Qadir, an advocate of the High Court of J&K at Srinagar. The application came to be

listed before single bench of this court on 31.12.2015 and the court issued notice to the respondent. The case was next listed on 9.2.2016. The

appellant herein appeared in person and was given a week’s time to furnish registered covers for the service of the respondent. The petitioner,

however, refused to furnish the registered covers for issuance of notice to the respondent and, therefore, no notice could be issued to the respondent.

The matter came up for consideration again on 18.2.2016. The time was again extended by one week for taking the requisite steps for effecting

service on the respondent. The appellant again failed to take requisite steps. Finally, on 26.4.2016 when the case again came up for consideration, the

appellant appeared in person and submitted that he is not required to take steps for the service of the respondent and instead submitted that under

section 476 Cr. P. C. there is no requirement of issuance of notice to the other side. The single bench heard the appellant and considered the

application and found the same an abuse of process of law and, therefore dismissed the same vide judgment dated 29.4.2016, impugned in this appeal.

The single bench dismissed the application on the following grounds:

a. The allegation that the non-applicant has forged signatures of the applicant on an application, thereby indicating that he has received the copy of

same, is allegedly done by the non-applicant before filing of the said application before the court of law. It is not case of the applicant that his

signatures were forged on a document which was in the custody of the Court. Similarly, the allegation that the non-applicant forged the signatures of

Principal Islamia College on affidavit is of no consequences because the Principal, Islamia College has never come up with the claim that his signature

has been forged.

b. The allegation of forging of signatures of Principal on the affidavit is before filing of same in the High Court. It is not alleged that document

(affidavit) was custody of Court and it is there that it has been forged by the non-applicant.

c. The prayer of applicant for initiation of action against non-applicant by the Court is not countenanced by law (Refer to AIR 1998 SC 1121).

d. The allegation that the non-applicant used intemperate and abusive language against the 2nd Additional Munsiff on 9th June, 2010 cannot become

ground for initiation of proceedings against the non-applicant. If any such incident had actually taken place, then the learned Magistrate would have

initiated proceedings against the non-applicant himself. The applicant has no locus to project a cause of a Magistrate.

e. The allegation made that the statements were made by non-applicant before the different Courts/Forums cannot become ground for initiation of

proceedings in the manner prayed by the applicant.

f. This application could not be listed before the Court in terms of J&K High Court Rules 1999.

Feeling aggrieved by the order impugned, the appellant has filed the instant appeal. In the instant appeal also a notice was issued on 20.3.2017.

Thereafter the matter has been listed on numerous occasions so as to enable the appellant to take steps for the service of the respondent but he has

failed to take such steps. On 27.11.2018 further time was granted to the appellant to take steps for service on the respondent. Today when the case

was called out the appellant appeared in person and submitted that he was not obliged to take steps for service of the respondent and rather it is the

duty of the court to do the needful. He exhibited the conduct in the court which was totally unbecoming of an educated litigant. As rightly observed by

the single bench that the application filed by the appellant purportedly under section 476 of the Cr. P. C. is sheer abuse of process of law and,

therefore not tenable for the reasons indicated by the single bench in the judgment impugned and reproduced hereinabove. While we find no reason to

disagree with the view taken by the writ court, yet for another reason that is that the petitioner has failed to take requisite steps for the service of

respondent despite having been granted numerous opportunities since March 2017, this appeal is liable to be dismissed. It may be noted that even if

whatever stated by the appellant in the application is taken to be correct on its face value, no case is made out for initiating contempt against the

respondent under section 195 of the Cr. P. C. nor the provisions of section 476 Cr. P. C. can be invoked. As rightly observed by the writ court, the

appellant by filing application has not only abused the process of law but has also unnecessarily wasted the precious time of the court.

For the aforesaid reasons, this appeal is found to be utterly misconceived and frivolous and therefore is dismissed with costs of Rs.10,000/- to be

deposited by the appellant in the Registry of this court within four weeks from today. It is made clear that in case the cost is not deposited by the

appellant within the stipulated period, the same shall be treated as contempt of this court and appropriate proceedings thereof shall be initiated against

the appellant.