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1973 DIGILAW 436 (ALL)

Niranjan Prasad Agrawal v. S. K. Azad

1973-09-28

D.S.MATHUR, H.N.KAPOOR

body1973
JUDGMENT D.S. Mathur, J. - This application for taking proceedings under the Contempt of Courts Act against Sri K.S. Azad, Editor, Guruwani newspaper, has been made by Sri Niranjan Prasad Agrawal on 6-7-1970. The Contempt committed is of the court of Sri Bidesi, SDM, Mathura, in whose court the criminal case Smt. Ketuki v. Khemchandra u/s 145 of the Code of Criminal Procedure was pending. The application arises out of the following news item published in the Guruwani newspaper on 21-2-1970: Ketuki banam Khemchandra ke Mukadma men ghotala munshi ke parche ke upar Khemchandra ki tarikhon ko teen bar hataya ek dhogi neta 1 oor se 4 sau aur ek oor se 1000 dakar gaye aur sampadak ko badnam karne ki firak men hai pata nahin uski niji dalali hai ya hakim ke sanket par enke court ke ghotala ki sikayat D.M. Basti ne bhi ke batai hai kramsha. 2. The opposite party Sri K.S. Azad put in appearance in court and stated that he could prove his allegations against the Applicant. Thereupon, Hon'ble M.H. Beg. J. ordered on 3-12-1970 that an inquiry be conducted by the Sessions Judge, Mathura. The Sessions Judge conducted the inquiry and submitted his report dated 18-12-1971. He was of the opinion that the allegations made against Sri Niranjan Prasad Agrawal were incorrect. 3. Subsequently, on 23-5-1973 an application was made on behalf of the opposite party raising an objection to the maintainability of the contempt application on the ground that after the coming into force on 24-12-1971 of the new Contempt of Courts Act (Act No. 70 of 1971), no permission of the Advocate General had been obtained. It was contended before us that the amendments made by the new Act were in the procedure and therefore, the amendments shall have a retrospective effect and shall apply to pending cases also. On the other band, the contention of the learned Advocate for the Applicant is that the amendments in so far as the present objection is concerned affect the substantive rights also and therefore, not merely procedural and such amendments cannot have a retrospective effect. Reliance is also placed upon Section 6 of the General Clauses Act. 4. The law on whether an amending Act has a retrospective operation, applicable to pending cases also or can merely be applied prospectively to fresh cases can be said to be beyond controversy. Reliance is also placed upon Section 6 of the General Clauses Act. 4. The law on whether an amending Act has a retrospective operation, applicable to pending cases also or can merely be applied prospectively to fresh cases can be said to be beyond controversy. In brief, amendment in procedure has a retrospective effect while the amendment in the substantive law applies prospectively. Controversy very often arises in whether the amendments, made are procedural or substantive. It will, therefore, be proper to first of all make a reference to the decisions of the Supreme Court and of the High Courts which have been brought to our notice. 5. In Sree Bank Ltd. Vs. Sarkar Dutt Roy and Co., AIR 1966 SC 1953 their Lordships of the Supreme Court quoted with approval the general rule as stated by Wright, J. in re, Athlumney; Ex-parte, Wilson (1898-2 QB 547 at pp. 551-552) as follows: Perhaps no rule of construction is more firmly established than this that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. and also the following passage in Craies on Statute Law, 6th Ed., at p. 395: If a statute is passed for the purpose of protecting the public against some evil or abuse, it may be allowed to operate retrospectively, although by such operation it will deprive some person or persons of a vested right. In para. 38 their Lordships further observed as below: It is not necessary for the retrospective operation of the provision of an Act that it must be stated that its provisions would be deemed to have always existed. That is one mode and may be an effective mode of providing that the provisions would have retrospective effect. Retrospective effect of an enactment can also be gathered from its language and the object and intent of the legislature in enacting it. 6. Similar rule was laid down in Anant Gopal Sheorey Vs. The State of Bombay, AIR 1958 SC 915 : No person has a vested right in any course of procedure. Retrospective effect of an enactment can also be gathered from its language and the object and intent of the legislature in enacting it. 6. Similar rule was laid down in Anant Gopal Sheorey Vs. The State of Bombay, AIR 1958 SC 915 : No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the court in which the case is pending and if by an Act of Parliament the mode of procedure is altered he has no other right than to proceed according to the altered mode.... In other words a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective. In this case the applicability of Section 342-A, Code of Criminal Procedure to criminal cases pending before a Magistrate and in which the recording of evidence had commenced was in issue. On a consideration of the provisions of Section 116 of the Amending Act it was held that the provisions of Sections 4(w), 207-A, 251-A or 260 of the Code as amended shall not apply or affect an inquiry or trial before a Magistrate where the recording of evidence had started prior to the date of the commencement of the amending Act and every such inquiry should be continued and disposed of as if these sections had not been enacted; but the other provisions of the amended Code including Section 342-A shall be applicable. The decision was based on the wording of Section 116 of the amending Act and therefore, cannot be of help except on the general principles reproduced above, namely, that in so far as the criminal proceedings are concerned only the right of prosecution or defence can be regarded as a vested right but not the procedure to be followed in the case. 7. The following observations in AIR 1972 1935 (SC) are pertinent to the matter under consideration: Where a statute prescribing the limitation extinguishes the right it affects substantive rights while that which purely pertains to the commencement of action without touching the right is said to be procedural. Another Supreme Court decision equally applicable to the instant case is the case of Nani Gopal Mitra v. State of Bihar AIR 1970 SC 1936. Another Supreme Court decision equally applicable to the instant case is the case of Nani Gopal Mitra v. State of Bihar AIR 1970 SC 1936. The material observations are al below: It is true that as a general rule alterations in the form of procedure are retrospective in character unless there is some good reason or other why they should not be.... It is therefore clear that as a general rule the amended la relating to procedure operates retrospectively. But there is another equally important principle, viz. that a statute should not be so Construed as to create new disabilities of obligations or impose new duties in respect of transactions which were compete at the time the amending act came into force--(See In re, Debtor, 193(sic) Ch. 237 and In re Vernazza 1960 AC 965 . The same principle is embodied in Section 6 of the General Clauses Act.... The effect of the application of this principle is that pending case, although instituted under the old Act but still pending, are governed by the new procedure under the amended law but whatever procedure was correctly adopted and concluded under the old law cannot be opened again for the purpose of applying the new procedure. It was on tip application of this principle that a repealed provision was held applicable to a pending appeal against conviction pronounced long before the amendment off the Act. 8. Section 6 of the General clauses Act is to the following effect: 6. Where ibis Act or any Central Act or Regulation made after the commencement if this Act, repeals any enactment hitherto made or hereafter to be made, men unless a different intention appears, the repeal shall not ....(b) affect the previous operation of any enactment so repealed or anything duly tone or suffered thereunder; or (c) affect any right, previlege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or ...(e) affect (any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or endorsed and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. 9. 9. Consequently, unless a different intention appears from the enactment itself a legal proceeding in ' respect of any right, liability acquired, accrued or incurred under the repealed enactment can be continued or enforced even after the repeal thereof. Naturally, therefore any legal proceeding validly instituted under the law then in force Can be continued even after the repeal or amendment of the enactment, though the procedure to be followed shall ordinarily be the one prescribed in the amended enactment. To put it differently, if any legal proceeding has been validly instituted or taken cognizance of shall not be affected by the amended law though in so far as the procedure is concerned the amended procedure shall ordinarily be applicable. 10. Kalawati Devi Haralka v. Commr. I.T. AIR 1968 SC 163 is case where Section 6 of the General Clauses Act was held to be not applicable for a different 'intention' clearly appears in Sections 2 and 13 of the Finance Ace read together as indicated above. 11. The learned Advocate for the opposite party also placed reliance upon the Full Bench case of the Notified Area Committee v. Ram Singhasan 1970 AWR 393 . Therein Section 333-A of the U.P. Municipalities Act was held to be retrospective considering that the provision was a remedial one and the statute relating to remedial law is generally given retrospective application. It Was also observed that the Act did not affect vested rights; in fact, preserved them against the municipality, nor did it create new liabilities nor did it impose penalties. Section 333-A was thus held to be akin to a procedural clause and hence retrospective in application. 12. In Ramakrishna Aiyar Vs. Sithai Ammal, AIR 1925 Mad 911 the right to apply for revocation of sanction for prosecution granted before the coming? into force of the new Code under which the provision as to the grant or revocation of sanction was abolished was held not to be a mere matter of procedure but of substantive right. It was further observed that such a sanction Could tie revoked even after the coming into force of the new Code. 13. The general principles governing repealing or amending Acts can be summarised as below: 1. It was further observed that such a sanction Could tie revoked even after the coming into force of the new Code. 13. The general principles governing repealing or amending Acts can be summarised as below: 1. An amendment affecting the vested right of a person does not operate retrospectively unless a different intention appears and such intention has been expressed in clear words or can be, deduced by necessary implication. 2. An amendment affecting the vested right of a person can operate retrospectively where the object of the enactment is to protect the public against some evil or abuse. 3. An amendment of a procedural law has ordinarily retrospective operation. 4. A procedural amendment does not affect the procedure correctly adopted and concluded under the old law : where the procedure as prescribed under the old law had been correctly adopted the matter cannot be reopened for the purpose of applying the new procedure. 14. Coming to the instant case, the application for taking contempt proceeding against. Sri K.S. Azad was moved on 6-7-1970. The disputed news item was published in Guruwani on 21-2-1970. The new Contempt of Courts Act, 1971 (Act No. 7(sic) of 1971) came into force on 24-12-1971. In the old Act no limitation was prescribed, but Section 20 of the new Act prescribes a period of one year commencing on the date from which the contempt is alleged to have been committed. Section 20 expresses in dear words that no court shall initiate any proceeding for contempt, either on its own motion or otherwise, alter the expiry of a period of one year. The impugned news item was published on 21-2-1970 and consequently, if on the commencement of the new Act fresh proceeding was to be instituted with the consent in writing of the Advocate General or it was necessary for the High Court to take fresh action on its own motion no fresh proceeding could be initiated simply because the prescribed period of one year had expired by then. In case the intention of the Parliament was to condone all the contempts committed in the past and action could be taken only in respect of contempts committed in the future and contempts committed within one year of the commencement of the new Act, a clear provision to that effect would have been made. Such an intention cannot be presumed. In case the intention of the Parliament was to condone all the contempts committed in the past and action could be taken only in respect of contempts committed in the future and contempts committed within one year of the commencement of the new Act, a clear provision to that effect would have been made. Such an intention cannot be presumed. On the other hand, it can easily be presumed that the intention of the Parliament was that an offender should not escape punishment and the proceedings already taken must continue. Consequently, on the application of Section 6 of the General Clauses Act it must be held that the present proceeding initiated on 6-7-1970 on the application of Sri Niranjan Prasad Agrawal can continue even though the consent in writing of the Advocate General as prescribed in Section 15(1)(a) of the new Act has not been obtained and the contempt is said to have been committed more than one year before the commencement of the new Act. 15. The provisions of the new Contempt of Courts Act cannot be said to be merely procedural. The Act was enacted to define and limit the powers of certain courts in punishing contempts of courts and to regulate their procedure in relation thereto. The power to punish for contempt of court can be exercised suo motu or on the motion of an interested party. Invariably, the High Court exercises this jurisdiction suo motu when the contempt has been committed in its presence or the matter is reported to the High Court by a subordinate court. In other cases, the proceedings are initiated by an interested party. The right to move the High Court for taking contempt proceeding; is more or less a vested right and therefore, any Act amending the Contempt of Courts Act cannot, to this extent, i.e. for initiating the proceeding have a retrospective effect. The new Contempt of Courts Act was enacted to define and limit the powers of the court : thereunder no new power was conferred on High Courts. It cannot, therefore, be said that the new Act was enacted to protect the public against some evil or abuse. The old Act afforded the same protection as the new Act though under the new Act the powers have been defined and at occasions limited. It cannot, therefore, be said that the new Act was enacted to protect the public against some evil or abuse. The old Act afforded the same protection as the new Act though under the new Act the powers have been defined and at occasions limited. The new Act having not been enacted for protection of the public against some evil or abuse to which they were being subjected and for which they could not in the past seek legal remedy is not covered by the rule laid down in Craies on Statute Law quoted with approval in Sree Bank Ltd. v. Sarkar Dutt Roy and Co. (supra) and thus can have no retrospective effect. 16. To put it (sic) the present proceeding which lad been validly initiated before the commencement of the new Act, can be continued even though no sanction in wilting of the Advocate General has been obtained and the contempt is alleged to have been committed more than one year before the commencement of the new Act. The objection raised on behalf oil the opposite party has no force and is rejected. 17. We now come to the merits of the case. The conduct of the opposite party, Sri K.S. Azad and also the inquiry made by J the Sessions Judge, Mathura, strongly suggest that the main target of attack Was the advocate Sri Niranjan Prasad Agrawal and as the case was panding in the court of the SDM some as person was made against him also. Sri Azad has not filed any written statement; nor has he cared to explain why and the circumstances in which he had made aspersions against the SDM. From the order of M.H. Beg, J. dt. 3-12-1970 it appears that when the Editor appeared in person he tendered an apology but even then asserted that the allegations male against Sri Niranjan Prasad Agrawal were true and could be proved by examining senior lawyers of the district the apology tendered cannot be said to be Unconditional. It was in these circumstances that brother Beg, J. directed the Sessions Judge of Mathura to hold an inquiry and submit his report. In the inquiry parties confined themselves to the allegations made against the advocate. It was in these circumstances that brother Beg, J. directed the Sessions Judge of Mathura to hold an inquiry and submit his report. In the inquiry parties confined themselves to the allegations made against the advocate. Neither Sri Azad tried to lead evidence as t the conduct of the SDM nor was the SDM given notice of the inquiry and of the contempt proceeding pending before this Court. For certain purposes an advocate is regarded as an officer of the Court, but not where allegations are being made against him concerning the conduct of a criminal case. Therefore, ail legations made against the advocate, Sri Niranjan Prasad Agrawal will not amount to contempt as denned on the Contempt of Courts Act and in this proceeding no notice can be taken of such allegations. It shall be open to Sri Niranjan Prasad Agrawal to sue Sri K.S. Azad for defamation. 18. However, With regard to Sri Bideshi, SDM Mathura, the following comment was made in the aforementioned news item published in Guruwani on 21-2-1970: Hakim ke senket par enke court ke ghotala ki sikayat D.M. Basti ne bhi ki batai hai kramasha. 19. The news read as a whole makes it clear that Sri Niranjan Prasad Agrawal was alleged to be receiving Sums of money which could be none other than by way of bribe. It was also alleged that the advocate was bent upon defaming the Editor and it was not known whether he himself was acting as Dalai or it was under the orders of the officer which can have reference to no other than Sri Bideshi, SDM. Thereafter it was said that there were complaints of serious irregularities (Ghotala) against the officer and that the DM Basti, had also given such information. When allegation of improper adjournment of the case on acceptance of money by the advocate as Dalai or at the instance of the SDM is made no other inference can be drawn except that the SDM was helping and obliging by adjourning the case on acceptance of bribe. The last sentence suggests that such allegations were made against the officer in Basti also. Where allegations of corruption are made against the Presiding Officer of the court it is a clear case of scandalising the court and thereby to lower the authority of that court. The last sentence suggests that such allegations were made against the officer in Basti also. Where allegations of corruption are made against the Presiding Officer of the court it is a clear case of scandalising the court and thereby to lower the authority of that court. The publication in the news item amounts to Criminal contempt as defined in Section 2 of the Contempt of Courts Act, 1971. * * * * (Their Lordships then, in absence of any explanation furnished by contemner inspite of numerous hearings, punished him for contempt of the court of SDM Mathura.)