Date:...
Accused person or
Pairokar (= representative of the accused).
Through
Advocate.
ANNEXUREs A to C, as explained.
=====================================================
Note:- the following sample is only about the main petition. The Petition to High Court should contain separate Index, Urgent Application, Affidavit etc, besides the Main Petition, which are not drafted in the sample.
IN THE HON’BLE HIGHCOURT OF State:... at Place ...
Crl.Misc.Main. No. of 2005
(Bail Appln. No. of 2005)
Mr.ccc
.... Petitioner
Versus
State.
.... Respondent
In Jail since date....
FIR No. ... dated ...
U/Ss 363/366/368/376/34 IPC
PS .....
APPLICATION FOR BAIL
U/Ss 439 and 482 Crl. PC. r/w Article 227 of the Constitution of India
MOST RESPECTFULLY SHEWETH:-
(Note:- the Bail Application at the Magistrate Court, paras 1 to 13, and Bail Application before the Sessions Judge's Court, paras 14 and 15 and prayer will remain same; either in same language or with any grammatical variation – Author).
16. The Bail Application moved before the Hon’ble Session Judge’s court was rejected on 28-5-....
17. In the replies filed before the Hon’ble Session Judge's Court, copy of the same is produced as Annexure-D, the State have not alleged that, the Accused no-1 will jump bail, will threaten witnesses etc. However, Ld. Session Judge's Court was pleased to reject the bail application, a copy of the said order is produced as Annexure-E. Thus, the present Bail Application is filed.
18. It is submitted that, denial of bail by the subordinate Courts in this case amounts to unwillingness to exercise their jurisdiction, thus necessary Writ or Order may kindly be issued to grant bail, by this Hon'ble Court, u/A 227 Constitution of India.
19. That, without adequate grounds, objecting bail of the applicant in the subordinate Courts by the Prosecution is amounting to Abuse of process of the Courts, thus U/S 482 Criminal Procedure Code, 1973; necessary Order may kindly be issued to grant bail, by this Hon'ble Court.
20. PRAYER:- It is, therefore, most humbly prayed that the Accused may kindly be released on BAIL.
It is prayed accordingly in the interests of justice.
Place:
Date:...
Accused person or
Pairokar (= representative of the accused).
Through
Advocate.
======================================================
4th Question:- Bail on default, under Cr pc Section 167(2). Only the sample of moving before Magistrate Court is given. It is Right of the accused. Thus, even if the Chargesheet filed after 2 hours of the filing of Bail Application, even if the Bail Application to be decided only after filing of the charge sheet, the accused is having a right to get bail. It does not preclude the right of the complainant/ prosecution from moving an application for cancelling of the bail.
IN THE HON’BLE COURT OF METROPOLITAN MAGISTRATE/ JUDICIAL MAGISTRATE, Place:....
In Re:-
State. Versus Mr.ggg.
In Jail since date:...
FIR No. ... dated ...
U/Ss ... IPC
PS .....
APPLICATION FOR BAIL
U/S 167(2) Crl. PC.
MOST RESPECTFULLY SHEWETH:-
(Note:- the previous Bail Application's paras 1 to 6 and prayer will remain same; either in same language or with any grammatical variation. - Author).
7. During the gap of these 60/ 90 days, the accused/ under-trial prisoner had moved following Bail Applications:.... and they had been dismissed vide orders, which are annexed herewith for the kind perusal of this Hon'ble Court as Annexure-A (Collectively).
8. The period of 60 days/ 90 days expires at 2400 hrs, during the night intervening the day on which this application is filed and the previous day. The Application is filed in the Registry of this Hon'ble Court at 2 pm, to ensure that, no allegation will be made that the accused had hurried up the Application.
9. It is not legal for this Hon'ble Court to authorise further Judicial custody (= Jail) of the humble applicant, in the absence of Charge sheet.
10. The accused is willing to furnish adequate Bail, as it will be directed by this Hon'ble Court.
PRAYER:- It is, therefore, most humbly prayed that the Accused may kindly be released on BAIL.
It is prayed accordingly in the interests of justice.
Place:
Date:...
Accused person or
Pairokar (= representative of the accused).
Through
Advocate.
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CHAPTER 20 : CONTEMPT OF COURT THEORY AND PLEADINGS
Contempt of Court Petitions are very effective. Regarding rule of evidence, it is a Summary proceedings. However, regarding punishment, it is rarely used. To be really effective, the “blow with fist” should be only shown and not to be applied. Contempt jurisdiction is found at the following places: (1) Contempt of Courts Act. (2) Constitution of India. (3) Indian Penal Code and (4) Service Rules of the employees.
In the precis form, Contempt of Court means (1) Violating injunctions or directions issued by the Courts, (2) breaching any wilful undertaking given to the Court, and (3) insulting the judges and courts in such a manner that, the presiding officers cannot give reply statements to justify their conducts, thus they are defamed or scandalized and working of the courts can be affected. In this the first two are Civil Contempts and the third one is Criminal Contempt.
While speaking about injunctions or directions issued by the Courts, there are two types of Court orders, they are ‘In rem’ and ‘In personam’. In rem = addressed to the entire society, like Divorce decree, Succession Certificate. In personam = only between the parties, like service matter disputes, in which ten persons were terminated through common order, only five had challenged, in which it will be held that the 5 persons who did not challenge had accepted that, thus became final and if other 5 had won, these persons cannot get benefit of that; another example is the directions issued between both the parties (note: there can be a large number of petitioners and a large number of respondents, example eviction of shop keepers in the foot-path); and in some cases the directions will be issued to the entire society, eventhough the petitioner or respondent will be only one, the directions will have to be complied by entire nation. Example of such direction is: Jogender Kumar v. State of U.P. and others, 1994 (4) SCC 260 as elaborated in D.K. Basu v. State of West Bengal, (1997) 1 SCC 416; it is regarding the guidelines for arrest; in the judgement it is directed that, violations can be punished as Contempt of Court and that petition can be filed in the Supreme Court or any High Court. It means, eventhough it is the Supreme Court which passes direction, contempt petition can be filed before the High Courts also. IN DEFENCE to this type of contempt petitions, it can be alleged that, the guide-lines laid down by the apex Court in the above referred two cases were for an interim period till necessary amendments are made incorporating the guidelines prescribed in the Code of Criminal Procedure and the same were not operative for all times to come. One such case of successful defence is 2008 (8) ADJ 241 (Allahabad High Court), titled Santosh Kumar Versus Ravindra Sharma and Others. In this case, the victim of illegal arrest had filed Contempt Petition, against which the Police Officers had filed Contempt Appeal No. 8 of 2008, with above grounds and on 11-Sep-2008 the Contempt petition was stayed due to legal points that, whether Directions issued IN REM by the Supreme Court is valid after 2005 amendment of the Code of Criminal Procedure,1973.
INGREDIENTS of Contempt of Court, for violations of directions:- Each Ground for attack and Defence cannot be narrated in a book for pleadings, because, for that the complete Text book on the particular subject will have to be studied. Here the only efforts is, to tell that, what should be written and how should be written. The most important point is, it should be proved that, the contemner : person who is accused had knowledge about the directions of the Court. About Law passed by the Statutes, they are to be published in the Gazette of Governments, thus ignorance of law is not an excuse. However, Court orders, whether 'in personam' or 'in rem' are not published in Gazette. Even the Law Reports of Government, like SCR (= Supreme Court Report), ILR (= Indian Law Reports, for each High Courts) are not Gazette. Thus, unless you can prove that, the contemner : the offending person knew that Judgement, never spend money for Contempt of Court proceedings. Another weakness is, whereas a single section of any Act/ Statute/ Legislation can be quoted anywhere, the “copy edited paragraphs”, “head-notes” or News paper clippings of any judgement is not having similar status. It should be proved that, the contemner had read the complete judgement, or at least he had possession of that document with him. Even then, the Contemner have the legal right to say that, “facts” of the case is different than the “facts” available in the judgement is different; and if it is so, he will be acquitted or discharged.
It does not mean that, Contempt proceedings, or any other criminal proceedings are useless. The point to remember is, Judicial Opinion subject to variation. If a Court will take cognizance of your petition, the consequence is, the money which the contemner could have spend for his family or pleasure, he will start spending on Advocate, Clerk of the Advocate, typist etc. The Leave which he could have used to relax, he will have to come to Court. There can also be Societal Harassment on him, it means persons who are not fearing him, either at his office or at his residence, will regularly rag/ needle him for their sadistic satisfaction. Even in case of acquittal or discharge, it does not mean that, he will be saved by the Society. The Court is not going to construct a new future for any parties, which we have to construct ourself. If the contemner will be made to believe that, what-ever he will do, Courts will not punish him, due to over-confidence he will commit another offence, and everybody will be determined that, “this time he will not be saved”. It does not mean that, if you will not file a criminal proceedings he will be behaving normal. The main effect will be “first crime” sympathy will not be given to him.
Contradictory defences, consequences of - It may be noted that in a contempt proceeding apart from denial of the averment against them, the contemnors usually also tender an apology. That should not constitute a ground for proceeding in that case where a Court is disinclined to proceed otherwise - Criminal Procedure Code, 1973 — Section 340 — Offences affecting administration of justice — Provisions for — Allegation against the applicant that he has filed false affidavit before Court below — Show-cause notice to applicant — Reply submitted by him — There was prayer for mercy by applicant — Reply was rejected merely on the ground that applicant had also made a prayer for forgiveness which amounts to admission that affidavit was false — Not proper — Held : Under Section 340 Cr. P.C. proceedings for making a complaint in the case ought not to be initiated in a routine manner but enquiry can only be made if it is expedient in the interest of justice — No sufficient matter to initiate prosecution – Directions of initiating proceedings quashed under section 482 of the Code of Criminal Procedure,1973. 2004 (2) JIC 741 : 2004 (50) ACC 381 (Allahabad), Sankhdhari Singh Versus State of U.P.
Boasting that, Judge is friend of own advocate is not contempt - “Also it is not uncommon in the village that the parties some times boast about their connections or their Counsel's connections with a particular Court, which has no substance in fact, but which creates a grave apprehension in the minds of the contesting party”. Sankhdhari Singh Versus State of U.P., quoted supra.
Advocates are expected show detachment and non-identification with the causes espoused by them. Para 13 of the ES Reddy Vs. Chief Secretary, Govt of AP & Anr; reported as AIR 1987 SC 1550.
Contempt law – Duties of Advocates – He must not mislead the Court – Without sufficient basis and information in his possession, he should not cast aspersions on the opposite party and witnesses – If the law or the standards of the profession requires, the Advocate should not withhold authorities or documents which may tell against his client – By acting so he may well incur the displeasure or worse of his client so that if the case is lost, his client would or might seek legal redress if that were open to him. Rondel Vs. Worsley (1967)3 All ER 993; quoted with approval in ES Reddy Vs. Chief Secretary, Govt of AP & Anr; reported as AIR 1987 SC 1550.
Contempt law – Duty to client and duty to Court – Code of honour – He is not a mouthpiece of the client – He is not duty bound to say what his client want to say – He must disregard the most specific instructions of his client, if they conflict with his duty to the Court – If an Advocate is breaking it, he is subject to Professional misconduct. Rondel Vs. W., (1966)3 All ER 657; quoted with approval in ES Reddy Vs. Chief Secretary, Govt of AP & Anr; reported as AIR 1987 SC 1550.
Conflict of Contempt Law and Administrative Law (also Labour Law etc) – Court have the jurisdiction to summon any document or file and peruse them – However, other than about the Merits of the main case/ cause of action, the Courts do not have the jurisdiction to locate any other new/ fresh cause of action in the said file – Doing like that may result in difficulty of working of other offices – About compliance of Court orders, the only thing to be seen is, the final decision of the Offices and not the interim recommendations by it’s officers as notings in the file – LEGAL PRINCIPLE IN ONE SENTENCE: Courts do not have the jurisdiction to say that, each and every person who read its direction should fear contempt of Court, and use the words “satya vachan.. satya vachan” – Author. State of Bihar Versus Kripalu Shankar, 1987 AIR(SC) 1554 : 1987 Legal Eagle(Cri) 457.
Contempt of Courts Acts, 1971 Section 2 (b), (c) — Evidence Act, 1872, section 123 — Constitution of India Art. 166 — Definition of contempt — Nothing made by Government officers in files Government documents are privileged document though privilege is not absolute -Officer expressing independent opinion against Court Orders in such notings would not necessarily amount to contempt — such notings do not amount to formal order within meaning of Art. 166 of Constitution — Disclosure of privileged document in Court, such documents cannot be used for purpose other than that relating to the case — Cannot be made basis for action in contempt. It would be dangerous to found an action for contempt for the views expressed in the notes file, on the discovery of unpleasant or unsavoury notes, on a perusal of the notes, file by the court after getting them summoned. State of Bihar Versus Kripalu Shankar, 1987 AIR(SC) 1554 : 1987 Legal Eagle(Cri) 457.
Constitution of India Article 166 (Administrative Law) — Contempt of courts Act, 1971, Section 2 (b) (c), — Definition of contempt -Notings made by the Government officers in files — Such officers expressing his opinion against the court order in the notings would not necessarily amount to contempt. There should not be any fetter on the fearless and independent expression of opinions by officers of matters coming before them through the files. This is so even when they considered order of the courts. The officers of the Government are often times confronted with the orders of the Courts, impossible of immediate compliance for various reasons and must find it difficult to meekly submit to such orders. On such occassions they will necessarily have to note in files, the reasons why the orders cannot be complied with and also indicate that the Courts would not have passed those orders if full facts were placed before them. Such noting are for the use of the department and not for outside exposure for publicity. To find the officers guilty or expressing their independent opinion, even against orders of Courts. In deserving cases, would cause impediments in the smooth working and functioning of the Government. And such notings are previleged documents and cannot be used as basis of contempt action against each such officer. State of Bihar Versus Kripalu Shankar, 1987 AIR(SC) 1554 : 1987 Legal Eagle(Cri) 457.
RULES of Drafting: Each petition should be complete in itself. It is applicable for the Petition and Written Statement. Not only for contempt petition, but also for all other proceedings. Relevancy to contempt proceedings is, along with the Petition, the Certified Copy of the Order which had been violated.
Any person aggrieved of commission of Civil Contempt can straightway, without any permission from anybody, file his complaint. However, for criminal contempt complaints, prior permission/ consent of the Advocate General or Law Officer is to be obtained, under section 15(1) of the Contempt of Courts Act. Even in the absence of consent of Advocate General, the Supreme Court or High Court may take suo-moto action on its own motion. The accused person will have the right to file Written Statement etc like any other litigations. Transfer petition also can be moved.
APPEAL against Order of High Court:- Para 3 of the 1999 Legal Eagle(Cri) 2508 (AP) : 1999 CrLJ 1995; Md.Kamarudjama, Mandal Revenue Officer, Hanumakonda and another Versus Elaboina Ramesh and others:- Under the Contempt of Courts Act, 1971, which is in addition to the plenary powers of the High Court under Article 215 of the Constitution of India, the High Court is entitled to take up contempt proceedings either suo motu or on initiation of party and decide as to whether there are grounds to exercise the powers to punish the contemner. If the contemner is punished, then there is aright of appeal under Section 19(1) of the Contempt of Courts Act, 1971. If a single Judge exercises the said power of contempt, then the order is appealable to the Division Bench and if the Division Bench exercises the original jurisdiction to punish the contemner for contempt, then the appeal lies to the Supreme Court. In the instant cases, contempt cases were heard by the learned single Judges. In all the cases, the contemners were discharged, but the learned single Judges had issued some directions.
Slip of tongue is not Contempt of Court — Un-conditional Apology — While moving an application for handing over the accused to the Court Martial, the contemnor used the words ‘directed’ instead of making request to hand over custody of the accused to the Army for trial by Court Martial — Feeling offended, the Additional Sessions Judge initiated contempt proceedings — Proceedings, held un-warranted. (Para 7) T.S.Shergil, Major General. Versus State of J and K. 1997 SLJ 418 (J and K).
Indian Penal Code — Section 228 — J&K Criminal Procedure Code — Section 480 — Criminal Procedure — Intentional Insult to Public Servant, sitting in Judicial Capacity — Cognizance of such offence can be taken by court only when the offence is committed in presence of court — Application filed for handing over custody of an accused to the Army, allegedly using contemptuous expressions — Offence, not committed in presence of the concerned court. (Para 7) T.S.Shergil, Major General. Versus State of J and K. 1997 SLJ 418 (J and K).
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SPECIMEN OF NOTICE prior to initiating Contempt of Court case:
The Post Offices are the Government offices, which do commit 'civil contempt of Court offences' many times daily. In the year 2002, by writing following Legal Notice to a Post Office at Bangalore, Karnataka; the Author could compell the Postal Department to give the Court Summons to an Advocate, who subsequently had to write a letter saying his Client had Ditched him. Author strongly recommends repeated use of this Legal Notice in Hindi and English to Post Offices, in that case, some times the expenses for Publication in the News papers may be reduced. In the year 2002, this letter was send by Ordinary post, with a copy to the Post Office of Posting.
REMEDY UNDER POST OFFICE ACT:- Against the Postal Employee who accept bribe from the Addressee to not to write any remarks, or refuse to give letters for want of bribe; can be complained under various provisions of IPC, Post Office Act and Post Office Manuals. For that the Legal Notice will have to be send under Section 80 Code of Civil Procedure, 1908 and 197 Code of Criminal Procedure,1973; which are not handled in this Chapter of Contempt of Court. That provisions is usefull at the Pre-Suit notice stage. When a Legal Notice should be issued, if that is not issued, the Litigation will be weak. If the Postman joins with your opponent to weaken your case, according to law, you can get that postman dismissed from service. For that, the Post Office Act, Rules, Manuals etc are to be referred and the below given Contempt notice will not be used there.
To,
The Post Master, Post Office....., Pin....., India.
Subject:- Reasons to show cause as to why Contempt of Court Petition should not be filed against you, under the Contempt of Courts Act, 1971; against you and your subordinates.
Reference:- Court summons send by Registered Post/ Speed Post with Acknowledgement Due, having number RLAD/ SP-POD No..... of the Post Office ......, posted on date.... which is returned back to Court without any remarks by the Postmen of your Post Office.
Civil Suit No..... of year..... OR Private Crl Complaint No.... of year ...., titled Mr.xxx Vs. Mr.www, at the Hon'ble Court of ......., place.....; having Next Date of hearing:.....
Sir,
1. Enclosed herewith as Annexure-1 to this letter, the Certified copy of both the sides of the Envelop and Acknowledgement of the said envelop; which is total 4 pages, related to the RLAD/ SP-POD No..... of the Post Office ......, posted on date....; for your kind perusal. It can be noted that, addressee in that letter is Mr/Mrs/Ms......., aged... yrs, son/ daughter/ wife or Mr....., resident of house No...., Complete address....., Pin..., India. Your Post office had been the Office of Delivery for the said Postal Article, which reached your Post Office on date...., as it can be found vide the date stamp of your post office, at point-A of the 2nd p