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Bombay HC: Wife used contempt petition to recover maintenance from husband

Bench: T C Das, P Upasani

Reeta Bharat Arora vs Bharat Yasodanandan Arora @ Dhingra And Ors. on 13/6/2001

JUDGMENT

Pratibha Upasani, J.

1. The story revealed in these legal proceedings is the story of a husband, wife and the “other woman” in the husband’s life, as usual. The unusual angle of this usual story is the legal angle which gives food for thought as to what status this ‘other woman’ exactly has in a monogamous society, if it turns out that the ‘other woman’ also is a legally wedded wife, and has the same status? What then happens to the other wife? What if relationship goes soar with both the wives at one time or the other, the couple is divorced and reunited, and the second wife is now isolated and asks for maintenance? All this material is quite spicy and hot enough to churn out a Hindi Masala Movie, displaying sentiments like love, lust, selfishness, materialism and urge for survival. But, Reeta Bharat Arora, Indu Bharat Arora and Bharat Yasodanandan Arora are not the imaginary characters playing roles on the screen in the real life. They are the real persons, in flesh and blood, being singed by harsh circumstances. The wives are the puppets in the hands of destiny. And why blame only destiny? Their husband Bharat also has been selfish all throughout, and has spoiled the lives of these two women; and hold your breath, the Law has added to the woes of the wives. But first, the few admitted facts :

2. On or about 26th January, 1981, Bharat Arora married one Indu Kapoor at Delhi. Indu and her parents were hailing from Indore. Bharat and Indu resided together and cohabited as husband and wife at Bombay. On or about 17th August, 1981, Indu left for Indore. On 25th February, 1982, a son namely, Sunny was born to Indu from the said wedlock. Unfortunately, disputes had already started between Bharat and Indu. Earlier also she had left for her parents place, but there was some sort of compromise between husband and wife. Thereafter, when she went to Indore in the year 1981, prior to Sunny’s birth in 1982, she did not come back. Bharat then filed M. J. Petition No. 56 of 1984 in the Bombay City Civil Court for divorce on the ground of cruelty and desertion. In the said petition, Bharat had made several allegations against Indu and had even expressed doubt about paternity of the son. Indu was contesting this matrimonial petition, refuting the allegations, and written statement also was filed by her. Hearing of the matter was adjourned from time to time. During all these years, by and large, Indu used to reside with her parents at Indore. During the pendency of the above referred petition, sometime in the year 1988, Bharat developed illicit relationship with one Reeta Dhawan nee Reeta Sunil Grover. Incidentally, Reeta’s divorce proceedings with her husband Sunil Grover also were pending in the City Civil Court till November, 1987 and decree of divorce was granted by City Civil Court in Sunil Grover’s favour, dissolving his marriage with Reeta, only on 30th November, 1987. On 28th May, 1989, a daughter by name Shikha was born to Reeta from the illicit relationship with Bharat. The relationship continued, though Reeta very much knew that Bharat was a married person, and his marriage with Indu was subsisting. The stalemate in respect of marriage of Bharat with Indu continued. But on 12th September, 1989, City Civil Court Judge (Ms. R. S. Dalvi) passed ex pane decree of divorce in M. J. Petition No. 56 of 1984., after recording evidence of Bharat, in brief, when the matter was in fact appearing on the Board under the caption of “Framing of Issues”. Neither Indu, nor her Advocate was present at the hearing of this petition on 12th September, 1989. No issues Were framed, nor was any finding given in respect of the alleged matrimonial offence of desertion and cruelty, but the Judge recorded undertaking of the petitioner Bharat to the effect that “the petitioner shall not remarry for a period of thirty days from the date of the said decree”. Thus, the undertaking was restricted to a period of only thirty days. On 5th November, 1989, Bharat got married with Reeta in accordance with Hindu Vedic Rites. On 5th November, 1989, declaration that Reeta and Bharat were married was made. The said marriage was thereafter registered on 5th February, 1990. Indu Arora, allegedly, came to know of the ex pane decree passed against her, dissolving her marriage with Bharat on 9th November, 1989. By that time, Family Courts were constituted in Bombay in October, 1989. Indu Arora therefore took out Miscellaneous Application No. 2 of 1990 for setting aside the ex pane decree, in the Family Court, accompanied by application for condonation of delay. On 15th December, 1989, Indu also filed First Appeal No. 336 of 1990 in the High Court of Bombay, challenging the ex pane decree passed against her by City Civil Court Judge, dissolving her marriage with Bharat. In Family Court, in reply to the Application made by Indu Arora, for setting aside the ex pane decree, Bharat did not mention that he had remarried. On 7th August, 1991, Family Court Judge (Mr. S. D. Pandit) passed order in Miscellaneous Civil Application No. 2 of 1990, setting aside the ex pane decree. The said order of the Family Court was challenged by Bharat Arora in the High Court by filing Writ Petition No. 5884 of 1991. In the meantime, there was reconciliation between Bharat and Indu. In fact, on 2nd June, 1992, Bharat and Indu applied for withdrawal of the proceedings in the Family Court. On 3rd June, 1992, Reeta filed Civil Application No. 2846 of 1992 in Writ Petition No. 5884 of 1991 filed by Bharat in High Court for being impleaded as a party-respondent. Reeta also filed M. J. Petition No. B-52 of 1992 in the Family Court at Bandra for a declaration that her marriage with Bharat was legally valid and subsisting. She also moved interim application No. 441 of 1992 and the Family Court passed order, restraining Bharat from throwing Reeta out of the flat at Grand Paradi Apartments, August Kranti Marg, Bombay, where Reeta was staying along with her daughter Shikha. Reeta also got injunction order by way of ad-interim relief restraining Bharat from disposing of the said flat in Grant Paradi Apartments, so also restraining Bharat from entering her bed room, Reeta also moved various applications for interim reliefs in the Family Court, on which, orders came to be passed against Bharat and Bharat challenged all those orders in the High Court by filing various Writ Petitions including Writ Petition No. 2889 of 1993. In Writ Petition No. 2889 of 1993, Bharat had challenged the interlocutory order passed by the Family Court granting maintenance of Rs. 4,000/- per month to Reeta and Rs. 1,500/- per month to daughter Shikha. In addition, the Family Court also ordered Bharat to deposit Rs. 5,000/- towards maintenance of Reeta.

Indu also filed M. J. Petition No. B-64 of 1992 in the Family Court at Bandra, inter alia, praying for a declaration that Bharat and Reeta’s marriage was not valid. On 22nd September, 1993, Bharat had made application in High Court to withdraw the Writ Petition No. 5884 of 1991. Mr. V. P. Tipnis, J. however, declined to pass order permitting Bharat to withdraw the said petition, observing that complex questions of facts and law were involved in the said petition, and therefore, it was to be decided on merits only. On 29th April, 1993, Family Court again passed order being interlocutory order directing Bharat to pay Rs. 5,500/- per month to Reeta and Shikha as maintenance. This order, when challenged by Bharat, in the High Court, was upheld, and in fact, undertaking was filed by Bharat in the High Court for payment of maintenance to Reeta and daughter Shikha.

Thus, there is no dispute between the parties with respect to the dates, the chronology of events, and the pending litigation between them.

3. This Court (Mr. D. R. Dhanuka, J.) by its common Judgment and Order dated 1st March 1994 disposed of First Appeal No. 336 of 1990 which was filed by Indu, so also, Writ Petition No. 5884 of 1991 and Writ Petition No, 2289 of 1993 filed by Bharat. The matter was argued at length by the respective Advocates, and this Court, by giving exhaustive reasons, allowed the First Appeal filed by Indu, and the ex pane decree dated 12th September, 1989 was set aside and M. J. Petition No. 56 of 1984 filed by Bharat was dismissed as withdrawn. Objection of Reeta for permitting Bharat to withdraw the said M. J. Petition, was rejected.

Both the Writ petitions filed by Bharat came to be dismissed by this Court by its common judgment and Order dated 1st March, 1994, and direction was given to the Family Court to dispose of the pending petitions filed by Reeta as well as Indu being M. J. Petition No. B-52 of 1992 filed by Reeta and M. J. Petition No. B-64 of 1992 filed by Indu, as expeditiously as possible.

While disposing of these Writ Petitions and First Appeal by common Judgment and Order, this Court made certain observations with respect to the conduct of Reeta. The learned Judge observed that the conduct of Reeta in having illicit relationship with a married person like Bharat since the year 1988, was blame-worthy. Reeta also felt aggrieved because the learned Judge confirmed the interlocutory order of the Family Court, and was not happy with the quantum of maintenance. She was also unhappy because the learned Judge allowed Bharat to withdraw his M. J. Petition being M. J. Petition No. 56 of 1984, and the order of allowing the First Appeal filed by Indu and setting aside exparte decree dated 12th September, 1989 passed by the Judge of the City Civil Court, dissolving the marriage between Bharat and Indu. Being aggrieved, Reeta has filed Letters Patent Appeal No. 86 of 1994 (in Writ Petition No. 5884 of 1991), so also, Letters Patent Appeal No. 87 of 1994 (in First Appeal No. 336 of 1990). Reeta also has filed Family Court Appeal No. 3 of 2001, since the Family Court did not pass any order on arrears of maintenance payable to her and daughter Shikha, while disposing of finally heard M. J. Petition No, B-52 of 1992. Reeta was also aggrieved, as the Family Court did not express its opinion on validity of marriage of Indu with Bharat. Another ground for filing the Family Court Appeal No. 3 of 2001 by Reeta was that the Family Court Judge did not grant her prayer with respect to security deposit for future maintenance to be paid by Bharat to her. it has to be stated here that as per the directions given by Mr. D. R. Dhanuka, J. while disposing of First Appeal No. 336 of 1990, Writ Petition No. 5884 of 1991 and Writ Petition No. 2289 of 1993, the Family Court Judge recorded the evidence of parties and disposed of both the M. J. Petitions being M. J. Petition No. B-52 of 1992 filed by Reeta and M. J. Petition No. B-64 of 1992 filed by Indu by his common Judgment dated 31st December, 1999. By giving exhaustive reasoning, the Principal Judge of the Family Court at Bandra dismissed Indu’s M. J. Petition No. B-64 of 1992, and allowed Reeta’s M. J. Petition being M. J. Petition No. B-52 of 1992. The learned Judge gave a declaration that Reeta’s marriage with Bharat was valid. Bharat was restrained by an order of injunction from ousting Reeta from her matrimonial home i.e. 91-A, 9th Floor, Grand Paradi Apartments, August Kranti Marg, Bombay-36.

Family Court also directed Bharat to pay Rs. 6,000/- per month to Rceta for her own maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 as well as to pay her Rs. 3,500/- per month for the maintenance of their daughter Shikha under Section 20 of the Hindu Adoptions and Maintenance Act, 1956, from the date of the order i.e. 31st December, 1999. The learned Judge also granted Reeta permanent custody of daughter Shikha.

5. Being aggrieved by the Judgment and Order dated 31st December, 1999 passed by Family Court. Appeal No. 3 of 2001 came to be filed by Reeta.

6. Family Court Appeal No. 16 of 2000 also was filed by Bharat, being aggrieved by the said common Judgment and Order dated 31st December, 1999. Indu also filed Family Court Appeal No. 15 of 2000, aggrieved by dismissal of M. J. Petition No. B-64 of 1992 and giving a declaration that Reeta’s marriage with Bharat was valid.

7. There is also Contempt Appeal No. 2 of 1999 filed by Bharat Arora, whereby he has challenged the order of the learned Single Judge of this Court (D. K. Deshmukh, J.) dated 28th January, 1999, holding Bharat guilty of contempt of Court, and sentencing him to undergo simple imprisonment for a period of three months. The said Contempt Petition being Contempt Petition No. 180 of 1995 was initiated by Reeta, alleging wilful breach of undertaking given by Bharat in Civil Application No. 4922 of 1993 in Writ Petition No. 2289 of 1993. Her grievance was that Bharat had not complied with the interim order granting maintenance to Reeta. The learned Single Judge of this Court held that Bharat had committed breach of the undertaking given to the Court, and was of the opinion that imposition of fine would not meet the ends of justice, as undertakings given in solemnity to the Court had to be scrupulously followed. Thus, considering the pros and cons of the matter, the learned Single Judge found Bharat guilty of contempt of Court and sentenced him to undergo simple imprisonment for three months. This order was stayed on the request of Bharat for approaching the Division Bench, which Bharat did. The Division Bench admitted the contempt appeal of Bharat and granted stay of the impugned order of the learned Single Judge dated 20th January, 1999.

8. Thus, there are six proceedings before this Court, which are being disposed of by this common judgment and order.

9. We have heard Mr. Anand Grover, the learned counsel appearing for Reeta, so also, Mr. Angal, appearing for Indu Arora. We have also gone through the bulky record and proceedings of these matters. We have also carefully considered the judgment and ex pane order dated 12th September, 1989 of the City Civil Court passed in M. J. Petition No. 56 of 1984, Judgment and Order dated 7th August, 1991 passed by the Principal Judge, Family Court in Miscellaneous Application No. 2 of 1990, the Judgment of the learned Single Judge dated 1st March, 1994, the order of the learned Single Judge dated 28th January, 1999 passed in Contempt Petition No. 180 of 1995, the Judgment and Order of the Family Court dated 31st December, 1999, so also, various Judgments of this Court, other High Courts and Supreme Court cited by both the sides.

10. The observation of the learned Single Judge in his Judgment dated 1st March, 1994 about the conduct of Reeta being blameworthy, cannot be called erroneous on the background that during the pendency of Reeta’s divorce proceedings with her earlier husband Sunil Grover, she carried on affair with the much married Bharat, whose divorce proceedings against Indu also were pending. Because of this illicit relationship, Reeta delivered a baby girl Shikha and when Bharat got married with Reeta on 5th November, 1989, this love-child Shikha was already six month’s old.

11. It has to be mentioned at this stage that after carefully going through the entire record and proceedings, the picture that emerges of Bharat is that of a villain. He is the person who has played with the lives of two women, and has left them in the lurch. Firstly, he carried on illicit relationship with Reeta, when his marriage with Indu was still subsisting. He also fathered a child Shikha from her, who was born about six months earlier to Bharat’s subsequent marriage to Reeta. Initially, when Bharat had filed divorce proceedings against his first wife Indu, he had made allegations against her and he went to the extent of saying that the son namely, Sunny, born to Indu was not his, but subsequently, with the very same Indu, Bharat reconciled to the chagrin of Reeta, who along with her child Shikha, fell from grace in the eyes of Bharat. When various applications for maintenance were filed by Reeta for herself and for the maintenance of the child Shikha, they were vehemently contested by Bharat, though, he lost in all of them at all stages. Various orders came to be passed by the Family Court, so also, by this Court, ordering Bharat to pay maintenance to Reeta and child Shikha. All these orders came to be flouted with impunity by Bharat. Initially, he was paying some maintenance to Reeta and the child, however, subsequently, there is a total failure on Bharat’s part to pay the maintenance. In fact, it appears that he has completely stopped paying maintenance to Reeta and his child since August, 1994 and there is a huge amount by way of arrears. The Family Court, in fact, had passed an order dated 23rd July, 1992, ordering maintenance at the rate of Rs. 4,000/- per month to Reeta and Rs. 1,500/- to child Shikha. The Family Court had also ordered Bharat by its order dated 1st September, 1992 to deposit Rs. 5,000/-. All these orders were disobeyed by Bharat. In fact, on number of occasions, bailable warrants came to be issued against Bharat, as not only he did not pay the maintenance amount but also avoided to attend the Court. In fact, Contempt Petition being Contempt Petition No. 180 of 1995 came to be filed at the behest of Reeta, alleging wilful breach of undertaking submitted by Bharat in Civil Application No. 4922 of 1993 in Writ Petition No. 2289 of 1993. After hearing both the sides the learned Single Judge came to the conclusion that Bharat had committed breach of undertaking given to this Court. He was also of the opinion that imposition of fine would not meet the ends of justice, as undertaking given in solemnity to the Court has to be scrupulously followed and that, undertaking cannot be disregarded casually, as was done by Bharat in this case. Thus, considering the pros and cons of the matter and having found Bharat guilty of contempt of this Court, the learned Single Judge sentenced Bharat to undergo simple imprisonment for three months. This order was stayed for eight weeks on the request made by the learned Counsel appearing for Bharat. Thereafter, the Division Bench of this Court stayed the order while admitting Contempt Appeal No. 2 of 1999, and the stay is still in operation, during the pendency of all the proceedings.

12. After hearing Mr. Anand Grover, who is appearing for Reeta, and Mr. M. D. Angal, who is appearing for Indu [though he was not very much concerned, as far as the maintenance aspect (to be paid by Bharat to Reeta) is concerned], and after going through various orders passed by Family Court, as well as this Court, we are of the opinion that the learned Single Judge was right in holding Bharat guilty under section 12 of the Contempt of Courts Act. The Roznama of all these proceedings is very revealing and telling. It fully exposes Bharat as to how, different Benches of this Court have issued bailable warrants against Bharat Arora on number of occasions, and how incorrigible he has proved to be. Even this Bench by its order dated 19th January, 2001, during the Course of hearing, passed an order directing Bharat to bring with him a cash of Rs. 50,000/- or a demand draft of the said amount drawn in favour of Reeta on the next date of hearing. However, on the next date, neither Bharat was present, nor his Counsel was present. Taking serious view of the matter, this Court issued bailable warrant in the sum of Rs. 50,000/- against Bharat, to be executed through the Commissioner of Police, Bombay, returnable on 1st February, 2001. On 1st February, 2001, Bharat was produced before this Court, but he expressed his inability to pay any amount. We therefore struck-off the defence of Bharat and refused to hear Mr. S. G. Deshpande, learned Counsel, who was representing Bharat. Mr. Grover, the learned Counsel appearing for Reeta pointed out that a huge amount had accumulated as arrears of maintenance payable to Reeta and child Sbikha by Bharat. He also pointed out that similar order of striking of defence of Bharat had been passed by Family Court also, and that, Bharat was simply not paying the arrears of maintenance either to Reeta or to minor child Shikha. He also pointed out the order passed by this Court (Coram : B. N. Srikrishna and S. S. Nijjar, JJ.) observing that unless maintenance amount was paid, Bharat was not to be heard. Thus, there is a clear admission that the amount of maintenance has not been paid by Bharat to Reeta for the maintenance of herself and for the maintenance of Shikha. This failure to pay the amount has been sought to be justified, stating that Bharat has financial problems, but the non-compliance of the order of the Court with respect to maintenance, is very much admitted.

13. It is not that Advocate Mr. S. G. Deshpande appearing for Bharat was not heard at all. In fact, initially, when this Bench started hearing the matter, Mr. Deshpande also was heard for quite sometime. It was during the course of arguments, that Mr. Grover, appearing for Reeta, pointed out the order of maintenance passed by Family Court, so also various orders passed by this Court with respect to maintenance payable by Bharat to Reeta and child Shikha, and the arrears which Bharat has to pay towards the maintenance amount. Thereafter, this Court ordered Bharat to pay Rs. 50,000/- to Reeta and bring the amount on the next date. Bharat not only failed to pay the amount and comply with the order passed by this Court, but also did not remain present. Thereafter, bailable warrant in the sum of Rs. 50,000/- came to be issued by this Court against Bharat, which secured Bharat’s presence, but sans the amount. That is how the Court was constrained to pass an order of striking of the defence of Bharat for non-compliance of the order of maintenance. However, Mr. Angal, appearing for Indu, was heard at length, and during the course of hearing, it appeared as if he was appearing for Bharat also, and the Court had to remind him that he was representing only Indu and not Bharat. It therefore, cannot be said that the principles of natural justice have been violated. As such, Bharat has proved to be so incorrigible in not complying with any of the order, when it came to paying maintenance to his wife and the minor child, that striking of defence was only a natural corollary,

14. Mr. Grover also took us through the list of properties of Bharat, which is annexed to the proceedings. He also took us through the observations of the Family Court made in the Judgment and Order dated 31st December, 1999, while finally disposing of M. J. Petition No. B-52 of 1992 and M. J. Petition No. B-64 of 1992, so also, the observations made by the Single Judge in his Judgment and Order dated 1st March, 1994 while disposing of First Appeal No. 336 of 1990, Writ Petition No. 5884 of 1991 and Writ Petition No. 2289 of 1993. These observations are to the effect that Bharat is a wealthy businessman. In fact, while confirming the interlocutory order, whereby Family Court had ordered Bharat to pay Rs. 4,000/- per month to Reeta and Rs. 1,500/- per month to child Shikha by way of maintenance, there was a direction by this Court that the quantum of maintenance be re-examined deeply. Accordingly, the Family Court while disposing of M. J. Petitions, ordered Bharat to pay Rs. 6,000/- per month to Reeta for her own maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, as well as to pay Rs. 3,500/- per month for the maintenance of their daughter Shikha under Section 20 of the Hindu Adoptions and Maintenance Act, 1956, from the date of the order i.e. 31st December, 1999. There is no compliance of this order also. No doubt, Family Court Appeal No. 16 of 2000 filed by Bharat and Family Court Appeal No. 3 of 2000 filed by Reeta, so also, Family Court Appeal No. 15 of 2000 filed by Indu, are pending before this Court, and were heard by this Bench, but there is no stay of the order dated 31st December, 1999, passed by the Family Court and Bharat ought to have complied with the said order, whereby, he was ordered to pay maintenance of Rs. 6,000/- per month to Reeta and 3,500/- per month to Shikha. He has also not cleared the arrears of maintenance payable to them. This fact is admitted by Mr. S. G. Deshpande, learned counsel appearing for Bharat. The sole contention canvassed for the total non-compliance of the orders of maintenance was that his financial position was bad, and therefore, he was unable to comply with the said orders. Having heard Mr. Deshpande and Mr. Grover, and having gone through the entire proceedings, we are unable to agree with the submissions made by Mr. Deshpande. We have therefore struck off Bharat’s defence, as he has failed to pay maintenance to Reeta and Shikha as per the order passed by the Family Court. The Contempt Appeal No. 2 of 1999 also will have to be dismissed and the interim stay granted by the Division Bench of this Court at the time of admission will have to be vacated.

15. For the same reasons and in view of the discussion above, Family Court Appeal No. 16 of 2000 filed by Bharat against the Judgment and Order dated 31st December, 1999 also will have to be dismissed.

16. This leaves us to decide Family Court Appeal No. 3 of 2001 filed by Reeta, the two Letters Patent Appeal Nos. 86 of 1994 and 87 of 1994 again filed by Reeta, and Family Court Appeal No. 15 of 2000 filed by Indu.

17. By the impugned Judgment dated 31st December, 1999, Family Court had allowed Reeta’s M. J. Petition No. B-52 of 1992 with costs. It gave a declaration which was sought by Reeta that Reeta’s marriage with Bharat was valid. As prayed by Reeta, Bharat was also restrained from ousting Reeta from her matrimonial home i.e. 91-A, Grand Paradi Apartments, 9th floor, August Kranti Marg, Bombay. Bharat was also directed to pay maintenance amount of Rs. 6,000/- per month to Reeta for herself and Rs. 3,500/- per month for the maintenance of Shikha. Reeta also was held to be entitled for permanent custody of daughter Shikha. It also dismissed, by the impugned common Judgment and Order, Indu’s M. J. Petition No. B-64 of 1992, in which, Indu had sought a declaration that marriage of Bharat and Reeta be declared as illegal, bad-in-law, and void. Thus, though all these favourable orders were passed, granting Reeta’s prayers, still Reeta has preferred Family Court Appeal No. 3 of 2001. She is obviously unhappy with the quantum of maintenance, which is granted to her and to her child Shikha. According to her, considering the affluent financial position of Bharat, she should have been granted more amount. She had asked for security deposit in her name to the tune of Rs. 75,000/- for future maintenance and a car for her use. These prayers were turned down by the Family Court. It is also her grievance that there was no order expressing opinion on the validity of marriage of Indu with Bharat. She is also aggrieved by the fact that there was no order of permanent injunction restraining Bharat, his family members, servants, agents, etc. from transferring, disposing, selling of or creating third party right in the matrimonial house at Grand Paradi or order with respect to arrears of maintenance payable to her. This has led to the filing of Family Court Appeal No. 3 of 2001 by Reeta.

18. Indu is obviously aggrieved by the impugned Judgment and order dated 31st December, 1999 because the Family Court dismissed her M. J. Petition No. B-64 of 1992 with costs. All the orders came to be passed in favour of Reeta and her petition was allowed. Declaration, as sought by Reeta, was given that her marriage with Bharat was valid, and that, she was the lawful wife of Bharat. No finding was given by the Family Court on the issue whether Indu succeeded in proving that her marriage with Bharat solemnized on 26th January, 1981 was legally and validly subsisting. No such finding could be given by the Family Court, inasmuch as, Letters Patent Appeal on this very issue was pending before this Court.

19. Both the Letters Patent Appeals are filed by Reeta against the order passed by the learned Single Judge of this Court dated 1st March, 1994. The question involved in both these Letters Patent Appeals is with respect to legality of marriage of Reeta with Bharat, so also, marriage of Indu with Bharat.

20. Mr. Grover, appearing for Reeta forcefully submitted that as far as status of Reeta, as the wife of Bharat was concerned, the said declaration was rightly given by the Family Court, and that, it has to be upheld in view of the Supreme Court Judgment Smt. Lila Gupta v. Laxmi Narain. Mr. Grover drew our attention to section 15 of the Hindu Marriage Act, 1955 and submitted that Reeta’s marriage with Bharat was a legal and valid marriage, inasmuch as, it was solemnized after ex parts decree dissolving marriage of Bharat with Indu was passed on 12th September, 1989, and after the prescribed appeal period for challenging the said ex parte decree was over. He also submitted that the proviso to section 15 of the Act requiring the divorced parties to wait for one year from the date of decree dissolving the marriage, being deleted by the Marriage Amendment Act, 1976, there was no bar for Bharat to marry Reeta after the appeal period was over. He also submitted that the fact about the ex parte decree being passed by the City Civil Court Judge on 12th September, 1989, became known to Indu because Indu’s Advocate applied for certified copy of the same on 29th September, 1989, though application for setting aside the ex parte decree came to be filed in the Family Court much later. He argued that Bharat’s marriage with Reeta was solemnized 54 days after the ex parte decree dissolving Bharat’s marriage with Indu was passed. According to him, application for setting aside the ex parte decree was beyond the prescribed period of time and that, it was also improper for Indu to also file First Appeal in this Court against the said ex-parte decree passed against her. He also castigated Bharat’s conduct in not revealing the fact of his re-marriage with Reeta, while filing affidavit-in-reply to oppose Indu’s application for setting aside the ex parte decree dissolving Bharat’s marriage with Indu. He submitted that though his client had sort of accepted the fact that Bharat was no more with her, and that, he had reconciled and reunited with Indu, the amount of maintenance was a meagre amount, considering Bharat’s Financial position. Mr. Grover submitted that though Reeta had accepted the harsh reality of Bharat no more loving her, she had to maintain herself and the minor child Shikha, whose responsibility Bharat could not abdicate.

21. We have heard Mr. Grover’s submissions at length. Since section 15 of the Hindu Marriage Act, 1955 has much relevance and bearing in deciding this matter, it will be convenient to reproduce the same.

“15. Divorced persons when may marry again.– When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.”

22. In Lila Gupta’s case (supra), the effect of marriage contracted in contravention of proviso to section 15 of the Hindu Marriage Act, 1955 came for consideration. The said proviso which was subsequently deleted by section 9 of the Marriage Laws (Amendment) Act, 1976, read as follows :–

“Provided that it shall not be lawful for the respective parties to marry again unless at the date of such marriage, at least one year has elapsed from the date of the decree in the Court of the first instance.”

23. Thus, the substantive para of section 15 enables divorced persons to marry again and the proviso to section 15 (which is now deleted) prescribed a time limit, within which such divorced persons could not contract marriage, and the time prescribed was a period of one year from the date of the decree in the Court of the first instance.

24. In Lila Gupta’s case (supra), the facts were as follows :–

One Rajendra Kumar, whose widow appellant Lila Gupta claimed to be, had contracted marriage with one Sarla Gupta. Both Rajendra Kumar and Sarla Gupta filed suit against each other praying for a decree of divorce. These suits ended in a decree of divorce on April 8, 1963. Soon thereafter, on May 25, 1963, Rajendra Kumar contracted second marriage with appellant Lila Gupta. Unfortunately, Rajendra Kumar expired on May 7, 1965. Disputes then arose in consolidation proceedings between the appellant Lila Gupta, claiming as widow of deceased Rajendra Kumar and Respondents, who were brothers and brother’s sons of Rajendra Kumar, about succession to the Bhumidhari rights in respect of certain plots of land enjoyed by Rajendra Kumar in his lifetime, the latter challenging the status of the appellant Lila Gupta to be the widow of Rajendra Kumar, on the ground that her marriage with Rajendra Kumar was void, as it was contracted in violation of the provisions contained in the proviso to section 15 of the Hindu Marriage Act, 1955. The final authority i.e. Deputy Director of Consolidation upheld the claim of the appellant Lila Gupta. This decision was challenged by the respondents in six petitions filed under Article 227 of the Constitution in the High Court of Allahabad. The learned Single Judge before whom these petitions came up for hearing was of the opinion that the marriage of Rajendra Kumar with the appellant Lila Gupta on May 25, 1963, being in contravention of the proviso to section 15 was null and void. He accordingly allowed the writ petitions and quashed the orders of the Settlement Officer (Consolidation and of the Deputy Director of Consolidations) and restored the order of the Consolidation Officer. The appellant Lila Gupta then preferred six different appeals under the Letters Patent. The Division Bench dismissed these appeals and confirmed the order of the learned Single Judge. The Division Bench also granted certificate under Article 133(l)(c) to the appellant Lila Gupta and that is how the matters landed in the Supreme Court.

25. The short and narrow question going to the root of the matter which was before the Supreme Court in Lila Gupta’s case (supra) was, whether a marriage contracted in contravention of or violation of the proviso to section 15 of the Hindu Marriage Act, 1955 was void or merely invalid not affecting the core of marriage and the parties are subject to a binding tie of wedlock flowing from the marriage?

26. After discussing the Scheme of Hindu Marriage Act, 1955, and more particularly, sections 5 and 11 of the said Act, this is what the Supreme Court observed :–

“A comprehensive review of the relevant provisions of the Act unmistakably manifests the legislative thrust that every marriage solemnized in contravention of one or other condition prescribed for valid marriage is not void. Section 5 prescribes six conditions for valid marriage. Section 11 renders marriage solemnized in contravention of conditions (i), (iv) and (v) of section 5 only, void. Two incontrovertible propositions emerge from a combined reading of sections 5 and 11 and other provisions of the Act, that the Act specifies conditions for valid marriage and a marriage contracted in breach of some but not all of them renders the marriage void. The statute thus prescribes conditions for valid marriage and also does not leave it to inference that each one of such conditions is mandatory and a contravention, violation or breach of any one of them would be treated as a breach of a pre-requisite for a valid marriage rendering it void. The law while prescribing conditions for valid marriage simultaneously prescribes that breach of some of the conditions but not all would render the marriage void. Simultaneously, the Act is conspicuously silent on the effect on a marriage solemnized in contravention or breach of time bound prohibition enacted in section 15. A further aspect that stares into the face is that while a marriage solemnized in contravention of Clauses (iii), (iv), (v) and (vi) of section 5 is made penal, a marriage in contravention of the prohibition prescribed by the proviso does not attract any penalty. The Act is suggestively silent on the question as to what is the effect on the marriage contracted by two persons one or both of whom were incapacitated from contracting marriage at the time when it was contracted in view of the fact that a period of one year had not elapsed since the dissolution of their earlier marriage by a decree of divorce granted by the Court of first instance. Such a marriage is not expressly declared void nor made punishable though marriages in breach of conditions Nos. (i), (iv) and (v) are expressly declared void and marriages in breach of conditions Nos. (iii), (iv), (v) and (vi) of section 5 are specifically made punishable by Section 18. These express provisions would show that Parliament was aware about treating any specific marriage void and only specific marriages punishable. This express provision prima facie would go a long way to negative any suggestion of a marriage such as in breach of proviso to section 15 as being void by necessary implication. The net effect of it is that at any rate Parliament did not think fit to treat such marriage void or that it is so opposed to public policy as to make it punishable.”

The Supreme Court also expressed doubt as to whether the framers of the law intended that marriage contracted in violation of the provision contained in the proviso to section 15 to be void or not. It observed that:–

“In the Act under discussion there is a specific provision for treating certain marriages contracted in breach of certain conditions prescribed for valid marriage in the same Act as void and simultaneously no specific provision having been made for treating certain other marriages in breach of certain conditions as void. In this background even though the proviso is couched in prohibitory and negative language, in the absence of an express provision it is not possible to infer nullity in respect of a marriage contracted by a person under incapacity prescribed by the proviso.”

Supreme Court therefore expressed doubt when it said that even though the proviso opened with a prohibition, whether it was an absolute prohibition, violation of which would render the Act a nullity. According to the Supreme Court, a person whose marriage was dissolved by a decree of divorce, suffered an incapacity for a period of one year for contracting second marriage, and for such a person, it was not lawful to contract a second marriage within a period of one year from the date of the decree of the Court of first instance. It further observed that a decree of divorce breaks the marriage tie. Incapacity for marriage of such persons whose marriage is dissolved by a decree of divorce for a period of one year was presumably enacted to allay apprehension that divorce was sought only for contracting another marriage or to avoid dispute about the parentage of children because at the time of the divorce the wife may be pregnant. Supreme Court, therefore, again expressed a doubt as to whether this was based on the principle of public policy, and whether such public policy was of paramount consideration as to render the marriage in breach of it void, inasmuch as, it appeared to be purely a regulatory measure for avoiding a possible confusion.

Supreme Court in Lita Gupta’s case (supra), also took a note of the fact that by subsequent Marriage Laws (Amendment) Act, 1976, the said proviso to section 15 of the Act came to be deleted, It therefore observed that if the proviso was so sacrosanct that its violation would render the marriage void, then it was not possible to appreciate why the Parliament completely dropped it, and this position therefore reinforced the contention that such marriage was not void.

27. In Chandra Mohini v. Avinash Prasad, AIR 1967 SC 581, the decree of divorce was granted by the High Court reversing the dismissal of the petition of the husband by the Trial Court. Soon thereafter, the husband contracted second marriage. Sometime thereafter, the wife moved for obtaining special leave to appeal under Article 126 of the Constitution, which was granted. The husband thereafter moved for revoking the leave. While rejecting the petition for revocation of special leave granted to the wife, the Supreme Court observed that:–

“even though it may not have been unlawful for the husband to have married immediately after the High Court’s decree or no appeal as of right lies from the decree of the High Court to this Court, still it was for the respondent to make sure whether an application for special leave had been filed in this Court and he could not, by marrying immediately after the High Court’s decree, deprive the wife of the chance of presenting a special leave petition to this Court. If a person does so, he takes a risk and could not ask the Court to revoke the special leave on that ground.”

28. Thus, according to the Supreme Court, as observed in Lila Gupta’s case (supra), the fact that neither spouse after decree of divorce, could remarry until the time for appealing had expired, in no way affects the full operation of the decree. It was a Judgment in rem and unless and until a Court of appeal reversed it, the marriage for all purposes was at an end.

The reason for arriving at such a conclusion is given by the Supreme Court in Lila Gupta ‘s case (supra) as follows :–

“….. A decree of divorce breaks the marital tie and the parties forfeit the status of husband and wife in relation to each other. Each one becomes competent to contract another marriage as provided by section 15. Merely because each one of them is prohibited from contracting a second marriage for a certain period it could not be said that despite there being a decree of divorce for certain purposes the first marriage subsists or is presumed to subsist. Some incident of marriage does survive the decree of divorce, say, liability to pay permanent alimony but on that account it cannot be said that the marriage subsists beyond the date of decree of divorce….. The dissolution is complete once the decree is made, subject of course, to appeal….. No incident of such dissolved marriage can bridge and bind the parties whose marriage is dissolved by divorce at a time posterior to the date of decree. An incapacity for second marriage for a certain period does not have effect of treating the former marriage as subsisting. During the period of incapacity the parties cannot be said to be the spouses within the meaning of Cl. (i), sub-section (1) of section 5…..”.

The Supreme Court also examined section 57 of the Indian Divorce Act, 1869 which provides for divorce professing Christian religion, which has identical provision and which has been consistently interpreted to mean that a marriage contracted during the period prescribed in the fifth paragraph of section 57 after a decree dissolving the marriage would be void. While commenting on section 57 of the Indian Divorce Act, 1869, the Supreme Court stated as follows :

“….. But a mere glance at section 15 of the Act (Hindu Marriage Act, 1955) and section 57 of the Indian Divorce Act, would clearly show that the provisions are not in pari materia. Under the Indian Divorce Act a decree nisi has to be passed and unless confirmed by High Court it is not effective and in the proceedings for confirmation, the decree nisi can be questioned. No such requirement is to be found under the Act. Further, under section 15 the period of one year is to be computed from the date of decree of the Court of first instance which means that a decree of divorce is made by the Court of first instance while under section 57 of the Indian Divorce Act the period of six months is to be computed from the date of an order of the High Court confirming the decree for dissolution of a marriage made by a District Judge or when an appeal has been preferred in the appellate jurisdiction of the High Court when the appeal is dismissed and the parties even cannot marry if an appeal has been presented to the Supreme Court. Under section 15 if the decree of divorce is granted not by the Court of first instance but by the Appellate Court the proviso would not be attracted. There is thus a material difference in respect of the starting point of the period under section 57.”

29. Reference was also made by Supreme Court is Lila Gupta’s case (supra) to similar provisions under the Mohammedan Law. It observed that under the Mohammedan Law, after the divorce, the traditional law did not permit a divorced wife to contract second marriage during the period of Iddat and in the past such marriage was considered void. The marriage was treated void interpreting a certain text of the Hanafi law. Recent trend of decisions quoted in Mulla’s Principles of Mohammedan Law, 17th Edition, edited by M. Hidayatullah, former Chief Justice of India, clearly bears out the proposition that under the Mohammedan Law, a marriage of a woman undergoing iddat is not void but merely irregular. Supreme Court quoted the said passage from page No. 252, which is given below :

“A marriage with a woman before completion of her iddat is irregular, not void. The Lahore High Court at one time treated such marriages as void Jhandu v. Mst. Hasain Bibi, (1923) ILR 4 Lah. 192 = (AIR 1923 Lah, 499); but in a later decision held that such a marriage is irregular and the children legitimate [Muhammed Hayat v. Muhammed Nawaz, (1935) ILR 17 Lah. 48 = (AIR 1935 Lah. 622)].”

30. As a conclusion, the Supreme Court observed in Lila Gupta’s case (supra) that examining the matter from all possible angles and keeping in view the fact that the scheme of the Act provides for treating certain marriages void and simultaneously some marriages which are made punishable yet not void and no consequences having been provided for in respect of the marriage in contravention of the proviso to section 15, it cannot be said that such marriage would be void. Reaching this conclusion, Supreme Court then held that Lila Gupta was denied the status of the wife of Rajendra Kumar and, therefore, his widow, and an heir to him on his death on the only ground that her marriage with Rajendra Kumar was void, being in contravention of the proviso to section 15. It then concluded that, as her marriage, even though in contravention of the provisions of section 15, was not void, she could not be denied the status of wife, and therefore, the widow of deceased Rajendra Kumar, and in that capacity, as an heir to him, all the appeals filed by Lila Gupta were thus allowed, and the decision of the High Court in Special Appeals was quashed and set-aside.

31. In the concurring, but separate Judgment, R. S. Pathak, J. also observed in Lila Gupta’s case (supra) that:–

“….. a marriage, although in violation of the statute, is not void because the legislature has not expressly declared it to be so, and also because the legislature has made no provision for legitimating the offspring of such a marriage, need to be viewed with caution. These are tests which could equally be invoked to construction of the main provision of section 15.”

32. Mr. Grover, learned Counsel representing Reeta, heavily relying upon Lila Gupta’s case (supra), drew the analogy from the facts of that case and comparing them with the facts of the present case at hand, argued that the marriage of Reeta and Bharat took place 54 days after the appeal period was over, and that, during that period, there was no bar or impediment of any sort for Bharat and Reeta to get married. He submitted that the conclusion arrived at by the Family Court in the impugned Judgment dated 31st December, 1999, was therefore correct.

33. Mr. Angal, learned counsel representing Indu, on the other hand, submitted that it was improper for the Family Court to rely upon the case of Lila Gupta (supra). His argument was that since the First Appeal No. 336 of 1990 challenging the ex pane decree dated 12th September, 1989 passed by City Civil Court Judge was allowed, and since Writ Petition No. 5884 of 1991 filed by Bharat, challenging the setting-aside of the ex pane decree by Family Court in Miscellaneous Application No. 2 of 1990 was dismissed, and since M. J. Petition No. B-56 of 1984 filed by Bharat was dismissed as withdrawn, there was nothing before this Court to decide, more so, when Reeta was not a party or even an intervenor in the First Appeal.

34. This contention of Mr. Angal, however, was countered by Mr. Grover, submitting that Reeta was heard in First Appeal filed by Indu, and that, this was with the specific permission of the Court, and that, it was not that she was not allowed to intervene, He aruged that this was rightly done in view of the principles of natural justice since Reeta was the affected party, and no order could be passed without hearing her.

35. We are in agreement with the submissions of Mr. Grover. After perusing the Roznama, it is revealed that Reeta’s prayer for being heard was specifically granted by the Court. This was a question of status of a person, and judgment pronounced was a judgment in rem.

36. Mr. Angal also submitted that Indu, indeed had two concurrent remedies, one was to file application under Order IX, Rule 13 of the Civil Procedure Code to set-aside the ex parte decree, dissolving her marriage with Bharat, and that, she also had another concurrent remedy of approaching this Court by filing First Appeal, challenging the very same order of ex parte decree, dissolving her marriage with Bharat. Mr. Angal, relying upon LXXXVII BLR 670 Arun Pawar v. Laxmi, also submitted that not only provisions of Order IX Rule 13 of the Code of Civil Procedure were applicable to the proceedings under the Hindu Marriage Act, but that, by virtue of section 21 of the Hindu Marriage Act, Article 123 as well as section 5 of the Limitation Act, 1963 was applicable to the suits and other proceedings under the Hindu Marriage Act, 1955. Mr. Angal, therefore, submitted that there was nothing wrong when the Family Court condoned the delay in making an application for setting aside the ex pane order dissolving Indu’s marriage with Bharat, and entertaining the said application. He also relied upon 1989 Mh.LJ. (SC) 617, Lata v. Vilas to substantiate his argument that in an appeal under section 28 of the Hindu Marriage Act, section 12(2) of the Limitation Act is applicable and therefore, time required for obtaining copies of the Judgment, will have to be excluded for computing the period of limitation for appeal.

37. There is no quarrel with these propositions put forth by Mr. Angal, who is appearing for Indu. This indeed is the legal position. We therefore hold that there was nothing wrong in Indu taking recourse to both the remedies – one by way of making an application under Order IX, Rule 13 of the Civil Procedure Code, for setting aside the ex pane decree passed against her, and another remedy by way of filing First Appeal in the High Court against ex pane order passed by the City Civil Court, dissolving her marriage with Bharat.

38. Mr. Grover also made a reference to some other Judgments of the Supreme Court like , Tejendra Kaur v. Gurmit Singh, Vathsala v. Manoharan, etc., where the question of nullity of marriage under section 12 was under consideration. We are not referring to them, as in the present case at hand, we are concerned with the provisions of section 13, where the marriage is dissolved by a decree of divorce, and we are not concerned with the question of nullity of marriage.

39. Having heard both the Advocates at length and having gone through the entire proceedings and the various Judgments cited by both the sides, we are of the view that the Family Court was right in arriving at the finding that Reeta’s marriage with Bharat was a valid marriage. The situation in the present case is more or less similar to the situation in Lila Gupta’s case (supra), with the exception that in Lila Gupta’s case (supra), the question involved was with respect to rights of inheritance and rights, as a whole of the heir of the deceased Rajendra Kumar. In the present case, however, the question is not with respect to inheritance, as all the parties are very much alive. Since under the Hindu Marriage Act, 1955, monogamy is the rule, it cannot be said that Indu and Reeta both, at the same time, are Bharat’s legally wedded wives. It can only be said that keeping in view the provisions of the Hindu Marriage Act, and the peculiar facts and circumstances of the case that Bharat has reconciled with Indu, his first wife, and the relationship between Bharat and Reeta has hit a rock-bottom, and in fact, Reeta herself had prayed for injunction restraining Bharat from entering her bed room, which was granted, what is relevant and practical to consider is only the incidence of Bharat’s marriage with Reeta, and the aspect of maintenance to be paid to the wife Reeta and their minor child Shikha. Since Bharat has another wife namely, Indu living, Reeta is entitled under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 to live separately from Bharat, and claim maintenance, so also, Bharat is under obligation to maintain his child Shikha. He cannot escape from this liability. The proceedings reveal that he has flouted all the orders of the Court, which were passed from time to time, ordering him to pay maintenance to Reeta and Shikha. He has not complied with several such interlocutory orders, nor has he complied with the final order passed by the Family Court by its impugned judgment and Order dated 31st December, 1999. The learned Single Judge was right in holding Bharat guilty of contempt and sentencing him to suffer simple imprisonment for three months. We have already given our reasons for vacating the interim stay granted by the Division Bench of this Court, at the time of admission of the said Contempt Petition, upholding the order of the Single Judge. In view of the aforesaid discussion, we pass following order :–

Letters Patent Appeal No. 86 of 1994 and Letter’s Patent Appeal No. 87 of 1994 are hereby dismissed.

In view of the dismissal of Letters Patent Appeal No. 87 of 1994, Civil Application Nos. 5565 of 1997 and 5140 of 1998 in Letters Patent Appeal No. 87 of 1994 do not survive, and the same are accordingly disposed of.

Family Court Appeal No. 16 of 2000 and Family Court Appeal No. 15 of 2000 are hereby dismissed.

Civil Application No. 4277 of 2000 in Contempt Appeal No. 2 of 1999 is allowed in terms of prayer clauses (a) and (b).

Contempt Appeal No. 2 of 1999 is hereby dismissed. Stay granted by this Court stands vacated. Bharat to undergo imprisonment as per the order dated 28th January, 1999.

Family Court Appeal No. 3 of 2000 is allowed to the extent of the claim for maintenance made by Reeta from Bharat.

Bharat to pay the entire amount of arrears of maintenance payable to Reeta and Shikha within a period of six months from today. He will also continue to pay the maintenance amount of Rs. 6,000/- per month to Reeta and Rs. 3,500/- per month to Shikha, as directed by the Family Court, on or before 15th day of every calender month.

After pronouncement of the Judgment, Mr. S. G. Deshpande, learned counsel for Bharat Arora, sought stay of the Judgment for eight weeks. His application for stay is rejected.

Issuance of certified copy is expedited.

40. Order accordingly.

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Categories: Judgement

SC: Contempt of court cannot be used unless the Court is satisfied beyond doubt that the person has deliberately and intentionally violated the order of the Court

Bench: U Banerjee, Y Sabharwal

CASE NO.:

Contempt Petition (civil) 260-261 of 2001

Appeal (civil) 2906-2907 of 2001

PETITIONER:

ANIL RATAN SARKAR & ORS.

Vs.

RESPONDENT:

HIRAK GHOSH & ORS.

DATE OF JUDGMENT: 08/03/2002

BENCH:

U.C. Banerjee & Y.K. Sabharwal

JUDGMENT:

Banerjee, J.

The most accepted methodology of governmental working ought always to be fairness and in the event of its absence, law Courts would be within its jurisdiction to deal with the matter appropriately. This proposition is so well settled that we need not dilate further on to this. It is this concept of fairness which Mr.Ganguli, appearing in support of the Petition for contempt very strongly contended, is totally absent in spite of three final rounds of litigation upto this Court between the parties. Mr. Bhaskar Gupta, learned senior advocate appearing for the alleged contemnors, however, contended that the conduct of the respondents can neither be termed to be unfair or in disregard to the orders of the Court on a true reading of the order this stand of the respondents, however, stands negated by Mr.Ganguli. The conduct, Mr.Ganguli, contended, is not only deliberate but utterly perverse and in grossest violation of the orders of this Court and by reason therefor the fruit of the litigation has not yet been made available and being decried to the petitioner for one reason or the other for the last about 15 years. Incidentally, it would be convenient to note that the principal issue involved in the matter pertains to the entitlement of the petitioners to the scale equivalent to that of Physical Instructors in the scale of Rs.700-1600 as on 2nd July, 1984 and Rs.2200-4000 w.e.f. 1986.

Turning, however, on to the factual score, it appears that the petitioners are Science Graduates of different universities in the country and have been appointed as Laboratory Assistants in colleges and in addition to their normal duties, the petitioners were supposed to assist the teachers and help the students in practical classes, impart instructions to the students in practical classes and to perform demonstration work including preparation of the lesson units in the practical classes. According to the petitioners these Laboratory Assistants were all along being treated as teaching staff and pay and allowances including the Government share of Dearness Allowances were paid to them until the issuance of the Government Order No.288 Education (CS) dated 21st March, 1969 wherein Laboratory Assistants of non-government affiliated colleges were treated as members of the non-teaching staff. The effect of such re-designation had a direct impact as regards the payment of Dearness Allowances and obviously the same being prejudicial to the interest of the petitioners, representations followed against the Government Order, but, however, to no effect. Representations were also made by reason of the withdrawal of teaching status as the Graduate Laboratory Assistants had to discharge teaching function as well, apart from the normal conduct of the Laboratory work.

The factual score depict that subsequently in August, 1983 the State Government redesignated the Laboratory Assistants as Laboratory Instructors it is on this score that Mr. Ganguli, learned senior counsel appearing in support of the petition very strongly criticised. The change of nomenclature according to him was otherwise meaningless as there was neither any conferment of status of teachers or the grant of any pay scale consistent with the teaching status. The Government notification was attributed to be a mischievous deception and a “hoax” a rather strong criticism : the question, therefore, arises whether there was any justification of such an attribute to the Government notification dated 10th August, 1983 : a short question consequently, thus what was the necessity for issuance of such an order would the change of nomenclature assist in any way the Graduate Laboratory Assistants? A bare perusal of the notification does not howsoever give any reason whatsoever as to the necessity of its issuance the notification on the contrary makes it clear that there would be no enhancement of pay as also the status as non-teaching staff would remain unchanged : It is only the word “Assistant” was replaced by the word “Instructors” but does that confer any material benefit to the persons concerned? The answer cannot in the factual context but be in the negative. It is on this background and upon perusal of the notification, Mr. Ganguli’s criticism seems to be rather apposite though couched in a very strong language but by reason of the fact situation of the matter in issue and if we may say so, probably justifiably so.

Be it noted that Graduate Laboratory Assistants working in government colleges have been given the status and designations of Demonstrators and have been accepted as members of teaching staff. According to the petitioners they possess similar qualifications, experience etc. but even though being similarly circumstanced, the Graduate Laboratory Assistants of sponsored and non-government private colleges of West Bengal stand discriminated against the Graduate Laboratory Assistants of Government colleges in West Bengal. The earlier writ petition which stand concluded by this court’s order dated 26th July, 1994 contained detailed list of University Acts and Statutes wherein “teachers” have been defined to “include the Instructors”. Needless to place on record that by reason of the act of discrimination and having failed to obtain any redress from the State-respondents the petitioners moved the learned Single Judge of the Calcutta High Court in the earlier Writ Petition for issuance of a writ of Mandamus to treat the Graduate Laboratory Assistants as teaching staff as per the definition contained in different University Act and also to give them a scale of pay equivalent to that of Physical Instructors. By a judgment and order dated 29th July, 1987 the learned Single Judge issued a writ of Mandamus upon a detailed judgment the operative portion whereof is set out herein below :-

“..The Rule accordingly is made absolute and the State Respondents are hereby commanded by the issuance of a Writ in the nature of Mandamus to treat the Graduate Laboratory Assistants who have already been redesignated as “Laboratory Instructors” as teaching staff and to pay them in accordance with the existing scale of pay

prescribed for the Physical Instructors with effect from 10th August, 1983 with all arrears.”

The appeal taken therefrom by the State Government resulted in confirmation of the order by the judgment of the Appellate Bench dated May 15, 1992. The State of West Bengal, however, being aggrieved and dissatisfied with the judgment and order of the Appellate Bench of the High Court moved a Special Leave Petition under Article 136 of the Constitution before this Court and this Court finally on 26th July, 1994 refused to interfere with the order and disposed of the matter with a speaking order. Relevant extracts of the same however are set out herein below :-

“.. the Division Bench of the High Court upheld the findings of the learned Single Judge.

We have heard learned counsel for the

parties. We see no ground to interfere with the reasoning and the conclusions reached by the learned Single Judge as upheld by the Division Bench of the High Court. We are, however, of the view that the respondents-petitioners be paid the revised scale of pay, as directed by the High Court, with effect from August 1, 1987 instead of August 10, 1983.

The arrears shall be paid to the respondents in two installments, first by the end of February 1995 and the second installment by August 31, 1995. The appeal is dismissed with the above modifications. No costs.”

A bare perusal of the order of this Court dated 26th July, 1994 categorically depicts that apart from the change of date of entitlement from August 10, 1983 to 1st August, 1987, this Court in fact did in unequivocal language record its concurrence with the reasonings and conclusions of the learned Single Judge as affirmed by the Division Bench.

In the order dated 26th July, 1994, as passed, this Court also was pleased to record certain statements of Mr. Ganguli which reads as below:

“Mr. A.K. Ganguli, learned counsel appearing for the respondents has very fairly stated that his clients are not asking for the pay-scale of

Lecturer. According to him, the pay scale of Physical Instructors is equivalent to that of Demonstrators i.e. pay scale to which his clients are entitled to in terms of the judgment of the Hon’ble High Court.”

It is however in terms of the order of this Court as noticed herein above, the State Government on 26th December, 1994 has issued a circular in purported compliance with the order of this Court. Let us however examine the circular and assess the situation ourselves as to the compliance of the earlier order of this Court. The circular reads as below :-

“In the circumstances, the Governor is pleased to order that the scale of pay in respect of all Graduate Laboratory Instructors of non-

Government colleges may be revised to Rs.1390- 45-1615-55-2055-65-2445-75-2970 with effect

from 1st August, 1987 and the arrears involved on account of revision of their scale of pay paid in the manner as indicated above.

The Governor is further pleased to order that the Graduate Laboratory Instructors of Non-

Government Colleges shall continue to enjoy

teaching status as given to them in GO No.1039- Edn. CS dated 27.7.1988.”

The circular, however, not been able to put an end to the petitioners’ grievance by reason wherefor, the same was further challenged by way of a writ petition under Article 226 before the learned Single Judge who, however, was pleased to quash the same upon recording concurrence to the contentions as raised by the petitioners. The learned Single Judge categorically recorded that the petitioners being Graduate Laboratory Instructors, question of further classifying them does not and cannot arise and upon reliance of the annual report as noticed above quashed and set aside the circular. The State Government however being aggrieved went before the Appellate Court and the Appellate Bench however allowed the appeal and opined that the Government Order dated 26th December, 1994 cannot be said to be arbitrary or contrary to the decision of this Court.

The further factual score depicts that as against the decision of the Hon’ble High Court pertaining to the Government order dated 26th December, 1994, the petitioners herein moved this Court under Article 136 and this Court upon a detailed judgment dealt with the issue and came to a conclusion to the following effect :

“This Court at an earlier occasion

unequivocally upheld the reasonings of the

learned Single Judge in the earlier writ petition as accepted by the Appellate Bench and on the wake of such a finding of this Court question of

decrying a pay scale which is otherwise available to another teacher (in this case the Physical Instructor) does not and cannot arise more so by reason of the earlier order of this Court.

Administrative ipse dixit cannot infiltrate on to an arena which stands covered by judicial orders.”

It is on the basis of the aforesaid, the appeals were allowed and the order of the Appellate Bench of the High Court of Calcutta stood set aside and quashed and that of the learned Single Judge stood restored. This Court, however, further directed that the entitlement by reason of the revision should be made available from 1st August, 1987 as directed by this Court in its earlier judgment dated 26th July, 1994. The petitioners, however, consequent upon the said judgment and order called upon the State officials being the alleged contemnor No.1 to comply with the directions of this Court and subsequently, the contemnor No.2 issued a notice requiring the petitioners to attend the hearing before the Principal Secretary, Department of Higher Education on 18th May, 2001. Some correspondence exchanged between the parties whereas the petitioners contended immediate compliance with the order of this Court, the alleged contemnors tried to feign ignorance about the earlier litigation and requested for supply of all copies of the relevant documents which, as the record depicts, stand supplied immediately thereafter. There has however been a total silence thereafter and the petitioners felt it incumbent upon themselves to bring it to the notice of this Court by way of a petition under the Contempt of Courts Act.

Before proceeding with the matter further, certain basic statutory features ought to be noticed at this juncture. The Contempt of Courts Act, 1971 has been introduced in the Statute Book for the purposes of securing a feeling of confidence of the people in general and for due and proper administration of justice in the country undoubtedly a powerful weapon in the hands of the law Courts but that by itself operates as a string of caution and unless thus otherwise satisfied beyond doubt, it would neither be fair nor reasonable for the law courts to exercise jurisdiction under the Statute. The observation as above finds support from a decision of this Court in Chhotu Ram v. Urvashi Gulati & Anr. (2001 (7) SCC 530), wherein one of us (Banerjee, J.) stated as below :-

“As regards the burden and standard of

proof, the common legal phraseology “he who

asserts must prove” has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the “standard of proof”, be it noted that a proceeding under the extraordinary jurisdiction of the court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond all reasonable doubt.”

Similar is the situation in Mrityunjoy Das & Anr. v. Sayed Hasibur Rahaman & Ors. (2001 (3) SCC 739) and as such we need not dilate thereon further as to the burden and standard of proof vis- a-vis the Contempt of Courts Act – Suffice it to record that powers under the Act should be exercised with utmost care and caution and that too rather sparingly and in the larger interest of the society and for proper administration of the justice delivery system in the country. Exercise of power within the meaning of the Act of 1971 shall thus be a rarity and that too in a matter on which there exists no doubt as regards the initiation of the action being bona fide. It may also be noticed at this juncture that mere disobedience of an order may not be sufficient to amount to a “civil contempt” within the meaning of Section 2(b) of the Act of 1971 the element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act and lastly, in the event two interpretations are possible and the action of the alleged contemnor pertains to one such interpretation the act or acts cannot be ascribed to be otherwise contumacious in nature. A doubt in the matter as regards the wilful nature of the conduct if raised, question of success in a contempt petition would not arise.

It is on these broad features however let us analyse the action of the respondents for the purposes of ascribing it to be willful and contumacious : whereas Mr. Ganguli answered by reference to the contextual facts as a deliberate and willful act, both Mr. Altaf Ahmad, the learned Additional Solicitor General and Mr. Bhaskar Gupta, learned senior advocate appearing for the alleged contemnors, rather strongly ventilated their negation to the accusations of Mr. Ganguli.

It is at this stage that the earlier order passed by this Court may be of some relevance and the same reads as below: “A teacher cannot possibly be allowed a pay

scale of a non-teaching post. The same is a

contradiction in terms and we need not dilate thereon. The criterion of fixation of pay scale is dependent upon the placement of the person

concerned in the event the placement is in a teaching post obviously one expects to get a pay scale fixed for a teacher and not for a non- teaching member of the staff. Apparently the High Court has not dealt with the issue in this perspective and thus clearly fell into an error in categorising a teacher with a non-teaching pay scale. The circular clearly authorises the

Graduate Laboratory Instructors of non-

government colleges to continue to have the

teaching status but decries the financial benefits therefor! Would the same be not an arbitrary exercise of powers or can it by any stretch be suggested to be otherwise rational and

indiscriminatory. This Court at an earlier occasion unequivocally upheld the reasoning of the learned Single Judge in the earlier writ petition as accepted by the Appellate Bench and in the wake of such a finding of this Court

question of decrying a pay scale which is

otherwise available to another teacher (in this case the Physical Instructor) does not and cannot arise more so by reason of the earlier order of this Court.”

Significantly, the Secretary, Department of Finance, Government of West Bengal, has with meticulous care recorded the statements as in the earlier affidavit filed before this Court though, however, with a preface that the statements in the counter affidavit stand out to be the outcome of his understanding of the order of this Court dated 20th April, 2001 and it is on the basis of the said understanding, the proposal for grant of scale of pay of Rs.1420 to Rs. 3130 stands concurred by him. Obviously, the notification dated 2nd July, 1984 issued by the Government of West Bengal as regards the revision of scale of pay of the Physical Instructors was also the resultant effect of such an understanding. It is in this context, the Finance Secretary of the State Government has stated as below :-

“Subsequently by a Notification dated 2nd

July, 1984 issued by the Government of West

Bengal, the State Government on the

recommendation of the University Grants

Commission and Government of India revised the scale of pay of the Physical Instructors to Rs.700/- – Rs.1600/- which was equal to the scale of pay of the lecturer. At that point of time also the scale of pay of Demonstrators continued to be Rs.500/- to Rs.900/-.”

In the earlier judgment, this Court while noting down certain record of proceedings observed as below :-

“On this score, a chart has been produced in the Court on 20.3.2001 which however cannot by any stretch be said to be in support of the

contentions of the State that there were existing two different grades and scales of pay amongst Physical Instructors, one being qualified Physical Instructors and the other being unqualified

Physical Instructors.

Significantly the annual report as published by the Education Department of the State

Government unmistakably records the existence of one grade of Physical Instructors under para 8.16. The annual report details out teachers of government colleges in the manner as below:

“8.16. Teachers of government colleges

Sl. Category of teachers Pay Scale

No. (Basic) w.e.f.1.1.1986

5. Demonstrator Rs.1740-3000

4. Physical Instructor Rs.2200-4000

3. Lecturer Rs.2200-4000

2. Professor/Vice-Principal Rs.3700-5700

(Grade II)

1. Principal Rs.4500-7300”

Para 8.2.1 also records the details of the

administration of non-government colleges as below:

The teachers of non-government colleges

are of the following categories (basic):

1. Laboratory Instructors Rs.1390-2970

2. Demonstrators

3. Physical Instructor as in government

4. Lecturer colleges.

5. Principal

This itself however negates the contentions

as raised by the State. Laboratory Instructors in non-government colleges are termed as teachers with scale of pay Rs.1390-2970 whereas Physical Instructors were also termed as teachers and scale of pay appears to be similar “as in government colleges” i.e. Rs.2200-4000. Secondly, in para 8.2.4 revised pay scale of the non-teaching posts (Group B pay scale) has been noted to be

Rs.1390-2970. It thus leaves no manner of doubt that whereas the petitioners were shown as

teachers of non-government colleges they were in fact granted the scale of pay applicable only to Group B employees belonging to non-teaching

staff and thus granted a non-teaching scale.”

Similar is the situation in the counter-affidavit filed presently in this matter as well : Is this fair ? The answer having regard to the factual backdrop cannot but be in the negative. It is neither fair nor reasonable on the part of a senior Civil Service Personnel to feign ignorance or plead understanding when the direction of this Court stands crystal clear in the judgment. Government employees ought to be treated at par with another set of employees and this Court on an earlier occasion lent concurrence to the view of the learned Single Judge that the Circulars issued by the State Government cannot but be ascribed to be arbitrary : Government is not a machinery for oppression and ours being a welfare State as a matter of fact be opposed thereto. It is the people’s welfare that the State is primarily concerned with and avoidance of compliance with a specific order of the Court cannot be termed to be a proper working of a State body in terms of the wishes and aspirations of the founding fathers of our Constitution. Classless, non- discriminate and egalitarian society are not meaningless jargons so that they only remain as the basic factors of our socialistic state on principles only and not to have any application in the realities of every-day life : one section of the employees would stand benefited but a similarly placed employee would not be so favoured why this attitude ? Obviously there is no answer. Surprisingly, this attitude persists even after six rounds of litigation travelling from Calcutta to Delhi more than once the answer as appears in the counter-affidavit is an expression of sorrow by reason of the understanding cannot be countenanced in the facts presently under consideration. A plain reading of the order negates the understanding of the State Respondents and the conduct in no uncertain terms be ascribed to be the manifestation of an intent to deprive one section of the employees being equally circumstanced come what may and this state of mind is clearly expressed in the counter-affidavit though however in temperate language. The question of bona fide understanding thus does not and cannot arise in the facts presently. Is it a believable state of affairs that the order of the learned Single Judge as early as the first writ petition, has not been properly understood by the senior most bureaucrat of the State Government : the same misunderstanding continues in terms of the appellate Court’s order and the third in the line of order is that of the apex Court. The understanding again continues even after the second writ petition was filed before the learned Single Judge at the High Court and the similar understanding continues even after the so to say clarificatory order by this Court, as appears from the order dated 20th April, 2001. Even in the counter-affidavit, filed in Contempt Petition, the understanding still continues we are at a loss as to what is this understanding about : the defence of ‘understanding’ undoubtedly is an ingenious effort to avoid the rigours of an order of Court but cannot obliterate the action the attempted avoidance through the introduction of the so-called concept of lack of understanding cannot, however, be a permanent avoidance, though there may be temporary and short-lived gains. The order of this Court cannot possibly be interpreted as per the understanding of the Respondents, but as appears from the plain language used therein. Neither the order is capable of two several interpretations nor there is any ambiguity and the same does not require further clarity. The order is categorical and clear in its context and meaning. The Court’s orders are to be observed in its observance, rather than in its breach.

This matter is pending in Courts since more than last 15 years, but unfortunately the litigatious spirit of the State-respondent have not minimised even to the slightest extent – the spirit continues and so is the deprivation. The defence of understanding is not only moonshine but a deliberate attempt to over-reach this Court’s order and as such willfulness in the matter of disregard of this Court’s order is apparent on the face of it and we are not prepared to accept the same as a defence of an action for deliberate and willful disregard of an order of Court. We find that the actions on the part of the respondent-authorities are not only unreasonable but deliberate and spiteful and that too in spite of a specific direction in all the five judgments so far obtained by the petitioners in their favour. Avoidance is written large and it would be difficult for us to consume the same without any particular rhyme or reason. In the contextual facts there cannot be any laxity as otherwise the Law Courts would render itself useless and its order to utter mockery. Feeling of confidence and proper administration of justice cannot but the hall-mark of Indian Jurisprudence and contra action by Courts will lose its efficacy. Tolerance of Law Courts there is, but not without limits and only upto a certain point and not beyond the same.

On the wake of the aforesaid, we do find that the respondents have willfully and deliberately violated the orders of this Court in the guise of a totally non-acceptable and sham defence of understanding and thus rendered themselves punishable under the provisions of Article 142 of the Constitution and also under the Act of 1971.

Be it placed on record that by the order dated 1st February, 2002, this Court directed the presence of all the alleged contemnors on the next date, i.e. on 8th March, 2002 since the order was to be pronounced in the presence of the respondents. The Office-Report, however, depicts that one of the respondents has filed an application for exemption from appearance. We do feel it expedient to allow the application for exemption, though by reason therefor the consequence of the findings as above cannot be pronounced as of date. In that view of the matter, let this matter appear two weeks hence in the list (22nd March, 2002) for further orders. The respondents are directed to be present in Court on the next date of hearing. No further notice need be served to the respondents excepting the applicant in I.A. No2 of 2002.

..J.

(Umesh C. Banerjee)

..J.

(Y.K. Sabharwal)

March 8, 2002.

1

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Categories: Judgement

SC: Issuance of notice for contempt of Court are having far reaching consequences

Bench: D.P.Wadhwa, S Ahmad.

PETITIONER:

KAPILDEO PRASAD SAH & ORS.

Vs.

RESPONDENT:

STATE OF BIHAR & ORS.

DATE OF JUDGMENT: 25/08/1999

BENCH:

D.P.Wadhwa, S.Saghir Ahmad.

JUDGMENT:

D.P. Wadhwa, J.

Leave granted.

On refusal of the Patna High Court to initiate proceedings for contempt against the respondents, the appellants have come to this court.

The appellants were working as Assistant Teachers in different elementary schools in Godda district in the State of Bihar. They are in the category of untrained teachers. Their services were terminated. Some of the teachers similarly placed filed writ petitions in the High Court against their termination and the matter ultimately reached this Court. It is not necessary to go into the various stages of the litigation except to note that this Court by order dated November 30, 1992 in Birendra Kumar & Ors. vs. State of Bihar (CA 1 of 1992) directed as under :

“We, therefore, direct once again that if there are vacancies and if there are not trained teachers available the untrained teachers who were employed prior to the new rule came into operation, would be reinstated in service if after subjecting them to the selection process they are found suitable. If there are no vacancies, they would be empanelled according to their seniority and would be appointed according to their seniority in the vacancies arising in future. Unless this panel is exhausted, no new appointment of untrained teachers will be made from outside. It is understood that those eligible for being so appointed will be the ones who were appointed before the new rule came into operation.

While making the appointments of those who were so in service prior to the date of appointment, the State Government will relax the age limit, if necessary.

We are informed that the appellants involved in the present case were paid salaries till 30th June, 1991. We also understand from Mr. B.B. Singh, learned advocate appearing for the State that all the vacancies have been filled in till 1.1.1992. If there were vacancies and yet the appellants were not appointed in the said vacancies such of the appellants who were eligible to be appointed and yet were not appointed in spite of the vacancies, would be entitled to the salaries from 1st July, 1992 till their appointment. However, if there were no vacancies and all the appellants or some of them have to be appointed in the new vacancies which may be available hereafter, they will not be entitled to the salaries from 1st July, 1992, till the date of their appointment. However, when they are appointed the period of break in service not exceeding one year will be taken into consideration for benefits other than salary.

The appeal is disposed of accordingly with no order as to costs.”

Appellants and some other teachers like them got similar orders from the High Court in their respective writ petitions. The main order passed by the High Court is dated January 20, 1993 in CWJC No.7000/92. In this judgment the High Court noticed the appointments made in some districts and the number of existing vacancies. State had contended that only one regular vacancy existed when according to the petitioners, there were not less than 2,000 vacancies. Counter affidavit filed by the State did not indicate if all the 2,000 vacancies had been filled up. With the consent of the counsel for the petitioners and the Advocate General that these petitions may also be disposed of in the light of the aforementioned direction of the Supreme Court the High Court directed it accordingly. High Court said : “We may however, direct the State to fill up posts in terms of the aforementioned direction of the Supreme Court with utmost expedition and preferably within two months from the date of receipt of a copy of this order.” Similar orders were passed in other writ petitions filed by untrained teachers as well.

Under the orders of the Supreme Court and those of the High Court which followed, the State Government was to fill up the existing vacancies, if any, by appointing the appellants and other untrained teachers who were eligible to be appointed against those vacancies and in case vacancies did exist as on January 1, 1992 the teachers so appointed against those vacancies would be entitled to salary from July 1, 1992 till their appointment. This was so as salaries had been disbursed up to June 30, 1991. If there were no vacancies, these untrained teachers had to be appointed in the new vacancies which might be available thereafter and in that case they were not be entitled to the salary from 1st July 1992 till the date of their appointment.

Appellants were appointed on October 4, 1994 pursuance to the directions of the High Court on October 4, 1994 by an order issued by the District Superintendent of Education, Godda. Appellants are receiving their salaries w.e.f. October 4, 1994. They claimed that it was case of reappointment under the orders of the Court and that since they were appointed against vacancies existing prior to January 1, 1992, they were entitled to salary from July 1, 1992 till October 3, 1994. They made their claim for the arrears of salary and since there was no response from the State Government, they filed petition for initiation of contempt proceedings against the State as well as its functionaries being the Director, Primary Education; Deputy Commissioner-cum-Chairman of the District Establishment Committee, Godda; and District Superintendent of Education, Godda district. Since it was the case of the respondents that no vacancy existed in the Godda District as on January 1, 1992, High Court by the impugned order dated July 8, 1998 dismissed the contempt proceedings. High Court said that there was no violation of the order passed by the High Court and if the appellants alleged that any direction of the Supreme Court had been violated, then it was not for the High Court to initiate any contempt proceedings. Aggrieved, appellants have come to this Court.

Here again the stand of the respondent has been that there has not been any violation of any order either of this Court or of the High Court. They are specific in their stand that no available vacancy existed before January 1, 1992 and as such the appellants were not entitled to the arrears of salary. Respondents have also contended that the orders appointing the appellants did not show that they were appointed against any vacancy existed before January 1, 1992. Appellants have also not stated before us as to how they claim that any vacancy existed as on January 1, 1992. Yet they state that there has been deliberate inaction on the part of the respondents which showed that they had no regard and respect for Court’s orders and that the respondents were wilfully and deliberately flouting the orders and direction of the courts.

Once the respondents take the stand that there was no vacancy existing as on January 1, 1992 in the Godda District and in the absence of any evidence to the contrary, it cannot be said that the orders of the courts have been contravened.

For holding the respondents to have committed contempt, civil contempt at that, it has to be shown that there has been wilful disobedience of the judgment or order of the court. Power to punish for contempt is to be resorted to when there is clear violation of the court’s order. Since notice of contempt and punishment for contempt is of far reaching consequence, these powers should be invoked only when a clear case of wilful disobedience of the court’s order has been made out. Whether disobedience is wilful in a particular case depends on the facts and circumstances of that case. Judicial orders are to be properly understood and complied. Even negligence and carelessness can amount to disobedience particularly when attention of the person is drawn to the court’s orders and its implication. Disobedience of court’s order strikes at the very root of rule of law on which our system of governance is based. Power to punish for contempt is necessary for the maintenance of effective legal system. It is exercised to prevent perversion of the course of justice.

In his famous passage, Lord Diplock in Attorney General vs. Times Newspapers Ltd. [(1973) 3 All.E.R. 54] said that there is also “an element of public policy in punishing civil contempt, since administration of justice would be undermined if the order of any court of law could be disregarded with impunity”. Jurisdiction to punish for contempt exists to provide ultimate sanction against the person who refuses to comply with the order of the court or disregards the order continuously. Initiation of contempt proceedings is not a substitute for execution proceedings though at times that purpose may also be achieved.

No person can defy court’s order. Wilful would exclude casual, accidental bonafide or unintentional acts or genuine inability to comply with the terms of the order. A petitioner who complains breach of court’s order must allege deliberate or contumacious disobedience of the court’s order.

Nothing has been shown that the claim of the respondents that appellants have not been appointed against any vacancy existing on January 1, 1992 is not true or that the respondents are intentionally or deliberately advancing this plea to deprive the appellants of their right to the arrears of the salary for some ulterior motive. That being so, it was not a case where proceedings for contempt could have been initiated against the respondents. High Court is right in dismissing the contempt petition. However, since there is a serious dispute whether any vacancy existed or not as on January 1, 1992 against which appellants or anyone of them could have been appointed the matter certainly needs examination but perhaps only by way of an interlocutory application in the writ petition and not by way of contempt. Thus, though upholding the order of the High Court, we send the matter back to the High Court to go into the question if any vacancy existed as on January 1, 1992 and, if so, pass appropriate orders.

With these observations, this appeal stands disposed of.

Categories: Judgement

SC: punishing a person for contempt of Court is indeed a drastic step and normally such action should not be taken

Bench: A Lakshmanan, A Kabir

CASE NO.:

Appeal (civil) 1246 of 2007

PETITIONER:

All Bengal Excise Licensees Association

RESPONDENT:

Raghabendra Singh & Ors

DATE OF JUDGMENT: 09/03/2007

BENCH:

Dr. AR. Lakshmanan & Altamas Kabir

JUDGMENT:

J U D G M E N T

(Arising Out of SLP (C) NO. 15224 OF 2006)

Dr. AR. Lakshmanan, J.

Leave granted.

The above appeal was filed by All Bengal Licensees Association, Kolkata against 1) Raghabendra Singh, Principal Secretary, Excise Department, Govt. of West Bengal 2) Tallen Kumar, Excise Commissioner, Excise Department, 3) Manoj Kumar Panth, District Magistrate and Collector, 24-Parganas 4) Parvez Siddique, Addl. District Magistrate, 24-Parganas as contesting respondents and 5) Pradyut Kumar Saha, General Secretary of All Bengal Excise Licensees Association, Kolkata as proforma respondent.

The above appeal is directed against the final judgment and order dated 29.08.2006 of the Calcutta High Court passed in CC No. 62 of 2005 arising out of Writ Petition No. 2248 of 2004 whereby a learned Single Judge of the said High Court has dismissed the application for contempt filed by the appellant herein. According to the appellant, the contesting respondents have deliberately and willfully violated and were in utter disregard of the solemn order dated 04.01.2005, 19.01.2005 and 20.01.2005 passed by Hon’ble Mr. Justice Pranab Kumar Chattopadhyay in Writ Petition No. 2248 of 2004 filed by All Bengal Excise Licensees Assn. & Anr. Vs. State of West Bengal & Ors. The background facts are as under:

By an order dated 04.01.2005, a learned Single Judge passed an interim order to the effect that the respondent-authorities will be at liberty to process the applications in respect of grant of licenses for excise shops but no final selection in respect of such shops shall be made without obtaining specific leave of the Court. The High Court made it clear that the respondent-authorities will not hold any lottery for the purpose of final selection of the excise shops in question without obtaining further orders from the High Court. The said order dated 04.01.2005 was passed after hearing and in the presence of the learned advocate for the respondents.

The said interim order dated 04.01.2005 was extended by the order dated 19.01.2005 until further orders by the High Court.

Thereafter, on 28.01.2005 a learned Single Judge gave direction for filing the affidavit and the said interim order was further extended until further orders and the said interim order is still continuing.

The said orders dated 04.01.2005, 19.01.2005 and 20.01.2005 were communicated by the appellant’s advocate’s letter dated 15.03.2005 enclosing therewith the Xerox copies of the signed copies of the said dictated order. In spite of full knowledge about the said order each of the respondents, in deliberate and wilful disregard of the orders, caused an advertisement to be published in the newspapers for holding lottery for final selection of excise shops to be held on 20.03.2005, 21.03.2005 and 22.03.2005.

Pursuant to the said advertisement, a lottery has been held on 20.03.2005 for the purpose of final selection of the excise shops. It was submitted by the appellants that from the act and conduct of the respondents, it is evident that each of them have no regard for the orders dated 04.01.2005, 19.01.2005 and 20.01.2005 passed by this Court and are deliberately violating the said orders passed by the High Court and are thus guilty of contempt of Court. With these allegations, the appellants filed CC No. 62 of 2005 in the High Court.

The appellant is an Association of Excise Licensees including the country spirit shop owners. Challenging the policy decisions for issuance of thousands of excise licenses for opening of new foreign liquor off shop and country spirit shops in the State of West Bengal in violation of the provisions of the Bengal Excise Act, 1909 and the rules framed thereunder, the appellant, amongst others, moved a writ petition being No. 1982 of 2004 in the High Court upon notice to the respondents. A copy of the writ petition was also filed and marked as annexures in this civil appeal. The High Court (Hon’ble Mr. Justice Pinaki Chander Ghosh), after hearing the advocates for the parties on 24.11.2004 passed an order, inter alia as follows:

“that the respondent authorities will process the matter but will not finalise and issue the licence without the leave of the court.

The matter will appear on 9th December, 2004.

Thereafter, the above-mentioned matter appeared in the list on 09.12.2004 before the very same Judge. The learned Judge, after hearing the advocates for the parties, gave a direction to file affidavit and the matter was directed to appear 4 weeks after vacation and also further directed that the interim order already passed in the matter will continue.

Although there was no direction for making any further advertisement by the respondent-authorities inviting any application for obtaining excise licenses for the new excise shops proposed to be give on or about 20.12.2004, some of the members of the appellant came to know that an advertisement was published on 30.11.2004 in the Bengali Daily newspaper Janashakti by the Excise Department, Government of West Bengal, whereby applications had been invited for giving new licenses for excise including country spirit shops within the Districts of Coochbehar, Jalpaiguri, North 24 Parganas and Hooghly. The members also came to know that the Excise Authorities have issued a memo No. 23- 5(XX)/2003-04 3268 (21E) dated 07.12.2004 and rest to the District Magistrates and Collectors that there has been a proposal for granting supplementary country spirit license to the existing tari shop owners. The appellants made representations before the Excise Authorities and contended that since the matter is sub- judice, the respondent authorities cannot publish the said advertisement on 30.11.2005 and cannot issue the said memo. However, the Excise Authorities have further decided to hold lottery on 05.01.2005 for allotment of excise shops including the country spirit and foreign liquor shops. Immediately after coming to know about the above-mentioned fact, the North 24 Parganas Excise Licenses Assn. have moved a writ petition on 30.12.2004 before the vacation Judge of the High Court. In the said writ petition, the appellant No.1 herein was made a party respondent. The vacation Judge did not pass any interim order on the said writ petition against the said order dated 30.12.2004. The North 24 Parganas Excise Licencees Assn. preferred an appeal on 30.12.2004 and the Division Bench of the High Court passed an interim order on 30.12.2004 to the effect that the processing in respect of grant of issuance of country spirit license will continue but finalization and selection will not be made till 3 weeks after the vacation. However, they made it clear that finalisation include holding of lottery. The said order was restricted to only in the case of District North 24 Parganas. It was submitted that the subject-matter of writ petition No. 2248 of 2004 is that during the pendency of earlier writ petition, the respondent- authorities cannot issue any advertisement for inviting applications for obtaining new excise license including the country spirit shops and foreign liquor shops and cannot hold any lottery and further they cannot give the effect to the proposal for giving supplementary excise licensees to the tari shops. It was submitted that in order to frustrate the order dated 24.11.2004, the respondent authorities have made an advertisement dated 30.11.2004 and thereby invited applications from intending candidates from obtaining new licenses in respect of 4 Districts and further making attempt to hold lottery in respect of applications already received. In spite of repeated requests, the respondents have pre- determined to hold the lottery on 05.01.2005 which amounts to finalization of the applications for granting of licenses and they are also trying to issue supplementary licenses to the existing shop owners.

On 04.01.2005, the Court passed the following order:-

“Let this matter be listed before the regular bench one week after the Christmas vacation.

In the meantime, let there be an interim order only to the effect that the respondent authorities herein will be at liberty to process the applications in respect of grant of licence for excise shops but no final selection in respect of such shops shall be made without obtaining specific leave of this court.

I also make it clear that the respondent authorities will also not hold any lottery for the purpose of final selection of the aforesaid excise shops in question without obtaining further orders from this court. All parties are to act on a Xerox signed copy of this dictated order on the usual undertaking.” Again, the interim order was directed to continue until further orders on 28.01.2005. As already stated, the counsel for the appellant communicated the said orders and served upon the respondents the Xerox copies of the signed copies of the order dated 04.01.2005, 19.01.2005 and 20.01.2005. Although the said interim order dated 04.01.2005 which has been extended from time to time and is still continuing the respondents in utter disregard caused publication of the advertisement of the newspapers for holding lottery for the purpose of final selection of excise shops in question. It is also pertinent to mention here that both the Division Bench of the High Court order dated 15.03.2005 in APOT No. 770/2004 vacated the interim order passed in the appeal preferred by the North 24 Parganas Excise Licensees Assn. but the interim order passed in the writ petition being No. 2248 of 2004 is relating to any proposed new excise licenses through out the State of West Bengal is still continuing. However, in pursuance to the advertisement, the respondent authorities on 20th March held lottery for final selection of the aforesaid excise shops and shall hold further lottery on 22nd and 23rd March, 2005. It was, therefore, submitted that each of the respondents deliberately and willfully and in utter disregard to the orders dated 04.01.2005 held lottery for final selection of excise shops. It is further submitted that the respondents are guilty of deliberate and willful violation of the 3 orders passed by this Court and committed contumacious act and in spite of full knowledge about the orders. It was further submitted that the respondents have scant respect for the orders passed on all the 3 days in January, 2005 and are deliberately ignoring the said orders and are thus guilty of contempt of court. According to the appellant, by the above-mentioned act and conduct of the

contemnors/respondents the majesty and dignity of the High Court have been lowered down and, therefore, the respondents should be suitably dealt with and punished. It was also further submitted that having regard to the facts and circumstances of the case, the respondents should be restrained from holding any further lottery and/or from giving any effect and/or further effect of the lottery already held and/or from taking any further steps for issuance of any excise license to any person so that the majesty and dignity of the High Court is not lowered down. In the circumstances, they requested the High Court to issue rule nisi calling upon the respondents and each of them to show cause as to why the respondents and each of them should not be committed to prison or otherwise be suitably dealt with and/or punished for deliberate and willful violation and utter disregard of the solemn orders dated 04/19 and 20.01.2005 passed in writ petition No. 2248 of 2004.

In the contempt petition, rule was issued on 23.03.2005. The respondents filed an application praying for discharge of the rule issued in the contempt proceedings on 02.05.2005 North 24 Parganas Excise Licensees Assn. filed SLP (C) No. 10820 of 2005 against the order dated 15.03.2005 passed by the Division Bench of the High Court. The State of West Bengal filed an application for vacating the interim order dated 04.01.2005 passed in writ petition No. 2248 of 2004. On 26.07.2005, a learned Single Judge allowed the application and vacated the interim order but, however, directed the Government that they would be free to take steps in issuing license in terms of the policy but it will be mentioned in the license that it is subject to the result of the writ petition and further directed that all steps taken for issuing excise license would abide by the result of the writ petition.

Being aggrieved by the order of the learned Single Judge dated 26.07.2005, the appellant preferred an appeal being APOT No. 494 of 2005 on 10.08.2005. A Division Bench of the High Court dismissed the said appeal and confirmed the order of the single judge dated 26.07.2005. The Appellant’s Assn. preferred SLP No. 17371 of 2005 against the said judgment. This Court on 29.08.2005 issued notice with an interim direction to the effect that no license be issued in terms of the circular dated 20.01.2004 and the matter was directed to be listed along with SLP No. 10820 of 2005. Both the SLPs were dismissed by this Court on 07.11.2005. In the contempt application filed by the appellants, the learned Advocate General appearing for the contemnors submitted that there is a violation of the order passed earlier on 04.01.2005 but the said violation is not willful as the contemnor wrongly understood the implications of the orders passed by the High Court on 04.01.2005 and extended subsequently on 19th and 20th January, 2005 and also by the Division Bench on 15.03.2005, 18.03.2005 in two other different proceedings. It was further submitted that in order to hold a person guilty of contempt of court two things have to be proved. Firstly, disobedience of the order passed by the court and secondly such disobedience must be willful. The Advocate-General submitted that in the instant case there is no willful violation and, therefore, the contempt application should be dismissed. Some rulings were relied on by the learned Advocate General in support of his aforesaid contention.

A learned Single Judge of the High Court was of the opinion that the contemnors did not understand the implications and consequences of a prohibitory order passed in an independent proceedings and by sheer mis- conception thought that there is no bar to issue excise license in view of the orders dated 15.03.2005 and 18.05.2005 and that failure to understand the implications and/or consequences of the order passed by the High Court cannot be construed as an act of contempt.

In the light of the decisions cited, the High Court examined whether the alleged contemnors have committed any contempt of the High Court. While examining so, the High Court has observed as follows:- “Undisputedly this Bench on 4th January, 2005 passed an interim order restraining the alleged contemnors from holding any lottery for the purpose of final selection of the excise shops in question without obtaining further order from this court but the alleged contemnors published an advertisement in the daily newspaper for holding lottery for the purpose of final selection of excise shops in question. Therefore, there is no doubt that the alleged contemnors have disobeyed the specific direction passed earlier by this Bench.

The Division Bench of this Hon’ble court in two different proceedings passed two separate orders on 15th March, 2005 and 18th March, 2005 respectively whereby and whereunder the alleged contemnors herein were permitted to grant excise licenses. The alleged contemnors herein reasonably understood that the orders passed by the Division Bench will have overriding effect on the order passed by the learned Single Judge of this Hon’ble court and thus committed mistake by not realising the implication of the order passed by this Bench which remained operative at the relevant time.

If there is any doubt regarding interpretation and/or understanding of the orders passed by the courts of law, the alleged contemnors are entitled to have the benefit or advantage of such a doubt, as the act of contempt must be established beyond all reasonable doubt.

In the aforesaid circumstances, it cannot be said that the alleged contemnors herein willfully and deliberately violated the solemn order passed by this Bench on 4th January, 2005. Mere disobedience of an order is not sufficient to hold any one guilty under the Contempt of Courts Act unless such obedience is deliberate and willful.”

The High Court also observed as under:

“Although the alleged contemnors in their respective affidavits have tendered unqualified apology after categorically stating therein that they had no intention to willfully or deliberately violate the order passed earlier by this Bench but in view of the observations made hereinbefore, I am not inclined to go into the question of apology.”

For the aforementioned reasons, the contempt petition was dismissed by the High Court. Aggrieved by the dismissal of the contempt petition, the appellant preferred the above appeal arising out of SLP No. 15224 of 2006. This Court on 18.09.2006 issued notice and in the meanwhile directed that no license shall be granted on the basis of the lottery and pursuant to the circular dated 20.01.2004.

We heard Mr. K.K.Venugopal, Mr. L.N. Rao, Mr. Pradip Ghosh, Mr. Joydip Gupta, learned senior counsel for the appellant and Mr. Gopal Subramanium, learned Addl. Solicitor General and Mr. Bhaskar P. Gupta, learned senior counsel for R1-R4 and Mr. Aman Vachher for R5 and Mr. P.N. Misra and Mr. M.N. Krishnamani, learned senior counsel in I.A. 3 and I.A.4. We dismissed all applications for

impleadments/intervention on 21.02.2007 and heard the arguments of the appellants on merits. Elaborate and lengthy submissions were made by the respective parties with reference to the entire pleadings and various orders passed by the High Court and of this Court and also other annexures and case laws. Learned senior counsel appeared for the appellant submitted that in view of the finding of the learned Judge “that there is no doubt that alleged contemnor have disobeyed the specific direction passed earlier by this Bench”, the learned Judge of the High Court was not justified in holding that the alleged contemnor committed mistake by not realising the implication of the order passed by the High Court which remain operative at the relevant time and on that basis dismissing the application for contempt without making any order for restoration of the status quo ante to undo the mischief caused by such violation of the interim order. According to the learned senior counsel for the appellant, the impugned order is not sustainable in law and should not be allowed to operate as a precedent and the wrong perpetrated by the respondent/contemnors in contumacious disregard of the orders of the High Court should not be permitted to hold. Likewise, the High Court also committed a grievous error of law in holding that the alleged contemnors did not understand the implication and consequences of a prohibitory order passed in an independent proceedings and by sheer mis- conception thought that there is no bar to issue excise licenses in view of the order dated 15.03.2005 and 18.03.2005 by two different Division Benches of the High Court. In support of their contention, they cited the following rulings:

1. Kapildeo Prasad Sah and Ors. Vs. State of Bihar & Ors., (1999) 7 SCC 569

2) Tayabbhai M. Bagasarwalla and Anr. Vs. Hind Rubber Industries Pvt. Ltd. & Ors., (1997) 3 SCC 443

3) Eastern Trust Company vs. MaKenzie Mann & Co., Ltd., AIR 1915 Privy Council 106

4) Anil Ratan Sarkar and Ors. Vs. Hirak Ghosh & Ors., (2002) 4 SCC 21

5) All India Regional Rural Bank Officers Federation & Ors. Vs. Govt. of India and Ors. (2002) 3 SCC 554

6) Ravi S. Naik vs. Union of India & Ors. 1994 Supp (2) SCC 641

7) Surjit Singh and Ors. Vs. Harbans Singh and Ors. (1995) 6 SCC 50

8) T.M.A. Pai Foundation and Ors. Vs. State of Karnataka & Ors. (1995) 4 SCC 1

9) Vidya Charan Shukla vs. Tamil Nadu Olympic Assn. & Anr. AIR 1991 Madras 323

10) Century Flour Mills Ltd. vs. S. Suppiah and Ors. AIR 1975 Madras 270

Mr. Gopal Subramanium and Mr. Bhaskar P. Gupta appearing for the contesting respondent Nos. 1-4 reiterated the same contentions which have been urged before the High Court and since the learned single Judge clearly found that there was no willful and deliberate violation of the order of the learned Single Judge pursuing the same in the further appeal does not arise and inasmuch as it was held that there was no deliberate and willful violation as such, this Court may not issue direction of setting aside the lottery already held. It was also denied that lottery was held in breach of the interim orders passed as alleged or at all. On the contrary, the learned single Judge held that there was no willful and deliberate violation of the order. It was further submitted that the entire judgment of the single Judge is required to be read and not in bits and pieces and that it would appear from the judgment that the single Judge has unequivocally held that there was no deliberate and willful violation of the order and thus has rightly dismissed the contempt application.

We have carefully considered the rival submissions made by learned senior counsel appearing for the respective parties. It is not in dispute that an injunction order was passed on 04.01.2005 and on subsequent extension is still subsisting. Respondent Nos.1-4 admittedly are highly qualified and highly placed government officials. Admittedly, by advocate’s letter dated 15.03.2005, it was pointed out to them that the injunction order dated 04.01.2005 and its subsequent extensions are still subsisting. They have also acknowledged the receipt of the communication dated 15.03.2005. Under such circumstances, the High Court is not justified in holding that the highly qualified and well placed government officials did not understand the implication and/or consequence of prohibitory order in an independent proceedings and by sheer mis-conception though that there is no bar to issue excise licenses as was held by the learned Judge in the impugned order. This Court can only say it is rather unfortunate that such officers who are not capable of or not able to understand the implication of the prohibitory orders passed by the High Court should be allowed to hold such high offices. During the course of the hearing of the contempt application, the matter was adjourned by the High Court to enable the respondent to consider whether the contemnors was prepared to cancel the lottery held on 20, 21 and 22.03.2005 in violation of the Court’s orders and on such adjourned date, the contemnors did not agree to cancel the lottery. Under such circumstances, the plea of mistake of understanding the order cannot at all be accepted. Likewise, the High Court also was not justified in not directing the contemnors to cancel the lottery held on 20, 21 and 22.03.2005 in violation of the solemn orders passed by the very same Judge and in view of the clear finding of the Court that they had acted in clear violation of the said interim order made by the High Court.

Even assuming that there was any scope for bona fide misunderstanding on the part of the respondents, once it was found that the respondent had disobeyed the specific order passed earlier by the Court, the High Court should have directed the contemnors to undo the wrong committed by them which was done in clear breach of the order of the Court by restoring the status quo ante by canceling the lottery wrongfully held by them. The learned Judge found that the respondent-contemnors had held the lottery in violation of the Court’s order and the results of the said lottery should not be permitted to take effect and should be treated as unlawful and invalid for the purpose of grant of license. The learned Single Judge for the purpose of upholding the majesty of law and the sanctity of the solemn order of the court of law which cannot be violated by the executive authority either deliberately or unwittingly should have set aside the lottery held and should not have allowed the respondents to gain a wrongful advantage thereby. In our opinion, a party to the litigation cannot be allowed to take an unfair advantage by committing breach of an interim order and escape the consequences thereof. By pleading misunderstanding and thereafter retaining the said advantage gained in breach of the order of the Court and the wrong perpetrated by the respondent-contemnors in contumacious disregard of the order of the High Court should not be permitted to hold good. In our opinion, the impugned order passed by the High court is not sustainable in law and should not be allowed to operate as a precedent and the wrong perpetrated by the respondent-contemnors in utter disregard of the order of the High Court should not be permitted to hold good. The High Court has committed a grievous error of law in holding that failure to understand the implication and consequences of the order passed by the High Court by highly placed government officers cannot be construed as an act of contempt. The High Court has failed to understand that the highly educated and highly placed government officials have competent legal advisors and it was not open to them to allege and contend that the respondent-contemnors did not understand the implication of the order dated 04.01.2005. In our opinion, such officers are required to be dealt with effectively to uphold the dignity of the High Court and the efficiency of the system itself. The High Court committed a grave error of law by not taking into consideration the most important fact that in the course of the hearing of the contempt application the matter was adjourned in order to enable the contemnor to consider whether they were prepared to cancel the lottery held on 20, 21 and 22.03.2005 and on the adjourned date, the respondents did not agree to cancel the lottery. In such view of the matter, the significant stand being the plea of mistake of understanding cannot, in our opinion, prevail. The High Court in that view of the matter committed a grave mis-carriage of justice by not taking into consideration another most important fact that if actually the lottery was held by mistake or by misunderstanding of the orders, then the respondent would have immediately rectified it and would have cancelled the lottery but in the instant case, instead of canceling the lottery, the respondents have justified their conduct from which the determined declination of obeying the order is clearly proved. In other words, if there was a doubt about the implication of the order of the Court, the respondents should have approached the Court and should have clarified their alleged confusion. But in the instant case, the respondents have not only violated the order but when the contempt application was moved and opportunity was given by the Court to cancel the lottery they refused to cancel the said lottery from which it is proved that they deliberately held the lottery in clear violation of the order dated 04.01.2005 having regard to the admissions made on behalf of the contemnors that there is violation of the order dated 04.01.2005 and also having regard to the learned Single Judge’s own finding that “there is no doubt that the alleged contemnor disobeyed the specific directions passed earlier by this Bench”. The High Court should have directed the contemnor to cancel the lottery held on these 3 dates. The High Court also failed to consider the effect of the appellant’s learned advocate’s letter dated 15.03.2005 whereby it was clearly pointed out about the subsistence of the order dated 04.01.2005 and its subsequent extension. By the said letter, the appellant’s advocate categorically pointed out further that in spite of the above if the lottery is held or further action is taken for issue of excise license, the appellant shall be compelled to take legal action.

In our opinion, the judgment and order passed by the High court are bad in law and is liable to be set aside. LAW ON THE SUBJECT:

1. Kapildeo Prasad Sah and Ors. Vs. State of Bihar & Ors., (1999) 7 SCC 569

“For holding the respondents to have committed contempt, civil contempt at that, it has to be shown that there has been willful disobedience of the judgment or order of the court. Power to punish for contempt is to be resorted to when there is clear violation of the court’s order. Since notice of contempt and punishment for contempt is of far-reaching consequence, these powers should be invoked only when a clear case of willful disobedience of the court’s order has been made out. Whether disobedience is willful in a particular case depends on the facts and circumstances of that case. Judicial orders are to be properly understood and complied with. Even negligence and carelessness can amount to disobedience particularly when the attention of the person is drawn to the court’s orders and its implications. Disobedience of the court’s order strikes at the very root of the rule of law on which Indian system of governance is based. Power to punish for contempt is for the maintenance of effective legal system. It is exercised to prevent perversion of the course of justice. Jurisdiction to punish for contempt exists to provide ultimate sanction against the person who refuses to comply with court’s order or disregards the order continuously. No person can defy court’s order. Wilful would exclude casual, accidental, bona fide or unintentional acts or genuine inability to comply with the terms of the order. A petitioner who complains breach of the court’s order must allege deliberate or contumacious disobedience of the court’s order.”

2) Tayabbhai M. Bagasarwalla and Anr. Vs. Hind Rubber Industries Pvt. Ltd. & Ors., (1997) 3 SCC 443 “16. According to this section, if an objection is raised to the jurisdiction of the court at the hearing of an application for grant of, or for vacating, interim relief, the court should determine that issue in the first instance as a preliminary issue before granting or setting aside the relief already granted. An application raising objection to the jurisdiction to the court is directed to be heard with all expedition. Sub-rule (2), however, says that the command in Sub-rule (1) does not preclude the court from granting such interim relief as it may consider necessary pending the decision on the question of jurisdiction. In our opinion, the provision merely states the obvious. It makes explicit what is implicit in law. Just because an objection to the jurisdiction is raised, the court does not become helpless forthwith – nor does it become incompetent to grant the interim relief. It can. At the same time, it should also decide the objection to jurisdiction at the earlier possible moment. This is the general principle and this is what Section 9-A reiterates. Take this very case. The plaintiff asked for temporary injunction. An ad-interim injunction was granted. Then the defendant came forward objecting to the grant of injunction and also raising an objection to the jurisdiction of the court. The court over-ruled the objection as to jurisdiction and made the interim injunction absolute. The defendants filed an appeal against the decision on the question of jurisdiction. While that appeal was pending, several other interim order were passed both by the Civil Court as well as by the High Court. Ultimately, no doubt, High Court has found that the Civil Court had no jurisdiction to entertain the suit but all this took about six years. Can it be said that orders passed by the Civil Court and the High Court during this period of six years were all non-est and that it is open to the defendants to flout them merrily, without fear of any consequence. Admittedly, this could not be done until the High Court’s decision on the question of jurisdiction. The question is whether the said decision of the High Court means that no person can be punished for flouting or disobeying the interim/interlocutory orders while they were in force, i.e., for violations and disobedience committed prior to the decision of the High Court on the question of jurisdiction Holding that by virtue of the said decision of the High Court (on the question of jurisdiction, no one can be punished thereafter for disobedience or violation of the interim orders committed prior to the said decision of the High Court, would indeed be subversive of rule of law and would seriously erode the dignity and the authority of the courts. We must repeat that this is not even a case where a suit was filed in wrong court knowingly or only with a view to snatch an interim order. As pointed out hereinabove, the suit was filed in the Civil Court bonafide. We are of the opinion that in such a case the defendants cannot escape the consequences of their disobedience and violation of the interim injunction committed by them prior to the High Court’s decision on the question of jurisdiction.”

3) Eastern Trust Company vs. MaKenzie Mann & Co., Ltd., AIR 1915 Privy Council 106

“There is a well-established practice in England in certain cases where no petition of right will lie, under which the Crown can be sued by the Attorney -General, and a declaratory order obtained, as has been recently explained by the Court of Appeal in England in Dyson v. Attorney-General, 1911 (1) KB 410 and in Burghes v. Attorney-General 1912 (1) Ch. 173 . It is the duty of the Crown and of every branch of the Executive to abide by and obey the law. If there is any difficulty in ascertaining it, the courts are open to the Crown to sue, and it is the duty of the Executive in cases of doubt to ascertain the law, in order to obey it, not to dis-regard it. The proper course in the present case would have been either to apply to the Court to determine the question of construction of the contract, and to pay accordingly, or to pay the whole amount over to the Receiver and to obtain from the Court an order on the Receiver to pay the sums properly payable for labour and supplies, as to the construction of which their Lordships agree with Supreme Court of Nova Scotia.

The duty of the Crown in such a case is well stated by Lord Abhinger Chief Barren in Deare v. Attorney General 1835 (1) y. & C.197. After pointing out that the Crown always appears (in England) by the Attorney- General in a Court of Justice-especially in a Court of Equity- where the interest of the Crown is concerned, even perhaps in a bill for discovery, he goes on to say:

“It has been the practice, which I hope never will be discontinued, for the officers of the Crown to throw no difficulty in the way of any proceeding for the purpose of bringing matters before a court of Justice where any real point of difficulty that requires judicial decision has occurred.”

4) Anil Ratan Sarkar and Ors. Vs. Hirak Ghosh & Ors., (2002) 4 SCC 21

“20. Similar is the situation in the counter-affidavit filed presently in this matter as well : Is this fair ? The answer having regard to the factual backdrop cannot but be in the negative. It is neither fair nor reasonable on the part of a senior Civil Service Personnel to feign ignorance or plead understanding when the direction of this Court stands crystal clear in the judgment. Government employees ought to be treated on a par with another set of employees and this Court on an earlier occasion lent concurrence to the view of the learned Single Judge that the Circulars issued by the State Government cannot but be ascribed to be arbitrary : Government is not a machinery for oppression and ours being a welfare State as a matter of fact be opposed thereto. It is the people’s welfare that the State is primarily concerned with and avoidance of compliance with a specific order of the Court cannot be termed to be a proper working of a State body in terms of the wishes and aspirations of the founding fathers of our Constitution. Classless, non- discriminate and egalitarian society are not meaningless jargons so that they only remain as the basic factors of our socialistic state on principles only and not to have any application in the realities of every-day life : one section of the employees would stand benefited but a similarly placed employee would not be so favoured why this attitude ? Obviously there is no answer. Surprisingly, this attitude persists even after six rounds of litigation travelling from Calcutta to Delhi more than once the answer as appears in the counter-affidavit is an expression of sorrow by reason of the understanding cannot be countenanced in the facts presently under consideration. A plain reading of the order negates the understanding of the Respondent State and the conduct in no uncertain terms can be ascribed to be the manifestation of an intent to deprive one section of the employees being equally circumstanced come what may and this state of mind is clearly expressed in the counter-affidavit though however in temperate language. The question of bona fide understanding thus does not and cannot arise in the facts presently. Is it a believable state of affairs that the order of the learned Single Judge as early as the first writ petition, has not been properly understood by the senior most bureaucrat of the State Government : the same misunderstanding continues in terms of the appellate Court’s order and the third in the line of order is that of the apex Court. The understanding again continues even after the second writ petition was filed before the learned Single Judge in the High Court and the similar understanding continues even after the so to say clarificatory order by this Court, as appears from the order dated 20th April, 2001. Even in the counter- affidavit, filed in Contempt Petition, the understanding still continues we are at a loss as to what is this understanding about : the defence of ‘understanding’ undoubtedly is an ingenious effort to avoid the rigours of an order of Court but cannot obliterate the action the attempted avoidance through the introduction of the so- called concept of lack of understanding cannot, however, be a permanent avoidance, though there may be temporary and short-lived gains. The order of this Court cannot possibly be interpreted as per the understanding of the Respondents, but as appears from the plain language used therein. Neither the order is capable of two several interpretations nor there is any ambiguity and the same does not require further clarity. The order is categorical and clear in its context and meaning. The Court’s orders are to be observed in its observance, rather than in its breach.”

5) All India Regional Rural Bank Officers Federation & Ors. Vs. Govt. of India and Ors. (2002) 3 SCC 554 “4. Mr. Mukul Rohtagi, the learned Additional Solicitor General, however tried to impress upon us the circumstances under which the notification had been issued, the same being severe financial crisis and the learned Additional Solicitor General further urged that the monetary benefits of the employees of the banks will have to be so modulated so that the banks should be ultimately be closed down by merely paying the salary of the employees. Even though the financial position of the banks may not be disputed, but having regard to the directions issued by this Court, while disposing of the civil appeal and having regard to the circumstances under which such directions had been given, it would be difficult for us to sustain the plea of the union Government that the Notification is in compliance with the judgment and directions of this Court. The financial capacity of the Government cannot be pleaded as a ground for non-implementation of the directions of the Court inasmuch as even in the matter of determination of the pay-scale of the employees of the Regional Rural Banks and maintenance of parity with their counterparts, serving under the sponsorer commercial banks, Justice Obul Reddi had not accepted the said plea and that award reached its finality. Since the financial capacity of the employer cannot be held to be a germane consideration for determination of the wage structure of the employees and the Parliament enacted the Act for bringing into existence these regional rural banks with the idea of helping the rural mass of the country, the employees of such rural banks cannot suffer on account of financial incapacity of the employer. We have no hesitation in coming to the conclusion that the issuance of notification dated 1.4.2001, by the Government of India cannot be held to be in compliance with the judgment and directions of this Court in S.M.G. Bank. But at the same time, we are of the opinion that the appropriate authority need not be punished under the provisions of the Contempt of Courts Act, even if the notification is in direct contravention of the judgment of this Court, as we do not find a case of deliberate violation. While, therefore, we do not propose to take any action against the alleged contemnors, we direct that the employees of the Regional Rural Banks should be paid their current salaries on the basis of determination made under the notification dated 11.4.2001, the new basic pay having arrived at, as on 1.4.2000 forthwith Paragraph (i) of the aforesaid notification dated 11.4.2001 should be immediately implemented and the employees should be paid accordingly. Paragraphs (ii) and (iii) of the notification are quashed and the Central Government is directed to issue a fresh notification for proper implementation of the Judgment of this Court. We make it clear that the period of moratorium with regard to the payment of arrears, since is going to be over on 31.3.2002, the arrear salary accruing to the employees be paid to them in three equal annual installments, the first being on 30th of April, 2002, the second on 30th of April, 2003 and the third on 30th April, 2004. This payment has to be made as aforesaid without being any way dependant upon any other considerations and there cannot be any distinction between the regional rural banks incurring loss and the regional rural banks, making profit. Further, the question of anticipated cash out-flow on account of increase in salary if exceeds 50% of the operating profit, then the current payment would be restricted only upto 50% is absolutely of no relevance, which was indicated in the impugned notification dated 11.4.2001. Having regard to the financial condition of the Government as well as these banks, the installment to be paid on 30.4.2002, pursuant to this order of ours, the same may be deposited in the employees’ provident fund account. But all other installments will have to be paid in cash.” 6) Ravi S. Naik vs. Union of India & Ors. 1994 Supp (2) SCC 641

“40. We will first examine whether Bandekar and Chopdekar could be excluded from the group on the basis of order dated December 13, 1990 holding that they stood disqualified as members of the Goa Legislative Assembly. The said two members had filed Writ Petition No. 321 of 1990 in the Bombay High Court wherein they challenged the validity of the said order of disqualification and by order dated December 14, 1990 passed in the said writ petition the High Court had stayed the operation of the said order of disqualification dated December 13, 1990 passed by the Speaker. The effect of the stay of the operation of the order of disqualification dated December 13, 1990 was that with effect from December 14, 1990 the Declaration that Bandekar and Chopdekar were disqualified from being members of Goa Legislative Assembly under order dated December 13, 1991 was not operative and on December 24, 1990, the date of the alleged split, it could not be said that they were not members of Goa Legislative Assembly. One of the reasons given by the Speaker for not giving effect to the stay order passed by the High Court on December 14, 1990, was that the said order came after the order of disqualification was issued by him. We are unable to appreciate this reason. Since the said order was passed in a writ petition challenging the validity of the order dated December 13, 1990 passed by the Speaker it, obviouly, had to come after the order of disqualification was issued by the Speaker. The other reason given by the Speaker was that Parliament had held that the Speaker’s order cannot be a subject- matter of court proceedings and his decision is final as far as Tenth Schedule of the Constitution is concerned. The said reason is also unsustainable in law. As to whether the order of the Speaker could be a subject matter of court proceedings and whether his decision was final were questions involving the interpretation of the provisions contained in Tenth Schedule to the Constitution. On the date of the passing of the stay order dated December 14, 1990, the said questions were pending consideration before this Court. In the absence of an authoritative pronouncement by this Court the stay order passed by the High Court could not be ignored by the Speaker on the view that his order could not be a subject-matter of court proceedings and his decision was final. It is settled law that an order, even though interim in nature, is binding till it is set aside by a competent could and it cannot be ignored on the ground that the Court which passed the order had no jurisdiction to pass the same. Moreover the stay order was passed by the High Court which is a Superior Court of Record and “in the case of a superior Court of Record, it is for the court to consider whether any matter falls within its jurisdiction or not. Unlike a court of limited jurisdiction, the superior Court is entitled to determine for itself questions about its own jurisdiction.” (See: Special Reference No. 1 of 1964, [1965] 1 S.C.R. 413 at p. 499).

42. In Mulraj v. Murti Raghonathji Maharaj, this Court has dealt with effect of a stay order passed by a court and has laid down:

In effect therefore a stay order is more or less in the same position as an order of injunction with one difference. An order of injunction is generally issued to a party and it is forbidden from doing certain acts. It is well settled that in such a case the party must have knowledge of the injunction order before it could be penalised for before disobeying it. Further it is equally well-settled that the injunction order not being addressed to the court, if the court proceeds in contravention of the injunction order, the proceedings are not a nullity. In the case of a stay order, as it is addressed to the court and prohibits it from proceeding further, as soon as the court has knowledge of the order it is bound to obey it and if it does not, it acts illegally, and all proceedings taken after the knowledge of the order would be a nullity. That in our opinion is the only difference between an order of injunction to a party and an order of stay to a court.

This would mean that the Speaker was bound by the stay order passed by the High Court on December 14, 1990 and any action taken by him in disregard of the said stay order was a nullity. In the instant case the Speaker, in passing the order dated February 15, 1991 relating to disqualification, treated Bandekar and Chopdekar as disqualified members. This action of the Speaker was in disregard of the stay order dated December 14, 1990 passed by the Bombay High Court.” 7) Surjit Singh and Ors. Vs. Harbans Singh and Ors. (1995) 6 SCC 50

“4. As said before, the assignment is by means of a registered deed. ‘The assignment had taken place after the passing of the preliminary decree in which Pritam singh has been allotted 1/3rd share. His right to property to that extent stood established. A decree relating to immovable property worth more than hundred rupees, if being assigned, was required to be registered, that has instantly been done. It is per se property, for it relates to the immovable property involved in the suit. It clearly and squarely fell within the ambit of the restraint order. In sum, it did not make any appreciable-difference whether property per se had been alienated or a decree pertaining to that property. In defiance of the restraint order, the

alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prelavent public policy, When the court intends a particular state of affairs to exist while it is in seizin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes. Once that is so, Pritam singh and his assignees, respondents herein, cannot claim to be impleaded as parties on the basis of assignment. Therefore, the assignees-respondents could not have been impleaded by the trial court as parties to the suit, in disobedience of its orders. The principles of lis pendens are altogether on a different footing. We do not propose to examine their involvement presently. All what is emphasised is that the assignees in the present facts and circumstances had no cause to be impleaded as parties to the suit. On that basis, there was no cause for going into the question of interpretation of paragraphs 13 and 14 of the settlement deed. The path treated by the courts below was, in our view, out of their bounds. Unhesitatingly, we upset all the three orders of the courts below and reject the application of the assignees for impleadment under Order 22 Rule 10 C.P.C.}

8) Delhi Development Authority vs. Skipper Construction Co. (P) Ltd. and Anr. (1996) 4 SCC 622 “17. The principle that a contemnor ought not to be permitted to enjoy and/or keep the fruits of his contempt is well-settled. In Mohd. Idris v. R.J. Babuji, this Court held clearly that undergoing the punishment for contempt does not mean that the Court is not entitled to give appropriate directions for remedying and rectifying the things done in violation of its Orders. The petitioners therein had given an undertaking to the Bombay High Court. They acted in breach of it. A learned Single Judge held them guilty of contempt and imposed a sentence of one month’s imprisonment. In addition thereto, the learned Single Judge made appropriate directions to remedy the breach of undertaking. It was contended before this Court that the learned Judge was not justified in giving the aforesaid directions in addition to punishing the petitioners for contempt of court. The argument was rejected holding that “the Single Judge was quite right in giving appropriate directions to close the breach (of undertaking)”.

18. The above principle has been applied even in the case of violation of orders of injunction issued by Civil Courts. In Clarke v. Chadbum [1985] 1 All. E.R. 211, Sir Robert Megarry V-C observed :

I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Willful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, 1 cannot see why it should be said that although they are liable to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach in law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them.”

9) Vidya Charan Shukla vs. Tamil Nadu Olympic Assn. & Anr. AIR 1991 Madras 323 (FB)

“56-57. Adverting to the facts of this case, we knew that the main relief in the suit to declare that the notice dated 26-5-1990 issued by the first and second defendants on the basis of the requisition notices convening a Special General Meeting of the Association on 15-6-1990 is illegal, null and void cannot be said to have become infructuous merely because the Court instead of granting an injunction to hold the meeting on 15-6-1990, gave a direction to consider an agenda of no-confidence against the Executive Council and election of new President and members of the Council in a particular manner. It can still be found in the suit that the notice was illegal, null and void and as a consequence, the Court may suitably modulate the relief or permit the plaintiffs to amend the relief. Besides this the trial Court will have jurisdiction to consider the grant of a mandatory injunction even in a suit which stood disposed of if its decree is found to have been violated or frustrated. The trial Court being a Court of Record will have special jurisdiction/inherent power to pass such orders as are deemed necessary to meet the ends of justice since this power is saved for it under Sections 4 and 151 of the Code of Civil Procedure and Articles 215 and 225 of the Constitution. The instant suit which is still pending, shall give to the Court power to consider the desirability to grant a mandatory injunction, for the reason of its interim injunction having been violated, to remove the violation and until the suit is finally decided to preserve the property in dispute in Status Quo.”

10) Century Flour Mills Ltd. vs. S. Suppiah and Ors. AIR 1975 Madras 270 (FB)

“9. In our opinion, the inherent powers of this court under Section 151 C.P.C. are wide and are not subject to any limitation. Where in violation of a stay order or injunction against a party, something has been done in disobedience, it will be the duty of the court as a policy to set the wrong right and not allow the perpetuation of the wrong doing. In our view, the inherent power will not only be available in such a case, but it is bound to be exercised in that manner in the interests of justice. Even apart from Section 151, we should observe that as a matter of judicial policy, the court should guard against itself being stultified in circumstances like this by holding that it is powerless to undo a wrong done in disobedience of the court’s orders. But in this case it is not necessary to so to that extent as we hold that the power is available under Section 151. C.P.C.” 11) T.M.A. Pai Foundation and Ors. Vs. State of Karnataka & Ors. (1995) 4 SCC 1

In this case, suo motu contempt proceedings was initiated by the Court against Secretary, Deputy Secretary and Under Secretary to Medical Education Department and few other officers of the State. Explanation was given by these officers admitting bona fide error made in interpreting this Court’s order. This Court having regard to the sequence of events, extraordinary speed in processing the representation of the Association and conduct of the officers, held, explanation not acceptable. Since the order of this Court was explicit and clear but it was subverted on an ex facie faulty and deliberately distorted interpretation at the instance of the Association. Hence, this Court felt that to accept their unconditional apology would be travesty of justice and officers were thus held guilty of contempt of Court and their conduct censured by the Court. This Court also held that unconditional apology is not a complete answer to violations and infractions of the orders of this Court.

12) Satyabrata Biswas and Ors. Vs. Kalyan Kumar Kisku and Ors. (1994) 2 SCC 266 This Court held thus: 4.From the above it is seen that in relation to the properties an order of status quo as of today, that is, 15th September, 1988, had been passed by the court. It is complained that there is a violation of these three orders by the six respondents, Satyabrata Biswas, Rev. Bilash Chandra Das, Salil Biswas, Sushil Sharma, Rt. Rev. Dinesh Chandra Gorai and Rt. Rev. John E. Ghosh. The contempt was for: (1) putting a padlock to the main entrance of the premises on 3.7.1993; (2) disconnecting water supply, (3) obstructing sewerage line; and (4) preventing the appellants from getting the rooms repaired.

10. Under these circumstances the present civil appeal by special leave has come to be preferred. It is urged on behalf of the appellants that in view of status quo order dated 15th September, 1982 regarding the fixed property in possession of the Durgapur Diocese no tenancy or sub-tenancy rights could be created. It was also urged that the said Somani Builders became sub-tenant under an agreement dated 10th May, 1993. Such a sub-tenancy cannot be valid in view of the status quo order. It is somewhat strange that Somani Builders should made an oral application before the learned Single Judge. On the basis of the oral application, the order came to be passed in favour of the Somani Builders directing the Special Officer to remove the padlock. As to what was the nature of the prayer, that too by a person who was not a party to any one of these proceedings, is not known. Therefore, the removal of padlock on its instance, as directed by the learned Single Judge, was not warranted. As though to add insult to injury when the appellant was complaining about this order, the Division Bench goes one step further and directs possession be given to Somani Builders. This direction would amount to putting a premium on the illegality committed by the former alleged tenant A.K. Ghosh.

23. Apart from the fact whether A.K. Ghosh had a legal authority to sub-lease or not it was not open to him to grant a sub-lease in violation of the order. It is no use contending as Mr. Chidambaram, learned Counsel for the respondents does, that there was a bar to such a sub-lease under the terms of the status quo order. It has the effect of violating the preservation of status of the property. This will all the more be so when this is done without the leave of the court to disturb the state of things as they then stood. It would amount to violation of the order. The principle contained in the maxim: ‘Actus Curiae Neminem Gravabit’ has no application at all to the facts of this case when in violation of status quo order a sub-tenancy has been created. Equally, the contention that even a trespasser cannot be evicted without recourse to law is without merit, because the state of affairs in relation to property as on 15.9.1988 is what the Court is concerned with. Such an order cannot be circumvented by parties with impunity and expect the court to confer its blessings. It does not matter that to the contempt proceedings Somani Builders was not a party. It cannot gain an advantage in derogation of the rights of the parties, who were litigating originally. If the right of sub- tenancy is recognised, how is status quo as of 15.9.1988 maintained? Hence, the grant of sub-lease is contrary to the order of status quo. Any act done in the teeth of the order of status quo is clearly illegal. All actions including the grant of sub-lease are clearly illegal.

In our opinion, the respondent Nos.1-4 had deliberately and with mala fide motive have committed contempt of the High Court in conducting the lottery quite contrary to the order of injunction passed by the High Court on 04.01.2005 and its subsequent extensions. When the auction was held, the order passed by the High Court remain operative at the relevant time. The High Court has miserably failed in not issuing direction to the contemnors to cancel the lottery held on 20, 21 and 22.03.2005 in violation of the solemn order passed by the High Court. In view of the clear finding of the Court that the respondent had acted in clear violation of the order made by the High Court. It is settled law that a party to the litigation cannot be allowed to take an unfair advantage by committing breach of an interim order and escape the consequences thereof by pleading misunderstanding and thereafter retain the said advantage gained in breach of the order of the Court. Such violations should be put an end with an iron hand. We are unable to accept the argument advanced by learned Addl. Solicitor General that the respondents did not understand the implication and consequences of a prohibitory order passed by the High Court. We have already explained their conduct and the refusal to cancel the order when they were advised to do so by the High Court during the pendency of the contempt proceedings. The act of the respondent is not only willful but also deliberate and contumacious. The High Court committed a grave error of law by not holding that if there was a doubt about the implication of the order of the Court, the alleged contemnors should have approached the Court and have clarified their alleged confusion. Likewise, this Court while ordering notice in the present appeal @ SLP No. 15224 of 2006 have clearly directed on 18.09.2006 that no license shall be granted on the basis of the lottery and pursuant to the circular dated 20.01.2004. Even after the receipt of the order, the respondents have not cancelled the license, but allowed them to continue the business. The reason is obvious. The respondents though tendered unqualified apology before the High Court, the High Court was not inclined to go into the question of apology in view of the observations made by it in the order impugned in this civil appeal. Even before us no apology whatsoever was tendered by respondent Nos.1-4. We, therefore, hold them guilty of willful and deliberate act of contempt. As it is evident that respondent Nos.1-4 have no regard for the orders passed by this Court on 4, 19 and 20.01.2005 and have scant respect for the Court’s orders and have deliberately and willfully and with utter disregard violated all the 3 orders and are thus guilty of contempt of Court. However, taking a lenient view and taking into consideration of the future prospects of the officers, respondent Nos. 1-4 we are not imposing any punishment for their willful violation of the order of the High Court and accept the unqualified apology filed before the High Court. Respondent Nos. 1-4 are severely warned that they shall not involve themselves or violate the order passed by any Court of law and will not resort to the unacceptable plea that the said highly placed and highly qualified government officials did not understand the implication and/or consequences of a prohibitory order passed by the Courts of law. They shall not hereafter also take the plea of inventing an innovative defence that they did not realise the implications of the order passed by the High Court which remained operative at the relevant time. In the instant case, the respondents have conducted the auction quite contrary to and in violation of an injunction order passed by the High Court. Courts have held in a catena of decisions that where in violation of a restraint order or an injunction order against a party, something has been done in disobedience, it will be the duty of the Court as a policy to set the wrong right and not allow the perpetuation of the wrong doing. In our opinion, the inherent power will not only be available under Section 151 CPC as available to us in such a case but it is bound to be exercised in that manner in the interest of justice and public interest. As rightly observed by the Full Bench of the Madras High Court in AIR 1975 Madras 270, that as a matter of judicial policy the Court should guard against itself being stultified in circumstances like this by holding that it is powerless to undo a wrong done in disobedience of the Court’s orders. We, therefore, cancel all the auctions held on 20, 21 and 22.03.2005 and direct the respondent Nos.1-4 not to allow the successful bidders to continue the business and shall stop them forthwith and submit a report to this Court of strict compliance. We make it clear that we are not expressing any opinion on the merits of the claim made by the appellant Association in the writ petition filed by them before the High Court which is pending. All the respondent Nos.1-4 are senior and experienced officers and must be presumed to know that under the constitutional scheme of this country orders of the High Court have to be obeyed implicitly and that orders of this Court  for that matter any Court should not be trifled with. We have already found hereinabove that they have acted deliberately to subvert the orders of the High Court evidently. It is equally necessary to erase an impression which appears to be gaining ground that the mantra of unconditional apology is a complete answer to violations and infractions of the orders of the High Court or of this Court. We, therefore hold them guilty of contempt of Court and do hereby censure their conduct. Though a copy of this order could be sent which shall form part of the annual confidential record of service of each of the said officers, we refrain from doing so by taking a lenient view of the matter considering the future prospects of the officers. As already stated, the officers shall not indulge in any adventurous act and strictly obey the orders passed by the Courts of law. The civil appeal stands allowed. Though this is a fit case for awarding exemplary costs, again taking a lenient view, we say no costs.

Categories: Judgement

SC: mere disobedience of an order may not be sufficient to amount to a “civil contempt”

Bench: U Banerjee, Y Sabharwal

CASE NO.:

Contempt Petition (civil) 260-261 of 2001

Appeal (civil) 2906-2907 of 2001

PETITIONER:

ANIL RATAN SARKAR & ORS.

Vs.

RESPONDENT:

HIRAK GHOSH & ORS.

DATE OF JUDGMENT: 08/03/2002

BENCH:

U.C. Banerjee & Y.K. Sabharwal

JUDGMENT:

Banerjee, J.

The most accepted methodology of governmental working ought always to be fairness and in the event of its absence, law Courts would be within its jurisdiction to deal with the matter appropriately. This proposition is so well settled that we need not dilate further on to this. It is this concept of fairness which Mr.Ganguli, appearing in support of the Petition for contempt very strongly contended, is totally absent in spite of three final rounds of litigation upto this Court between the parties. Mr. Bhaskar Gupta, learned senior advocate appearing for the alleged contemnors, however, contended that the conduct of the respondents can neither be termed to be unfair or in disregard to the orders of the Court on a true reading of the order this stand of the respondents, however, stands negated by Mr.Ganguli. The conduct, Mr.Ganguli, contended, is not only deliberate but utterly perverse and in grossest violation of the orders of this Court and by reason therefor the fruit of the litigation has not yet been made available and being decried to the petitioner for one reason or the other for the last about 15 years. Incidentally, it would be convenient to note that the principal issue involved in the matter pertains to the entitlement of the petitioners to the scale equivalent to that of Physical Instructors in the scale of Rs.700-1600 as on 2nd July, 1984 and Rs.2200-4000 w.e.f. 1986.

Turning, however, on to the factual score, it appears that the petitioners are Science Graduates of different universities in the country and have been appointed as Laboratory Assistants in colleges and in addition to their normal duties, the petitioners were supposed to assist the teachers and help the students in practical classes, impart instructions to the students in practical classes and to perform demonstration work including preparation of the lesson units in the practical classes. According to the petitioners these Laboratory Assistants were all along being treated as teaching staff and pay and allowances including the Government share of Dearness Allowances were paid to them until the issuance of the Government Order No.288 Education (CS) dated 21st March, 1969 wherein Laboratory Assistants of non-government affiliated colleges were treated as members of the non-teaching staff. The effect of such re-designation had a direct impact as regards the payment of Dearness Allowances and obviously the same being prejudicial to the interest of the petitioners, representations followed against the Government Order, but, however, to no effect. Representations were also made by reason of the withdrawal of teaching status as the Graduate Laboratory Assistants had to discharge teaching function as well, apart from the normal conduct of the Laboratory work.

The factual score depict that subsequently in August, 1983 the State Government redesignated the Laboratory Assistants as Laboratory Instructors it is on this score that Mr. Ganguli, learned senior counsel appearing in support of the petition very strongly criticised. The change of nomenclature according to him was otherwise meaningless as there was neither any conferment of status of teachers or the grant of any pay scale consistent with the teaching status. The Government notification was attributed to be a mischievous deception and a “hoax” a rather strong criticism : the question, therefore, arises whether there was any justification of such an attribute to the Government notification dated 10th August, 1983 : a short question consequently, thus what was the necessity for issuance of such an order would the change of nomenclature assist in any way the Graduate Laboratory Assistants? A bare perusal of the notification does not howsoever give any reason whatsoever as to the necessity of its issuance the notification on the contrary makes it clear that there would be no enhancement of pay as also the status as non-teaching staff would remain unchanged : It is only the word “Assistant” was replaced by the word “Instructors” but does that confer any material benefit to the persons concerned? The answer cannot in the factual context but be in the negative. It is on this background and upon perusal of the notification, Mr. Ganguli’s criticism seems to be rather apposite though couched in a very strong language but by reason of the fact situation of the matter in issue and if we may say so, probably justifiably so.

Be it noted that Graduate Laboratory Assistants working in government colleges have been given the status and designations of Demonstrators and have been accepted as members of teaching staff. According to the petitioners they possess similar qualifications, experience etc. but even though being similarly circumstanced, the Graduate Laboratory Assistants of sponsored and non-government private colleges of West Bengal stand discriminated against the Graduate Laboratory Assistants of Government colleges in West Bengal. The earlier writ petition which stand concluded by this court’s order dated 26th July, 1994 contained detailed list of University Acts and Statutes wherein “teachers” have been defined to “include the Instructors”. Needless to place on record that by reason of the act of discrimination and having failed to obtain any redress from the State-respondents the petitioners moved the learned Single Judge of the Calcutta High Court in the earlier Writ Petition for issuance of a writ of Mandamus to treat the Graduate Laboratory Assistants as teaching staff as per the definition contained in different University Act and also to give them a scale of pay equivalent to that of Physical Instructors. By a judgment and order dated 29th July, 1987 the learned Single Judge issued a writ of Mandamus upon a detailed judgment the operative portion whereof is set out herein below :-

“..The Rule accordingly is made absolute and the State Respondents are hereby commanded by the issuance of a Writ in the nature of Mandamus to treat the Graduate Laboratory Assistants who have already been redesignated as “Laboratory Instructors” as teaching staff and to pay them in accordance with the existing scale of pay

prescribed for the Physical Instructors with effect from 10th August, 1983 with all arrears.”

The appeal taken therefrom by the State Government resulted in confirmation of the order by the judgment of the Appellate Bench dated May 15, 1992. The State of West Bengal, however, being aggrieved and dissatisfied with the judgment and order of the Appellate Bench of the High Court moved a Special Leave Petition under Article 136 of the Constitution before this Court and this Court finally on 26th July, 1994 refused to interfere with the order and disposed of the matter with a speaking order. Relevant extracts of the same however are set out herein below :-

“.. the Division Bench of the High Court upheld the findings of the learned Single Judge.

We have heard learned counsel for the

parties. We see no ground to interfere with the reasoning and the conclusions reached by the learned Single Judge as upheld by the Division Bench of the High Court. We are, however, of the view that the respondents-petitioners be paid the revised scale of pay, as directed by the High Court, with effect from August 1, 1987 instead of August 10, 1983.

The arrears shall be paid to the respondents in two installments, first by the end of February 1995 and the second installment by August 31, 1995. The appeal is dismissed with the above modifications. No costs.”

A bare perusal of the order of this Court dated 26th July, 1994 categorically depicts that apart from the change of date of entitlement from August 10, 1983 to 1st August, 1987, this Court in fact did in unequivocal language record its concurrence with the reasonings and conclusions of the learned Single Judge as affirmed by the Division Bench.

In the order dated 26th July, 1994, as passed, this Court also was pleased to record certain statements of Mr. Ganguli which reads as below:

“Mr. A.K. Ganguli, learned counsel appearing for the respondents has very fairly stated that his clients are not asking for the pay-scale of

Lecturer. According to him, the pay scale of Physical Instructors is equivalent to that of Demonstrators i.e. pay scale to which his clients are entitled to in terms of the judgment of the Hon’ble High Court.”

It is however in terms of the order of this Court as noticed herein above, the State Government on 26th December, 1994 has issued a circular in purported compliance with the order of this Court. Let us however examine the circular and assess the situation ourselves as to the compliance of the earlier order of this Court. The circular reads as below :-

“In the circumstances, the Governor is pleased to order that the scale of pay in respect of all Graduate Laboratory Instructors of non-

Government colleges may be revised to Rs.1390- 45-1615-55-2055-65-2445-75-2970 with effect

from 1st August, 1987 and the arrears involved on account of revision of their scale of pay paid in the manner as indicated above.

The Governor is further pleased to order that the Graduate Laboratory Instructors of Non-

Government Colleges shall continue to enjoy

teaching status as given to them in GO No.1039- Edn. CS dated 27.7.1988.”

The circular, however, not been able to put an end to the petitioners’ grievance by reason wherefor, the same was further challenged by way of a writ petition under Article 226 before the learned Single Judge who, however, was pleased to quash the same upon recording concurrence to the contentions as raised by the petitioners. The learned Single Judge categorically recorded that the petitioners being Graduate Laboratory Instructors, question of further classifying them does not and cannot arise and upon reliance of the annual report as noticed above quashed and set aside the circular. The State Government however being aggrieved went before the Appellate Court and the Appellate Bench however allowed the appeal and opined that the Government Order dated 26th December, 1994 cannot be said to be arbitrary or contrary to the decision of this Court.

The further factual score depicts that as against the decision of the Hon’ble High Court pertaining to the Government order dated 26th December, 1994, the petitioners herein moved this Court under Article 136 and this Court upon a detailed judgment dealt with the issue and came to a conclusion to the following effect :

“This Court at an earlier occasion

unequivocally upheld the reasonings of the

learned Single Judge in the earlier writ petition as accepted by the Appellate Bench and on the wake of such a finding of this Court question of

decrying a pay scale which is otherwise available to another teacher (in this case the Physical Instructor) does not and cannot arise more so by reason of the earlier order of this Court.

Administrative ipse dixit cannot infiltrate on to an arena which stands covered by judicial orders.”

It is on the basis of the aforesaid, the appeals were allowed and the order of the Appellate Bench of the High Court of Calcutta stood set aside and quashed and that of the learned Single Judge stood restored. This Court, however, further directed that the entitlement by reason of the revision should be made available from 1st August, 1987 as directed by this Court in its earlier judgment dated 26th July, 1994. The petitioners, however, consequent upon the said judgment and order called upon the State officials being the alleged contemnor No.1 to comply with the directions of this Court and subsequently, the contemnor No.2 issued a notice requiring the petitioners to attend the hearing before the Principal Secretary, Department of Higher Education on 18th May, 2001. Some correspondence exchanged between the parties whereas the petitioners contended immediate compliance with the order of this Court, the alleged contemnors tried to feign ignorance about the earlier litigation and requested for supply of all copies of the relevant documents which, as the record depicts, stand supplied immediately thereafter. There has however been a total silence thereafter and the petitioners felt it incumbent upon themselves to bring it to the notice of this Court by way of a petition under the Contempt of Courts Act.

Before proceeding with the matter further, certain basic statutory features ought to be noticed at this juncture. The Contempt of Courts Act, 1971 has been introduced in the Statute Book for the purposes of securing a feeling of confidence of the people in general and for due and proper administration of justice in the country undoubtedly a powerful weapon in the hands of the law Courts but that by itself operates as a string of caution and unless thus otherwise satisfied beyond doubt, it would neither be fair nor reasonable for the law courts to exercise jurisdiction under the Statute. The observation as above finds support from a decision of this Court in Chhotu Ram v. Urvashi Gulati & Anr. (2001 (7) SCC 530), wherein one of us (Banerjee, J.) stated as below :-

“As regards the burden and standard of

proof, the common legal phraseology “he who

asserts must prove” has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the “standard of proof”, be it noted that a proceeding under the extraordinary jurisdiction of the court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond all reasonable doubt.”

Similar is the situation in Mrityunjoy Das & Anr. v. Sayed Hasibur Rahaman & Ors. (2001 (3) SCC 739) and as such we need not dilate thereon further as to the burden and standard of proof vis- a-vis the Contempt of Courts Act – Suffice it to record that powers under the Act should be exercised with utmost care and caution and that too rather sparingly and in the larger interest of the society and for proper administration of the justice delivery system in the country. Exercise of power within the meaning of the Act of 1971 shall thus be a rarity and that too in a matter on which there exists no doubt as regards the initiation of the action being bona fide. It may also be noticed at this juncture that mere disobedience of an order may not be sufficient to amount to a “civil contempt” within the meaning of Section 2(b) of the Act of 1971 the element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act and lastly, in the event two interpretations are possible and the action of the alleged contemnor pertains to one such interpretation the act or acts cannot be ascribed to be otherwise contumacious in nature. A doubt in the matter as regards the wilful nature of the conduct if raised, question of success in a contempt petition would not arise.

It is on these broad features however let us analyse the action of the respondents for the purposes of ascribing it to be willful and contumacious : whereas Mr. Ganguli answered by reference to the contextual facts as a deliberate and willful act, both Mr. Altaf Ahmad, the learned Additional Solicitor General and Mr. Bhaskar Gupta, learned senior advocate appearing for the alleged contemnors, rather strongly ventilated their negation to the accusations of Mr. Ganguli.

It is at this stage that the earlier order passed by this Court may be of some relevance and the same reads as below: “A teacher cannot possibly be allowed a pay

scale of a non-teaching post. The same is a

contradiction in terms and we need not dilate thereon. The criterion of fixation of pay scale is dependent upon the placement of the person

concerned in the event the placement is in a teaching post obviously one expects to get a pay scale fixed for a teacher and not for a non- teaching member of the staff. Apparently the High Court has not dealt with the issue in this perspective and thus clearly fell into an error in categorising a teacher with a non-teaching pay scale. The circular clearly authorises the

Graduate Laboratory Instructors of non-

government colleges to continue to have the

teaching status but decries the financial benefits therefor! Would the same be not an arbitrary exercise of powers or can it by any stretch be suggested to be otherwise rational and

indiscriminatory. This Court at an earlier occasion unequivocally upheld the reasoning of the learned Single Judge in the earlier writ petition as accepted by the Appellate Bench and in the wake of such a finding of this Court

question of decrying a pay scale which is

otherwise available to another teacher (in this case the Physical Instructor) does not and cannot arise more so by reason of the earlier order of this Court.”

Significantly, the Secretary, Department of Finance, Government of West Bengal, has with meticulous care recorded the statements as in the earlier affidavit filed before this Court though, however, with a preface that the statements in the counter affidavit stand out to be the outcome of his understanding of the order of this Court dated 20th April, 2001 and it is on the basis of the said understanding, the proposal for grant of scale of pay of Rs.1420 to Rs. 3130 stands concurred by him. Obviously, the notification dated 2nd July, 1984 issued by the Government of West Bengal as regards the revision of scale of pay of the Physical Instructors was also the resultant effect of such an understanding. It is in this context, the Finance Secretary of the State Government has stated as below :-

“Subsequently by a Notification dated 2nd

July, 1984 issued by the Government of West

Bengal, the State Government on the

recommendation of the University Grants

Commission and Government of India revised the scale of pay of the Physical Instructors to Rs.700/- – Rs.1600/- which was equal to the scale of pay of the lecturer. At that point of time also the scale of pay of Demonstrators continued to be Rs.500/- to Rs.900/-.”

In the earlier judgment, this Court while noting down certain record of proceedings observed as below :-

“On this score, a chart has been produced in the Court on 20.3.2001 which however cannot by any stretch be said to be in support of the

contentions of the State that there were existing two different grades and scales of pay amongst Physical Instructors, one being qualified Physical Instructors and the other being unqualified

Physical Instructors.

Significantly the annual report as published by the Education Department of the State

Government unmistakably records the existence of one grade of Physical Instructors under para 8.16. The annual report details out teachers of government colleges in the manner as below:

“8.16. Teachers of government colleges

Sl. Category of teachers Pay Scale

No. (Basic) w.e.f.1.1.1986

5. Demonstrator Rs.1740-3000

4. Physical Instructor Rs.2200-4000

3. Lecturer Rs.2200-4000

2. Professor/Vice-Principal Rs.3700-5700

(Grade II)

1. Principal Rs.4500-7300”

Para 8.2.1 also records the details of the

administration of non-government colleges as below:

The teachers of non-government colleges

are of the following categories (basic):

1. Laboratory Instructors Rs.1390-2970

2. Demonstrators

3. Physical Instructor as in government

4. Lecturer colleges.

5. Principal

This itself however negates the contentions

as raised by the State. Laboratory Instructors in non-government colleges are termed as teachers with scale of pay Rs.1390-2970 whereas Physical Instructors were also termed as teachers and scale of pay appears to be similar “as in government colleges” i.e. Rs.2200-4000. Secondly, in para 8.2.4 revised pay scale of the non-teaching posts (Group B pay scale) has been noted to be

Rs.1390-2970. It thus leaves no manner of doubt that whereas the petitioners were shown as

teachers of non-government colleges they were in fact granted the scale of pay applicable only to Group B employees belonging to non-teaching

staff and thus granted a non-teaching scale.”

Similar is the situation in the counter-affidavit filed presently in this matter as well : Is this fair ? The answer having regard to the factual backdrop cannot but be in the negative. It is neither fair nor reasonable on the part of a senior Civil Service Personnel to feign ignorance or plead understanding when the direction of this Court stands crystal clear in the judgment. Government employees ought to be treated at par with another set of employees and this Court on an earlier occasion lent concurrence to the view of the learned Single Judge that the Circulars issued by the State Government cannot but be ascribed to be arbitrary : Government is not a machinery for oppression and ours being a welfare State as a matter of fact be opposed thereto. It is the people’s welfare that the State is primarily concerned with and avoidance of compliance with a specific order of the Court cannot be termed to be a proper working of a State body in terms of the wishes and aspirations of the founding fathers of our Constitution. Classless, non- discriminate and egalitarian society are not meaningless jargons so that they only remain as the basic factors of our socialistic state on principles only and not to have any application in the realities of every-day life : one section of the employees would stand benefited but a similarly placed employee would not be so favoured why this attitude ? Obviously there is no answer. Surprisingly, this attitude persists even after six rounds of litigation travelling from Calcutta to Delhi more than once the answer as appears in the counter-affidavit is an expression of sorrow by reason of the understanding cannot be countenanced in the facts presently under consideration. A plain reading of the order negates the understanding of the State Respondents and the conduct in no uncertain terms be ascribed to be the manifestation of an intent to deprive one section of the employees being equally circumstanced come what may and this state of mind is clearly expressed in the counter-affidavit though however in temperate language. The question of bona fide understanding thus does not and cannot arise in the facts presently. Is it a believable state of affairs that the order of the learned Single Judge as early as the first writ petition, has not been properly understood by the senior most bureaucrat of the State Government : the same misunderstanding continues in terms of the appellate Court’s order and the third in the line of order is that of the apex Court. The understanding again continues even after the second writ petition was filed before the learned Single Judge at the High Court and the similar understanding continues even after the so to say clarificatory order by this Court, as appears from the order dated 20th April, 2001. Even in the counter-affidavit, filed in Contempt Petition, the understanding still continues we are at a loss as to what is this understanding about : the defence of ‘understanding’ undoubtedly is an ingenious effort to avoid the rigours of an order of Court but cannot obliterate the action the attempted avoidance through the introduction of the so-called concept of lack of understanding cannot, however, be a permanent avoidance, though there may be temporary and short-lived gains. The order of this Court cannot possibly be interpreted as per the understanding of the Respondents, but as appears from the plain language used therein. Neither the order is capable of two several interpretations nor there is any ambiguity and the same does not require further clarity. The order is categorical and clear in its context and meaning. The Court’s orders are to be observed in its observance, rather than in its breach.

This matter is pending in Courts since more than last 15 years, but unfortunately the litigatious spirit of the State-respondent have not minimised even to the slightest extent – the spirit continues and so is the deprivation. The defence of understanding is not only moonshine but a deliberate attempt to over-reach this Court’s order and as such willfulness in the matter of disregard of this Court’s order is apparent on the face of it and we are not prepared to accept the same as a defence of an action for deliberate and willful disregard of an order of Court. We find that the actions on the part of the respondent-authorities are not only unreasonable but deliberate and spiteful and that too in spite of a specific direction in all the five judgments so far obtained by the petitioners in their favour. Avoidance is written large and it would be difficult for us to consume the same without any particular rhyme or reason. In the contextual facts there cannot be any laxity as otherwise the Law Courts would render itself useless and its order to utter mockery. Feeling of confidence and proper administration of justice cannot but the hall-mark of Indian Jurisprudence and contra action by Courts will lose its efficacy. Tolerance of Law Courts there is, but not without limits and only upto a certain point and not beyond the same.

On the wake of the aforesaid, we do find that the respondents have willfully and deliberately violated the orders of this Court in the guise of a totally non-acceptable and sham defence of understanding and thus rendered themselves punishable under the provisions of Article 142 of the Constitution and also under the Act of 1971.

Be it placed on record that by the order dated 1st February, 2002, this Court directed the presence of all the alleged contemnors on the next date, i.e. on 8th March, 2002 since the order was to be pronounced in the presence of the respondents. The Office-Report, however, depicts that one of the respondents has filed an application for exemption from appearance. We do feel it expedient to allow the application for exemption, though by reason therefor the consequence of the findings as above cannot be pronounced as of date. In that view of the matter, let this matter appear two weeks hence in the list (22nd March, 2002) for further orders. The respondents are directed to be present in Court on the next date of hearing. No further notice need be served to the respondents excepting the applicant in I.A. No2 of 2002.

..J.

(Umesh C. Banerjee)

..J.

(Y.K. Sabharwal)

March 8, 2002.

1

24

Categories: Judgement

SC examines what is wilful disobedience in civil contempt

Bench: B Agrawal, G Singhvi

CIVIL ORIGINAL JURISDICTION

CONTEMPT PETITION (C) NO.262 OF 2007

IN S.L.P. (C) NO.18879 OF 2007

All India Anna Dravida Munnetra Kazhagam … Petitioner Versus

L.K. Tripathi and others … Respondents WITH

CONTEMPT PETITION (C) NO.327 OF 2007

IN S.L.P. (C) NO.18879 OF 2007

JUDGMENT

G.S. Singhvi, J.

1. Whether respondent Nos.1 to 5 have willfully disobeyed order dated 30.9.2007 passed by this Court in Special Leave Petition (Civil) No.18879 of 2007 and thereby made themselves liable to be proceeded against under the Contempt of Courts Act, 1971 (for short `the 1971 Act’) read with Article 129 of the Constitution of India and whether respondent No.6 is guilty of criminal contempt within the meaning of Section 2(c) of the 1971 Act are the questions which arise for determination in this petition filed by All India Anna Dravida Munnetra Kazhagam through its Presidium Chairman Shri E. Madhusudhanan.

2. Background facts:

2.1 In an apparent bid to pressurize the Central Government to expedite implementation of Sethu Samudram Project, Democratic Progressive Alliance comprising Dravida Munnetra Kazhagam, Indian National Congress, Communist Party of India (Marxist), Communist Party of India and Pattali Makkal Katchi, passed a resolution on 24.9.2007 to resort to total cessation of work and closure of shops on 1.10.2007 and to conduct a general meeting of the leaders of all parties on 30.9.2007 at Chennai. The relevant portions of the resolution are extracted below: “… in order to make understand the fact that the support of the people is only to implement the Sethu Samudram Project

expeditiously to the Central Government, it is resolved to conduct total cessation of work and closure of shops on the 1st of October, and to conduct a general meeting of the leaders of all parties on the 30th day of September, at Chennai.”

2.2 The petitioner challenged the afore-mentioned resolution in Writ Petition No.31435 of 2007 filed before Madras High Court and prayed that the call given by the political parties for organizing bandh in the State of Tamil Nadu either on 1.10.2007 or any other day may be declared as violative of Articles 19 and 21 and the Directive Principles of the State Policy and fundamental duties embodied and enumerated in the Constitution of India. Shri Subramania Swamy of Janta Party, Shri K.R. Ramaswamy @ Traffic Ramaswamy (founder Chairman of the Tamil Nadu Social Workers Association, Chennai) and Shri R. Balasubramanian also filed Writ Petition Nos.31478, 31462 and 31631 of 2007 with similar prayers. 2.3 Along with the writ petition, the petitioner filed two miscellaneous petitions with the prayer that a direction be issued to Dravida Munnetra Kazhagam represented by its President M. Karunanidhi (Respondent No.4 in the contempt petition) to deposit a sum of Rs.100 crore with the Chief Secretary, Government of Tamil Nadu on or before 28.9.2007 which could be utilized to compensate the damage caused to the general public and the five political parties be restrained from proceeding with the call for bandh in the State in terms of resolution dated 24.9.2007. 2.4 After hearing counsel for the parties, the High Court admitted the writ petitions and issued the following directions to the Chief Secretary, Director General of Police, District Collectors and other officers of the State: “(i) To ensure that no political party, organization, association, group or individual can, by organizing `bandh/ hartal’ or by force or intimidate, stop or interfere with the road and rail traffic or free movement of the citizens in the State of Tamil Nadu on the day of `Bandh’ i.e. 01.10.2007.

(ii) To ensure that the public transport in the State including the Civil Aviation run smoothly on the

day of the `Bandh’ i.e. 1.10.2007.

(iii) To take appropriate action against the person(s) indulging in stoppage or interference with the road

and rail traffic or free movement of the citizens in

the State of Tamil Nadu.

(iv) Chief Secretary to the Government shall issue a Press Note to the Print Media and also the

Electronic Media on 29/30.9.2007 informing about

the preparation made by the Police to deal with the

`Bandh’ and to make people secured.”

2.5 Feeling dissatisfied with the High Court’s order, the petitioner filed S.L.P. (C) No.18879 of 2007 in this Court. The same was heard on 30.9.2007. The counsel representing respondent nos.1 to 3, who volunteered to appear, also made their submissions. After considering the respective submissions, this Court passed a detailed order, the relevant portions of which are reproduced below: “From a bare perusal of the aforesaid decision, it would be clear that neither anybody can give a call for Bandh nor the same can be enforced. The High Court, in the present case, has recorded a, prima facie, finding that, in the present case, the call was given for Bandh and not strike/hartal.

Ordinarily, High Court as well as this Court refrains from passing an interim order the effect of which would be granting the main relief. But in cases where a party approaches court without loss of time, there are no laches on its part, it is not possible to give notices to all the necessary parties and hear them because of paucity of time and in case interim order is not passed in a case like the present one, which, prima facie, in the opinion of court is concluded by judgment of this court, the main case would become infructuous, different considerations would arise and appropriate interim order should be passed. In the present case, apart from the State of Tamil Nadu, out of the political parties, namely, Dravida Munnetra Kazhagam, Indian National Congress, Communist Party of India (Marxist), Communist Party of India and Pattali Makkal Katchi, only Dravida Munnetra Kazhagam has appeared before us, whom we have heard at length.

After taking into consideration the entire matter, prima facie, we are also of the view that the call given by the aforesaid political parties is a call for Bandh and not strike/Hartal. Accordingly, we have no option but to issue notices to the non-appearing respondents and pass interim order.

Issue notice.

Until further orders, Respondent Nos.3 to 7 are restrained from proceeding with the call for Bandh in the State of Tamil Nadu on 1st October, 2007 pursuant to resolution dated 24th September, 2007 or any other day.”

2.6 Even before filing of writ petition by the petitioner, the then Chief Secretary of the State – Shri L.K. Tripathi (respondent no.1 herein) directed that the concerned officers be asked to take steps necessary for maintaining essential services and for providing protection to important offices and establishments apart from markets and business places. The instructions given by the Chief Secretary were circulated vide telefax No.SR.II/50641/2007 dated 27.9.2007, the relevant portions of which are extracted below:-

“1. Essential services like Telephone and Telecommunication, water supply, milk distribution, power supply, fire services, newspapers, hospitals, shall be ensured to function and protection given.

2. Provide adequate protection to vital installations such as power stations/grids, sub-stations, important

Government buildings, telecommunication and bridges,

oil installations, railway bridges, etc.

3. Arrange open line patrol with immediate effect.

4. Arrange for regular supply of milk and other essentials.

5. Provide adequate protection to the High Court and other Courts.

6. Action to be taken against anti-social elements and persons indulging in acts of violence and vandalism.

7. A visible police presence shall be maintained throughout the city.

8. A visible bandobast outside railway stations, bus depots, main roads, main junctions, hospitals, courts, schools and colleges will be maintained.

9. Necessary protection to market and business places shall be given.

10. All police control rooms will be fully activated to follow up incident to take proper stern and timely action.

11. Ensure that the `Hartal’ passes off peacefully.

12. Collectors may requisition and spare other department vehicles if required by the District Superintendent of Police. Any incident of law and order and other matters of significance should be informed to Chief Secretary’s Control Room Telephone Nos.26571388 and 26570372, followed by FAX-25677128. Bi- hourly report commencing from 0600 hours on 01.10.2007 about the `Hartal’ should be given to Chief Secretary’s Control Room even if there is no incident. First Report should commence from 0600 hours on 01.10.2007.”

2.7 On coming to know of this Court’s order through electronic media, respondent No.1 directed that telephonic instructions be given to all the Collectors to convene meetings with the respective Superintendents of Police for ensuring that law and order and public tranquility are maintained.

2.8 The Court’s order was officially communicated to respondent no.1 on the same day i.e., 30.9.2007 at about 10.30 p.m. by fax. The latter immediately forwarded the same to respondent no.2 for taking necessary action. In turn, respondent No.2 directed the concerned police officers that steps should be taken for facilitating unobstructed movement of public transport and maintenance of essential services like water and electricity supply, milk distribution, telephone and telecommunication service, fire service, hospitals and protection be given to Central Government offices, courts, bus stands, railway stations, banks, market places, shops, industrial establishments, etc. These directions were conveyed to Zonal Inspector Generals of Police and Commissioners of Police by Additional Director General of Police (Law and Order) vide fax dated 1.10.2007 which was sent between 11.28 p.m. on 30.9.2007 and 6.30 a.m. on 1.10.2007. The contents of that fax are reproduced below:- Date 30.09.2007

“From

ADGP (L&O)

Chennai – 4.

To

All Zonal IGPs

and COPs

All unit officers are instructed to strictly follow the following instructions,

1. The Depots Managers of the State Transport

Corporation will decide about running the buses

subject to availability of crew. Sufficient Bandobust

must be provided to all Bus Depots under their

jurisdiction.

2. Anyone who obstructs the movement of Public

transport should be picked up.

3. Bandobust should be provided to all essential

services like Hospital, Electricity, Offices, Bus

stands and railway stations etc.

4. Bandobust must be provided to all Central

Government offices, Courts and Banks.

5. Beats and Patrol should be provided to all market places, shops and industrial establishments.

6. All anti-social elements should be picked up.

7. Sufficient Bandobust arrangements should be

provided at the places where Hunger strike is

scheduled to be held.

Sd/- D.S.P.C.O.S.R.

For ADGP (L&O)

Chennai-4

30.9.2007

C.No.D1/17566/IGP/NZ/2007 DATED 1.10.2007

COPY COMMUNICATED TO ALL SsP. AND DIsG. IN NORTH

ZONE AND ARE REQUESTED TO TAKE NECESSARY

ACTION AND REPORT COMPLIANCE.

Sd/- 1.10.2007

For IGP/NZ/CNI-16”

2.9 The Secretary to Government, Public (SC) Department also sent fax No.SR.II/5064-5/2007 dated 1.10.2007 to all the District Collectors at 11.25 a.m. requiring them to send hourly reports to the Chief Secretary’s Control Room regarding the law and order situation, movement, transport, functioning of essential services, functioning of schools and colleges, opening of shops, hotels and other public utilities, attendance in Government offices etc.

3. On 3.10.2007, the petitioner filed this petition under Article 129 of the Constitution of India read with the 1971 Act and prayed that the respondents be punished for violation and disobedience of the Court’s order dated 30.9.2007. The gravamen of the petitioner’s allegation is that in complete disregard of the restraint order passed by this Court, the concerned political parties including Dravida Munnetra Kazhagam enforced the bandh in the entire State by ensuring that buses owned by the State Transport Corporation are kept off the road and shops and other business establishments remain closed; that 45,000 private buses were also not allowed to ply on that day; that shops and other business establishments were forcibly closed by the cadres of Dravida Munnetra Kazhagam party and that the State machinery did not take any action to ensure functioning of public transport system and opening of the shops etc. It is also the petitioner’s case that even though 50,000 employees of the State Transport Corporation came forward to carry out their duties but they were prevented from entering the bus depots by the Depot Managers, Supervisor, etc. on the instructions of higher authorities and even the main gates of many bus terminals were closed and locked. To substantiate these allegations, the petitioner has placed on record the photographs collectively marked as Annexure P-5 and the telegrams which are said to have been sent by Shri K.K. Madeswaran, C. Sengottaiyan and M.A. Paneerselvam to Tamil Nadu State Road Transport Corporation, representation made by A.J. Selvaraj, Anna Trade Union Secretary, Radhapuram Taluk. In paragraph 14 of the Contempt Petition, it has been averred that several workers of Dravida Munnetra Kazhagam party moved in various vantage areas of the State with deadly and lethal weapons to ensure that no business or commercial activity was done on 1.10.2007 and whoever opened the shop was forced to down the shutters. It has been further averred that in Chennai, a restaurant at Arterial Mount Road was attacked and looted and many other shops and restaurants were ransacked and eatables were thrown out and bottles were broken, but the police remained mute spectators. In support of these averments, the petitioner placed on record copies of various newspapers. In paragraph 23, a reference has been made to the speech allegedly made by respondent No.6, Shri T.R. Balu, Union Minister for Shipping and Surface Transport, at the venue of the hunger strike on 1.10.2007 and it has been averred that the same was calculated to scandalize judiciary in general and order dated 30.9.2007 in particular. The relevant portions of the speech allegedly made by respondent no.6, which is said to have been published in the newspapers and also telecast on the television channels are extracted below:- “If we want to conduct a Bandh in a democratic manner to ensure speedy implementation of this Project, the Supreme Court is injuncting the same. Are judgments being delivered correctly in the Courts? If that is so, why are higher courts granting stay of orders of lower Courts?

If judges are not making mistakes why are there conflicting judgments? Today there are many complaints against many judges. Corruption charges are appearing everyday. What does that mean? If they were upright yesterday, does it mean that they are not upright now? When was a sitting ever held on a Sunday? Unprecedented things are taking place.

We are expressing our feelings. How many complaints are received against judges? There is provision in law for impeachment of sitting judges. The MPs’ sitting here should also think about it. Nothing wrong about it. Our MPs, including the ministers should know about it. Everyone including the ministers can sign it.”

4. In paragraph 7 of the reply affidavit filed by him, respondent no.1 has averred that after telecast of the news about the restraint order passed by the Court, telephonic instructions were issued to the District Collectors to maintain law and order and public peace. In para 8 of the affidavit, respondent no.1 has averred that immediately on receipt of the Court’s order, a copy thereof was sent to respondent no.2 with suitable instructions to take necessary action and within the available time the police force was mobilized and bandobust was provided to all vital installations, State and Central Government offices, educational institutions, Tamil Nadu State Transport Corporation depots, bus stands, railway stations, airports, markets, places of worship, hospitals, important junctions, business areas and other places where people used to congregate and bandobust was also provided to the industrial establishments for their smooth functioning and pickets were posted at all sensitive places to avert law and order problems. According to respondent No.1, effective patrols and mobiles were organized for ensuring free flow of traffic in the State and open line patrols were deputed for keeping watch on the railway tracks; all the courts including the Madras High Court were given sufficient protection; vehicle checks were organized to prevent the movement of anti-social elements and trouble mongers and rowdy elements were detained under preventive measures. Respondent No.1 has claimed that on 1.10.2007 all the Courts functioned normally and movement of trains and other essential services were maintained without any obstruction. As regards transport services, respondent no.1 has averred that less number of Government transport services operated in the early morning but with the passage of time around 2749 routes were made operational.

5. In his affidavit, respondent no.2, Shri P. Rajendran, has detailed the steps taken for ensuring presence of police at various important places for maintaining law and order and movement of transport services. He has denied that workers of Dravida Munnetra Kazhagam party had forcibly closed business establishments and shops by wielding lethal and deadly weapons for the purpose of conveying threats to the public.

6. In his affidavit, respondent no.3 – Shri Debendranath Sarangi has given an account of the steps taken for ensuring normal operation of State Transport Services. In paragraphs 11 of the affidavit, respondent no.3 has averred that senior officers, i.e., Branch Managers and Divisional Managers of various State Transport Undertakings were instructed to ensure normal operation of buses on 1.10.2007. Respondent No.3 has then averred that the officers were on duty on 1.10.2007 and adequate police bandobust was provided at the Depots, but most of the crew did not turn up in the morning on 1.10.2007 and even those who came did not enter the Depot premises, did not sign the duty chart and dispersed after holding demonstration in front of the Depots; that the Branch Managers and Divisional Managers made efforts to operate the bus services with the help of available crew and with the passage of time the number of services substantially increased. Respondent No.3 has denied that the Drivers and Conductors were prevented from carrying out their duties or that the conductors did not issue tickets or that the main gates of bus terminals were closed and locked. He has also denied receipt of any representation or telegram. In para 15 of the affidavit, respondent No.3 has referred to the call given by the trade unions to abstain from work in the wake of decision taken by the political parties and averred that even though the latter withdrew the call for cessation of work, there was no corresponding response from the trade unions due to paucity of time and also due to the fact that most of the workers had left for outside places taking advantage of the impending strike and two days’ holidays. Respondent No.3 has also stated that the crew members who did not attend the duty on 01.10.2007 have not been paid the wages as per the policy “no work no pay”. Respondent No.3 has controverted the petitioner’s assertion that daily collection of the Transport Corporations is over Rs.10 crores. According to him, the average collection of the Transport Corporations is Rs.7.5 crores per day, which is reduced to half on any holiday and less than half in the event of continuous holidays for 3-4 days. According to respondent No.3, total collection on 1.10.2007 was Rs.483 lakhs. Lastly, respondent no.3 has averred that in observance of the order of this Court necessary instructions were given to Managing Directors of all the State Transport Corporations to ply buses and send reply by Fax.

7. Respondent No.4, Shri M. Karunanidhi, has come up with the plea that initially he was advised to adopt the counter affidavits of respondent nos.1 and 2 and a statement to that effect was made before the Court on 4.8.2008 by the advocate representing the State of Tamil Nadu but, later on, he decided to file a separate counter affidavit. In paragraph 3 of the affidavit, respondent no.4 has given the background in which decision was taken by Democratic Progressive Alliance comprising major political parties in Tamil Nadu to demonstrate their concern on the delay in implementation of Sethu Samudram Project by observing cessation of work between 6 a.m. to 6 p.m. on 1.10.2007. Respondent No.4 has then averred that on the basis of reports appearing in the TV news channels and after verifying the facts from counsel appearing on behalf of respondent no.3 in the special leave petition, he gave a call at about 1.30 p.m. for withdrawal of resolution dated 24.9.2007 and this was conveyed to the concerned political parties. According to respondent no.3, instructions were given to the government officials to carry out the Court’s order and ensure that the bandh did not take place on 1.10.2007 and the fast undertaken by political parties should not, in any way, affect the general public or hinder their routine life. For the sake of convenience, paragraph 7 of the affidavit of respondent no.4 is reproduced below:-

“7. The order passed by this Hon’ble Court was communicated to the Chief Secretary to Government of Tamil Nadu by FAX at 10.30 PM by the Registrar of this Court on 30.09.2007. Even before the order was officially communicated, it was flashed in the TV News channels. After verifying with counsel at New Delhi and without waiting for any formal communication from this Hon’ble Court, at about 1.30 PM I immediately called for the withdrawal of the resolution dated 24.09.2007 passed by the Democratic Progressive Alliance for cessation of work. This was also conveyed to all political parties, which were party to the said Resolution. However, Democratic Progressive Alliance decided to hold a day long fast on 1st October, 2007 to draw attention to the importance of the Sethu

Samuthiram Project and for early implementation of the same. I made it clear at that time that the fast was not against the order of this Hon’ble Court. I annex an extract from the Hindu newspaper 1st October, 2007 reporting this (Annexure -R1). I also gave instructions to Government officials to carry out the order of this Hon’ble Court and to ensure that the Bandh did not take place on 1st October, 2007, and that the day long fast undertaken by political parties should not in any way affect the general public or hinder their routine life.”

8. Respondent No.5 has taken the stand that at the time of passing of order by this Court, he was in his constituency (Trichy) and on receipt of information about the Court’s order, he instructed respondent no.3 to take steps to maintain normalcy in transport services on 1.10.2007. Respondent No.5 has also stated that he had been continuously monitoring the operation of transport services from Trichy and also made efforts to contact the trade unions and instructed them to direct the workers to report for duty in view of withdrawal of call for cessation of work given by Democratic Progressive Alliance.

9. In paragraphs 4 and 5 of affidavit dated 26th August, 2008 filed by him, respondent no.6 – Shri T.R. Baalu has resorted to the rhetoric that he has highest respect for the judiciary and he is a strong believer in the independence of the judiciary. In paragraph 7 of the affidavit, respondent no.6 has made a mention of his electoral achievements and averred that the contempt petition has been filed with the sole object of tarnishing his political image in the State and position as Minister in the Central Government. In paragraph 8, respondent no.6 has alleged that by filing petition before this Court, the petitioner which is the main opposition party in the State is trying to indirectly achieve which it could not achieve in the political arena. Respondent No.6 has then given his own interpretation of the term bandh and averred that he did not participate in any activity which can be described as a bandh. In paragraph 11 of the affidavit, respondent no.6 has averred that nothing in the quoted speech constitutes participation in bandh or instigating others to do so and whatever he said was legitimate exercise of freedom of speech. In paragraph 12, respondent no.6 has claimed that the newspaper report regarding his speech is not accurate and words have been put in his mouth which were not uttered by him.

10. Arguments in the case were heard on 11.11.2008 and concluded on 12.11.2008 qua the alleged contemnor nos.1 to 5. However, the case was adjourned to 10.12.2008 to enable the petitioner to file additional affidavit in relation to respondent no.6 with liberty to the latter to file reply within two weeks. On the next date, i.e., 10.12.2008, the Court considered an application made on behalf of the petitioner for summoning the tapes of the speech allegedly made by respondent no.6 on 1.10.2007 at Chennai and ordered issue of notice to the Resident Managers of Times Now Channel and Jaya T.V. requiring them to produce the tapes and original chips of the speech. Notices were also issued to Dhanya Rajendran and M. Ramasubramanian (reporters) and Manish Dhanani, Y. Jayaprakash and S. Ravikumar (camera persons of Times Now Channel and Jaya T.V. respectively).

11. In response to the Court’s notice, Shri M. Vasudev Rao, authorised signatory of Times Global Broadcasting Company Limited, which is running Times Now Channel, sent letter dated 16th January, 2009 stating therein that the company is unable to provide the original tapes and news clips of the speech delivered by respondent no.6 because in terms of the Uplinking and Downlinking Guidelines issued by the Ministry of Information & Broadcasting, Government of India, the company maintains a record of the contents uplinked and downlinked by its channel for a period of 90 days from the date of its telecast. After taking note of that letter, the Court allowed further time to the parties to file affidavits.

12. In furtherance of the liberty given by the Court, the petitioner filed affidavits of S/Shri M. Ramasubramanian, S. Ravikumar and R. Thillai, who were working as Reporter, Assistant Camera Person and Senior Sub-Editor respectively with Jaya T.V. on 1.10.2007. In his affidavit, Shri M. Ramasubramanian has claimed that he was deputed to cover the hunger strike organized by DMK and other allied parties on 1.10.2007 in front of the State Guest House, Chepauk, Chennai. He has then averred that he along with Shri Ravikumar (camera person) and Shri Satish (camera assistant) went to cover the events and that he was present at the venue where respondent no.6 made speech and Ravikumar recorded the speech which was in Tamil with sentences/phrases in English. According to Ramasubramanian, speeches of respondent no.6, Shri D. Raja of C.P.I. and Shri K. Veeramani of Dravida Kazhagam only were recorded and the original tapes were handed over to Shri R. Thillai. According to Shri S. Ravikumar, he accompanied by Shri Satish went to the venue of the hunger strike and recorded the speeches made by three persons and, thereafter, original tapes were handed over to Shri R. Thillai. In his affidavit, Shri R. Thillai has stated that Jaya T.V. shoots visuals on cameras using DV tapes and so far the channel has not shifted to the digital format and whenever visuals are brought by the reporting team, the same are ingested into the visual editing system called Avid and, thereafter, the tapes are reused for recording other events. Paragraphs (d), (e) and (f) of the affidavit of Shri R. Thillai, contain the following statements:

“d. It may be noted that the original tapes on which the visuals are recorded upon being ingested into the avid system as aforesaid and after the necessary visuals are taken, are re-used for recording other subsequent events. In the process, the left out visuals of a previous recording are erased since new recordings are made over the same. The tapes are re-cycled in this manner and not retained in view of commercial and operational

compulsions.

e. Some of the original recordings are transferred on to separate DV tapes or DVDs for archival purposes as for example, file shots of certain important events so that they could be used for future purposes. The news bulletins, as telecast over the channel, are stored in the DVD format in the library.

f. That the protests organized by the DMK and its allies on 1.10.2007 by way of the hunger strike at Chennai was covered by the reporting team of Mr. Ramasubramanian and Mr. S. Ravikumar and Camera assistant Satish. They had handed over to me the original tapes containing the events recorded including the speech made by Mr. T.R. Baalu, Union Minister for Shipping and of certain other speakers during the afternoon on 1.10.2007. On my instructions, the news branch technicians ingested the contents of the original tapes containing the events covered including the speech of Mr. T.R. Baalu, into the Avid system. From this, I selected the portions in the speech of Mr. Baalu which were most objectionable and found appropriate to be telecast. Accordingly, the portions were selected and telecast in the news bulletin carried by the channel on 1.10.2007 at 7.30 PM and on 2.10.2007 at 7.30 PM. The portions of the speech as telecast on the news bulletins clearly show the speech made by Mr. T.R. Baalu and the objectionable statements made by him, the translations of which read as follows:

“A Judge is a judge till yesterday. Today there are allegations against him. Every day a list of corruption charges are coming out from Delhi. What does that mean? Is a person who was honest till yesterday dishonest today? The nation has not forgotten the fact that such people are also judges. When has there been [hearing] on a Sunday? Something unprecedented is happening. Why is there a provision for impeachment in the Constitution? Our M.Ps are all sitting here. We should also think about it. There is nothing wrong about it. Our MPs must know about it. Including Ministers. Everybody can sign it.”

The news bulletins as telecast is submitted before this Hon’ble Court in the form of a DVD which is filed as Annexure A/1 to this affidavit.”

In the last paragraph of his affidavit which is again marked as (f), Shri R. Thillai has stated as under:

“f. That I submit therefore that the original tape containing the speech of Mr. T.R. Baalu is not available. Nevertheless, the news bulletins telecast by the channel containing the objectionable portions of his speech are presented before this Hon’ble Court.”

13. To the above noted 3 affidavits, respondent no.6 has filed a reply on 21.3.2009. The thrust of his reply is that Jaya T.V. is controlled by AIADMK party on whose behalf the contempt petition has been filed and, therefore, it cannot be treated as an independent media and that failure of the management of Jaya T.V. to produce tapes and original chip of the speech allegedly made by respondent no.6 should be treated as sufficient for rejecting the affidavits. In paragraphs 7 to 12 of the reply, it has been averred that the petitioner has produced before the Court a truncated, edited and doctored version of the telecast made by Jaya T.V. channel, and the same is liable to be discarded because the full and correct version of the speech made by respondent no.6 has been erased and the original tape containing the speech has not been produced.

14. In the light of 3 affidavits filed on behalf of the petitioner and counter filed by respondent no.6, further arguments were heard on 25.3.2009 and judgment was reserved.

15. Shri S. Guru Krishna Kumar, learned counsel for the petitioner in S.L.P. (C) No.18879 of 2007 representing the petitioner in Contempt Petition (C) No.262 of 2007 argued that in view of the orders passed by the Division Bench of the Madras High Court and this Court, the call given by Democratic Progressive Alliance for cessation of work must be treated as call for bandh in the State and even though respondent no.4 is said to have made a statement on 30.9.2007 at 1.30 p.m. giving an impression that resolution dated 24.9.2007 was withdrawn, no direction was given by the political establishment to the concerned officers to ensure that the administration moves on and respondent Nos.1 to 3 did not take steps to prevent disruption of normal life in the State. He further argued that the so called withdrawal of the call given by the political parties for cessation of work must be treated as sham because the workers of the party headed by respondent No.4 indulged in physical violence and ensured that bandh is observed throughout the State by forcing closure of shops and commercial/ industrial establishments. Learned counsel relied on the newspaper reports to buttress his submission that the workers of Dravida Munnetra Kazhagam party had, by wielding deadly weapons compelled the shop keepers to down the shutters and general public to remain away from the streets and argued that this should be treated as sufficient for drawing an inference that respondent no.4 had deliberately manipulated violation of the Court’s order. Shri Guru Krishna Kumar emphasized that the business, commercial/industrial establishments could not have remained closed without intimidation and use of force by the outfits of the political parties and argued that respondent no.4 should be held responsible for the acts of his party workers. Learned counsel then argued that by sitting on hunger strike, respondent No.4 and other political parties deliberately violated the Court’s order restraining them to organize bandh because out of fear the schools, colleges, business, commercial and industrial establishments were closed and people refrained from carrying out their normal activities. Learned counsel submitted that if respondent no.4 genuinely wanted to abide by this Court’s order then after making a statement in the afternoon of 30.9.2007 that there will be no cessation of work, he would have given written instructions to respondent nos.1 to 3 to ensure that the public life is not disturbed but instead of doing so respondent no.4 indirectly encouraged the officers to enforce the bandh else there was no reason why majority of buses belonging to seven State Transport Corporations did not ply on 1.10.2007 putting the general public to great inconvenience and acute hardship. Learned counsel referred to the averments contained in paragraphs 10 to 12 of the contempt petition, to show that even as per the statement made by respondent no.1 in an interview given to a television channel during the mid day on 1.10.2007, only 61 of the 18641 buses could be operated on the date of bandh and argued that this should be treated as a clear proof of abject failure of respondent nos.1 to 3 to ensure that the normal life is not affected and the public is not inconvenienced. Learned counsel pointed out that due to the bandh organized by Democratic Progressive Alliance, which was indirectly supported by respondent nos.1 to 3, State Transport Corporations suffered loss to the tune of Rs.10 crores and submitted that all the respondents should be made to compensate the State Transport Corporations. Learned counsel submitted that in a cabinet form of government, the political party in power is responsible for the action and omissions of the administrative officers and, therefore, respondent no.4 should be held guilty of committing contempt of Court. As regards respondent no.6, Shri Guru Krishna Kumar strongly relied on the speech made by the said respondent on 1.10.2007 and argued that he should be held guilty of committing criminal contempt within the meaning of Section 2(c) of the 1971 Act and adequately punished. In support of his arguments, Shri Guru Krishna Kumar relied upon the judgments of this Court in Mohd. Aslam v. Union of India [(1994) 6 SCC 442], M. v. Home Officer [(1993) 3 All ER 537], A. Sanjeevi Naidu v. State of Madras [(1970) 1 SCC 443], Azhar Ali Khan v. Commissioner, Municipal Corporation of Delhi [(1984) 3 SCC 549], Hoshiar Singh v. Gurbachan Singh [1962 (Supp) 3 SCR 127], T.N. Godavarman Thirumulpad v. Ashok Khot [(2006) 5 SCC 1], Aswini Kumar Ghose v. Arabinda Bose [1953 SCR 215] and E.M. Sankaran Namboodripad v. T. Narayanan Nambiar [(1970) 2 SCC 325].

16. Shri R. Venkataraman, learned counsel appearing on behalf of the petitioner in Contempt Petition No.262 of 2007 argued that respondent nos.1 to 5 are guilty of civil contempt inasmuch as they willfully disobeyed the directions contained in order dated 30.9.2007 passed in Special Leave Petition (Civil) No.18879 of 2007 and ensured that total bandh is organized in the State. Learned counsel further argued that respondent no.6 is guilty of criminal contempt because he scandalized the Court’s order dated 30.9.2007 by making unwarranted remarks against the judiciary in general and particularly against the Bench which passed the restraint order.

17. Shri Ashok Desai, learned senior counsel appearing for respondent nos.1 and 2 argued that his clients cannot be held guilty of contempt of court because even before formal receipt of the Court’s order at 10.30 p.m. on 30.9.2007, respondent no.1 had issued detailed instructions to all the officers to ensure that general public is not inconvenienced and normal life is not disrupted on account of the call given by the political parties for hartal. Learned senior counsel referred to the instructions contained in telefax issued as per the directions of respondent No.1 and fax sent by Additional Director General of Police (Law & Order) to show that respondent nos.1 and 2 had taken all measures for protection of hospitals, courts, railways, airports, banks, schools, telecom installations, transport services, shops and markets, industrial establishments and for ensuring that essential services like supply of milk and water and movement of trains are maintained without any obstruction and the police force was mobilized to protect the lives and property of the people in addition to Government and private establishments. Shri Desai emphasized that proceedings under the 1971 Act are quasi criminal and argued that respondent nos.1 and 2 cannot be accused of committing contempt within the meaning of Section 2(b) of the 1971 Act because the petitioner has not produced any evidence to show that they willfully disobeyed order dated 30.9.2007. Learned senior counsel submitted that respondent nos.1 and 2 cannot be held guilty of contempt merely because leaders of political parties sat on hunger strike on 1.10.2007 and the business community did not open the shops in view of resolution dated 24.9.2007 passed by Democratic Progressive Alliance for cessation of work. He submitted that the buses of the State Transport Corporations could not be operated in the early part of the day on 1.10.2007 because trade unions affiliated to political parties had decided to abstain from work and large number of employees might have left their stations in view of the call for cessation of work on 1.10.2007 given by the Democratic Progressive Alliance and the coming holidays on 29th and 30th September, 2007 and again on 2nd October, 2007.

18. Shri T.R. Andhyarujina, learned senior counsel appearing for respondent no.4, extensively referred to affidavit dated 22.8.2008 of his client to show that even before receipt of the Court’s order, he had made a statement for withdrawal of resolution dated 24.9.2007 and argued that in the absence of any evidence to show that respondent no.4 had instigated anyone to disrupt the essential services or cause inconvenience to the general public, he cannot be proceeded against under the 1971 Act. Learned counsel submitted that telefax dated 30.9.2007 sent at the instance of respondent no.1 also shows that the administration had taken positive steps to ensure that essential services are not disturbed due to call given by the political parties for cessation of work etc. on 1.10.2007 and the police bandobust was provided for all public and private establishments and effective steps were taken for maintaining transport services.

19. Dr. A.M. Singhvi, learned senior counsel appearing for respondent nos.3 and 5, argued that the concerned Minister and Secretary had made genuine efforts to ensure that operation of buses by the State Transport Corporations is not jeopardized due to the call given by the Democratic Progressive Alliance for cessation of work or for hunger strike on 1.10.2007 and, therefore, they cannot be held guilty of contempt under Section 2(b) of the 1971 Act. Dr. Singhvi placed before the Court a compilation of fax messages and circulars issued by respondent no.3 and statements containing the details of buses operated by seven State Transport Corporations on 1.10.2007 and collection of revenue to the tune of Rs.4.83 crores and argued that in the absence of any evidence or contemporaneous record to show that respondent nos.3 and 5 were directly responsible for non-operation of bus services for some time, they cannot be hauled up on the allegation of committing contempt of Court. Shri Singhvi emphasized that unless intentional circumspection of the Court’s order or positive attempt to frustrate implementation thereof is proved, the respondents cannot be proceeded under the 1971 Act.

20. Shri M.N. Rao, senior advocate argued that newspaper reports of the alleged speech made by respondent no.6 on 1.10.2007 at Chennai cannot be relied upon for holding him guilty of contempt of court because the petitioner has not produced primary evidence of the so-called speech. Shri Rao emphasized that newspaper reports merely represent the version given by the correspondent on the basis of his understanding/impression of the speech made by respondent no.6 and the same do not constitute primary evidence of what was actually stated by respondent no.6 warranting initiation of action for criminal contempt. Shri Rao further argued that the tape/CD of the telecast of the speech of respondent no.6 does not represent the true and correct version of what was said and as the original version has been erased and tape has been reused, the allegation made against respondent no.6 is liable to be discarded.

21. In his rejoinder arguments, Shri S. Guru Krishna Kumar highlighted discrepancies in the fax messages sent by respondent no.3 as also the statement of income produced by Dr. A.M. Singhvi and submitted that these documents appear to have been fabricated after issue of notice by this Court. He then argued that these documents cannot be relied for exonerating respondent nos.1 to 3 of the charge of highly contumacious conduct which resulted in violation of the Court’s order.

22. We have considered the submissions/arguments of learned counsel for the parties. Section 2(b) and (c) of the 1971 Act which define civil and criminal contempt read as under:

2(b) “civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;

2(c) “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible

representations, or otherwise) of any matter or the doing of any other act whatsoever which-

(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court ; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in

any other manner.”

An analysis of Section 2(b) shows that willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court constitutes civil contempt. If this definition is read with Article 129 of the Constitution of India, it becomes clear that being a Court of record, this Court can punish a person for civil contempt if it is found that he has willfully disobeyed any judgment etc. or violated undertaking given to the Court.

23. The term “wilful” (willfull) has not been defined in the 1971 Act. Therefore, it will be useful to notice dictionary meaning of the said term. As per The New Oxford Illustrated Dictionary (1980 Edition), the term “willful” means “asserting or disposed to assert one’s own will against instruction, persuasion, etc. obstinately self-willed; deliberate, intentional, showing perversity or self-will”. According to Black’s Law Dictionary, Vol.II (8th Edition) – Willful means “voluntary and intentional, but not necessarily malicious” and willfulness means “the fact or quality of acting purposely or by design; deliberateness; intention; willfulness does not necessarily imply malice, but it involves more than just knowledge; the voluntary, intentional violation or disregard of a known legal duty.” As per the Stroud’s Judicial Dictionary, Vol.5 (4th Edition), wilful disobedience means “the willful disobedience of a SEAMAN or apprentice is `wilfully disobeying any lawful command DURING the engagement’: `There may be many cases in which desertion or absence without leave, would not amount to willful disobedience, and in these cases the seaman would only be liable to the lesser penalty. Where, however, the seaman deserts or is intentionally absent without leave after the time at which he has been lawfully ordered to be on board, his desertion or absence may amount to `wilful disobedience’, and, consequently, that he would be liable to imprisonment. The words `during the engagement’ seem to suggest that the contract between the employer and the employed should be taken into account, and that if, having regard to that contract, the order was one which the employed was bound to obey, his disobedience might be dealt with under clause (d)” In Shorter Oxford English Dictionary, the term “willful” has been defined as, “asserting or disposed to assert one’s own will against persuasion, instruction, or command; governed by will without regard to reason; obstinately self-willed or perverse; 2. Willing; consenting; ready to comply with a request, desire, or requirement – 1598. 3. proceeding from the will; done or suffered of one’s own free will or choice; voluntary – 1687. 4. Done on purpose or wittingly; purposed, deliberate, intentional. (Chiefly, now always, in bad sense of a blameworthy action; freq. implying `perverse, obstinate’.)

24. In Ashok Paper Kamgar Union v. Dharam Godha and others [(2003) 11 SCC 1], this Court was called upon to decide whether the respondents, i.e., Shri Dharam Godha, Chairman, Nouveau Capital & Finance Ltd., Shri S. Jagadeesan, Joint Secretary, Ministry of Industry, Department of Industrial Policy and Promotion, Government of India, Shri G.S. Kang, Secretary, Department of Industries, Government of Bihar, Shri S.N. Khan, Chairman and Managing Director and Shri R.P. Chabra, Chief General Manager, Rehabilitation Finance Department, Industrial Development Bank of India were guilty of contempt. The facts of the case were that by an order dated 8.7.1996, this Court approved the proposal made by the Government of India for take over of M/s. Ashok Paper Mills by M/s. Nouveau Capital and Finance Ltd. and disposed of the writ petition filed by Ashok Paper Kamgar Union. Later on, by an order dated 1.5.1997, all concerned were directed to participate in implementation of the scheme and the Finance Secretary, Ministry of Finance, Government of India was directed to ensure that the legal requirements are fulfilled and the mill is rehabilitated and both Phases I and II of the Scheme are given effect to. Two more orders were passed by the court in the matter on 31.7.2000 and 1.9.2000. The petitioner alleged that the respondents have failed to comply with the directions given by the Court for implementation of the Scheme and, therefore, they are liable for contempt of court. This court took cognizance of the fact that M/s. Nouveau Capital & Finance Ltd. had failed to pay the consideration of Rs.6 crores; that IDBI had disbursed term loan of Rs.15 crores towards Phase I of revival Scheme; that the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India in cooperation with the Department of Banking obtained sanction for additional term loan of Rs.11 crores from IDBI and a working capital of Rs.9.25 crores from United Bank of India; that NCFL had invested Rs.20 crores towards promotion contribution which was much more than amount contemplated in Phase I of the Scheme and held that respondents cannot be held guilty of contempt. Para 17 of the judgment which contains discussion on the subject reads as under:

“Section 2(b) of the Contempt of Courts Act defines “civil contempt” and it means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of undertaking given to a court. “Wilful” means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extraordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case. The facts mentioned above show that none of the respondents to the petition can be held to be directly responsible if the Scheme which had been formulated by the Government of India on 28-6-1996 and had been approved by this Court by the order dated 8-7-1996 could not be implemented in letter and spirit as many factors have contributed to the same. The reasons given for non-inclusion of Shri Umadhar Prasad Singh in signing of the agreement appear to be quite plausible. NCFL has undoubtedly not discharged its liability of making payment of its entire liability of Rs.6 crores. However, it has come out with a case that some additional expenditure has been incurred in running the unit. It is not possible to get the complete financial picture only on the basis of the affidavits filed in the present petition. On the material on record, therefore, it is not possible to hold that the charge of having committed contempt of court on account of alleged non- compliance with the orders passed by this Court on 8-7-1996, 1-5- 1997 and 31-7-2000 has been established against any one of the respondents.”

[Emphasis added]

25. In Delhi Development Authority v. Skipper Construction [(1995) 3 SCC 507], this Court highlighted distinction between the civil and criminal contempt in the following words:-

“Civil contempt is defined under Section 2(b) of the Act. Thus, any wilful disobedience to the order of the court to do or abstain from doing any act is prima facie a civil contempt. Civil contempt arises where the power of the court is invoked and exercised to enforce obedience to orders of the court.

On the contrary, criminal contempts are criminal in nature. It may include outrages on the Judges in open court, defiant disobedience to the Judges in court, libels on Judges or courts or interfering with the courts of justice or any act which tends to prejudice the courts of justice.”

26. In Kapildeo Prasad Sah and others v. State of Bihar and others [(1999) 7 SCC 569], the Court outlined the object of its contempt jurisdiction in the following words:-

“For holding the respondents to have committed contempt, civil contempt at that, it has to be shown that there has been wilful disobedience of the judgment or order of the court. Power to punish for contempt is to be resorted to when there is clear violation of the court’s order. Since notice of contempt and punishment for contempt is of far-reaching consequence, these powers should be invoked only when a clear case of wilful disobedience of the court’s order has been made out. Whether disobedience is wilful in a particular case depends on the facts and circumstances of that case. Judicial orders are to be properly understood and complied with. Even negligence and carelessness can amount to disobedience particularly when the attention of the person is drawn to the court’s orders and its implications. Disobedience of the court’s order strikes at the very root of the rule of law on which our system of governance is based. Power to punish for contempt is necessary for the maintenance of effective legal system. It is exercised to prevent perversion of the course of justice.

No person can defy the court’s order. Wilful would exclude casual, accidental, bona fide or unintentional acts or genuine inability to comply with the terms of the order. A petitioner who complains breach of the court’s order must allege deliberate or contumacious disobedience of the court’s order.”

[Emphasis added]

27. In the light of the above, we shall now consider whether respondent nos.1 to 5 can be said to have willfully disobeyed order dated 30.9.2007. At the cost of repetition, we consider it necessary to point out that while issuing notice in Special Leave Petition (Civil) No.18879 of 2007, this Court restrained the political parties from proceeding with the call for bandh in the State of Tamil Nadu on 1.10.2007 pursuant to resolution dated 24.9.2007 or any other day. The language of the restraint order is unambiguous. The prohibitive injunction contained therein was explicitly directed against the political parties and not against respondent nos. 1 to 3. The Court did not direct respondent nos. 1 to 3 to act in any particular manner or take certain specific steps to meet the challenge likely to be posed by implementation of the call given by Democratic Progressive Alliance. This was so because the Court could not have presumed that the restraint order passed by it will be disregarded or flouted by the political parties. Therefore, respondent nos.1 to 3 cannot, per se, be held guilty of disobeying or violating the Court’s order dated 30th September, 2007 and punished for committing contempt of court as defined in Section 2(b) of the 1971 Act.

28. No doubt, the petitioners have repeatedly asserted that the buses of State Transport Corporations and 45000 private buses remained off the road on 1.10.2007 causing serious inconvenience to the general public and loss of revenue to the tune of Rs.10 crores, but their assertion is partly belied by the counter affidavits of respondent nos.1 to 3, wherein all the officers have detailed the reasons for operation of less number of buses in the initial hours on 1.10.2007 and the fact that revenue collection of the day was to the tune of Rs.4.83 crores. In his affidavit, respondent no.1 has categorically averred that during the course of the day 2749 routes were made operational. The affidavits of the official respondents also reveal that despite instructions issued to various functionaries, normal transport services could not be made available on account of the support extended to resolution dated 24.9.2007 by the trade unions affiliated to the political parties and the fact that large number of employees had gone on leave thinking that the services may not operate in the wake of the call given by the political parties and three holidays. This has not been controverted by the petitioners. The photographs produced by petitioner – All India Anna Dravida Munnetra Kazhagam do show empty streets, but the same cannot be made basis for recording a finding of guilt against respondent nos. 1 to 3, more so because the petitioners have not produced any evidence to prima facie establish that the transport services did not at all operate in the State on 1.10.2007 and that too on account of any action or omission on the part of respondent nos. 1 to 3. This being the position, it is not possible to record a finding that respondent nos. 1 to 3 or for that reason respondent no.5 deliberately disobeyed or violated the direction given by this Court.

29. The petitioners have also not placed on record any evidence to show that despite restraint order passed by the Court on 30.9.2007, the political parties constituting Democratic Progressive Alliance resorted to strike or bandh. They have not even disputed that after coming to know about the Court’s order, respondent no.4 made a statement at 1.30 p.m. withdrawing resolution dated 24.9.2007 which contained a call for cessation of work on 1.10.2007. If, despite statement of respondent no.4, which was made known to the public, the shops and business establishments remained closed and the private transport operators did not consider it proper to operate their services on 1.10.2007, respondent nos.1 to 3 cannot be held to have deliberately disobeyed the Court’s order.

30. The argument of Shri S. Guru Krishna Kumar that respondent no.4 should be held guilty of contempt because the Government did not issue written instructions to the officers to take steps for maintaining the essential services and to ensure that public life is not disrupted on account of the call for bandh and the workers of his party coerced the people to close the commercial and business establishments is being mentioned only to be rejected. The bald statement contained in the contempt petitions that violence and coercion was resorted to by members of the party headed by respondent no.4 has remained unsubstantiated because except the newspaper reports no material has been produced before the Court giving the names and other relevant particulars of the persons who are said to have indulged in forced closure of shops and business establishments on 1.10.2007 and no other evidence has been produced to show that respondent no.4 had, directly or indirectly, encouraged the members of his party to enforce the call for cessation of work which has been prima facie treated by the Courts as call for bandh. Therefore, respondent no.4 cannot be accused of having engineered violation of the Court’s order.

31. Insofar as respondent no.6 is concerned, we find that the only material produced by the petitioner in Contempt Petition No. 262 of 2007 is in the form of zerox copies of newspapers and tape of the edited version of speech which is said to have been telecast on Jaya T.V. on 1.10.2007 and 2.10.2007. The petitioner in Contempt Petition No. 327 of 2007 has also produced zerox copies of some newspapers. In his first affidavit, respondent no.6 has claimed that the newspapers have reported something by putting in his mouth which he did not speak. In his second affidavit filed in the form of reply to the affidavits of S/Shri M. Ramasubramanian, S. Ravikumar and R. Thillai, respondent no.6 has alleged that what was telecast on Jaya T.V. was the doctored version of his speech. This being the position, the petitioners were duty bound to produce some primary evidence to prove the contents of the speech made by respondent no.6 scandalizing judiciary in general and this Court’s order dated 30th September, 2007 in particular. The zerox copies of the newspapers in which the contents of speech made by respondent no.6 have been published cannot be relied upon because the petitioners have not filed affidavits of those who covered the meeting held by the political parties in front of Chepauk Guest House on 1.10.2007 and heard the speech made by respondent no.6. If such affidavits had been filed, respondent no.6 could have been called upon to explain his position. Likewise, the original tape containing telecast of the speech made by respondent no.6 has not been made available to the Court.

32. The law on the admissibility of tape recorded versions is well settled. In Ram Singh and others v. Col. Ram Singh [1985 (Supp) SCC 611] Fazal Ali, J with whom Sabyasachi Mukharji, J. agreed, laid down the following tests for determining the admissibility of tape recorded version:

1. The voice of the speaker must be identified by the maker of the record or other persons recognizing his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.

2. The accuracy of the tape-recorded statement must be proved by the maker of the record by satisfactory evidence: direct or circumstantial.

3. Possibility of tampering with, or erasure of any part of, the tape-recorded statement must be totally excluded.

4. The tape-recorded statement must be relevant.

5. The recorded cassette must be sealed and must be kept in safe or official custody.

6. The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances.

33. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and others [(1976) 2 SCC 17], a three-Judge Bench while considering the question whether the appellant was guilty of promoting feeling of enmity between two sections of the society, examined the question of admissibility of tape recorded speech, referred to the judgment in R. v. Maqsud Ali [(1965) 2 All ER 464] and observed : “We think that the High Court was quite right in holding that the tape-records of speeches were “documents”, as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions:

(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by

others who know it.

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory

evidence, direct or circumstantial, had to be there so

as to rule out possibilities of tampering with the

record.

(c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the

Evidence Act.”

34. We may now notice some judgments in which the Courts have considered the question relating to burden of proof in contempt cases. In Re, Bramblevale Ltd. [(1969) 3 All ER 1062], Lord Denning observed:

“A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond

reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence. …. Where there are two equally consistent possibilities open to the court, it is not right to hold that the offence is proved beyond reasonable doubt.”

35. In Mrityunjoy Das and another v. Sayed Hasibur Rahman and others [(2001) 3 SCC 739], the Court referred to a number of judicial precedents including the observations made by Lord Denning in Re, Bramblevale Ltd. and held: “The common English phrase “he who asserts must prove” has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the “standard of proof”, be it noted that a proceeding under the extraordinary jurisdiction of the court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond reasonable doubt.”

36. In Chhotu Ram v. Urvashi Gulati and another [(2001) 7 SCC 530], a two- Judge Bench observed :

“As regards the burden and standard of proof, the common legal phraseology “he who asserts must prove” has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the “standard of proof”, be it noted that a proceeding under the extraordinary jurisdiction of the court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond all reasonable doubt.”

37. In Anil Ratan Sarkar and others v. Hirak Ghosh and others [(2002) 4 SCC 21], the Court referred to the judgment in Chhotu Ram v. Urvashi Gulati and another (supra) and observed:

“The Contempt of Courts Act, 1971 has been introduced in the statute-book for the purposes of securing a feeling of confidence of the people in general and for due and proper administration of justice in the country – undoubtedly a powerful weapon in the hands of the law courts but that by itself operates as a string of caution and unless thus otherwise satisfied beyond doubt, it would neither be fair nor reasonable for the law courts to exercise jurisdiction under the statute.”

38. The judgments on which reliance has been placed by Shri S. Guru Krishna Kumar do not have any direct bearing on this case. In A. Sanjeevi Naidu’s case, the Court interpreted the provisions of Section 68C of the Motor Vehicles Act, 1939 and held that when a civil servant takes a decision, he does not do it as a delegate of his Minister but on behalf of the Government, though it is always open to a Minister to call for any file in his office and pass order or issue directions to the officers in his Ministry regarding the disposal of Government business generally or as regards any specified case. In Azhar Ali Khan’s case, the Court held that compliance of orders or directions given by Court to Government or its instrumentalities cannot be avoided merely on ground of inability to comply with its own resolution passed in the face of those clear orders or directions. In T.N. Godavarman Thirumulpad’s case it was found that the Minister and Principal Secretary, Department of Forests, Government of Maharashtra have brazenly and willfully flouted the Court’s directions and granted permission to certain sawmills to recommence their operations and, therefore, they were punished under the 1971 Act. In Mohd. Aslam’s case, this Court considered the question whether the State and its ministers can be proceeded against in contempt for failure to obey the judicial pronouncements. The facts of the case were that during the month of July, 1992, land measuring 2.77 acres situated in Ayodhya was acquired by the State Government under Land Acquisition Act, 1894, for developing an amenity for pilgrims at Ayodhya. Writ Petition No.1000 of 1991 was filed under Article 32 of the Constitution before this Court questioning the acquisition proceedings. On 15.11.1991, the Court noted that the Chief Minister of the State has made statements in the meeting of the National Integration Council held on 2.11.1991 against the making of construction at the site and accordingly, resolution was passed by the National Integration Council and directed that no construction be made at the site. However, despite the Court’s order, construction activities were allowed to be undertaken at the site by Sadhus. It was urged on behalf of the respondents that any coercive/preventive action in the matter of construction of the platform would have triggered an adverse reaction endangering the safety of disputed `Ram Janma Bhoomi-Babri Masjid’ structure which was situated in immediate vicinity and for whose protection Government stood committed and, therefore, the respondent who was holding the office of the Chief Minister, cannot be held guilty of contempt. While rejecting the plea, this Court relied upon the observations contained in William G. Cooper, Members of the Board of Directors of the Little Rock v. John Aaron [358 US1 : 3 L Ed 2d 5 : 78 S Ct 1401 (1958)] and observed:- “The use of force to further obedience to law is in any event a last resort and one not congenial to the spirit of our Nation. … Violent resistance to law cannot be made a legal reason for its suspension without loosening the fabric of our society. What could this mean but to acknowledge that disorder under the aegis of a State has moral superiority over the law of the Constitution?

The historic phrase `a Government of laws and not of men’ epitomizes the distinguishing character of our political society. When John Adams put that phrase into the Massachusetts

Declaration of Rights he was not indulging in a rhetorical flourish. He was expressing the aim of those who, with him, framed the Declaration of Independence and founded the

Republic.

Compliance with decisions of this Court, as the constitutional organ of the supreme law of the land, has often, throughout our history, depended on active support by State and local authorities. It presupposes such support. To withhold it, and indeed to use political power to try to paralyse the supreme law, precludes the maintenance of our federal system as we have known and

cherished it for one hundred and seventy years.

Lincoln’s appeal to `the better angels of our nature’ failed to avert a fratricidal war. But the compassionate wisdom of Lincoln’s First and Second Inaugurals bequeathed to the Union, cemented with blood, a moral heritage which, when drawn upon in times of stress and strife, is sure to find specific ways and means to surmount difficulties that may appear to be insurmountable.” Dicey, in his Law of the Constitution, (10th Edn., pp.193-94) said: When we speak of the `rule of law’ as a characteristic of our country, (we mean) not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary courts, has been pushed to its utmost limit. With us every official, from Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of State, a military officer, and all subordinates though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person.”

39. The Court then referred to the reports of Chief Engineer, District Magistrate and Senior Superintendent of Police and proceeded to observe:- “The next question is whether these activities were carried on by a congregation of Sadhus at the site and not by the State Government and despite Government’s efforts. Apart from a glib suggestion that any attempt to prevent the work would have created a violent situation endangering the safety of the “Ram Janma Bhoomi-Babri Masjid structure” itself, nothing is indicated as to what was sought to be done at all to prevent constructional material coming in. There is no mention in any of the affidavits of any of the officers as to what reasonable measures the

Government took to prevent the inflow of constructional material such as large quantities of cement, mortar, sand, constructional equipment, water-tankers etc. that were necessary for the work. The report of the Expert Committee has indicated that

constructional machinery was indispensable having regard to the nature and magnitude of the work carried out. While it is understandable that the prevention of the gathering of Sadhus might have created some resentment, it is un-understandable why large quantities of building materials were allowed to be brought on the land unless it be — and that must be the reasonable presumption — that the Government itself was not too anxious to prevent it. It is not merely positive acts of violation but also surreptitious and indirect aids to circumvention and violation of the orders that are equally impermissible. If reasonable steps are not taken to prevent the violation of the orders of the Court, Government cannot be heard to say that violation of the orders were at the instance of others. The presumption is that the Government intended not to take such preventive steps. In the facts and circumstances of the case, we are unable to persuade ourselves to the view that the Government was helpless and the situation that had developed was in spite of all reasonable steps taken by the Government. Indeed there is no indication that the Government bestirred itself to take any steps, reasonable or otherwise, to prevent large-scale building material getting into the site. The Chief Minister having given a solemn assurance to the National Integration Council and permitted the terms of that assurance to be incorporated as his own undertaking to this Court and allowed an order to be passed in those terms cannot absolve himself of the responsibility unless he placed before the Court sufficient material which would justify that he had taken all reasonable steps and precautions to prevent the occurrence. Indeed, if such reasonable steps had been taken he could not be faulted merely because he did not do the best by the standards of others. In this case, we find no explanation at all apart from the fact that the Sadhus had congregated in that place in large number, as to what steps the Government took to prevent the constructional equipment from getting into site. If any reasonable effort had been made and evidence of that placed before Court, it might have been possible for the Court to assess the situation in the light of that explanation to find out whether such steps had been taken. In the absence, we are constrained to hold that the Government failed to take steps to prevent the grossest violation of the order of this Court. We record a finding accordingly.”

40. On the question whether the undertaking furnished by the Chief Minister was a personal undertaking or was on behalf of the State of U.P., the Court held: “The last question is whether the undertaking furnished by the Chief Minister was a personal undertaking or was on behalf of the State of U.P. It was both.

There is no immunity for any authority of Government, if a personal element is shown in the act of disobedience of the order of the Court, from the consequence of an order of the Court. Even in England where the maxim “Crown can do no wrong” has had its influence, a distinction is made between the Crown as such and the Executive.

In a recent pronouncement of far-reaching impact, the House of Lords in M. v. Home Office observed (as per Lord Templeman): “My Lords, Parliament makes the law, the executive carry the law into effect and judiciary enforce the law. The expression `the Crown’ has two meanings; namely the monarch and the executive. In the seventeenth century Parliament established its supremacy over the Crown as monarch, over the executive and over the judiciary. Parliamentary supremacy over the Crown as monarch stems from the fact that the monarch must accept the advice of a Prime Minister who is supported by a majority of Parliament. Parliamentary supremacy over the Crown as executive stems from the fact that Parliament maintains in office the Prime Minister who appoints the ministers in charge of the executive.

Parliamentary supremacy over the judiciary is only exercisable by statute. The judiciary enforce the law against individuals, against institutions and against the executive. The judges cannot enforce the law against the Crown as monarch because the Crown as monarch can do no wrong but judges enforce the law against the Crown as executive and against the individuals who from time to time represent the Crown. A litigant complaining of a breach of the law by the executive can sue the Crown as executive bringing his action against the minister who is responsible for the department of State involved, in the present case the Secretary of State for Home Affairs. To enforce the law the courts have power to grant remedies including injunctions against a minister in his official capacity. If the minister has personally broken the law, the litigant can sue the minister, in this case Mr. Kenneth Baker, in his personal capacity. For the purpose of enforcing the law against all persons and institutions, including ministers in their official capacity and in their personal capacity, the courts are armed with coercive powers exercisable in proceedings for contempt of court. * * *

My Lords, the argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War. For the reasons given by my noble and learned friend Lord Woolf and on principle, I am satisfied that injunctions and contempt proceedings may be brought against the minister in his official capacity and that in the present case the Home Office for which the Secretary of State was responsible was in contempt.” In the State of Bihar v. Rani Sonabati Kumari this Court approved the following view of Chakravartti, C.J., in Tarafatullah Mandal v. S.N. Maitra:

“I do not say that in fit cases a writ for contempt may not be asked for against a corporation itself, or against a Government. In what form, in such a case, any penal order, if considered necessary, is to be passed and how it is to be enforced are different matters which do not call for decision in this case. In England, there is a specific rule providing for sequestration of the corporate property of the party concerned, where such party is a corporation. I am not aware of any similar rule obtaining in this country, but I do not consider it impossible that in a fit case a fine may be imposed and it may be realised by methods analogous to sequestration which would be a distress warrant directed against the properties of the Government or the Corporation.”

(emphasis supplied)

The State Government is, therefore, liable in contempt. A Minister or Officer of Government is also either in his official capacity or if there is a personal element contributing to contempt, in his personal capacity, liable in contempt.”

41. In the case before us fact situation is entirely different. As mentioned above, on coming to know of the restraint order passed by this Court, respondent no.4 made a statement for withdrawal of resolution dated 24.9.2007 vide which call was given by five political parties for cessation of work. It is also borne out from the affidavit of respondent no.1 that on 24.9.2007 itself the said respondent had issued instructions to all the officers to ensure that law and order and essential services are maintained and the general public is not inconvenienced due to the call given by political parties for cessation of work. On 30.9.2007, respondent nos.1 to 3 gave detailed instructions to all the officers to ensure that the public is not put to harassment, the government and private properties are not damaged, supplies of essential services like water, electricity, telecom, railways etc. are not disrupted, supply of milk etc. is maintained and business and other commercial establishments are provided protection. Efforts were also made to ensure that operation of transport services is not affected. Respondent no.5 had monitored operation undertaken by the departmental authorities for restoring normal operation by the State Transport Corporation. It is, thus, evident that respondent nos. 1 to 5 did not disobey the restraint order passed by this Court and respondent nos. 1 to 3 took all the steps necessary for preventing any disruption of public services and inconvenience to the general public. It is a different thing that in the wake of hunger strike by leaders of political parties, the business community did not consider it proper to open shops etc. Therefore, the ratio of Mohd. Aslam’s case and other precedents referred to in that judgment cannot be applied to this case for framing charges against respondent nos.1 to 5 on the premise that they have committed contempt within the meaning of Section 2(b) of the 1971 Act.

42. Insofar as respondent no.6 is concerned, charge cannot be framed against him with reference to Section 2(c) of 1971 Act because the petitioners have not produced any legally admissible evidence to prove the contents of the speech allegedly made by the said respondent. The judgments in Aswini Kumar Ghose v. Arabinda Bose (supra) and E.M. Sankaran Namboodripad v. T. Narayanan Nambiar (supra) do not have any bearing on this case and, therefore, we do not consider it necessary to deal with the same.

43. In the result, the contempt petitions are dismissed. However, the parties are left to bear their own costs.

………………….J.

[B.N. AGRAWAL]

………………….J.

[G.S. SINGHVI]

New Delhi,

April 01, 2009.

Categories: Judgement

Chief Judicial Magistrate–Assaulted, arrested on flimsy grounds, handcuffed, tied with rope, photographs taken and published by Police Officers

Equivalent citations: 1991 AIR 2176, 1991 SCR (3) 936
Bench: Singh, K.N.

PETITIONER:

DELHI JUDICIAL SERVICE ASSOCIATION TIS HAZARICOURT, DELHI ET

Vs.

RESPONDENT:

STATE OF GUJARAT AND ORS. ETC-ETC.

DATE OF JUDGMENT11/09/1991

BENCH:

SINGH, K.N. (J)

BENCH:

SINGH, K.N. (J)

KULDIP SINGH (J)

KASLIWAL, N.M. (J)

CITATION:

1991 AIR 2176 1991 SCR (3) 936

1991 SCC (4) 406 JT 1991 (3) 617

1991 SCALE (2)501

ACT:

Constitution of India; 1950: Articles 32, 129, 136, 141, 142, 246,374(2) and Schedule VII List 1, Entry 77. Contempt of Court–Punishment of–Power and jurisdiction of the Supreme Court–Held Court has inherent power and jurisdiction to take action for contempt of subordinate or inferior courts also-Power to be exercised sparingly–Only when contempt is likely to have repercussions throughout the country.

Contempt of Court–High Courts as Courts of Record have inherent power and jurisdiction to take action for contempt of subordinate or inferior courts–Supreme Court having judicial. superintendence over all courts in the country has same jurisdiction.

Contempt of Court–Civil and criminal contempt–Criminal contempt–Wide enough to include any act which would tend to interfere with administration of justice or which would lower the dignity and authority of court.

Chief Judicial Magistrate–Assaulted, arrested on flimsy grounds, handcuffed, tied with rope, photographs taken and published by Police Officers–Held constituted clear case of criminal contempt–Contemners-punishment–Quantum of punish- ment determined according to degree and extent of part played by each contemner–Guidelines laid down by Supreme Court in case of arrest and detention of a Judicial Officer–To be followed by State Governments as well as High Courts–Judicial Officer not to visit Police Station–Except in connection with official and judicial duties and with prior intimation to District and Sessions Judge. Contempt proceedings in Supreme Court–Dispute regarding facts–High Court Judge appointed as Commissioner–Inquiry made, evidence recorded and report submitted–Held contem- ners not persons accused of an offence.

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Supreme Court–Supervisory and appellate jurisdiction of-Plenary jurisdiction unaffected by self imposed restric- tions of the Court–From plenary jurisdiction flows supervi- sory jurisdiction over all courts and Tribunals in India. Supreme Court’s jurisdiction and power not limited–Can determine its own jurisdiction and it will De final. Supreme Court taking cognizance of contempt matter arising out of an 2incident subject matter of trial before a criminal court–Has ample power to do complete justice and prevent abuse of process of court–‘Cause’ or ‘matter’ includes proceeding pending in Civil or criminal matter-Need to do ‘complete justice’ would depend on facts and circumstances of case.

precedents–Decisions of Federal Court–Not binding but entitled to great weight–Changes brought about by Constitu- tion to be kept in mind while considering Federal Court, Privy Council decisions.

Contempt of Courts Act, 1971—Sections 2(c), 12 and 15. Criminal contempt–Object of punishing contemner–To protect administration of public justice–Not to protect Judges personally.

Police Officers assaulting, arresting and handcuffing Chief Judicial Magistrate–Publishing photographs in news- papers–Held constituted criminal contempt–Punishment to contemners determined having regard to degree and extent of part played by each contemner-Guidelines laid down by Su- preme Court to be followed by State Governments and High Courts while arresting Judicial Officers.

Criminal contempt proceedings different from ordinary crimi- nal proceedings.

“Courts of Record’–Have power to summarily punish for contempt of court–Contempt of Courts Act 1971 does not curtail inherent power of Supreme Court to punish for con- tempt.

Statutory Interpretation.

Constitution–Interpretation of. Not.permissible to adopt a construction which would render any expression super-fluous or redundant-Regard to be had to the social, economic and political changes, need of the Community and the independence of the judiciary–

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Supreme Court cannot be a helpless spectator bound by prece- dents of colonial days which have least relevance. Criminal Procedure Code, 1973. Section 6 and Chapter XII. Chief Judicial Magistrate–Position and role of–Coordi- nation, Cooperation of police necessity for –Police to be scrupulously fair to offender–Magistrate to ensure fair investigation and }air trial of offender–Magistracy and police–Purpose and object–Complementary to each other–Judicial officer not to visit police station except in connection with official and judicial duties and with prior intimation to District and Sessions Judge. Words and Phrases–Meaning

‘Contempt’–Contempt of Courts Act 1971: Section 2(c).. ‘Court of record’–Constitution of India—-Article 129. ‘Persons accused o fan offence’—constitution of India, Article 20(3).

Including the power to punish for contempt of itself–Constitution of India, Article 129.

‘Complete Justice’–Constitution of India, Article 142 (1).

HEADNOTE:

Mr. N.L. Patel was posted as Chief Judicial Magistrate at Nadiad in October, 1988. He soon found that the local Police was not cooperating with the courts in efficting service of summons, warrants and notices on accused persons, as a result of which the trials of cases were delayed. He made complaint against the local police to the District Superintendent of Police and forwarded a copy of the same to the Director General of Police but nothing concrete hap- pened. On account of these complaints, Mr. S.R. Sharma, Police Inspector, Nadiad was annoyed with the Chief Judicial Magistrate and he withdrew constables posted in the CJM Court. In April 1989, the CJM filed two complaints with the Police against the Police Inspector and other Police Offi- cials, Nadiad for delaying the process of the Court. On 25th July, 1989, the CJM directed the police to register a crimi- nal case against 14 persons who had caused obstruction in judicial proceedings but subsequently since unqualified apology was tendered, the CJM directed the Police Inspector to drop the cases. The Police Inspector reacted strongly to the CJM’s direction and he made complaint against the CJM to the Registrar of the High Court through the District Super- intendent of Police. On account of the aforesaid facts there was hostility between the Police of Nadiad and the CJM. 939

On 25th September 1989, the Police Inspector met the CJM in his chambers to discuss a case where the Police had failed to submit the charge-sheet within 90 days. During discussion the Police Inspector invited the CJM to visit the police station to see the papers and assured him that he would mollify the sentiments of the police officials. At 8.35 p.m. on the said date, the Police Inspector sent a Police Jeep to the CJM’s residence and he went to the Police Station.

According to the CJM when he arrived in the Police Station he was forced to consume liquor and on his refusal he was assulted, handcuffed and tied with rope by Police Inspector, Sub-Inspector, Head Constable, and Constable and that he was sent to Hospital for Medical Examination under handcuffs. A photographer was arranged to take his photo- graph which was published in the newspapers. The Police Inspector disputed these allegations and according to him the CJM entered his chamber at the Police Station in a drunken state, shouting and abusing him and since he was violent, he was arrested, handcuffed and sent to Hospital for Medical Examination. He himself wanted to be photo- graphed and that is why the photographs were taken by the press photographer.

As the incident undermined the dignity of courts in the country, Judicial Officers, Judges and Magistrates all over the country were in a state of shock, they felt insecure and humiliated. A number of Bar Associations passed Resolutions and went on strike. The Delhi Judicial Service Association, the All India Judges Association, Bar Council of Uttar Pradesh and many others approached this Court by means of telegrams and petitions under Article 32 for saving the dignity and honour of the judiciary. The CJM also filed an application for quashing the two FIRs lodged against him and for directing the trial of his complaint as State case an award of compensation. On 29.9.1989 this Court took cogni- zance of the matter by issuing notices to the State of Gujarat and other Police Officers.

Since there was serious dispute between the parties with regard to the entire incident, the Court appointed the senior puisne Judge of the Allahabad High Court to inquire into the incident and to submit a report to the Court. The inquiry was held on behalf of the Court and not under the provisions of the Commission of Inquiry Act. A detailed report was submitted to this Court and the Court directed copies to be delivered to the concerned parties and permit- ted the parties and the contemners to file their objections before this Court.

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The Learned Commissioner’s Report establised the follow- ing facts and circumstances: that the CJM found that the Police of Nadiad was not effective in service of summons and had adopted an attitude of indifference to the court’s orders, and as complaints were forwarded to the authorities by the CJM there was confrontation between the local police and the magistracy. When the CJM visited the police station pursuant to the Police Inspector’s request to discuss the matter, he was forced to consume liquor and on his refusal he was assaulted. He was tied up with a rope by the Police personnel and handcuffed deliberately in defiance of the state’s Police Regulations and Circulars and the decision of this Court in Prem Shankar Shukla v. Delhi Administration., A panchnama showing the drunken state of the CJM was pre- pared by the Police Inspector and signed by two panchas–a Mamlatdar and a Fire Brigade Officer. A press photographer was brought on the scene, the police personnel posed with the CJM for the press photographer and the same was pub- lished in newspapers. A request made by the CJM to the Civil Hospital doctors to contact and inform the District Judge about the incident was not allowed. On examination at the hospital, the body of the CJM was found to have a number of injuries. His blood was taken and chemical examination conducted. The Chemical Examiner submitted a report holding that the blood sample contained alcohol. At the initial stage only one case was registered against the CJM by the Police under the Bombay Prohibition Act, but when lawyers met the Police Inspector for securing release of the CJM on bail, the offence being bailable, the Police Inspector, registered another case under Sections 332 and 506 IPC in order to frustrate the attempt. The District Superintendent of Police did not take immediate action in the matter but created an alibi that he had gone elsewhere and stayed in the government Rest House there, the register of the Rest House however indicating that the entry regarding the stay was manipulated subsequently by making an interpolation. On behalf of the contemners-Police Officers it was contended that: (1) this Court had no jurisdiction or power to indict the Police Officers even if they are found to be guilty, as their conduct does not amount to contempt of this Court. Articles 129 and 215 demarcate the respective areas of jurisdiction of the Supreme Court and the High Courts respectively, and this Court’s jurisdiction under Article 129 is confined to the contempt of itself only, and it has no jurisdiction to indict a person for contempt of an infe- rior court subordinate to the. High Court. (2) Even if the Supreme Court is a court of record, it has no power to take action for the contempt of a Chief Judicial Magistrate’s court as neither the constitution nor any statutory provi- sion confer any

941

such jurisdiction-or power on this Court. So far as the High Court is concerned, it has power of judicial and administra- tive superintendence over the subordinate courts and Section 15 of the Contempts of Courts Act, 1971 expressly confers power on the High Court to take action for the contempt of subordinate courts. (3) Under Entry 77 of List I of the Seventh Schedule, Parliament has legislative competence to make a law curtailing the jurisdiction of the Supreme Court and Section 15 of the Contempts of Courts Act 1971 curtails the inherent power of this Court with regard to contempt of subordinate courts. Inherent powers are always preserved but they do not authorise a court to invest itself with juris- diction when that jurisdiction is not conferred by law. (4) Assumption of contempt jurisdiction with regard to contempt of subordinate and inferior courts on the interpretation of Article 129 of the Constitution is foreclosed by the deci- sions of the Federal Court in K.L. Gauba v. The Honable the Chief Justice and Judges of the High Court o]’ judicature at Lahore & Anr., AIR 1942 FC 1. This Court being the successor to the Federal Court was bound by the decisions of the Federal Court under Article 374(2) of the Constitution. (5) In our country there is no court of universal jurisdiction, as the jurisdiction of all courts including the Supreme Court is limited. (6) Article 142(1) does not contemplate any order contrary to statutory provisions. (7) The findings recorded by the Commission cannot be taken into account as those findings are hit by Article 20(3) of the Constitution. The Attorney-General urged that the power to punish contempt is a special jurisdiction which is inherent in a Court of record, that a superior court of record has inher- ent power to punish for contempt of itself and it necessari- ly includes and carries with it the power to punish for contempt committed in respect of subordinate or inferior courts, that a superior court of record having power to correct the order of an inferior court has power to protect that court by punishing those who interfere with the due administration of justice of that court. It was further urged that the Contempt of Courts Act 1971 recognises and preserves the existing contempt jurisdiction and power of the court of record for punishing for contempt of subordi- nate or inferior courts, that the Act has not affected or restricted the suo motu inherent power of the Supreme Court being a court of record which has received constitutional sanction under Article 129, that since this Court has taken cognizance of the contempt matter arising out of the inci- dent which is the subject matter of trial before the crimi- nal court, this Court has ample power under Article 142 of the Constitution to pass any order necessary to do justice and prevent abuse of process of the court and that there is no limitation on the power of this Court under Article 142 942

in quashing a criminal proceeding pending before a subordi- nate court.

The basic questions that arose for consideration of the Court were: (a) whether the Supreme Court has inherent jurisdiction or power to punish for contempt of subordinate or inferior courts under Article 129 of the Constitution, (b) whether the inherent jurisdiction and power of the Supreme Court is restricted by the Contempt of Courts Act, 1971, (c) whether the incident interfered with the due administration of justice and constituted contempt of court, and (d) what punishment should be awarded to the contemners found guilty of contempt.

Disposing of the writ petitions, Criminal Miscellaneous Petitions, and contempt petitions, this Court. HELD: 1.1 Contempt of court is an act or commission calculated to interfere with the due administration of justice. It includes civil and criminal contempt. [991D] Bowen L.J. in Helmore v. Smith, [1886] 35 Ch.D. 436 at 455, referred to.

1.2 The definition of criminal contempt is wide enough to include any act by a person which would tend to interfere with the administration of justice or which would lower the authority of court. The public have a vital stake in effec- tive and orderly administration of justice. The Court has the duty of protecting the interest of the community in the due administration of justice and, so, it is entrusted with the power to commit for contempt of court, not to protect the dignity of the Court against insult or injury, but, to protect and vindicate the right of the public so that the administration of justice is not perverted, prejudiced, obstructed or interfered with Offutt v.U.S., [1954] 348 US 11, referred to. [991F]

1.3 The power to punish contempt is vested in the Judges not for their personal protecting only, but for the protec- tion of public justice, whose interest, requires that decen- cy and decorum is preserved in Courts of Justice. Those who have to discharge duty in a Court of Justice are protected by the law, and shielded in the discharge of their duties. Any deliberate interference with the discharge of such duties either in court or outside the court by attacking the presiding officers of the court, would amount to criminal contempt and the courts must take serious cognizance of such conduct. [993B]

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The object and purpose of punishing contempt for interference with the administration of justice is not to safeguard or protect the dignity of the Judge or the Magis- trate, but the purpose is to preserve the authority of the courts to ensure an ordered life in society. [991H] Attorney-General v. Times Newspapers, (1974] A.C. 273 at p. 302, referred to.

1.5 The Chief Judicial Magistrate is head of the Magis- tracy in the District who administers justice to ensure, protect and safaguard the rights of citizens. The subordi- nate courts at the district level cater to the need of the masses in administering justice at the base level. By and large the majority of the people get their disputes adjudi- cated in subordinate courts. It is, in the general interest of the community that the authority of subordinate courts is protected. If the CJM is led into a trap by unscrupulous Police Officers, and if he is assaulted, handcuffed and roped, the public is bound to lose faith in Courts, which would be destructive of the basic structure of an ordered society. If this is permitted Rule of Law shall be supplant- ed by Police Raj. [992D-E]

1.6 The conduct of Police Officers in the instant case, in assaulting and humiliating the CJM brought the authority and administration of justice into disrespect, affecting the public confidence in the institution of justice. [992G] 1.7 The incident is a clear interference with the admin- istration of justice, lowering its judicial authority. Its effect was not confined to one District or State, it had a tendency to affect the entire judiciary in the country. The incident high-lights a dangerous trend that if the Police is annoyed with the orders of a presiding officer of a court, he would be arrested on flimsy manufactured charges, to humiliate him publicly as has been done in the instant case. [992F]

1.8 The facts of the instant case, demonstrate that a presiding officer of a court may be arrested and humiliated on flimsy and manufactured charges which could affect the administration of justice. In order to avoid any such situa- tion in future, it is necessary to lay down guidelines which should be followed in the case of arrest and detention of a Judicial Officer. [1000F]

1.9 In view of’ the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are’ properly investigated the following guidelines are to be

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followed: (a) If a judicial officer is to be arrested for some offence, it should be done under intimation to the District Judge or the High Court as the case may be. (b) If facts and circumstances necessitate the immediate arrest of a judicial officer of the subordinate judiciary, a technical or formal arrest may be effected. (c) The fact of such arrest should be immediately communicated.to the District and Sessions Judge of the concerned District and the Chief Justice of the High Court. (d) The Judicial Officer so arrested shall not be taken to a police station, without the prior order or directions of the District & Sessions Judge of the concerned District, if available. (e) Immediate facilities shall be provided to the Judicial Officer for communication with his family members, legal advisors and Judicial Officers, including the District & Sessions Judge. (f) No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be drawn up nor any medical test be conducted except in the presence of the Legal Advi- sor of the Judicial Officer concerned or another Judicial Officer of equal or higher rank, if available. (g) There should be no handcuffing of a Judicial Officer. If, however, violent resistance to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting arrest may be over- powered and handcuffed. In such case, immediate report shall be made to the District & Sessions Judge concerned and also to the Chief Justice of the High Court. But the burden would be on the Police to establish the necessity for effecting physical arrest and handcuffing the Judicial Officer and if it be established that the physical arrest and hand-cuffing of the Judicial Officer was unjustified, the Police Officers causing or responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally liable for compensation and/or damages as may be summarily deter- mined by the High Court. [1000G-1001F]

1.10 These guidelines are not exhaustive but are the minimum safeguards to be observed in case of arrest of a Judicial Officer. These should be implemented by the State Governments as well as by the High Courts. [1001G]

1. 11 No judicial officer should visit a Police Sta- tion on his own except in connection with his official and judicial duties and functions, and this also with prior intimation to the District and Sessions Judge. [1002B] 2.1 The Supreme Court as the Apex Court is the protec- tor and guardian of justice throughout the land, therefore, it has a right and also a duty to protect the courts whose orders and judgments are amenable to correction, from com- mission of contempt against them. This

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right and duty of the Apex Court is not abrogated merely because the High Court also has this right and duty of protection of the subordinate courts. The jurisdictions are concurrent and not exclusive or antagonistic. [967G-H] 2.2 Article 136 vests the Supreme Court with wide powers to grant special leave to appeal from any judgment, decree determination sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India except a court or tribunal constituted by or under any law relating to the Armed Forces. The Court’s appellate power under Article 136 is plenary, it may entertain any appeal by granting special leave against any order made by any Magistrate, Tribunal or any other subordinate court. The width and amplitude of the power is not affected by the practice and prcedure followed in insisting that before invoking the jurisdiction under Article 136 the aggrieved party must exhaust remedy available under the law before the appellate authority of the High Court. Self imposed restric- tions do not divest it of its wide powers to entertain any appeal against any order or judgment passed by any court or tribunal in the country without exhausting alternative remedy before the appellate authority or the High Court. The power of the Court under Article 136 is unaffected by Arti- cles 132. 133 and 134(A) in view of the expression “notwith- standing anything in this Chapter” occurring in Article 136. [968E-969A]

Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors., [1955] 1 SCR 267 and Arunachalam v. P.S.R. Sadhananthm & Anr., [1979] 2 SCC 297, referred to.

2.3 In addition to the appellate power, the Supreme Court has special residuary power to entertain appeal against any order of any court in the country. The plenary jurisdiction of the Court to grant leave and hear appeals against any order of a court or Tribunal, confers power of judicial superintendence over all the courts and Tribunals in the territory of India including subordinate courts of Magistrate and District Judge. The Court has, therefore, supervisory jurisdiction over all courts in India. [970F] 2.4 Article 129 provides that the Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Article 215 contains similar provision in respect of High Court. Both the Supreme Court as well as High Courts are courts of record having powers to punish for contempt in- cluding the power to punish for contempt of itself..[970G] 946

2.5 The Constitution does not define “Court Of Record”. A “Court of Record” is a court where acts and judicial proceedings are enrolled in parchment for a perpetual memo- rial and testimony, which rolls are called the ‘record’ of the court and.are conclusive evidence of that which is recorded therein. [970H -971 E] ‘

Wharton’s Law Lexicon: Words & Phrases (Permanent Edi- tion) vol. 10 p. 429: Halsbury’s Laws of England Vol. 10 p. 319.

2.6 In India prior to the enactment of the Contempt of Courts Act, 1926, High Court’s jurisdiction in respect of contempt of subordinate and inferior courts was regulated by the principles of Common Law of England. The High Courts in the absence of statutory provision exercised power of con- tempt to protect the subordinate courts on the premise of inherent power of a Court of Record. [974F-G] Rex v. Aimon, 97 ER 94; Rainy v. The Justices of Seirra Leone, 8 Moors PC 47 at 54; Surendra Nath Banerjee v. The Chief Justice and Judges of the High Court at Fort William in Bengal, ILR to Calcutta 109; Rex v. Parke, [1903] 2 K.B. 432 at 442; King v. Davies, [1906] 1 K.B. 32; King v. Editor of the Daily Mail, [1921] 2 K.B. 733; Attorney General v. B.B.C., [1980] 3 ALR 161; Venkat Rao 21 Madras Law Journal 832; Mohandas Karam Chand Gandhi [1920] 22 Bombay Law Re- porter 368; Abdul Hassan Jauhar’s AIR 1926 Allahabad 623; Shantha Nand Gir v. Basudevanand, AIR 1930 Allahabad 225 FB; Mr. Hirabai v. Mangal Chand, AIR 1935 Nagpur 46; Harkishan Lal v. Emperor, AIR 1937 Lahore 497; Mohammad Yusuf v. Imtiaz Ahmad Khan, AIR 1939 Oudh, 131 and Legal Remembrancer v. Motilal Ghosh, ILR 41 Cal. 173, referred to. 2.7 The Kings Bench in England and High Courts in India being superior Court of Record and having judicial power to correct orders of subordinate courts enjoyed the inherent power of Contempt to protect the subordinate courts. The Supreme Court being a Court of Record under Article 129 and having wide power of judicial supervision over all the courts in the country, must possess and exercise similar jurisdiction and power as the High Courts had prior to Contempt Legislation in 1926. Inherent powers of a superior Court of Record have remained unaffected even after Codifi- cation of Contempt Law. [976G-977A]

Sukhdev Singh Sodhi v. The Chief Justice and Judges of the PEPSU High Court, [1954] SCR 454 and R.L. Kapur v. State of Tamil Nadu, AIR 1972 SC 858, referred to. 947

2.8 The Contempt of Courts Act 1971 was enacted to define and limit the powers of Courts in punishing contempts of courts and to regulate their procedure in relation there- to. There is no provision therein curtailing the Supreme Court’s power with regard to contempt of subordinate courts, Section 15 expressly refers to this Court’s power for taking action for contempt of subordinate courts. The section prescribes modes for taking cognizance of criminal contempt by the High Court and Supreme Court. It is not a substantive provision conferring power or jurisdiction on the High Court or on the Supreme Court for taking action for the contempt of its subordinate courts. The whole object of prescribing procedural modes of taking cognizance in Section 15 is to safeguard to valuable time of the High Court and the Supreme Court being wasted by frivolous complaints of contempt of court. Section 15(2) does not restrict the power of the High Court to the cognizance of the contempt of itself or of a subordinate court on its own motion although apparently the Section does not say so. [977A-C, 978G-979A] S.K. Sarkar, Member, Board of Revenue, U.P. Lucknow v. Vinay Chandra Misra, [1981] 2 SCR 331, referred to. 3.1 Under Entry 77 of List I of the Seventh Schedule read with Article 246, Parliament is competent to enact a law relating to the powers of the Supreme Court with regard to ‘contempt of itself’. Such a law may prescribe procedure to be followed and it may also prescribe the maximum punish- ment which could be awarded and it may provide for appeal and for other matters. But the Central Legislature has no legislative competence to abridge or extinguish the juris- diction or power conferred on the Supreme Court under Arti- cle 129. The Parliament’s power to legislate in relation to the law of contempt relating to the Supreme Court is limit- ed, therefore the Contempt of Courts Act does not impinge upon the Supreme Court’s power with regard to the contempt of subordinate courts under Article 129. [979C-F] 3.2 Article 129 declares the Supreme Court a court of record and it further provides that the Supreme Court shall have all the powers of such a court including the power to punish for contempt of itself The expression used in Article 129 is not restrictive, instead it is extensive in nature. If the Framers of the Constitution intended that the Supreme Court shall have power to punish for contempt of itself only, there was no necessity for inserting the expression “including the power to punish for contempt of itself.” [979G]

3.3 Article 129 confers power on the Supreme Court to punish for

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contempt of itself and in addition, it confers some addi- tional power relating to contempt as would appear from the expression “including”. The expression “including” has been interpreted by courts, to extend and widen the scope of power. The plain language of the Article clearly indicates that the Supreme Court as a Court of record has power to punish for contempt of itself and also something else which could fall within the inherent jurisdiction of a court of record. [979H-980A]

3.4 In interpreting the Constitution, it is not permis- sible to adopt a construction which would render any expres- sion superfluous or redundant. [980B]

3.5 While construing Article 129, it is not permissible to ignore the significance and impact of the inclusive power conferred on the Supreme Court. [980B]

3.6 The conferment of appellate power on the Court by a statute section 19 of the Contempt of Courts Act 1971 does not and cannot affect the width and amplitude of inherent powers of this Court under Article 129 of the Constitution. [981E]

K.L. Gauba v. The Honable the Chief Justice and Judges of the High Court of Judicature at Lahore & Anr AIR 1942 FC 1, distinguished.

4.1 Article 374(2) is in the nature of a transitory provision to meet the exigency of the situation on the abolition of the Federal Court and setting up of the Supreme Court. There is no provision in the said Article to the effect that the decisions of the Federal Court shall be binding on the Supreme Court. The decisions of the Federal Court and the Privy Council made before the commencement of the Constitution are entitled to great respect but these decisions are not binding on the Supreme Court and it is always open to this Court to take a different view. [983F-G] Om Prakash Gupta v. The United Provinces, AIR 1951 Allahabad 205 and State of Bombay v. Gajanan Mahadev Badley, AIR 1954 Bombay 352, approved.

The State of Bihar v. Abdul Majid, [1954] SCR 786 and Shrinivas Krishnarao Kango v. Narayan Devji Kango & Ors., [1955] 1 SCR 1, referred to.

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K.L. Gauba v. The Hon’ble the Chief Justice and Judges or the High Court of Judicature at Lahore & Anr., AIR 1942 FC 1 and Purshottam Lal Jaitly v. The King Emperor, [1944] FCR 364, explained and distinguished.

The Federal Court exercised limited jurisdiction as conferred on it by the Government of India Act 1935. The question regarding the inherent power of the Supreme Court as a Court of Record in respect of the contempt of subordi- nate Courts was neither raised nor discussed in its deci- sions. The Federal Court observed that if the High Court and the Federal Court both have concurrent jurisdiction in contempt matters, it could lead to conflicting judgments and anamolous consequences. That may be so under the Government of India Act as the High Court and the Federal Court did not have concurrent jurisdiction, but under the Constitution, High Court and the Supreme Court both have concurrent juris- diction in several matters, yet no anamolous consequences follow. [985H-986B]

4.2 The Federal Court did not possess the wide powers as the Supreme Court has under the Constitution. There are marked difference in the constitution and jurisdiction and the amplitude of powers exercised by the two courts. In addition to civil and criminal appellate jurisdiction, the Supreme Court has wide powers under Article 136 over all the courts and Tribunals in the country. The Federal Court had no such power, instead it had appellate power but that too could be exercised only on a certificate issued by the High Court. The Federal Court was a court of record under Section 203 but it did not possess any plenary or residuary appel- late power over all the courts functioning in the territory of India like the power conferred on the Supreme Court under Article 136 of the Constitution. Therefore, the Federal Court had no judicial control or superintendence over subor- dinate courts. [986C-E]

4.3 Advent of freedom, and promulgation of the Constitu- tion have made drastic changes in the administration of justice necessitating new judicial approach. The Constitu- tion has assigned a new role to the Constitutional Courts to ensure rule of law in the country. These changes have brought new perceptions. In interpreting the Constitution, regard must be had to the social, economic and political changes, need of the community and the independence of the judiciary. The Court cannot be a helpless spectator, bound by precedents of colonial days which have lost relevance. Time has come to have a fresh look to tile old precedents and to lay down law with the changed perceptions keeping in view the provisions of the Constitution. [986F-G] 950

5.1 Courts constituted under a law enacted by the Par- liament or the State Legislature have limited jurisdiction and they cannot assume jurisdiction in a matter, not ex- pressly assigned to them, but that is not so, in the case of a superior court of record constituted by the Constitution such a court does not have a limited jurisdiction, instead it has power to determine its own jurisdiction. No matter is beyond the jurisdiction of a superior court of record unless it is expressly shown to be so, under the provisions of the Constitution. In the absence of any express provision in the Constitution, the Apex Court being a Court of record has jurisdiction in every matter and if there be any doubt, the Court has power to determine its jurisdiction. If such determination is made by the High Court, the same would be subject to appeal to this Court, but if the jurisdiction is determined by this Court it would be final. [988C-E] Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra JUDGMENT:

[1965] 1 SCR 413 and Ganga Bishan v. Jai Narain, [1986] 1 SCC 75, referred to.

5.2 Since the Supreme Court has power of judicial super- intendence and control over all the courts and Tribunals functioning in the entire territory of the country, it has a corresponding duty to protect and safeguard the interest of inferior courts to ensure the flow of the stream of justice in the courts without any interference or attack from any quarter. The subordinate and inferior courts do not have adequate power under the law to protect themselves, there- fore, it is necessary that this Court should protect them. Under the constitutional scheme it has a special role in the administration of justice and the powers conferred on it under Article 32, 136, 141 and 142 form part of the basic structure of the Constitution. The amplitude of the power of the court under these Articles of the Constitution cannot be curtailed by law made by Central or State Legislature. [987A-C]

5.3 The Supreme Court and the High Court both exercise concurrent jurisdiction under the constitutional scheme in matters relating to fundamental rights under Articles 32 and 226 of the Constitution. Therefore, this Court’s jurisdic- tion and power to take action for contempt of subordinate courts would not be inconsistent to any constitutional scheme. [987D]

5.4 The Apex Court is duty bound to take effective steps within the constitutional provisions to ensure a free and fair administration of justice through out the country. For that purpose it must wield the

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requisite power to take action for contempt of subordinate courts. Ordinarily, the High Court would protect the subor- dinate courts from any onslaught on their independence, but in exceptional cases, extraordinary situation may prevail affecting the administration of public justice or where the entire judiciary is affected, this Court may directly take cognizance of contempt of subordinate courts. [987F] 5.5 The Supreme Court will sparingly exercise its inher- ent power in taking cognizance of the contempt of subordi- nate courts, as ordinarily matters relating to contempt of subordinate courts must be dealt with by the High Courts. The instant case is of exceptional nature as the incident created a situation where functioning of the subordinate courts all over the country was adversely affected and the administration of justice was paralysed, therefore, this Court took cognizance of the matter. [987G-988A] 6.1 Though there is no provision like section 482 of the Criminal Procedure Code conferring express power on the Supreme Court to quash or set aside any criminal proceeding pending before a criminal court to prevent abuse of process of the court, but the Court has power to quash any such proceeding in exercise of its plenary and residuary powers under Article 136 of the Constitution, if on the admitted facts no change is made out against the accused or if the proceedings are initiated on concocted facts, or if the proceedings are initiated for oblique purposes. [996E] Once the Supreme Court is satisfied that the criminal proceedings amount to abuse of process of court it would quash such proceedings to ensure justice. [996G] State of West Bengal & Ors. v. Swapan Kumar Guha & Ors., [1982] 3 SCR 121 and Madhavrao Jivajirao Scindia & Ors. v. Sambhajirao Chandrojirao Angre & Ors., [1988] 1 SCC 692, referred to.

6.2 The inherent power of the Supreme Court under Arti- cle 142 coupled with the plenary and residuary powers under Articles 32 and 136 embraces power to quash criminal pro- ceedings pending before any court to do complete justice in the matter before this Court. If the court is satisfied that the proceedings in a criminal case are being utilised for oblique purposes or if the same are continued on manufac- tured and false evidence or if no case is made out on the admitted facts, it would be in the ends of justice to set aside or quash the criminal proceeding. It is idle to sug- gest that in such a situation this Court should be a help- less spectator. [997B-C]

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6.3 The Court’s power under Article 142(1) to do “complete justice” is entirely of different level and of a different quality. Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitu- tional power of this Court. Once this Court has seisin of a cause or matter before it has power to issue any order or direction to do “complete justice” in the matter. This constitutional power of the Apex Court cannot be limited or restricted by provisions contained in statutory law. [997G] 6.4 What would be the need of “complete justice” in a cause or matter would depend upon the facts and circum- stances of each case and while exercising that power the Court would take into consideration the express provisions of a substantive statute. Once this Court has taken seisin of a case, cause or matter, it has power to pass any order or issue direction as may be necessary to do complete jus- tice in the matter. [998D]

Prem Chand Garg v. Excise Commissioner, U.P. Allahabad, [1963] Supp. 1 SCR 885 and A.R. Antulay v.R.S. Nayak & Anr., [ 1988] 2 SCC 602, referred to.

In the instant case, the foundation of the criminal trial of CJM-NL Patel is based on facts which have been found to be false. It would be in the ends of justice and also to do complete justice in the cause to quash the crimi- nal proceedings. [998F]

7.1 Article 20(3) of the Constitution declares that no person accused of any offence shall be compelled to be a witness against himself. In order to avail the protection of Article 20(3) three conditions must be satisfied. Firstly, the person must be accused of an offence. Secondly, the element of compulsion to be a witness should be there, and thirdly it must be against himself. All the three ingredi- ents must necessarily exist before protection of Article 20(3) is available. If any of these ingredients do not exist, Article 20(3) cannot be invoked. [964E-F] Balkishan Devidayal v. State of Maharashtra, [1980] 4 SCC 600, referred to.

7.2 Mere issue of notice or pendency of contempt proceedings do not attract Article 20(3) of the Constitution as the contemners against whom notices were issued were not accused of any offence. A Criminal contempt is punishable by the superior courts by fine or imprisonment, but it has many characteristics which distinguishes it from an ordinary offence. [964G]

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7.3 The power to take proceedings for contempt of Court is an inherent power of a Court of record. The Criminal Procedure Code does not apply to such proceedings. Since the contempt proceedings are not in the nature of criminal proceedings for an offence, the pendency of contempt pro- ceedings cannot be regarded as criminal proceedings merely because it may end in imposing punishment on the contemner. A contemner it is not in the position of an accused. It is open to the Court to cross-examine the contemner and even if the contemner is found to be guilty of contempt, the Court may accept apology and discharge the notice of contempt, whereas tendering of apology is no defence to the trial of a criminal offence. This peculiar feature distinguishes con- tempt proceedings from criminal proceedings. In a criminal trial where a person is accused of an offence there is a public prosecutor who prosecutes the case on behalf of the prosecution against the accused but in contempt proceedings the court is both the accused as well as the judge of the accusation. [966C-E]

Debabrata Bandopadhyaya’s case, AIR 1969 SC 189, referred to.

7.4 In the instant case, the contemners do no stand in the position of a “person accused of an offence” merely on account of issue of notice of contempt by this Court and the Commission which was acting on behalf of this Court had full authority to record the testimony of the contemners. There has, therefore, been no violation of Article 20(3) of the Constitution and the Commission’s finding are not violated. [966F-G]

8.1 In determining, what punishment should be awarded to contemners found guilty, the degree and the extent of part played by each of the contemners has to be kept in mind. [998G]

8.2 In the instant case, Sharma, the Police Inspector was the main actor in the entire incident and who had planned the entire episode with a view to humiliate the CJM in the public eye is the main culprit and therefore, he deserves maximum punishment. The Sub Inspector took an active part in assaulting and tying the CJM at the behest of the Police Inspector. The Head Constable and Constable also took active part in handcuffing and tying the CJM with ropes, but as subordinate officials they acted under the orders of the superior officers. The Mamlatdar was a friend of the Police Inspector, he had no axe to grind against the CJM but he acted under the influence of the Police Inspec- tor. So far as the DSP is concerned, he actively abetted the commission of onslaught on the CJM. The contemners are held guilty of contempt and awarded punishment. [998H-999B] 954

8.3 The Police Inspector to undergo simple imprisonment for a period of six months and to pay fine of Rs.2,000. The Sub-Inspector to undergo simple imprisonment for a period of five months and pay a fine of Rs.2,000 and in default one month’s simple imprisonment. Head Constable and Constable, each to undergo simple imprisonment for two months and a fine of Rs.500 and in default 15 days simple imprisonment. The Mamlatdar to undergo simple imprisonment for a period of two months and a fine of Rs.1,O00 and in default one month’s simple imprisonment. The DSP is sentenced to imprisonment for a period of one month and a fine of Rs.1,O00 and in default simple imprisonment for 15 days. So far as the other respondents against whom notices were issued no adequate material on record holds them guilty. The contempt notices are therefore discharged. [999C-E]

9.1 The Court expressed displeasure on the conduct of the DGP. As the head of the Police in the State, he was expected to intervene in the matter and to ensure effective action against the erring Police Officers. He was totally indifferent to the news that a CJM was arrested, handcuffed, roped, and assaulted. He took this news as a routine matter without taking any steps to ascertain the correct facts for effective action against the erring Police Officers. If the head of the State Police Administration exhibits such indif- ference to a sensitive matter which shook the entire judi- cial machinery in the State, nothing better could be expect- ed from his subordinate officers. The State Government should take action departmentally on the basis of the find- ings recorded by the Commission. [999F-1000A] 9.2 The discharge of the contempt notices does not absolve the officers of their misconduct. The State Govern- ment is directed to proceed with the disciplinary proceed- ings for taking appropriate action. [1000B]

&

ORIGINAL JURISDICTION: Writ Petition (CRL.) No. 517 of 1989 etc. etc.

(Under Article 32 of the Constitution of India). Soli. J. Sorabjee, Attorney General, Ashok H. Desai, Addl. Solicitor General, R.K. Garg, G. Ramaswamy, F.S. Nariman, Dr. L.M. Singhvi, G.A. Shah, T.U. Mehta, V.M. Tarkunde, B.K. Mehta S.S. Ray, A.K. Gupta, S.K. Dhingra, T.C. Sharma, Kishan Dutt, R.J. Trivedi, Manoj Swarup, M.N. Shroff, Sudarsh Menon, Sushil Kumar Jain, Bahl Singh Malik, Gopala Subramanium, Ms. Binu Tamta, Shahid Rizi. D.K. Singh, T. Ray, Pramod Swarup, Praveen Swarup,

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P.H. Parekh, Sunil Dogra, C.L. Sahu, G.L. Gupta, Brij Bhu- shan, N.S. Das Bahl, Mrs. H. Wahi, Harish Javeri and S. Ganesh. T.C. Sharma for the appearing parties. The Judgment of the Court was delivered by

K.N. SINGH, J. On 25th September, 1989, a horrendus incident took place in the town of Nadiad, District Kheda in the State of Gujarat, which exhibited the berserk behaviour of Police undermining the dignity and independence of judi- ciary. S.R. Sharma, Inspector of Police, with 25 years of service posted at the Police Station, Nadiad, arrested, assaulted and handcuffed N.L. Patel, Chief Judicial Magis- trate, Nadiad and tied him with a thick rope like an animal and made a public exhibition of it by sending him in the same condition to the Hospital for medical examination on an alleged charge of having consumed liquor in breach of the prohibition law enforced in the State of Gujarat. The In- spector S.R. Sharma got the Chief Judicial Magistrate photo- graphed in handcuffs with rope tied around his body along- with the constables which were published in the news papers all over the country. This led to tremors in the Bench and the Bar throughout the whole country.

The incident undermined the dignity of courts in the country, Judicial Officers, Judges and Magistrates all over the country were in a state of shock, they felt insecure and humiliated and it appeared that instead of Rule of Law there was Police Raj in Gujarat. A number of Bar Associations passed Resolutions and went on strike. The Delhi Judicial Service Association, the All India Judges Association, Bar Council of Uttar Pradesh, Judicial Service of Gujarat and many others approached the Apex Court by means of telegrams and petitions under Article 32 of the Constitution of India for Saving the dignity and honour of the judiciary. On 29.9.1989, this Court took cognizance of the matter by issuing notices to the State of Gujarat and other Police Officers. The Court appealed to the Members of the Bar and Judiciary to resume work to avoid inconvenience to the litigant public. Subsequently, a number of petitions were filed under Article 32 of the Constitution of India for taking action against the Police Officers and also for quashing the criminal proceedings initiated by the Police against N.L. Patel, Chief Judicial Magistrate. A number of Bar Associations, Bar Councils and individuals appeared as interveners condemning the action of the police and urging the Court for taking action against the Police Officers. 956

In Petition No. 5 18 of 1989 alongwith Contempt Petition No. 6 of 1989 filed by the President, All India Judges Association, notices for contempt were issued by this Court on 4.10.1989 to seven Police Officials, D.K. Dhagal, D.S.P., A.M. Waghela, Dy. S.P., S.R. Sharma, Police Inspector, Kuldeep Singh Lowchab, Police Inspector (Crime), K.H. Sadia, Sub-Inspector of Police, Valjibhai Kalabhai, Head Constable and Pratap Singh, Constable. N.L. Patel, CJM, Nadiad also filed an application in W.P. No. 517 of 1989 with a prayer to quash the two FIRs lodged against him, to direct the trial of the complaint filed by him as State case and to award compensation.

On 13.2.1990 notices from contempt were issued to. K. Dadabhoy, Ex. D.G.P., Gujarat, Dr. Bhavsar, Senior Medical Officer of Govt. Hospital Nadiad and M.B. Savant, Mamlatdar, Nadiad. The Court during the proceedings also issued notices to R. Bala Krishnan, Additional Chief Secretary (Home), Government of Gujarat and S.S. Subhalkar, District Judge, Nadiad to show cause why action be not taken against them in view of the Report of Justice Sahai.

N.L. Patel was posted as Chief Judicial Magistrate at Nadiad in October, 1988. He soon found that the local Police was not cooperating with the courts in effecting service of summons, warrants an notices on accused persons, as a result of which the trials of cases were delayed. He made complaint against the local Police to the District Superintendent of Police and forwarded a copy of the same to the Director General of Police but nothing concrete happened. On account of these complaints S.R. Sharma, Police Inspector Nadiad was annoyed with the Chief Judicial Magistrate, he withdrew constables posted in the CJM Court. In April, 1989 Patel filed two complaints with the Police against Sharma and other Police Officials, Nadiad for delaying the process of the court. On 25 July, 1989 Patel directed the Police to register a criminal case against 14 persons who had caused obstruction in judicial proceedings but subsequently since they tendered unqualified apology, the CJM directed the Police Inspector to drop the cases against-those persons. Sharma reacted strongly to Patel’s direction and he made complaint against the CJM to the Registrar of the High Court through District Superintendent of Police. These facts show that there was hostility between the Police of Nadiad and the CJM. On 25.9. 1989, S.R. Sharma met Patel, CJM in his Chambers to discuss the case of one Jitu Sport where the Police had failed to submit charge-sheet within 90 days. During discussion Sharma invited the CJM to visit the Police Station to see the papers and further his visit would mollify the sentiments of the Police Officials. It is al- leged that at

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8.35 p.m. Sharma sent a Police Jeep at Patel’s residence, and on that vehicle Patel went to the Police Station. What actual happened at the Police Station is a matter of serious dispute between the parties. According to the CJM, he ar- rived in the Chamber of Sharma in the Police Station, he was forced to consume liquor and on his refusal he was assault- ed, handcuffed and tied with rope by Sharma, Police Inspec- tor, Sadia Sub-Inspector, Valjibhai Kalajibhai, Head Consta- ble and Pratap Singh, Constable. It is further alleged that Patal was sent to Hospital for Medical examination under handcuffs where he was made to sit on a bench in the varanda exposing him to the public gaze. Sharma, Police Inspector and other Police Officers have disputed these allegations. According to Sharma, Patel entered his chamber at the Police Station at 8.45 p.m. on 25.9. 1989 in a drunken state, shouting and abusing him, he caught hold of Sharma and slapped him, since he was violent he was arrested, hand- cuffed and sent to Hospital for medical examination. Patel himself wanted to be photographed while he was handcuffed and tied with ropes, a photographer was arranged to take his photograph which was published in the newspapers. Since, there was serious dispute between the parties with regard to the entire incident, the Court appointed Justice R.M. Sahai senior puisne Judge of the Allahabad High Court (as he then was) to inquire into the incident and to submit report to the Court. Justice Sahai was appointed to hold the inquiry on behalf of this Court and not under the provisions of the Commission of Inquiry Act. Justice Sahai visited Nadiad and held sittings there. The learned Commis- sioner/Judge invited affidavits/statements, and examined witnesses including S.R. Sharma the Police Inspector, D.K. Dhagal, D.S.P. and other Police Officers, lawyers, N.L. Patel, CJM, and Doctors and other witnesses. Justice Sahai afforded full opportunity to all the concerned persons including the State Government, Police Officers and lawyers to lead evidence and to cross examine witnesses. He submit- ted a detailed Report dated 28.11.1989 to this Court on 1.12.1989. On receipt of the Report this Court directed copies to be delivered to concerned parties and permitted the parties and the contemners to file their objections, if any, before this Court. The objections were filed by the Police Officers and the contemners disputing the findings recorded by the Commissioner,

On 12.12.1989, when the matter came up for final dispos- al the Court issued notices to the Attorney-General and Advocate-General of the State of Gujarat. On 10.1.1990 the Court directed the State of Gujarat to file affidavit stat- ing as to what action it had taken or pro-

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posed to take against the officers in the light of the Report of Justice Sahai. The Court further issued notices to R. Bala Krishnan, Additional Chief Secretary (Home), Govern- ment of Gujarat, K. Dadabhoy, Director General of Police, S.S. Sudhalkar, District Judge, to show cause as to why action should not be taken against them in view of the Report of Justice Sahai. The State Government was further directed to explain as to why action against D.K. Dhagal, DSP, S.R. Sharma, Police Inspector and other police officers had not been taken. On 13.2. 1990 a notice for contempt of this Court was issued to K. Dadabhoy on the same date in view of the findings recorded by Justice Sahai, notices for contempt of court were issued to Dr. Bhavsar and M.B. Sa- vant, Mamlatdar, Nadiad also.

in his affidavit, S.R. Sharma, Police Inspector has raised a number of objections to the findings recorded by the Commissioner. The objections are technical in nature, chal- lenging the authority and jurisdiction of the Commissioner in collecting evidence and recording findings against him. Sharma has further stated in his objections that the Commis- sioner acted as if he was sitting in judgment over the case. Other Police Officers have also raised similar objections. We find no merit in the objections raised on behalf of Sharma, Police Inspector and other contemners. The Commis- sioner had been appointed by this Court to hold inquiry and submit his report to the Court. Justice Sahai was acting on behalf of this Court and he had full authority to record evidence and cross-examine witnesses and to collect evidence on behalf of this Court. Since, the main incident of Chief Judicial Magistrate’s arrest, assault, handcuffing and roping was connected with several other incidents which led to the confrontation between the Magistracy and local po- lice, the learned Commissioner was justified in recording his findings on the background and genesis of the entire episode. The Police Inspector Sharma raised a grievance that he was denied opportunity of cross-examination of Patel, CJM and he was not permitted to produce Dr. Jhala as a witness, Sharma’s application for the recall of CJM for further cross-examination and for permission to produce Dr. Jhala, retired Deputy Director, Medical and Health Services, Guja- rat, was rejected by a well reasoned order of the Commis- sioner dated 9.11.1989. We have gone through the order and we find that the Commissioner has given good reasons for rejecting the recall of CJM for further cross-examination, as he had been crossexamined by the counsel appearing on behalf of the Police officials including Sharma. The Police Officers and the State Government and CJM were represented by counsel before the Commissioner and every opportunity was afforded to them for cross-examining the witnesses. 959

Dr. Jhala’s evidence was not necessary, the Commissioner rightly refused Sharma’s prayer.

On behalf of the contemners it was urged that in the absence of any independent testimony the Commission was not justified in accepting interested version of the incident as given by the CJM with regard to his visit to the Police Station and the incident which took place inside the Police Station. There was oath against oath and in the absence of any independent testimony the Commission was not justified in accepting the sole interested testimony of Patel, CJM. We find no merit in this objection. The learned Commissioner has considered the evidence as well as the circumstances in support of his findings that Patel had been invited by Sharma to visit the Police Station and he had sent a Police jeep on which Patel went to the Police Station. This fact is supported by independent witnesses as discussed by the Commissioner. If Patel had gone on the invitation of Sharma on Police jeep and not in the manner as alleged by Sharma, Patel could not be drunk and there appears no reason as to why he would have assaulted Sharma as alleged by the Police. The circumstances as pointed out by the Commissioner fully justify the findings recorded against the Police Officers. It is settled law that even in a criminal trial, accused is convicted on circumstantial evidence in the absence of an eye witness, Learned Commissioner acted judicially in a fair and objective manner in holding the inquiry, he afforded opportunity to the affected Police Officers and other per- sons and submitted his Report based on good reasons in respect of his findings which are amply supported by the material on record. The Commissioner did a commendable job in a record time. After hearing arguments at length and on perusal of the statements recorded by the Commissioner and the documentary evidence submitted by the parties, and a careful scrutiny of the affidavits and objections filed in this Court, we find no valid ground to reject the well- reasoned findings recorded by the learned Commissioner. The Commissioner’s Report runs into 140 pages, which is on record. The contemners and other respondents have failed to place any convincing material before the Court to take a different view. We accordingly accept the same. After hearing learned counsel for the parties and on perusal of the affidavits, objections, applications and the Report of the Commissioner, we hold that the following facts and circumstances are fully proved:

(1) N.L. Patel, Chief Judicial Magistrate found that the Police of

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Nadiad was not effective in service of summons and it had adopted an attitude of indifference to court orders. He tried to obtain the assistance of the District Superintend- ent of Police in February, 1989 and addressed a letter to the Director General’ of Police but no response came from the Police Authorities, even though the Government had reminded D.K. Dhagal, D.S.P., Kheda to do the needful. Patel, the CJM filed two complaints against Police Officers of Nadiad Police Station and the Inspectors, and forwarded it to the District Superintendent of Police on 19th and 24th July, 1989 for taking action against them. Sharma, the Police Inspector who had by then been posted at Nadiad reacted to the CJM’s conduct by withdrawing constables working in the courts of Magistrates on the alleged pretext of utilising their services for service of summons. This led to confrontation between the local Police and the Magistracy commenced.

(2) On 25th July, 1989, the CJM had directed the regis- tration of a case against 14 accused persons for misbeha- viour and causing obstruction in the judicial proceedings. Since the accused persons had later expressed regret and tendered unqualified apology to the court, the CJM sent a letter to the Police Inspector, Sharma to drop proceedings. Sharma went out of his way, to send a complaint to the High Court through the D.S.P. saying that Patel was functioning in an illegal manner in the judicial discharge of his du- ties. The action of Sharma, Police Inspector was highly irresponsible and Dhagal, D.S.P. should not have acted in a casual manner in forwarding Sharma’s letter to the Registrar of the High Court directly.

(3) Remand period of Jitu Sport was to expire on 27th September, 1989, the CJM directed the Police Inspector to produce complete papers before the expiry of the period of remand but he applied for the extension of the judicial remand. The CJM directed the Police Inspector to produce papers on 22.9.1989, Sharma did not appear before the CJM as directed, on the contrary he interpolated the order, sent to him indicating that he was required to appear before the CJM on 23.9.1989, which was admittedly a holiday. (4) On 25th September, 1989, Sharma met the CJM in his Chamber and as a pretext requested him to come to the Police Station to see the papers which could not be brought to the Court, as that could satisfy him that the Police was doing the needful for complying with the orders of the Court. Sharma pleaded with CJM that his visit to Police Station will remove the feeling of confrontation between the Police and Magistracy. The CJM agreed to visit the Police Station and

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Sharma offered to send police jeep to CJM’s house for bring- ing him to the Police Station.

(5) On 25.9.89 after the Court hours the CJM went to the officers’ club where he remained in the company of Sudhal- kar, District Judge and Pande, Civil Judge till 8,30 p.m. Thereafter, he went to his residence. A Police jeep came to his residence at about 8.40 p.m. in the Officers Colony, he went on that Police jeep to the Police Station situated at a distance of about 2 kms. Patel had not consumed liquor before he went to the Police Station.

(6) The Police version that Patel had consumed liquor before coming to the Police Station and that he assaulted the Police Inspector Sharma and misbehaved with him at the Police Station is a cooked up story. Patel did not go to the Police Station on foot as alleged by Sharma, instead, he went to the Police Station in a Police jeep on Sharma’s invitation. Patel was handcuffed and tied with rope, and he received injuries at the Police Station, he was assaulted and forced to consume liquor after he was tied to the chair on which he was sitting, Police Inspector Sharma, Sub-In- spector Sadia, Head Constable Valjibhai Kalabhai and Consta- ble Pratap Singh took active part in this episode. They actively participated in the assualt on Patel and in forcing liquor in his mouth. They acted in collusion with Sharma to humiliate and teach a lesson to Patel.

(7) On the direction of Sharma, Police Inspector, Patel was handcuffed at the Police Station and he was further tied up with a thick rope by the Police Inspector, Sharma, Sadia, Sub-Inspector, Valjibhai Kalabhai, Head Constable and Pratap Singh, Constable. This was deliberately done in defiance of Police Regulations and Circulars issued by the Gujarat Government and the law declared by this Court in Prern Shankar Shukla v. Delhi Administration., [1980] 3 SCC 526. Patel had not committed any offence nor he was violent and yet he was handcuffed and tied up with rope without there being any justification for the same. There were seven police personnel present at the Police Station and most of them were fully armed while Patel was empty handed, there was absolutely no chance of Patel escaping from the custody or making any attempt to commit suicide or attacking the Police Officers and yet he was handcuffed and tied up with a thick rope like an animal with a view to humiliate and teach him a lesson. For this wanton act there was absolutely no justification and pleas raised by Sharma that Patel was violent or that he would have escaped from the custody are figment of imagination made for the purpose of the case. 962

(8) The panchnama showing the drunken state of Patel prepared on the dictation of Sharma, Police Inspector, and signed by Sharma as well as by two panches, M.B. Savant, Mamlatdar and P.D. Barot, Fire Brigade Officer, Nadiad, did not represent the correct facts, instead, it was manufac- tured for the purpose of preparing a false case against CJM PateI, justifying his arrest and detention.

(9) On examination at the Civil Hospital Patel’s body was found to have a number of injuries. The injury on the left eye was very clear which appeared to have been caused by external force. His body had bruises and abrasions which could be caused by fists and blows. While in the casualty ward of the Civil Hospital, Patel requested the Doctors to contact the District Judge and inform him about the inci- dent. Dr. Parashar tried’ to ring up the District Judge but he was prevented from doing so by Sharma and other Police Officers who were present there. Dr. Parashar and Dr. Bhav- sar found the speech of Patel normal, gait steady, he was neither violent, nor he misbehaved. His blood was taken for chemical examination but the Forms used were not according to the rules and the blood was not taken in accordance with procedure prescribed by the Rules and the Circulars issued by the Director of Medical Services, Gujarat. The chemical examination of the blood sample taken in the Civil Hospital was not correctly done. The blood sample was analysed by a teenager who was not a testing officer within the Bombay Prohibition Act and necessary precautions at the time of analysis were not taken. The phial in which the blood sample had been sent to the Chemical Examiner did not contain the seal on phial and the seal was not fully legible. The Chemi- cal Examiner who submitted the report holding that the blood sample of Patel contained alcohol on the basis of the calcu- lation made by him in the report clearly admitted before the Commission that he had never determined the quantity of liquor by making calculation in any other case and Patel’s case was his first case.

(10) When Patel was taken to Civil Hospital handcuffed and tied with thick rope he was deliberately made to sit outside in the Varanda on bench for half an hour in public gaze, to enable the public to have a full view of the CJM in that condition. A Press photographer was brought on the scene and the Policemen posed with Patel for the press photograph. The photographs were taken by the Press Reporter without any objection by the Police, although a belated justification was pleaded by the Police that Patel desired to have himself photographed in that condition. This plea is totally false. The photographs taken by the Press Reporter were published in `Jan Satta’ and ‘Lokmat’ on 26th 963

September. 1989 showing Patel handcuffing and tied with rope and the Policemen standing beside him. This was deliberately arranged by Sharma to show to the public that Police weilded real power and if the CJM took confrontation with Police he will not be spared.

(11) At the initial stage, one case was registered against Patel by the Police under the Bombay Prohibition Act. Two Advocates Kantawala and Brahmbhatt met Sharma at 11.30 p.m. for securing Patel’s release on bail, as offences under the Prohibition Act were bailable. The lawyers re- quested Sharma to allow them to meet the CJM who was in the police lock-up but Sharma did not allow them to do so. With a view to frustrate lawyers’ attempt to get Patel released on bail. Sharma registered another case against Patel under Sections 332 and 506 of Indian Penal Code as offence under Section 332 is non-bailable.

(12) D.K. Dhagal, the then District Superintendent of Police, Kheda exhibited total indifference to CJM’s com- plaint regarding the unsatisfactory state of affairs in the matter of execution of court processes. Dhagal identified himself with Sharma, Police Inspector who appeared to be his favourite. Instead of taking corrective measures in the service of processes, he became party along with Sharma in forwarding his complaint to the High Court against Patel’s order in a judicial matter. The incident which took place in the night of 25/26 September 1989, had the blessing of Dhagal. He did not take any immediate action in the matter instead he created an alibi for himself alleging that he had gone to Lasundara and then to Balasinor Police Station and stayed there in a Government Rest House. The register at the Rest House indicating the entry regarding his stay was manipulated subsequently by making interpolation. On the direction of Additional Chief Secretary (Home) Dhagal sub- mitted his report on 27.9. 1989 but in that report he did not make any reference of handcuffing and roping of the CJM although it was a matter of common knowledge and there was a great resentment among the judicial officers and the local public. Dhagal’s complicity in the sordid episode is further fortified by the fact that he permitted Sharma, the main culprit of the entire episode to carry on investigation against Patel in the case registered against him by Sharma and also in the case registered by Patel against Sharma. (13) Police Inspector Sharma had pre-planned the entire incident and he had even arranged witnesses in advance for preparing false case against N.L. Patel, CJM, as M.B. Sa- vant, Mamlatdar in the

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Police Station, immediately on the arrival of PateI, CJM, and they acted in complicity with Sharma in preparing the panchnama which falsely stated that Patel was drunk. M.B. Sawant and P.D. Barot both were hand in glove with Sharma to flasely implicate Patel in Prohibition Case. Learned Commissioner has adversely commented upon the conduct of various officers including K. Dadabhoy, the then Director General of Police, Gujarat, Kuldip Singh Lowchab, CID Inspector, Dr. Bhavsar, Senior Medical Officer, Nadiad, M.B. Savant, Mamlatdar, P.D. Barot, Fire Brigade Officer and A.N. Patel, Chemical. Examiner, Nadiad. After considering the material on record, we agree with the view taken by the Commissioner that ,their conduct was not above board as expected from responsible officers. We do not consider it necessary to burden the judgment by referring to the details of the findings as the same are contained in the Commis- sioner’s Report.

Mr. Nariman contended on behalf of the Po1ice Officers that the findings recorded by the Commission cannot be taken into account as those findings are hit by Article 20(3) of the Constitution. Inspector Sharma and other Police Officers against whom criminal cases have been registered were com- pelled to be witnesses against themselves by filing affida- vits and by subjecting them to cross examination before the Commissioner. Any finding recorded on the basis of their evidence is violative of Article 20(3) of the Constitution. Article 20(3) of the Constitution declares that no person accused of any offence shall be compelled to be a witness against himself. In order to avail the protection of Article 20(3) three conditions must be satisfied. Firstly, the person must be accused of an offence. Secondly, the element of compulsion to be a witness should be there and thirdly it must be against himself. All the three ingredients must necessarily exist before protection of Article 20(3.) is available. If any of these ingredients do not exist, Article 20(3) cannot be invoked see: Balkishan Devidayal v. State of Maharashtra., [1980] 4 SCC 600. In the instant case this Court had issued notices for contempt to Sharma, Police Inspector and other contemners. Mere issue of notice or pendency of contempt proceedings do not attract Art. 20(3) of the Constitution as the contemners against whom notices were issued were not accused of any offence. A criminal contempt is punishable by the superior courts by fine or imprisonment, but it has many characteristics which distin- guishes it from ordinary offence. An offence under the criminal jurisdiction is tried by a Magistrate or a Judge and the procedure of trial is regulated by the’ Code of Criminal Procedure, 1973 which provides as elaborate 965

procedure for flaming of charges, recording of evidence, crossexamination, argument and the judgment. But’ charge of contempt is tried on summary process without any fixed procedure as the court is free to evolve its own procedure consistent with fair play and natural justice. In contempt proceedings unlike the trial for a criminal offence no oral evidence is ordinarily recorded and the usual practice is to give evidence by affidavits. Under the English Law a crimi- nal offence is tried by criminal courts with the aid of Jury but a criminal contempt is tried by courts summarily without the aid and assistance of Jury. Ordinarily, process of trial for contempt is summary. A summary form of trial is held in the case of civil contempt and also in the case of criminal contempt where the act is committed in the actual view of the court or by an officer of justice. The summary procedure is applicable by immemorial usage when criminal contempt was committed out of court by a stranger. The practice of pro- ceeding summarily for the punishment of contempt out of court has been the subject of comment and protest, but the practice is founded upon immemorial usage, it has, since the eighteenth century, been generally assumed. We do not con- sider it necessary to refer to decisions from English Courts which have been discussed in detail in the History of Con- tempt of Court by Fox JC 1927. Proceedings for contempt of Court are not taken in the exercise of original criminal jurisdiction. Proceedings for contempt of Court are of a peculiar nature; though it may be that in certain aspects they are quasi criminal, but in any view they are-not exer- cised as part of the original criminal jurisdiction of the Court, as was held in re: Tushar Kanti Ghosh and Another. AIR 1935 Calcutta 419. The High Court held that since the proceedings for contempt of Court do not fall within the original criminal jurisdiction of the Court no leave could be granted for appeal to Privy Council under Clause 41 of the Letters Patent of that Court. In Sukhdev Singh Sodhi v. The Chief Justice and Judges of the PEPSU High Court, [1954] SCR 454. Sukhdev Singh Sodhi approached this Court for transfer of contempt proceedings from PEPSU High Court to any other High Court under Section 527 of the Criminal Procedure Code, 1898. This Court. re- jected the application holding that Section 527 of the Criminal Procedure Code did not apply to the contempt pro- ceedings as the contempt jurisdiction is a special jurisdic- tion which is inherent in all courts of record and the Cr. P.C. excludes such a special jurisdiction from the Code. The Court further held that notwithstanding the provisions contained in the Contempt of Courts Act, 1926 making an offence of contempt, punishable, the Act does not confer any jurisdiction or create the offence, it merely limits the 966

amount of the punishment which could be awarded and it removes a certain doubt. The jurisdiction to initiate the proceedings and take seisin of the contempt is inherent in a court of record and the procedures of the Criminal Procedure Code do not apply to contempt proceedings. Section 5 of the Code of Criminal Procedure lays down that nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. The power to take proceedings for the contempt of Court is an inherent power of a Court of record, the Criminal Procedure Code does not apply to such proceedings. Since, the contempt proceedings are not in the nature of criminal proceedings for an of- fence, the pendency of contempt proceedings cannot be re- garded as criminal proceedings merely because it may end in imposing punishment on the contemner. A contemner is not in the position of an accused, it is open to the Court to cross-examine the contemner and even if the contemner is found to be guilty of contempt, the Court may accept apology and discharge the notice of contempt, whereas tendering of apology is no defence to the trial of a criminal offence. This peculiar feature distinguishes contempt proceedings from criminal proceedings. In a criminal trial where a person is accused of an offence there is a public prosecutor who prosecutes the case on behalf of the prsecution against the accused but in contempt proceedings the court is both the accuser as well as the judge of the accusation as ob- served by Hidayatullah, CJ in Debabrata Bandopadhyaya’s, case AIR 1969 SC I89. Contempt proceeding is sui generis, it has peculiar features which are not found in criminal pro- ceedings. In this view the contemners do not stand in the position of a person accused of an offence” merely on ac- count of issue of notice of contempt by this Court and the Commission which was acting on behalf of this Court had full authority to reord the testimony of the contemners. Commis- sion issued notice and directed Sharma, Police Inspector and other Police Officials to place their version of the inci- dent before it and there was no element of compulsion. In this view there has been no violation of Article 20(3) of the Constitution and Commission’s findings are not vitiated. Mr. F.S. Nariman contended that this Court has no jurisdiction or power to indict the Police Officers even if they are found to be guilty as their conduct does not amount to contempt of this Court. He urged that Article 129 and 215 demarcate the respective areas of jurisdiction of the Su- preme Court and the High Courts respectively. 967

This COurt’s Jurisdiction under Article 129 is confined to the contempt of itself only and it has no jurisdiction to intict a person for contempt of an inferior court subordi- nate to the High Court. The Parliament in exercise of its legislative power under Entry 77 of List 1 read with Entry 14 of List III has enacted Contempt of. Courts Act 1971 (hereinafter referred to as the ‘Act’) and that Act does not confer any jurisdiction on this Court for taking action for contempt of subordinate courts. Instead the original juris- diction of High Courts in respect of contempt of subordinate courts is specificially preserved by Sections 11 and 15(2) of the Act. The Supreme Court has only appellate powers under Section 19 of the Act read with Articles 134(1)(c) and 136 of the Constitution. The Constitutional and statutory provisions confer exclusive power on the High Court for taking action with regard to contempt of inferior or subor- dinate court, and the Supreme Court has no jurisdiction in the matter. Shri Nariman further urged that in our country there is no court of universal jurisdiction, and the juris- diction of all courts including Supreme Court is limited and this Court can not enlarge its jurisdiction. Shri Soli J. Sorabji learned Attorney General (as he then was) urged that power to punish contempt is a special jurisdiction which is inherent in a court of record. A superior court of record has inherent power to punish for contempt of itself and it necessarily includes and carries with it the power to punish for contempt committed in respect of subordinate or inferior courts. A superior court of record having power to correct the order of inferior court has power to protect that court by punishing those who interfere with the due administration of justice of the court. Articles 129 and 2 15 do not confer any additional jurisdiction on the Supreme Court and the High Court. The constitutional provisions as well as the legislative enactment “The Contempt of Courts Act” recognise and preserve the existing contempt jurisdiction and power of the court of record for punishing for contempt of subordi- nate or inferior courts. The Act has not affected or re- stricted the suo moto inherent power of the Supreme Court being a court of record which has received constitutional sanction under Article 129. Mr. Sorabji further urged that even otherwise the Act does not restrict or affect the suo moto exercise of power by the Supreme Court as a court of record in view of Section 15(1) of the Act. The Supreme Court as the Apex Court is the protector and guardian of justice throughout the land, therefore, it has a right and also a duty to protect the courts whose orders and judgments are amenable to correction, form commission of contempt against them. This right and duty of the Apex Court is not abrogated merely because the High Court also has this right and duty of protection of the subordinate courts. The juris- dictions are concurrent and not exclusive or antagonistic. 968

The rival contentions raise the basic question whether the Supreme Court has inherent jurisdiction or power to punish for contempt of subordinate or inferior courts under Article 129 of the Constitution and whether the inherent jurisdiction and power of this Court is restricted by the Act. The answer to the first question depends upon the nature and the scope of the power of this Court as a court of record, in the background of the original and appellate jurisdiction exercised by this Court under the various provisions of the Constitution. It is necessary to have a look at the constitutional provisions relating to the origi- nal and appellate jurisdiction of this Court. Article 124 lays down that there shall be a Supreme Court of India consisting of Chief Justice of India.and other Judges. Article 32 confers original jurisdiction on this Court for enforcement of fundamental rights of the citizens. This jurisdiction can be invoked by an aggrieved person even without exhausting his remedy before other courts. Article 129 provides that the Supreme Court shall be a court of record and shall have all the powers of such a court includ- ing the power to punish for contempt of itself. Article 13 1 confers original jurisdiction on the Supreme Court in cer- tain matters. Article 132 confers appellate jurisdiction on this Court against any judgment, decree or final order of the High Courts in India. Articles 133, 134 and 134A confer appellate jurisdiction in the Supreme Court in appeals from High Courts in regard to civil and criminal matters respec- tively on certificate to be issued by the High Court. Arti- cle 136 provides for special leave to appeal before the Supreme Court, notwithstanding the provisions of Articles 132, 133, 134 and 134A. Article 136 vests this Court with wide powers to grant special leave to appeal from any judg- ment, decree determination sentence or order in any cause or matter passed or made by any court or tribunal in the terri- tory of India except a court or Tribunal constituted by or under any law relating to the Armed Forces. The Court’s appellate power under Article 136 is plenary, it may enter- tain any appeal by granting special leave against any order made by any Magistrate. Tribunal or any other subordinate court. The width and amplitude of the power is not affected by the practice and procedure followed by this Court in insisting that before invoking the jurisdiction of this Court under Article 136 of the Constitution, the aggrieved party must exhaust remedy available under the law before the appellate authority or the High Court. Self imposed restric- tions by this Court do not divest it of its wide powers to entertain any appeal, against any order or judgment passed by any court or Tribunal in the country without exhausting alternative remedy before the appellate authority or the High Court. The power of this Court under Article 136 is unaffected by Article 132, 133, 134 and 134(A) in view of the expression

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“notwithstanding anything in this Chapter” occurring in Article 136.

This Court considered the scope and amplitude of plenary power under Article 136 of the Constitution in Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors., [1955] 1 SCR 267. Mukherjee, J. speaking for the Court observed: “The powers given by Article 136 of the Con- stitution however are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by the Supreme Court of the land. The article itself is worded in the widest terms possible. It vests in the Supreme Court a plenary juris- diction in the matter of entertaining and hearing appeals, by granting of special leave, against any kind of judgment or order made by a court or Tribunal in any cause or matter and the powers could be exercised in spite of the specific provisions for appeal contained in the Constitution or other laws. The Constitu- tion for the best of reasons did not choose to fetter or circumscribe the powers exercisable under this Article in any way.”

In Arunachalam v.P.S.R. Sadhanantham & Anr., [1979] 2 SCC 297 this Court entertained an appeal under Article 136 of the Constitution of India by special leave at the in- stance of a complainant against the judgment and the order of acquittal in a murder case and on appraisal of evidence, it set aside the order of acquittal. Objections raised on behalf of the accused relating to the maintainability of the special leave petition under Article 136 of the Constitu- tion, was rejected. Chinnappa Reddy, J. speaking for the Court held as under:

“Article 136 of the Constitution of India invests the Supreme Court with a plentitude of plenary, appellate power over all courts and Tribunals in India. The power is plenary in the sense that there are no words in Article 136 itself qualifying that power. But, the very nature of the power has led the court to set limits to itself within which to exercise such power. It is now the well established practice of this Court to permit the invoca- tion of the power under ArtiCle 136 only in very exceptional circumstances, as when a question of law of general public importance arises or a decision shocks the conscience of the Court. But, within the restrictions im- posed by itself, this Court has the

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undoubted power to interfere even with find- ings of fact, making no distinction between judgments of acquittal and conviction, if the High Court, in arriving at those findings, has acted “perversely or otherwise improperly”.” With regard to the competence of a private party, distin- guished from the State, to invoke the jurisdiction of this Court under Article 136 of the Constitution, the Court observed:

“Appellate power vested in the Supreme Court under Article136 of the Constitution is not to be confused with ordinary appellate power exercised by appellate courts and appellate tribunals under specific statutes. As we said earlier, it is a plenary power, exercisable outside the purview of ordinary law’ to meet the pressing demands of justice (vide Durga Shankar Mehta v. Thakur Raghuraj Singh,). Article 136 of the Constitution neither con- fers on anyone the right to invoke the juris- diction of the Supreme Court nor inhibits anyone from invoking the Court’s jurisdiction. The power is vested in the Supreme Court but the right to invoke the Court’s jurisdiction is vested in no one. The exercise of the power of the Supreme Court is not circumscribed by any limitation as to who may invoke it.”

There is therefore no room for any doubt that this Court has wide power to interfere and correct the Judgment and orders passed by any court or Tribunal in the country. In addition to the appellate power, the Court has special residuary power to entertain appeal against any order of any court in the country. The plenary jurisdiction of this Court to grant leave and hear appeals against any order of a court or Tribunal, confers power of judicial superintendence over all the courts and Tribunals in the territory of India including subordinate courts of Magistrate and District Judge. This Court has, therefore, supervisory jurisdiction over all courts in India.

Article 129 provides that the Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Article 215 contains similar provision in respect of High Court. Both the Supreme Court as well as High Courts are courts of record having powers to punish for contempt in- cluding the power to punish for contempt of itself. The Constitution does not define “Court of Record”. This expres- sion is well recognised in jurisdical world. In Jowitt’s Dictionary of English Law, “Court of Record” is defined as: 971

“A court whereof the acts and judicial pro- ceedings are enrolled for a perpetual memorial and testimony, and which has power to fine and imprison for contempt of its authority.”

In Wharton’s Law Lexicon, Court of Record is defined as: “Courts are either of record where their acts and judicial proceedings are enrolled for a perpetual memorial and testimony and they have power to fine and imprison; or not of record being courts of inferior dignity, and in a less proper sense the King’s Courts–and these are not entrusted by law with any power to fine or imprison the subject of the realm, unless by the express provision of some Act

of Parliament. These proceedings are not enrolled or recorded.”

In Words and Phrases (Permanent Edition) Vol. 10 page 429, “Court of Record” is defined as under:

“Court of Record is a court where acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony, which rolls are called the “record” of the court, and are of such high and supereminent authori- ty that their truth is not to be questioned.” Halsbury’s Laws of England Vol. 10 page 319, states: “Another manner of division is into courts of record and courts not of record. Certain Courts are expressly declared by statute to be courts of record. In the case of courts not expressly declared to be courts of record, the answer to the question whether a court is a court of record seems to depend in general upon whether it has power to fine or imprison, by statute or otherwise, for contempt of itself or other substantive offences; if it has such power, it seems that it is a court of record…….. proceedings of a Court of record preserved in its archives are called records, and are conclusive evidence of that which is recorded therein.”

In England a superior court of record has been exercised power to indict a person for the contempt of its authority and also for the contempt of its subordinate and inferior courts in a summary manner

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without the aid and assistance of Jury. This power was conceded as a necessary attribute of a superior court of record under Anglo Saxon System of Jurisprudence. The con- cept of inherent power of the superior court of record to indict a person by summary procedure was considered in detail in Rex v. Almon, 97 ER 94 commonly known as Aimon’s case. In that case King’s Bench initiated proceedings for contempt against John Almon, a book-seller for publishing a libel on the Chief Justice, Lord Mansfied. On behalf of the contemner objection was taken to the summary procedure followed by the Court. After lengthy arguments judgment was prepared by Chief Justice Wilmot holding that a libel on a Judge was punishable by the process of attachment without the intervention of a Jury, as the summary form of procedure was founded upon immemorial usage. The judgment prepared with great learning and erudition could not be delivered as the proceedings were dropped following the change of Govern- ment. After long interval Wilmot’s judgment was published in 1802. The judgment proceeded on the assumption that the superior Common Law Courts did have the power to indict a person for contempt of court, by following a summary proce- dure on the principle that this power was ‘a necessary incident to every court of justice’. Undelivered judgment of Wilmot, J. has been subject of great controversy in England’ and Sir John Fox has severely criticised Almon’s case, in his celebrated book “The History of Contempt of Court’, The Form of Trial and Mode of Punishment: In spite of serious criticism of the judgment of Wilmot, J. the opinion ex- pressed by him has all along been followed by the English and Commonwealth Courts. In Rainy v. The Justices of Seirra Leone, 8 Moors PC 47 at 54 on an application for leave to appeal against the order of the Court of Seirra Leone for contempt of court, the Privy Council upheld the order on the ground that the court of Seirra Leone being a Court of Record was the sole and exclusive judge of what amounted to contempt of court.

In India, the courts have followed the English practice in holding that a court of record has power of summarily punishing contempt of itself as well as of subordinate courts. In Surendra Nath Banerjee v. The Chief Justice and Judges of the High Court at Fort William in Bengal, ILR to Calcutta 109 the High Court of Calcutta in 1883 convicted Surendra Nath Banerjee, who was Editor and Proprietor of Weekly newspaper for contempt of court and sentenced him to imprisonment for two months for publishing libel reflecting upon a Judge in his judicial capacity. On appeal the Privy Council upheld the order of the High Court and observed that the High Courts in Indian Presidencies were superior courts of record, and the powers of the High

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Court as superior courts in India are the same as in Eng- land. The Privy Council further held that by common law every court of record was the sole and exclusive judge of what amounts to a contempt of court. In Sukhdev Singh Sodhi’s case this Court considered the origin, history and development of the concept of inherent jurisdiction of a court of record in India. The Court after considering Privy Council and High Courts decisions held that the High Court being a court of record has inherent power to punish for contempt of subordinate courts. The Court further held that even after the codification of the law of contempt in India the High Court’s jurisdiction as a court of record to initi- ate proceedings and take seisin of the matter remained uneffected by the Contempt of Courts Act, 1926. Mr. Nariman contended that even if the Supreme Court is a court of record, it has no power to take action for the contempt of a Chief Judicial Magistrate’s court as neither the Constitution nor any statutory provision confer any such jurisdiction or power on this Court. He further urged that so far as the High Court is concerned, it has power of judicial and administrative superintendence over the subor- dinate courts and further Section 15 of the Act expressly confers power of the High Court to take action for the contempt of subordinate courts. This Court being a court of record has limited jurisdiction to take action for contempt of itself under Article 129 of the Constitution, it has no jurisdiction to indict a person for the contempt of subordi- nate or inferior courts.

The question whether in the absence of any express provision a Court of Record has inherent power in respect of contempt of subordinate or inferior courts, has been consid- ered by English and Indian Courts. We would briefly refer to some of those decisions. In the leading case of Rex v. Parke, [1903] 2 K.B. 432 at 442. Wills, J. observed: “This Court exercises a vigilant watch over the proceedings of inferior courts and suc- cessfully prevents them from usurping powers which they do not possess, or otherwise acting contrary to law. It would seem almost a natu- ral corollary that it should possess correla- tive powers of guarding them against unlawful attacks and interferences with their independ- ence on the part of others.”

In King v. Davies, [1906] 1 K.B. 32. Wills, J. further held that the Kings Bench being a court of record must protect the inferior courts

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from unauthorised interference, and this could only be secured by action of the Kings Bench as the inferior courts have no power to protect themselves and for that purpose this power is vested in superior court of record. Since the Kings Bench is the custos morum of the kingdom it must apply to it with the necessary adaptations to the altered circumstances of the present day to uphold the independence of the judiciary. The principle laid down in Rex v. Davies, was followed in King v. Editor of the Daily Mail, [1921] 2 KB 733 where it was held that the High Court as a court of record has inherent jurisdiction to punish for contempt of a court martial which was an inferior court. Avory, J. observed:

“The result of that judgment (Rex v. Davies ) is to show that wherever this Court has power to correct an inferior court, it also has power to protect that court by punishing those who interfere with Due administration of ,justice in their court.”

In Attorney–General v. B.B.C., [1980] 3 ALR 16 1 the House of Lords proceeded on the assumption that a court of record possesses protective jurisdiction to indict a person for interference with the administration of justice in the inferior courts but it refused to indict as it held that this protection is available to a court exercising judicial power of the State and not to a Tribunal even though the same may be inferior to the court of record. These authori- ties show that in England the power of the High Court to deal with the contempt of inferior court was based not so much on its historical foundation but on the High Court’s inherent jurisdiction being a court of record having juris- diction to correct the orders of those courts. In India prior to the enactment of the Contempt of Courts Act, 1926, High Court’s jurisdiction in respect of contempt of subordinate and inferior courts was regulated by the principles of Common Law of England. The High Courts in the absence of statutory provision exercised power of con- tempt to protect the subordinate courts on the premise of inherent power of a Court of Record. Madras High Court in the case of Venkat Rao, 21 Madras Law Journal 832 held that it being a court of record had the power to deal with the contempt of subordinate courts. The Bombay High Court in Mohandas Karam Chand Gandhi’s, [1920] 22 Bombay Law Reporter 368 case held that the High Court possessed the same powers to punish the contempt of subordinate courts as the Court of the King’s Bench Division had by virtue of the Common Law of England. Similar view was expressed by the

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Allahabad High Court in Abdul Hassan Jauhar’s, case AIR 1926 Allahabad 623 and Shantha Nand Gir v. Basudevanand., AIR 1930 Allahabad 225 (FB). In Abdul Hassan Jauhar’s case (supra) a Full Bench of the Allahabad High Court after considering the question in detail held:

“The High Court as a court of record and as the protector of public justice through out its jurisdiction has power to deal with con- tempts’ directed against the administration of justice, whether those contempts are committed in face of the court or outside it, and inde- pendently or whether the particular court is sitting or not sitting, and whether those contempts relate to proceedings directly concerning itself or whether they relate to proceedings concerning an inferior court, and in the latter case whether those proceedings might or might not at some stage come before the High Court.”

Similar view was taken by the Nagpur and Lahore High Courts in Mr. Hirabai v. Mangal Chand, AIR 1935 Nagpur 16; Harki- shan Lal v. Emperor, AIR 1937 Lahore 197 and the Oudh Chief Court took the same view in Mohammad Yusuf v. Imtiaz Ahmad Khan., AIR 1939 Oudh 13 1. But, the Calcutta High Court took a contrary view in Legal Remembrancer v. Motilal Ghosh, ILR 41 Cal. 173 holding that there was no such inherent power with the High Court.

Judicial conflict with regard to High Court’s power with regard to the contempt of subordinate court was set at rest by the Contempt of Courts Act 1926. The Act resolved the doubt by recognising to the power of High Courts in regard to contempt of subordinate courts, by enacting Section 2 which expressly stated that the High Courts will continue to have jurisdiction and power with regard to contempt of subordinate courts as they exercised with regard to their own contempt. Thus the Act reiterated and recognised the High Court’s power as a court of record for taking action for contempt of courts subordinate to them. The only excep- tion to this power, was made in subsection (3) of Section 2 which provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code. Section 3 of the Act restricted the punishment which could be passed by the High Court. Since doubt was raised whether the High Court as a court of record could punish contempt of itself and of courts subordinate to it if contempt was committed outside its territorial jurisdiction, the Parliament enacted the Con-

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tempt of Courts Act 1952 removing the doubt. Section 3 of the 1952 Act again reiterated and reaffirmed the power, authority and jurisdiction of the High Court in respect of contempt of courts subordinate to it, as it existed prior to the enactment. It provided that every High Court shall have and exercise the same jurisdiction, power and authority, in accordance with the same procedure and prac- tice in respect of contempt of courts subordinate to it as it has and exercise in respect of contempt of itself. Sec- tion 5 further expanded the jurisdiction of the High Court for indicting a person in respect of contempt committed outside the local limits of its jurisdiction. The Parliamen- tary legislation did not confer any new or fresh power or jurisdiction on the High Courts in respect of contempt of courts subordinate to it, instead it reaffirmed the inherent power of a Court of Record, having same jurisdiction, power and authority as it has been exercising prior to the enact- ments. The effect of these statutory provisions was consid- ered by this Court in Sukhdev Singh Sodhi’s case, and the Court held that contempt jurisdiction was a special one inherent in the very nature of a court of record and that jurisdiction and power remained unaffected even after the enactment of 1926 Act as it did not confer any new jurisdic- tion or create any offence, it merely limited the amount of punishment which could be awarded to a contemner. The juris- diction of the High Court to initiate proceedings or taking action for contempt of its subordinate courts remained as it was prior to the 1926 Act. In R.L. Kapur v. State of Tamil Nadu, AIR 1972 SC 858 the Court again emphasised that in view of Article 215 of the Constitution, the High Court as a court of record possesses inherent power and jurisdiction, which is a special one, not arising or derived from Contempt of Courts Act and the provisions of Section 3 of 1926 Act, do not affect that power or confer a new power or jurisdic- tion. The Court further held that in view of Article 215 of the Constitution, no law made by a Legislature could take away the Jurisdiction conferred on the High Court nor it could confer it afresh by virtue of its own authority. The English and the Indian authorities are based on the basic foundation of inherent power of a Court of Record, having jurisdiction to correct the judicial orders of subor- dinate courts. The Kings Bench in England and High Courts in India being superior Court of Record and having judicial power to correct orders of subordinate courts enjoyed the inherent power of contempt to protect the subordinate courts. The Supreme Court being a Court of Record under Article 129 and having wide power of judicial supervision over all the courts in the country, must possess and exer- cise similar jurisdiction and power as the High Courts had prior to Contempt Legislation in 1926. Inherent 977

powers of a superior Court of Record have remained unaffect- ed even after Codification of Contempt Law. The Contempt of Courts Act 1971 was enacted to define and limit the powers of courts in punishing contempts of courts and to regulate their procedure in relation thereto. Section 2 of the Act defines contempt of court including criminal contempt. Sections 5, 6, 7, 8, and 9 specify matters which do not amount to contempt and the defence which may be taken. Section 10 which relates to the power of High Court to punish for contempt of subordinate courts. Section 10 like Section 2 of 1926 Act and Section 3 of 1952 Act reiterates and reaffirms the jurisdiction and power of a High Court in respect of its own contempt and of subordinate courts. The Act does not confer any new jurisdiction instead it reaf- firms the High Courts power and jurisdiction for taking action for the contempt of itself as well as of its subordi- nate courts. We have scanned the provisions of the 1971 Act, but we find no provision therein curtailing the Supreme Court’s power with regard to contempt of subordinate courts, Section 15 on the other hand expressly refers to this Court’s power for taking action for contempt of subordinate courts. Mr. Nariman contended that under Section 15 Parlia- ment has exclusively conferred power on the High Court to punish for the contempt of subordinate courts. The legisla- tive intent being clear, this Court has no power under its inherent jurisdiction or as a court of record under Article 129 of the Constitution with regard to contempt of subordi- nate courts. Section 15 of the Act reads as under: “15. Cognizance of criminal contempt in other cases–(1) In the case of a criminal contempt, other than a contempt referred to in Section 14, the Supreme Court or the High Court may take action on its own motion or a motion made by–

(a) the Advocate-General, or

(b) any other person, with the con-

sent in writing of the Advocate-General (or) (c) in relation to the High Court for

the Union Territory of Delhi, such Law Officer as the Central Government may by notification in the official Gazette, specify in this behalf or any other person, with the consent in writing of such Law Officer.

(2) In the case of any criminal contempt of subordinate

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court, the High Court may take action on a reference made to it by the subordinate Court or on a motion made by the Advocate-General or, in, relation to a Union Territory, by such Law Officer as the Central Government may, by notification in the official Gazette, specify in this behalf.

(3) Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty.

Explanation–In this section, the expression “Advocate General” means-

(a) in relation to the Supreme

Court, the Attorney General or the Solicitor General;

(b) in relation to the High Court,

the Advocate General of the State or any of the States for which the High Court has been established;

(c) in relation to the Court of a

Judicial Commissioner, such Law Officer as the Central Government may, by notification in the official Gazette, specify in this behalf.

Under sub-section (1) the Supreme Court and High Court both have power to take cognizance of criminal contempt and it provides three modes for taking cognizance. The Supreme Court and the High Court both may take cognizance on its own motion or on the motion made by the Advocate-General or any other person with the consent in writing of the Advocate- General. Sub-section (2) provides that in case of any crimi- nal contempt of subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate-General, and in, relation to a Union Territory, on a motion made by any officer as may be specified by the Government. Thus Section 15 prescribes modes for taking cognizance of criminal contempt by the High Court and Supreme Court, it is not a substantive provision conferring power or jurisdiction on the High Court or on the Supreme Court for taking action for the contempt of its subordinate courts. The whole object of prescribing proce- dural modes of taking cognizance in Section 15 is to safe- guard the valuable time of the’ High Court and the Supreme Court being wasted by frivolous complaints of contempt of court. Section 15(2) does not restrict the power of the High Court to take cognizance of the

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contempt of itself or of a subordinate court on its own motion although apparently the Section does not say so. In S.K. Sarkar, Member, Board of Revenue, U.P. Lucknow v. Vinay Chandra Misra, [1981] 2 SCR 331 this Court held that Section 15 prescribed procedure for taking cognizance and it does not affect the High Court’s suo moto power to take cogni- zance and punish for contempt of subordinate courts. Mr. Nariman urged that under Entry 77 of List I of the VIIth Schedule the Parliament has legislative competence to make law curtailing the jurisdiction of Supreme Court. He further urged that Section 15 curtails the inherent power of this Court with regard to contempt of subordinate courts. Entry 77 of List 1 states: “Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practise before the Supreme Court.” This Entry. read with Article 246 confers power on the Parliament to enact law with respect to the constitution, organisation, jurisdiction and powers of the Supreme Court including the contempt of this court. The Parliament is thus competent to enact a law relating to the powers of Supreme Court with regard to ‘contempt of itself’ such a law may prescribe procedure to be followed and it may also prescribe the maximum punishment which could be awarded and it may provide for appeal and for other matters. But the Central Legisla- ture has no legislative competence to abridge or extinguish the jurisdiction or power conferred on this Court under Article 129 of the Constitution. The Parliament’s power to legislate in relation to law of contempt relating to Supreme Court is limited, therefore the Act does not impinge upon this Court’s power with regard to the contempt of subordi- nate courts under Article 129 of the Constitution. Article 129 declares the Supreme Court a court of record and it further provides that the Supreme Court shall have all the powers of such a court including the power to punish for contempt of itself (emphasis supplied). The expression used in Article 129 is not restrictive instead it is exten- sive in nature. If the Framers of the Constitution intended that the Supreme Court shall have power to punish for con’- tempt of itself only, there was no necessity for inserting the expression “including the power to punish for contempt of itself’. The Article confers power on the Supreme Court to punish for contempt of itself and in addition, it confers some additional power relating to contempt as would appear from the expression ‘*including”. The expression “including” has been interpreted by courts, to extend and widen the 980

scope of power. The plain language of Article clearly indi- cates that this Court as a court of record has power to punish for contempt of itself and also something else which could fall within the inherent jurisdiction of a court of record. In interpreting the Constitution, it is not permis- sible to adopt a construction which would render any expres- sion superfluous or redundant. The courts ought not accept any such construction. While construing Article 129, it is not permissible to ignore the significance and impact of the inclusive power conferred on the Supreme Court. Since, the Supreme Court is designed by the Constitution as a court of record and as the Founding Fathers were aware that a superi- or court of record had inherent power to indict a person for the contempt of itself as well as of courts inferior to it, the expression “including” was deliberately inserted in the Article. Article 129 recognised the existing inherent power of a court of record in its full plenitude including the power to punish for the contempt of inferior courts. If Article 129 is susceptible to two interpretations, we would prefer to accept the interpretation which would preserve the inherent jurisdiction of this Court being the superior court of record, to safeguard and protect the subordinate judici- ary, which forms the very back bone of administration of justice. The subordinate courts administer justice at the grass root level, their protection is necessary to preserve the confidence of people in the efficacy of Courts and to ensure unsullied flow of justice at its base level. Disputing the inherent power of this Court with regard to the contempt of subordinate courts, Mr. Nariman contended that inherent powers are always preserved, but they do not authorise a court to invest itself with jurisdiction when that jurisdiction is not conferred by law. He urged that the status of an appellate court like High Court, does not enable the High Court to claim original jurisdiction not vested by law. Similarly, the Supreme Court having appellate jurisdiction under Section 19 of the Contempt of Courts Act 1971, cannot invest itself with original jurisdiction for contempt of subordinate courts. He placed reliance on the decision of this Court in Raja Soap Factory & Ors. v. S.P. Shantharaj & Ors., [1965] 2 SCR 800. We are unable to accept the contention. In Raja Soap Factory’s case (supra), High Court had entertained an original suit and issued injunction under the Trade and Merchandise Marks Act 1958 although under the Act the suit was required to be instituted in the District Court. In appeal before this Court, order of the High Court was sought to be justified on the ground of High Court’s power of transfer under Section 24 read with its inherent power under Section 151 of the Code of Civil Proce- dure. This Court rejected the submission on the ground that exercise

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of jurisdiction under Section 24 of Code of Civil Procedure was conditioned by lawful institution of the proceeding in a subordinate court of competent jurisdiction, and transfer thereof to the High Court. The Court observed that power to try and dispose of proceedings, after transfer from a court lawfully-seized of it, does not involve a power to entertain a proceeding which is not otherwise within the cognizance of the High Court. Referring to the claim of inherent powers under Section 151 to justify entertainment of the suit grant of injunction order, the Court observed that the inherent power could be exercised where there is a proceeding lawful- ly before the High Court, it does not, however, authorise the High Court to invest itself with jurisdiction where it is not conferred by law. The facts and circumstances as available in the Raja Soap Factory’s case, were quite dif- ferent and the view expressed in that case do not have any bearing on the inherent power of this Court. In Rata Soap Factory’s case there was no issue before the Court regarding the inherent power of a superior court of record instead the entire case related to the interpretation of the statutory provisions conferring jurisdiction on the High Court. Where jurisdiction is conferred on a court by a statute, the extent of jurisdiction is limited to the extent prescribed under the statute- But there is no such limitation on a superior court of record in matters relating to the exercise of constitutional powers. No doubt this Court has appellate jurisdiction under Section 19 of the Act, but that does not divest it of its inherent power under Article 129 of the Constitution- The conferment of appellate power on the court by a statute does not and cannot affect the width and ampli- tude of inherent powers of this Court under Article 129 of the Constitution.

We have already discussed a number of decisions holding that the High Court being a court of record has inherent power in respect of contempt of itself as well as of its subordinate courts even in the absence of any express provi- sion in any Act. A fortiori the Supreme Court being the Apex Court of the country and superior court of record should possess the same inherent jurisdiction and power for taking action for contempt of itself, as well as, for the contempt of subordinate and inferior courts. It was contended that since High Court has power of superintendence over the subordinate courts under Article 227 of the Constitution, therefore, High Court has power to punish for the contempt of subordinate courts. Since the Supreme Court has no super- visory jurisdiction over the High Court or other subordinate courts, it does not possess powers which High Courts have under Article 215. This submission is misconceived. Article 227 confers supervisory jurisdiction on the High Court and in exercise of that

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power High Court may correct judicial orders of subordinate courts, in addition to that, the High Court has administra- tive control over the subordinate courts. Supreme Court’s power to correct judicial orders of the subordinate courts under Article 136 is much wider and more effective than that contained under Article 227. Absence of administrative power of superintendence, over the High Court and subordinate court does not affect this Court’s wide power of judicial superintendence of all courts in India. Once there is power of judicial superintendence, all the Courts whose orders are amenable to correction by this Court would be subordinate courts and therefore this Court also possesses similar inherent power as the High Court has under Article 215 with regard to the contempt of subordinate courts. The jurisdic- tion and power of a superior Court of Record ‘to punish contempt of subordinate courts was not founded on the court’s administrative power of superintendence, instead the inherent jurisdiction was conceded to superior Court of Record on the premise of its judicial power to correct the errors of subordinate Courts.

Mr. Nariman urged that assumption of contempt jurisdic- tion with regard to contempt of subordinate and inferior courts on the interpretation of Article 129 of the Constitu- tion is foreclosed by the decisions of Federal Court, he placed reliance-on the decisions of Federal Court in K.L. Gauba v. The Hon’ble the Chief Justice and Judges of the High Court of Judicature at Lahore & Anr., AIR 1942 FC 1 and Purshottam Lal Jaitly v. The King Emperor., [1944] FCR 364. He urged that this Court being successor to Federal Court was bound by the decisions of the Federal Court under Arti- cle 374(2) of the Constitution. Mr. Sorabji, learned Attor- ney-General seriously contested the proposition, he contend- ed that there is a marked difference between the Federal Court and this Court, former being established by a statute with limited jurisdiction while this Court is the Apex constitutional court with unlimited jurisdiction, therefore, the Federal Court decisions are not binding on this Court. He urged that Article 374(2) does not bind this Court with the decisions of the Federal Court, instead it provides for meeting particular situation during transitory period. In the alternative learned Attorney-General urged that the aforesaid two decisions of Federal Court in Gauba’s case and Jaitly’s case do not affect the jurisdiction and power of this Court with regard to contempt of subordinate and infe- rior courts as the Federal Court had no occasion to inter- pret any provision like Article 129 of the Constitution in the aforesaid decisions. Article 374 made provision for the continuance of Federal Court Judges as the Judges of the Supreme Court on the commencement of the Constitution and it also made

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provisions for transfer of the proceedings pending in the Federal Court to the Supreme Court. Clause (2) of Article 374 is as under:

“All suits, appeals and proceedings, civil or criminal, pending in the Federal Court at the commencement of this Constitution shall stand removed to the Supreme Court, and the Supreme Court shall have jurisdiction to hear and determine the same, and the judgments and orders of the Federal Court delivered or made before the commencement of this Constitution shall have the same force and effect as if they had been delivered or made by the Supreme Court.”

On the promulgation of the Constitution, Federal Court ceased to exist and the Supreme Court was set up and with a view to meet the changed situation, provisions had to be made with regard to the matters pending before the Federal Court. Article 374(2) made provision for two things, firstly it directed the transfer of all suits, appeals and proceed- ings, civil or criminal pending before the Federal Court to the Supreme Court. Secondly, it provided that any orders and judgments delivered or made by the Federal Court before the commencement of the Constitution shall have the same force and effect as if those orders or judgments had been deliv- ered or made by the Supreme Court. This was necessary for the continuance of the proceedings before the Supreme Court. The Federal Court may have passed interlocutory orders, it may have delivered judgments in the matters pending before it and in order to maintain the continuance of validity of orders or judgments of Federal Court a legal fiction was created stating that those judgments and orders shall be treated as of Supreme Court. Article 374(2) is in the nature of transitory provision to meet the exigency of the situa- tion on the abolition of the Federal Court and setting of the Supreme Court. There is no provision in the aforesaid Article to the effect that the decisions of the Federal Court shall be binding on the Supreme Court. Similar view was taken by the Allahabad High Court in Om Prakash Gupta v. The United Provinces, AIR 195 1 Allahabad 205 para 43 and Bombay High Court in State of Bombay v. Gajanan Mahadev Badley., AIR 1954 Bombay 352 para 14. The decisions of Federal Court and the Privy Council made before the com- mencement of the Constitution are entitled to great respect but those decisions are not binding on this Court and it is always open to this Court to take a different view. In The State of Bihar v. Abdul Majid, [1954] SCR 786 at 795 and Shrinivas Krishnarao Kango v. Narayan Devji Kango and Ors. [1955] 1 SCR 1 at 24 and 25. Federal

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Court decisions were not followed by this Court. There is, therefore, no merit in the contention that this Court is bound by the decisions of the Federal Court. But even otherwise the decisions of Federal Court in K.L. Gauba’s case and Purshottam Lal Jaitly’s case have no bearing on the interpretation of Article 129 of the Consti- tution. In K.L. Gauba’s case the facts were that K.L. Gauba, an Advocate of Lahore High Court was involved in litigation of various kinds including a case connected with his insol- vency. A Special Bench of the High Court of Lahore was constituted to decide his matters. His objection against the sitting of a particular Judge on the Special Bench, was rejected. His application for the grant of certificate under Section 205 of the Government of India Act to file appeal against the order of the High Court before the Federal Court was refused. Gauba filed a petition before the Federal Court for the issue of direction for the transfer of his case to Federal Court from High Court. The Federal Court held that appeal against the order of the High Court refusing to grant certificate was not maintainable. Gauba argued that the High Court was guilty of contempt of Federal Court as it had deliberately and maliciously deprived the Federal Court’s jurisdiction to hear the appeal against its orders. Gwyer, CJ. rejected the contention in the following words: “We have had occasion more than once to con- strue the provisions of Section 205, and we repeat what we have already said, that no appeal lies to this Court in the absence of the certificate prescribed by that Section: a certificate is the necessary condition prece- dent to every appeal. We cannot question the refusal of a High Court to grant a certificate or investigate the reasons which have prompted the refusal; we cannot even inquire what those reasons were, if the High Court has given none. The matter is one exclusively for the High Court; and, as this Court observed in an earlier case, it is not for us to speculate whether Parliament omitted per incuriam to give a right of appeal against the refusal to grant a certificate or trusted the High Courts to act with reasonableness and impartiality: 1939 FCR 13 at page 16. The jurisdiction of the Court being thus limited by the statute in this way, how could it be extended by a High Court acting even perversely or maliciously in withholding the certificate.”

In Purshottam Lal Jaitly’s case an application purporting to 985

invoke extraordinary original jurisdiction of the Federal Court under Section 2 10(2) of the Government of India Act, 1935 was made with a prayer that the Federal Court should itself deal directly with an alleged contempt of a Civil Court, subordinate to the High Court. By a short order the Court rejected the application placing reliance on its decision in K.L. Gauba’s case. The Court observed as under: “The expression “any contempt of court” in that provision must be held to mean “any act amounting to contempt of this Court”. This was the view expressed in Gauba’s case and we have been shown no reason for departing from that view. Under the Indian Law the High Courts have power to deal with contempt of any Court subordinate to them as well as with contempt of the High Courts. It could not have been intended to confer on the Federal Court a concurrent jurisdiction in such matters. The wider construction may conceivably lead to conflicting judgments and to other anomalous con sequences.”

In the case of K.L. Gauba the Federal Court found itself helpless in the matter as the Government of India Act, 1935 did not confer any power on it to entertain an appeal against the order of High Court refusing to grant certifi- cate. The decision has no bearing on the question which we are concerned. In Purshottam Lal Jaitly’s case the decision turned on the interpretation of Section 210(2) of the 1935 Act. Section 2 10 made provisions for the enforcement of decrees and orders of Federal Court. Sub-section (2) provid- ed that Federal Court shall have power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents or the investiga- tion or “punishment of any contempt of court”, which any High Court has power to make as respects the territory within its jurisdiction, and further the Federal Court shall have power to award costs and its orders shall be enforce- able by all courts. While interpreting Section 2 10(2) the Federal Court held that it had no power to deal with con- tempt of any court subordinate to High Court and it further observed that the wider constructions may lead to conflict- ing judgments and to other anomalous consequences. It is not necessary for us to consider the correctness of the opinion expressed by the Federal Court, as in our view the Federal Court was a court of limited jurisdiction, it was not the Apex Court like this Court as against the judgment, order and decree of the Federal Court appeals lay to the Privy Council. The Federal Court exercised limited jurisdiction as conferred on it by the 1935 Act. The question regarding the inherent power of the

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Superior Court of Record in respect of the Contempt of Subordinate court was neither raised nor discussed in afore- said decisions. The Federal Court observed that if the High Court and the Federal Court both have concurrent jurisdic- tion in contempt matters it could lead to conflicting judg- ments and anomalous consequences, that may be so under the Government of India Act as the High Court and the Federal Court did not have concurrent jurisdiction, but under the Constitution, High Court and the Supreme Court both have concurrent jurisdiction in several matters, yet no anomalous consequences follow.

While considering the decision of Federal Court, it is necessary to bear in mind that the Federal Court did not possess wide powers as this Court has under the Constitu- tion. There are marked differences in the constitution and jurisdiction and the amplitude of powers exercised by the two courts. In addition to civil and criminal appellate jurisdiction, this Court has wide powers under Article 136 over all the courts and Tribunals in the country. The Feder- al Court had no such power, instead it had appellate power but that too could be exercised only on a certificate issued by the High Court. The Federal Court was a court of record under Section 203 but it did not possess any plenary or residuary appellate power over all the courts functioning in the territory of India like the power conferred on this Court under Article 136 of the Constitution, therefore, the Federal Court had no judicial control or superintendence over subordinate courts.

Advent of freedom, and promulgation of Constitution have made drastic changes in the administration of justice neces- sitating new judicial approach. The Constitution has as- signed a new role to the Constitutional Courts to ensure rule of law in the country. These changes have brought new perseptions. In interpreting Constitution, we must have regard to the social, economic and political changes, need of the community and the independence of judiciary. The court cannot be a helpless spectator, bound by precedents of colonial days which have lost relevance. Time has come to have a fresh look to the old precedents and to lay down law with the changed perceptions keeping in view the provisions of the Constitution. “Law”, to use the words of Lord Coler- idge, “grows; and though the principles of law remain un- changed, yet their application is to be changed with the changing circumstances of the time.” The considerations which weighed with the Federal Court in rendering its deci- sion in Guaba’s and Jaitley’s case are no more relevant in the context of the constitutional provisions. 987

Since this Court has power of judicial superintendence and control over all the courts and Tribunals functioning in the entire territory of the country, it has a corresponding duty to protect and safeguard the interest of inferior courts to ensure the flow of the stream of justice in the courts without any interference or attack from any quarter. The subordinate and inferior courts do not have adequate power under the law to protect themselves, therefore, it is necessary that this court should protect them. Under the constitutional scheme this court has a special role, in the administration of justice and the powers conferred on it under Articles 32, 136, 14 1 and 142 form part of basic structure of the Constitution. The amplitude of the power of this Court under these Articles of the Constitution cannot be curtailed by law made by Central or State Legislature. If the contention raised on behalf of the contemners is accept- ed, the courts all over India will have no protection from this Court. No doubt High Courts have power to persist for the contempt of subordinate courts but that does not affect or abridge the inherent power of this court under Article

129. The Supreme Court and the High Court both exercise concurrent jurisdiction under the constitutional scheme in matters relating to fundamental rights under Article 32 and 226 of the Constitution, therefore this Court’s jurisdiction and power to take action for contempt of subordinate courts would not be inconsistent to any constitutional scheme. There may be occasions then attack on Judges and Magistrate of subordinate courts may have wide repercussions through out the country, in that situation it may not be possible for a High Court to contain the same, as a result of which the administration of justice in the country may be paraly- sed, in that situation the Apex Court must intervene to ensure smooth functioning of courts. The Apex Court is duty bound to take effective steps within the constitutional provisions to ensure a free and fair administration of justice through out the country, for that purpose it must wield the requisite power to take action for contempt of subordinate courts. Ordinarily, the High Court would protect the subordinate court from any onslaught on their independ- ence, but in exceptional cases, extra ordinary situation may prevail affecting the administration of public justice or where the entire judiciary is affected, this Court may directly take cognizance of contempt of subordinate courts. We would like to strike a note of caution that this Court will sparingly excercise its inherent power in taking cogni- zance of the contempt of subordinate courts, as ordinarily matters relating to contempt of subordinate courts must be dealt with by the High Courts. The instant case is of excep- tional nature, as the incident created a situation where functioning of the subordinate courts all over the country was adversely affected, and the administration of justice was paralysed,

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therefore, this Court took cognizance of the matter. Mr. Nariman contended that in our country there is no court of universal jurisdiction, as the jurisdiction of all courts including the Supreme Court is limited. Article 129 as well as the Contempt of Courts Act 1971 do not confer,any express power to this Court with regard to contempt of the subordinate courts, this Court cannot by construing Article 129 assume jurisdiction in the matter which is not entrusted to it by law. He placed reliance on the observations of this Court in Naresh Shridhar Mirajkar & Ors. v. State of Maha- rashtra & Ors., [1966] 3 SCR 744 at 77 1. We have carefully considered the decision but we find nothing therein to support the contention of Mr. Nariman. It is true that courts constituted under a law enacted by the Parliament or the State Legislature have limited jurisdiction and they cannot assume jurisdiction in a matter, not expressly as- signed to them, but that is not so in the case of a superior court of record constituted by the Constitution. Such a court does not have a limited jurisdiction instead it has power to determine its own jurisdiction. No matter is beyond the jurisdiction of a superior court of record unless it is expressly shown to be so, under the provisions of the Con- stitution. In the absence of any express provision in the Constitution the Apex court being a court of record has jurisdiction in every matter and if there be any doubt, the Court has power to determine its jurisdiction. If such determination is made by High Court, the same would be subject to appeal to this Court, but if the jurisdiction is determined by this Court it would be final. Halsbury’s Laws of England Vol. 10 Para 7 13, states:

“Prima facie no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court.”

The above principle of law was approved by this Court in Special Reference No. I of 1964 [1965] 1 SCR 413 at 499 in holding that the, High Court being a superior court of record was entitled to determine its own jurisdiction in granting interim bail to a person against whom warrant of arrest had been issued by the Speaker of a State Legisla- ture. In Mirajkar’s case (supra) this Court again reiterated the principles that a superior court of record unlike a court of limited jurisdiction is entitled to determine about its own jurisdiction. In Ganga Bishan v. Jai Narain, [1986] 1 SCC 75 the Court emphasised that the

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Constitution has left it to the judicial discretion of Supreme Court to decide for itself the scope and limits of its jurisdiction in order to render substantial justice in matters coming before it. We therefore hold that this Court being the Apex Court and a superior court of record has power to determine its jurisdiction under Article 129 of the Constitution, and as discussed earlier it has jurisdiction to initiate or entertain proceedings for contempt of subor- dinate courts. This view does not run counter to any provi- sion of the Constitution.

Constitutional hurdles over, now we would revert back to the incident which has given rise to these proceedings. The genesis of the unprecedented attack on the subordinate judiciary arose out of confrontational attitude of the local police against the Magistracy in Kheda. The Chief Judicial Magistrate is head of the Magistracy in the District. Under the provisions of Chapter XII of the Code of Criminal Proce- dure, 1973, he exercises control and supervision over the investigating officer. He is-an immediate officer on the spot at the lower rung of the administration of justice of the country to ensure that the Police which is the law enforcing machinery acts according to law m investigation of crimes without indulging into excesses and causing harass- ment to citizens. The main objective of Police is to appre- hend offenders, to investigate crimes and to prosecute them before the courts and also to prevent commission of crime and above all to ensure law and order to protect the citi- zens life and property. The law enjoins the Police to be scrupulously fair to the offender and the Magistracy is to ensure fair investigation and fair trial to an offender. The purpose and object of Magistracy and Police are complemen- tary to each other. It is unfortunate, that these objectives have remained unfulfilled even after 40 years of our Consti- tution. Aberrations of Police officers and Police excesses in dealing with the law and order situation have been the subject of adverse comments from this court as well as from other courts but it has failed to have any corrective effect on it. The Police has power to arrest a person even without obtaining a warrant of arrest from a court. The amplitude of this power casts an obligation on the Police to take maximum care in exercising that power. The Police must bear in mind, as held by this Court that if a person is arrested for a crime, his constitutional and fundamental rights must not be violated. See: Sunil Batra v. Delhi Administration & Ors., [1978] 4 SCC 494. In Prem Shankar Shukla’s (supra) case 526, this Court considered the question of placing a prisoner under handcuff by the Police. The Court declared that no prisoner shall be handcuffed or lettered routinely or merely for the convenience of custody or escort. The Court empha- sised that the Police did not enjoy any unrestricted or unlimited

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power to handcuff an arrested person. If having regard to the circumstances including the conduct, behaviour and character of a prisoner, there is reasonable apprehension of prisoner’s escape from custody or disturbance of peace by violence, the Police may put the prisoner under handcuff. If a prisoner is handcuffed without there being any justifica- tion, it would violate prisoner’s fundamental rights under Articles 14 and 19 of the Constitution. To be consistent with Articles 14 and 19 handcuffs must be the last refuge as there are other ways for ensuring security of a prisoner. In Prem Shankar Shukla’s case, Krishna Iyer, J. observed: “If today freedom of the ferlorn person fails to the police somewhere tomorrow the freedom of many may fall else where with none to whimper unless the court process invigilates and polices the police before it is too late.” The prophetic words of Krishna Iyer, J. have come true as the facts of the present case would show.

In the instant case, Patel, CJM, was assaulted, arrested and handcuffed by Police Inspector Sharma and other Police Officers. The Police Officers were not content with this, they tied him with a thick rope round his arms and body as if N.L. Patel was a wild animal. As discussed earlier, he was taken in that condition to the hospital for medical examination where he was made to sit in varanda exposing him to the public gaze, providing opportunity to the members of the public to see that the Police had the power and privi- lege to apprehend and deal with a Chief Judicial Magistrate according to its sweet will. What was the purpose of unusual behaviour of the police, was it to secure safety and securi- ty of N.L. Patel, or was it done to prevent escape or any violent activity on his part justifying the placing of handcuffs and ropes on the body of N.L. Patel. The Commis- sion has recorded detailed findings that the object was to wreck vengeance and to humiliate the CJM who had been polic- ing the police by this judicial orders. We agree with the findings recorded by the Commission that there was no justi- fication for this extraordinary and unusual behaviour of Police Inspector Sharma and other Police Officers although they made an attempt to justify their unprecedented, dehuma- nising behaviour on the ground that Patel was drunk, and he was behaving in violent manner and if he had not been hand- cuffed or tied with ropes, he could have snatched Sharma’s revolver and killed him. We are

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amazed at the reasons given by Sharma justifying the hand- cuffs and ropes on the body of N.L. Patel. Patel was un- armed, he was at the Police Station in a room, there were at least seven police officials present in the room who were fully armed, yet, there was apprehension about Patel’s escape or violent behaviour justifying handcuffs and roping. The justification given by them is flimsy and preposterous. S.R. Sharma acted in utter disregard of this Court’s direc- tion in Prem Shankar Shukla’s case. His explanation that he was not aware of the decision of this Court is a mere pre- tence as the Commissioner has recorded findings that Gujarat Government had issued Circular letter to the Police incorpo- rating the guide lines laid down by this Court in Prem Shanker Shukla’s case with regard to the handcuffing of prisoner.

What constitutes contempt of court? The Common Law definition of contempt of Court is: ‘An act or omission calculated to interfere with the due administration of justice.’ (Bowen L.J. in Helmore v. Smith, [1886] 35 Ch. D. 436 at 455. The contempt of court as defined by the Contempt of Courts Act, 1971 includes civil and criminal contempt. Criminal contempt as defined by the Act: ‘Means the publica- tion whether by words, spoken or written, or by signs, or by visible representations, or otherwise of any matter or the doing of any other act whatsoever which scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or prejudices, or interferes or tends or to interfere with, the due course of any judicial proceeding; or interferes, or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. The definition of criminal contempt is wide enough to include any act by a person which would tend to interfere with the administration of justice or which would lower the authority of court. The public have a vital stake in effective and orderly administration of justice. The Court has the duty of protecting the interest-of the commu- nity in the due administration of justice and, so, it is entrusted with the power to commit for contempt of court, not to protect the dignity of the Court against insult or injury, but, to protect and vindicate the right of the public so that the administration of justice is not pervert- ed, prejudiced, obstructed or interfered with. “It is a mode of vindicating the majesty of law, in its active manifesta- tion against obstruction and outrage.” (Frank Furter, J. in Offutt v. U.S.) [1954] 348 US 11. The object and purpose of punishing contempt for interference with the administration of justice is not to safeguard or protect the dignity of the Judge or

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the Magistrate, but the purpose is to preserve the authority of the courts to ensure an ordered life in society. In AttOrney-General v. Times Newspapers, [1974] A.C. 273 at p. 302 the necessity for the law of contempt was summarised by Lord Morris as:

“In an ordered community courts are estab- lished for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable inter- ference is suppressed it is not because those charged with the responsibilities of adminis- tering justice are concerned for their own dignity: it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted and their authority wanes and is supplanted.”

The Chief Judicial Magistrate is head of the Magistracy in the District who administers justice to ensure, protect and safeguard the rights of citizens. The subordinate courts at the district level cater to the need of the masses in administering justice at the base level. By and large the majority of the people get their disputes adjudicated in subordinate courts, it is, in the general interest of the community that the authority of subordinate.courts is pro- tected. If the CJM is led into trap by unscrupulous Police Officers and if he is assaulted, handcuffed and roped, the public is bound to lose faith in courts, which would be destrictive of basic structure of an ordered society. If this is permitted Rule of Law shall be supplanted by Police Raj. Viewed in this perspective the incident is not a case of physical assault on an individual judicial officer, instead it is an onslaught on the institution of the judici- ary itself. The incident is a clear interference with the administration of justice, lowering its judicial authority. Its effect was not confined to one District or State, it had a tendency to affect the entire judiciary in the country. The incident highlights a dangerous trend that if the Police is annoyed with the orders of a presiding officer of a court, he would be arrested on flimsy manufactured charges, to humiliate him publicly as has been done in the instant case. The conduct of Police Officers in assaulting and humiliate the CJM brought the authority and administration of justice into disrespect, affecting the public confidence in the institution of justice. “The summary power of punish- ment for contempt has been conferred on the courts to keep a blaze of glory around them, to deter people from attempting to render

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them contemptible in the eyes of the public. These powers are necessary to keep the course of justice free, as it is of great importance to society.” (Oswald on Contempt of Court). The power to punish contempt is vested in the Judges not for their personal protection only, but for the protec- tion of public justice, whose interest, requires that decen- cy and decorum is preserved in Courts of Justice. Those who have to discharge duty in a Court of Justice are protected by the law, and shielded in the discharge of their duties, any deliberate interference with the discharge of such duties either in court or outside the court by attacking the presiding officers of the court, would amount to criminal contempt and the courts must take serious cognizance of such conduct.

It takes us to the question against which of’ the con- temners contempt is made out. On behalf of the petitioners it was urged that the Police Officers’ conduct amounts to criminal contempt as their action lowered the authority of the Chief Judicial Magistrate and it further caused inter- ference with the administration of justice. Mr. Soli Sorab- jee, learned Attorney-General contended that all those who abetted and helped the Police Officers’ in their conduct and design are also guilty of contempt of court. On behalf of the contemners it was urged that the incident which took place in the Police Station does not make out any contempt of court. The Chief Judicial Magistrate had consumed liquor and in druken state he went to the Police Station and slapped the Police Inspector, Sharma, thereby he committed offence under the Bombay Prohibition Act as well as under Section 332, 504 and 506 of the Indian Penal Code. Criminal cases have been registered against N.L. Patel, CJM and after investigation charge-sheets have been submitted to the court. In this context, it was urged that no action could be taken against the contemners as the facts in issue in the present proceedings are the same as involved in the criminal prosecutions pending against N.L. PateI, CJM. The question raised on behalf of the contemners need not detain us long. Proceedings for contempt of court are different than those taken for the prosecution of a person for an offence under the criminal jurisdiction. Contempt proceedings are peculiar in nature although in certain aspects they are quasicriminal in nature but they do not form part of criminal jurisdiction of the court. Criminal prosecution pending against the CJM or against the contemners has no bearing on the contempt proceedings initiated by this Court as the present proceed- ings are not for the purpose of punishing the contemners for the offence of wrongful detention and assault on N.L. Patel, Chief Judicial Magistrate, instead these proceedings have been taken to protect the interest of the public in the 994

due administration of justice and to preserve the confidence of people in Courts. We, accordingly, reject the contemner’s objection.

We have already recorded findings that Sharma, Police Inspector, Nadiad had preplanned the entire scheme, he deliberately invited Patel to visit Police Station where he was forced to consume liquor and on his refusal he was assaulted, arrested, handcuffed and tied with rope S.R. Sharma, K.H. Sadia, Sub-Inspector, Valjibhai Kalajibhai, Head Constable and Pratap Singh, Constable, all took active part in this shameful episode with a view to malign and denigrade the CJM on accout of his judicial orders against the Police. We, therefore, hold S.R. Sharma, Police Inspec- tor, K.H. Sadia, Sub Inspector, Valujibhai Kalajibhai Head Constable and Pratap Singh, Constable guilty of contempt of court. M.B. Savant, Mamlatdar had been summoned by Sharma, Police Inspector, to the Police Station in advance for purposes of being witness to the Panchnama drawn up by Sharma describing drunken condition of Patel, CJM. The document was false and deliberately prepared to make out a Case against Patel, CJM. M.B. Sawant was in complicity with Sharma, he actively participated in the preparation of the document to malign and humiliate the CJM and to prepare a false case against him, he is also, therefore, guilty of contempt of court.

As regards D.K. Dhagal, the then District Superintendent of Police, Kheda, we have already recorded findings that he was hand in glove with Sharma, Police Inspector. The circum- stances pointed out by the Commission and as discussed earlier, show that though D.K. Dhagal, had not personally participated in the shameful episode but his Conduct, act and omission establish his complicity in the incident. It is difficult to believe or imagine that a Police Inspector would arrest, humiliate, assault and handcuff a CJM and the Police Chief in the District would be indifferent, or a mute spectator. The circumstances unequivocally show that Sharma was acting under the protective cover of Dhagal as he did not take any immediate action in the matter instead he created an alibi for himself by interpolating the entries in the register at the Government Rest House, Balasinor. In his report submitted to the Addl. Chief Secretary (Home) on 27.9.1989, Dhagal did not even remotely mention the hand- cuffing and roping of CJM. It is unfortunate that Dhagal as the district Superintendent of Police did not discharge his duty like a responsible Police Officer instead he identi- fied himself with Sharma, Police Inspector and actively abetted the commission of onslaught on the CJM. We, accord- ingly, hold D.K. Dhagal, the then D.S.P. Kheda guilty of contempt of court.

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This takes us to the petition filed by N.L. Patel for quashing the criminal cases initiated against him on the basis of two First Information Reports made by Police In- spector S.R. Sharma. As noticed earlier Sharma, Police Inspector, had registered two FIRs on 25.9.1989 against N.L. Patel for the offences under Section 85(1)(3) read with Section 66(1)(b) and also under Section 110 of Bombay Prohi- bition Act on the allegations that Patel had consumed liquor without permit or pass and under the influence of alcohol entered into Sharma’s chamber and behaved in an indecent manner. The FIR further alleged that Patel caught hold of PoliCe Inspector Sharma and slapped him. The second FIR was lodged by Sharma against Patel for offences under Sections 332,353, 186 and 506 of the Indian Penal Code on the same allegations as contained in the earlier FIR. During the pendency of the contempt proceedings before this Court, the Police continued the investigation and submitted charge sheet in both the cases against N.L. Patel and at present Criminal Cases Nos. 1998/90 and 1999/90 are pending in the Court of Chief Judicial Magistrate, Nadiad. These proceed- ings are sought to be quashed.

On behalf of the State and the Police Officers, it was urged that since charge sheets have already been submitted to the Court, Patel will have full opportunity to defend himself before the court where witnesses would be examined and cross-examined, therefore, this Court should not inter- fere with the proceedings. The gravamen of the charge in the two cases registered against N.L. Patel is that he had consumed liquor without a pass or permit and under the influence of liquor, he entered the chamber of Police In- spector Sharma at the Police Station and assaulted him. The Police over-powered and arrested him and a panchnama was prepared and he was taken to the Hospital for medical exami- nation, and the report of medical examination indicates that he had consumed liquor. These very facts have been inquired into by the Commissioner and found to be false. We have recorded findings that Police Inspector Sharma and other Police Officers manipulated records and manufactured the case against N.L. Patel with a view to humiliate and teach him a lesson as the Police was annoyed with his judicial orders. We have already recorded findings holding S.R. Sharma, Police Inspector, Sadia, Sub-Inspector, Valjibhai Kalabhai, Head-Constable, Pratap Singh, Constable, M.B. Savant, Mamlatdar, and D.K. Dhagal, D.S.P. guilty of con- tempt of court. These very persons are specified as witness- es in the two charge sheets. The Commission’s as well as our findings clearly demonstrate that the allegations contained in the two FIRs are false. If Police is permitted to prose- cute Patel on those allegations merely on the basis 996

that charge sheets have been submitted by it, it would amount to gross abuse of the process of the Court. In the circumstances, proceedings against N.L. Patel are liable to be quashed.

Learned counsel, appearing on behalf of the State of Gujarat and the Police Officers, urged that in the present proceedings this Court has no jurisdiction or power to quash the criminal proceedings pending against N.L. Patel, CJM. Elaborating his contention, learned counsel submitted that once a criminal case is registered against a person the law requires that the court should allow the case to proceed to its’ normal conclusion and there should be no interference with the process of trial. He further urged that this Court has no power to quash a trial pending before the criminal court either under the Code of Criminal Procedure or under the Constitution, therefore, the criminal proceedings pend- ing against Patel should be permitted to continue. Learned Attorney-General submitted that since this Court has taken cognizance of the contempt matter arising out of the inci- dent which is the subject matter of trial before the crimi- nal court, this Court has ample power under Article 142 of the Constitution to pass any order necessary to do justice and to prevent abuse of process of the court. The learned Attorney-General elaborated that there is no limitation on the power of this Court under Article 142 in quashing a criminal proceeding pending before a subordinate court. Before we proceed to consider the width and amplitude of this Court’s power under Article 142 of the Constitution it is necessary to remind ourselves that though there is no provision like Section 482 of the Criminal Procedure Code conferring express power on this Court to quash or set aside any criminal proceedings pending before a criminal court to prevent abuse of process of the court, but this Court has power to quash any such proceedings in exercise of its plenary and residuary power under Article 136 of the Consti- tution, if on the admitted facts no charge is made out against the accused or if the proceedings are initiated on concocted facts, or if the proceedings are initiated for oblique purposes. Once this Court is satisfied that the criminal proceedings amount to abuse of process of court it would quash such proceedings to ensure justice. In State of West Bengal & Ors. v. Swapan Kumar Guha & Ors., [1982] 3 SCR 121 this Court quashed First Information Report and issued direction prohibiting investigation into the allegations contained in the FIR as the Court was satisfied that on admitted facts no offence was made out against the persons named in the FIR. In Madhavrao Jivajirao Scindia & Ors. v. Sambhajirao Chandrojirao Angre & Ors., [1988] 1 SCC 692 criminal proceedings were quashed as this Court Was satis- fied that the case was founded on false facts, and the proceedings

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for trial had been initiated for oblique purposes. Article 142(1) of the Constitution provides that Supreme Court in exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete jus- tice in any ’cause’ or ‘matter’ pending before it. The expression ’cause’ or ‘matter’ would include any proceeding pending in court and it would cover almost every kind of proceeding in court including civil or criminal. The inher- ent power of this Court under Article 142 coupled with the plenary and residuary powers under Article 32 and 136 em- braces power to quash criminal proceedings pending before any court to do complete justice in the matter before this Court. If the court is satisfied that the proceeding in a criminal case are being utilised for oblique purposes or if the same are continued on manufactured and false evidence or if.no case is made out on the admitted facts, it would be in the ends of justice to set aside or quash the criminal proceedings. It is idle to suggest that in such a situation this Court should be a helpless spectator.

Mr. Nariman urged that Article 142(1) does not contem- plate any order contrary to Statutory provisions. He placed reliance on the Court’s observations in Prem Chand Garg v. Excise Commissioner. U.P. Allahabad, [1963] Supp. 1 SCR 885 at 899 and, A.R. Antulay v. R.S. Nayak & Anr. [1988] 2 SCC 602 where the Court observed that though the powers con- ferred on this Court under Article 142(1) are very wide, but in exercise of that power the’ court cannot make any order plainly inconsistent with the express statutory provisions of substantive law. It may be noticed that in Prem Chand Garg’s and Antulay’s case (Supra) observations with regard to the extent of this Court’s power under Article 142(1) were made in the context of fundamental rights. Those obser- vations have no bearing on the question in issue as there is no provision in any substantive law restricting this Court’s power to quash proceedings pending before subordinate court. This Court’s power under Article 142(1) to do “complete justice” is entirely of different level and of a different quality. Any prohibition or restriction contained in ordi- nary laws cannot act as a limitation on the constitutional power of this Court. Once this Court has seisin of a cause or matter before it, it has power to issue any order or direction to do “complete justice” in the matter. This constitutional power of the Apex Court cannot be limited or restricted by provisions contained in statutory law. In Har- bans Singh v. U.P. State, [1982] 3 SCR 235 at 243 the Court observed:

“Very wide powers have been conferred on this Court for

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due and proper administration of justice.

Apart from the jurisdiction and powers con- ferred on this Court under Articles 32 and 136 of the Constitution I am of the opinion that this Court retains and must retain, an inher- ent power and jurisdiction for dealing with any extra-ordinary situation in the largest interests of administration of justice and for preventing manifest injustice being done. This power must necessarily be sparingly used only in exceptional circumstances for furthering the ends of justice.”

No enactment made by Central or State Legislature can limit or restrict the power of this Court under Article 142 of the Constitution, though while exercising power under Article 142 of the Constitution, the Court must take into considera- tion the statutory provisions regulating the matter in dispute. What would be the need of “complete justice” in a cause or matter would depend upon the facts and circum- stances of each case and while exercising that power the Court would take into consideration the express provisions of a substantive statute. Once this Court has taken seisin of a case, cause or matter, it has power to pass any order or issue direction as may be necessary to do complete jus- tice in the matter. This has been the consistent view of this Court as would appear from the decisions of this Court in State of U.P. v. Poosu & Anr. [1976] 3 SCR 1005; Ganga Bishan & Ors. v. Jai Narain, [1986] 1 SCC 75; Navnit R. Kamani & Ors. v. R.R. Kamani, [1988] 4 SCC 387; B.N. Nagara- jan & Ors. v. State of Mysore & Ors., [1966] 3 SCR 682: Special Reference No. I of 1964, (supra), and Harbans Singh v. State of U,P. Ors. (supra). Since the foundation of the criminal trial of N.L. Patel is based on the facts which have already been found to be false, it would be in the ends of justice and also to do complete justice in the cause to quash the criminal proceedings. We accordingly quash the criminal proceedings pending before the Chief Judicial Magistrate, Nadiad in Criminal Cases Nos. 1998/90 and 1999/ 90.

The question arises what punishment should be awarded to the contemners found guilty of contempt. In determining the punishment, the degree and the extent of part played by each of the contemners has to be kept in mind. Sharma, Police Inspector who was the main actor in the entire incident and who had planned the entire episode with a view to humiliate the CJM in the publis eye is the main culprit, therefore, he deserves maximum punishment. Sadia, Sub-Inspector took active part in assaulting and tying the CJM at the behest of Sharma, Police Inspector. Valijibhai Kalajibhai, Head Con- stable and Pratap

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Singh, Constable also took active part in handcuffing and tying the CJM with ropes, but as subordinate officials they acted under the orders of his superior officer. M.B. Sawant, Mamlatdar was friendly to Sharma, Police Inspector, he had no axe to grind against the CJM but he acted under the influence of Sharma, Police Inspector. So far as D.K. Dhagal is concerned, he actively abetted the commission of on- slaught on the CJM. Having regard to the facts and circum- stances and individual part played by each of the aforesaid contemner we hold them guilty of contempt and award punish- ment as under:

S.R. Sharma, the then Police Inspector, Nadiad shall undergo simple imprisonment for a period of six months and he shall pay fine of Rs.2,000. K.H. Sadia, Sub-Inspector, Nadiad shall undergo simple imprisonment for a period of five months and will pay a fine of Rs.2000 and in default he will undergo one month’s simple imprisonment. Valjibhai Kalajibhai, Head Constable and Pratap Singh, Constable, both are convicted and awarded simple imprisonment for a period of two months and a fine of Rs.500 each, in default they would undergo simple imprisonment for a further period of 15 days. M.B. Savant, Mamlatdar is convicted and awarded two month’s simple imprisonment and a fine of Rs. 1000 and in default he would undergo one month’s simple imprisonment. D.K. Dhagal, the then District Superintendent of Police, Kheda, is convicted and sentenced to imprisonment for a period of one month and to pay a fine of Rs. 1000 and in default to undergo simple imprisonment for 15 days. So far as other respondents against whom notices of contempt have been issued by the Court, there is no adequate material on record to hold them guilty of contempt of court, we accord- ingly discharge the notices issued to them.

Before we proceed further, we would like to express the Court’s displeasure on the conduct of K. Dadabhoy, the then Director General of Police, Gujarat. As the head of the Police in the State he was expected to intervene in the matter and to ensure effective action against the erring Police Officers. We are constrained to observe that he was totally indifferent to the news that a CJM was arrested, handcuffed, roped and assaulted. He took this news as a routine matter without taking any steps to ascertain the correct facts or effective action against the erring Police Officers. If the head of the Police administration in the State exhibits such indifference to a sensitive matter which shook the entire judicial machinery in the State, nothing better could be expected from his subordinate officers. K. Dadabhoy did not act like a responsible officer. The State Government should

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take action against him departmentaly on the basis of the findings recorded by the Commission. The State Government has initiated proceedings against other erring officers in respect of whom the Commission has adversely commented, we would make it clear that discharge of contempt notices does not absolve those officers of their misconduct, the State Government is directed to proceed with the disciplinary proceedings for taking appropriate action against them. We are constrained to observe that the State Government did not immediately take effective steps against the erring officials. In spite of the direction issued by this Court the erring Police Officers were neither arrested nor placed under suspension. It was only after this Court took serious view of the matter and directed the State Government to suspend the erring Police Officers and arrest them, the State Government moved in the matter. The apathy of the State Government in taking effective action against the erring Police Officers leads to an impression that in the State of Gujarat, Police appears to have upper-hand, as the administration was hesitant in taking action against the erring Police Officers. If this practice and tendency is allowed to grow it would result in serious erosion of the Rule of Law in the State. We hope and trust that the State Government will take effective measures to avoid re-occur- rence of any such instance. The State Government should further take immediate steps for the review and revision of the Police Regulations in the light of findings recorded by the Commission.

The facts of the instant case demonstrate that a presid- ing officer of a court may be arrested and humiliated on flimsy and manufactured charges which could affect the administration of justice. In order to avoid any such situa- tion in future, we consider it necessary to lay down guide- lines which should be followed in the case of arrest and detention of a Judicial Officer. No person whatever his rank, or designation may be, is, above law and he must face the penal consequences of infraction of criminal law. A Magistrate, Judge or any other Judicial Officer is liable to criminal prosecution for an offence like any other citizen but in view of the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are properly investigated, we think that the following guidelines should be followed. (A) If a judicial officer is to be arrested for some offence, it should be done under intimation to the District Judge or the High Court as the case may be.

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(B) If facts and circumstances necessitate the immediate arrest of a judicial officer of the subordinate judiciary, a technical or formal arrest may be effected.

(C) The facts of such arrest should be immedi- ately communicated to the District and Ses- sions Judge of the concerned District and the Chief Justice of the High Court.

(D) The Judicial Officer so arrested shall not be taken to a police station, without the prior order or directions of the District & Sessions Judge of the concerned District, if available.

(E) Immediate facilities shall be provided to the Judicial Officer to communication with his family members, legal advisers and Judicial Officers, including the District & Sessions Judge.

(F) No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be drawn up nor any medical tests be conducted except in the presence of the Legal Adviser of the Judicial Officer concerned or another Judicial Office of equal or higher rank, it’ available.

(G) There should be no handcuffing of a Judi- cial Officer. If, however, violent resistance to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting arrest may be over-powered and’ handcuffed. In such case, immediate report shall be made to the District & Sessions Judge concerned and also to the Chief Justice of the High Court. But the burden would be on the Police to establish necessity for effecting physical arrest and handcuffing the Judicial Officer and if it be established that the physical arrest and handcuffing of the Judicial Officer was unjustified, the Police Officers causing or responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally liable for compensation and/or damages as may be summarily determined by the High Court.

The above guidelines are not exhaustive but these are minimum safeguards which must be observed in case of arrest of a judicial officer. These guidelines should be implement- ed by the State Government as well as by the High Courts. We, accordingly, direct that a copy of the guidelines shall be forwarded to the Chief Secretaries of all the State Governments and to all the High Courts with a direction that the

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same may be brought to the notice of the concerned officers for compliance.

We do not approve N.L. Patel’s conduct in visiting the Police Station on the invitation of Police Inspector Sharma. In our opinion, no Judicial Officer should visit a Police Station on his own except in connection with his official and judicial duties and functions. If it is necessary for a Judicial Officer or a Subordinate Judicial Officer to visit the Police Station in connection with his official duties, he must do so with prior intimation of his visit to the District & Sessions Judge.

Pursuant to this Court’s appeal made on September 29, 1989, the members of the Bar as well as the members of the Judiciary throughout the country refrained from going on strike as a result of which inconvenience to general public was avoided and the administration of justice continued. The Court is beholden to the members of the Bar and members of the Judiciary for their response to this Court’s appeal. We record our appreciation of the able assistance rendered to the Court by the learned counsel for the par- ties. We are beholden to Sri Soli Jl. Sorabjee, the then Attorney-General, who at our request ably assisted the Court in resolving complex questions of law.

The Writ Petitions, Contempt Petitions and Criminal Miscellaneous Petitions are disposed of accordingly. N.V.K. Petitions disposed

of.

Categories: Judgement