JUDGMENT - B.N. DESHMUKH, J.:---This is an application by the petitioner who was an accused person in Criminal Case No. 1886/S of 1974 in the Court of the Additional Chief Metropolitan Magistrate, 9th Court, Bandra, Bombay, against the presiding Magistrate himself for taking action under the provisions of the Contempt of Courts Act, 1971. The petition came up for motion hearing before a Division Bench of this Court on 24th February, 1974 and rule was issued. The petition is opposed by the presiding Magistrate Shri Cordeiro. The State of Maharashtra, who is normally required to be made party in such petitions, has adopted natural attitude. 2. The facts which lead to the present petition may be briefly summarised as follows. One Arvind K. Bhandare filed a complaint in the Court of respondent No. 1, the Additional Chief Metropolitan Magistrate, 9th Court, Bandra, Bombay, under sections 408 and 420 I.P.C. against the present petitioner Vishwanath Rajwade. The offences alleged involved certain documents in possession of the present petitioner relating to a motor-cycle which was sold. In the complaint, the complainant Bhandare his address at Mahim and made it appear that the cause of action was in Bombay. After taking cognizance respondent No. 1 directed a search warrant to be issued. It was taken out on 3rd of October, 1974 and after searching the house of the present petitioner at Kalyan in Thana District, motor-cycle bearing No. MHP. 9678 was attached. No. documents as alleged were found in the search. The motor-cycle was taken in possession by the Police and after formal production before the Court it was retained in the custody of the Bandra Police Station. 3. On the 4th of October, 1974 Mr. Angal, the lawyer engaged by the present petitioner Rahwade, gave notice to the complainants lawyer Mr. Zari that he would move the respondent No. 1 on 5th October, 1974 for release of the motor cycle on suprat nama, i.e. surety bond. That application was marked as notice No. 253/N of 1974. This notice was adjourned from time to time to 14th October, 1974 in the first instance when the complaints Advocate remained absent and to 17th October, 1974 when the complaints Advocate Mr. Zari was present. That application was marked as notice No. 253/N of 1974. This notice was adjourned from time to time to 14th October, 1974 in the first instance when the complaints Advocate remained absent and to 17th October, 1974 when the complaints Advocate Mr. Zari was present. It is the case of the petitioner that when the notice was called out before the Court and after Advocate Angal addressed the Court on behalf of the petitioner, Advocate for the accused, Mr. Zari conceded that the motor-cycle be released as the interest of the complainant lay in the documents and not in the motor-cycle. 4. The Magistrate, however, took personal interest in the matter and refused to case order for the delivery of the motor-cycle. He enquired as to where the documents were and Advocate Angal stated that for the purpose of Civil litigation whatever documents the accused had were handed over to his High Court Advocate Mr. Baadkar. The Magistrate wanted Mr. Baadkar to come and produce the documents. Mr. Angal pleaded inability to do so but told the Magistrate that he might convey the message to Advocate Baadkar as desired by the Court. The notice was then adjourned to 22nd October, 1974. Mr. Baadkar did not remain present. Advocate Angal made a statement that Mr. Baadkar was busy in the Court and was not available. He also made a statement on instructions from Mr. Baadkar that the documents related to some other matter and not to the criminal complainant before the Magistrate. The Magistrate, however, appeared to be keen for reasons of his own to use the notice as a lever for compelling the accused before him to produce the document from Mr. Baadkar. When this peculiar attitude of the Magistrate was seen by Mr. Angal he called upon the Magistrate to pass positive order on the notice and when this was not being done, he also asked the Magistrate whether he should treat this attitude as amounting to refusal of order for return and whether he should approach the High Court for release of the motor-cycle by making such a statement in the petition to be filed before the High Court. Even this kind of wild threat did not put the Magistrate in his proper frame of mind and the petitioner was forced to file an application in the High Court on 28th October, 1974, being Criminal Revision Application No. 608 of 1974. 5. To that application the State of Maharashtra as well as the complainant in the case were made parties. The complainant though served did not appear. The State of Maharashtra conceded that the property should have been delivered at once and there was no reason why the Magistrate should have exhibited such bias against the accused. By reasoned order dated 17th December, 1974, a learned Single Judge of this Court condemned the Magistrate by strongly worded observations and directed that the motor-cycle should be handed over forthwith. 6. The writ of the High Court in that Criminal Revision Application reached the Court of respondent No. 1 on 19th December, 1974. There is some dispute over the fact whether the writ was received at 2 p.m. or at 4.45 p.m. Nothing however seems to turn on that. On 18th December, 1974 the present petitioner, the accused before the Magistrate, appeared in person and made an application in writing for the delivery of the motor-cycle to him as per High Courts Writ. The petitioner has to wait till 4-45 p.m. and was taken to the Chamber of the Magistrate along with his application. Having read the application, the Magistrate is supposed to have said that the petitioner may go to that High Court or the Supreme Court but he will not get the motor-cycle. No orders were passed on the application given by the petitioner. 7. The petitioner then went to his High Court Advocate Mr. Baadkar and an affidavit was presented in the High Court at 11 a.m. on 20th December, 1974 incorporating these utterance of the Magistrate which are the main grievance of the charge of contempt against him in the present petition. 8. The application and the affidavit filed in the High Court suggested that the Magistrate was unwilling to deliver the property spite of a clear direction by the High Court in its writ. 8. The application and the affidavit filed in the High Court suggested that the Magistrate was unwilling to deliver the property spite of a clear direction by the High Court in its writ. Perhaps on the instructions of the learned Single Judge obtained in Chambers, the Registrar directed the Additional Registrar to go to the office of the respondent No. 1 at Bandra and seize the application given by the petitioner as also the writ issued by the High Court. Mr. Talathi, the Additional Registrar went to the office of respondent No. 1 on 21st December, 1974 and seized the application of the present petitioner and the writ issued by the High Court. After inspection they were returned on 23rd December, 1974. 9. The record and proceedings in the revision application were received by respondent No. 1 on 8th January, 1975 and on the same day he also received a letter from the Registrar written at the instance of the learned Single Judge who dealt with the Criminal Revision Application calling upon the Magistrate to give an explanation as to why the High Courts writ was still not executed and also to explain the allegations made by the present petitioner about the utterances in the evening of 19th December, 1974. Respondent No. 1 sent his explanation on 9th January, 1975 in which he denied the allegation that he ever uttered any words of disrespect to the High Court or the Supreme Court. He reiterated his reverence and respect for the higher courts and stressed his full awareness of his responsibility as a member of the lower judiciary towards all courts. He then pointed out that on the writ itself an endorsement was made on 20th December, 1974 which was the routine order obtained by the office from him, viz. comply. This meant that the writ was to be complied with. However, he points out that there is the long standing practice established over years in all Magistrates courts in Bombay to await record and proceedings before the property is disposed of by merely looking at the writ. This is mainly to verify whether the judicial order requires any bond to be taken from the party before the property is to be delivered. This is mainly to verify whether the judicial order requires any bond to be taken from the party before the property is to be delivered. He, therefore, adds that in the evening of 19th December, 1973 he told the petitioner that he would comply with the writ as soon as the record and proceedings is received from the High Court. He denies that he told the petitioner that he would never get the motor cycle whether he went to the High Court or the Supreme Court. He, however, added that he had already passed orders on the application of the petitioner but he had not reported to his Court for taking away the motor-cycle. The learned Single Judge, however, was getting impatient and another letter was written by the Registrar calling upon the Magistrate to give his explanation. A further report was submitted by him on 20th January, 1975. In this report he states that the order was passed on 9-1-1975 and a memo was sent to the Bandra Police Station in that behalf. The accused has never turned up, and as such a notice was issued to him to collect the motor-cycle. 10. In the judicial order passed on 17th December, 1974 there were two directions given by this Court. The High Court found that the complainant as well as the accused were both residents beyond the territories of Greater Bombay and the Court at Bandra had no jurisdiction. Even though such an allegation was made in the Criminal Revision Application of which a notice was served upon the complainant, he did net remain present at the hearing of the Criminal Revision Application. The High Court, therefore, passed an order that the case shall stand transferred to the Court of the Judicial Magistrate, First Class, Kalyan, and also directed return of the attached property. To comply with the other order of transfer of the case, respondent No. 1 attempted to send the record on 14th January, 1975 in the first instance but it was returned because there was a holiday to the Court of the Judicial Magistrate, First Class, Kalyan. The record was then sent again on 29th January, 1975. This explanation was also not found satisfactory by the learned Single Judge and he called for more particulars as also the details of the action taken against the staff guilty for not complying with the writ. The record was then sent again on 29th January, 1975. This explanation was also not found satisfactory by the learned Single Judge and he called for more particulars as also the details of the action taken against the staff guilty for not complying with the writ. A report was then called for before 4th February, 1975. Respondent No. 1 gave a further report dated 3rd February, 1975 and repeated all the earlier explanations. He points out that the accused, present petitioner Rajwade, was at Kalyan and though a notice was prepared he had not addressed it to the accused for want of address as the record of the case already stood transferred to the Magistrates Court at Kalyan. This report also contained a statement that the Court Clerk was warned for not sending the notice to the accused. 11. A further order was passed by the learned Single Judge dealing with the Criminal Revision Application on 5th February, 1975 in which he said that he was not satisfied with the explanations of the Magistrate, that the Magistrate was fencing with the High Court and that the motor-cycle be called for forthwith from the Bandra Police Station. In pursuance of this last order of the High Court which was also executed through the office of respondent No. 1, the motor-cycle was brought in the High Court on 10th February, 1975. and was actually delivered to the present petitioner on 13th February, 1975. When all these proceedings were going on the present petition was filed by the petitioner, original accused, on January 17th, 1975. During the course of the argument a statement was made at the Bar that the learned Single Judge (Joshi, J.) was apprised of the fact after the petition was presented. As we have already pointed out that this petition came up for motion hearing on 24th February, 1975 by which time the motor-cycle was already handed over to the petitioner and it is doubtful whether the actual delivery of possession of the disputed property was brought to the notice of the Division Bench which issued the rule, which we have heard. 12. The defence of the Magistrate is two-fold. The first defence may to described as technical in order to distinguish it from the other defence which is on the merits of the matter. 12. The defence of the Magistrate is two-fold. The first defence may to described as technical in order to distinguish it from the other defence which is on the merits of the matter. The technical defence has not been specifically raised in the affidavit in reply to the show cause notice, but the learned Counsel, Mr. Jethmalani appearing for him, has raised it as an important question for our consideration in view of the provisions of the Contempt of Courts Act, 1971. That defence is that the present petition is misconceived and the rule ought not to have been issued at all. For the purposes of developing this defence what is alleged is that contempt alleged against respondent No. 1 is at best criminal contempt and in the case of a criminal contempt of the High Court or the Supreme Court, only three modes are provided by which cognizance will be taken and punishment imposed. On is the suo motu action by the High Court or the Supreme Court, the other is a motion by the Advocate General and the third is a motion by any person with the consent in writing by the Advocate General. 13. It is, therefore, urged that this being a motion by a private person, who has admittedly not obtained the consent of the Advocate General, the petition ought not to have been entertained at all. In fact this was raised as a preliminary objection and sensing this, Shri Baadkar the learned Counsel for the petitioner, tried to argue that the offence alleged in the petition is essentially a civil contempt and at best civil contempt in part and criminal contempt in part. As no specific provision has been laid down for taking cognizance of civil contempt, a petition of the present type would lie. Alternatively, he argued that if this is purely a criminal contempt. Suo motu action by the High Court is already contemplated by the High Court and this may be tested as an application to move the High Court for taking suo motu action. This defence needs closer examination in view of the fact that the Parliament has chosen to enact elaborate provisions in the Contempt of courts Act with a preamble saying that it is an Act to define and limit the powers of certain courts in punishing contempts of courts. 14. This defence needs closer examination in view of the fact that the Parliament has chosen to enact elaborate provisions in the Contempt of courts Act with a preamble saying that it is an Act to define and limit the powers of certain courts in punishing contempts of courts. 14. The other defence on merits is that respondent No. 1 has never deliberately flouted the writ of the High Court. In the evening of 19th December, 1974 when the petitioner was brought to his chamber and presented an application for the return of the motor-cycle, he merely told the petitioner that no orders could be passed until the record and proceedings were received from the High Court. He never uttered the words, which are obviously derogatory of the High Court and the Supreme Court. In fact he accepts that no Magistrate who wants to retain service will dare utter such words. He then denies that there has been deliberate failure to comply with the writ and a denial of return of the property to the petitioner by the Magistrate. According to the usual practice, which is well established in Bombay, though a formal order to comply with the writ was passed on 20th December, 1974 itself, the office obviously waited for the record and proceedings to verify whether any bond was necessary. He further pleads that after the record was received the petitioner never went to his Court. Formally it is also the experience of all Magistrates and, therefore, virtually a practice, that a person in whose favour an order was passed is after the Court and he often appears to take the order of the Magistrate to the Police Station for obtaining the property. No specific provision has been made for despatching orders to the Police Station. If the party himself comes and takes away the order it serves two purposes. The Bench clerk knows the person who is the accused or the complainant and hands over the order to an authorised person. Since that person is authorised, it also serves as a sort of identity to the Police of the person to whom the property is to be given and it facilitates delivery of he property. As the accused never turned up at all the property was not delivered. Since that person is authorised, it also serves as a sort of identity to the Police of the person to whom the property is to be given and it facilitates delivery of he property. As the accused never turned up at all the property was not delivered. When repeated queries were being made and explanations were being called by the High Court, the Magistrate realised that he could not follow the routine course in this case and, therefore, directed his Bench clerk to issue a notice to the accused to remain present and also despatched a memo to the Police Station. These facts were intimated to the High Court from time to time. In spite of all these orders being passed the accused never voluntarily appeared at all throughout the proceedings after 19th December, 1974 and the notice which was intended to be served upon him could never reach him because the office of respondent No. 1 had no address of the accused to despatch the notice as the case papers were already transferred to the Magistrates Court at Kalyan. In this way there way no deliberate disobedience of the High Courts order and no contempt was committed. The Magistrate realises that there has been considerable delay contrary to the wishes and expectations of the High Court in this case for which he expresses profound regret. 15. We will in the first instance consider whether the proceedings have been properly initiated and if not, could they now be treated as suo motu proceedings by this Court. It is particularly necessary to consider this defence in detail because of the passing of the Contempt of Courts Act, 1971, which makes detailed provisions in many respects regarding the powers of the courts and the procedure to be followed in punishing the offence of contempt of Court. It may be noted that the offence of contempt of Court has been confined by this Act to mean either civil contempt or criminal contempt. The civil and criminal contempts have been confined in Clauses (b) and (c) of section 2 of 1971 Act. How civil contempt shall be taken cognizance of has not been specifically provided by way of a procedure for taking cognizance. How criminal contempt will be taken cognizance of and dealt with has been expressly provide by the Act. The civil and criminal contempts have been confined in Clauses (b) and (c) of section 2 of 1971 Act. How civil contempt shall be taken cognizance of has not been specifically provided by way of a procedure for taking cognizance. How criminal contempt will be taken cognizance of and dealt with has been expressly provide by the Act. It would, therefore, be necessary in the first instance to determine whether the contempt alleged in the present proceedings is a civil contempt or a criminal one. If it is a civil contempt, as no specific procedure has been laid down, it may be said that as before the Court may take cognizance if sufficient facts are brought to its notice by any applicant whether by formal application or not. 16. Civil contempt has been defined by Clause (b) of section 2 to mean wilful disobedience to any judgement, decree direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court. This definition will have to be understood in the context of the well accepted notions of civil contempt supported by a long tradition of judicial procedure. The principal distinction between the civil contempt and the criminal contempt is that whereas the function of taking action against a contempnor in a civil contempt is to enforce compliance and not so much as to punish him; the function of proceedings in a criminal contempt is to behold the majesty of law and the dignity of courts. In a civil contempt when there is compliance, rarely punishment is imposed, except levying costs. In a criminal contempt normally a punishment would be impose unless the contemnor honestly repents and offers apology which is acceptable to the Court as a genuine one. This approach well founded on judicial pronouncements has been now given legislative recognition by section 23 of the Contempt of Courts Act, 1971. It says that notwithstanding any thing contained in any law for the time being in force, no Court shall impose a sentence under this Act for a contempt of Court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice. It says that notwithstanding any thing contained in any law for the time being in force, no Court shall impose a sentence under this Act for a contempt of Court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice. Where, therefore, the so called interference has been removed and compliance is brought in some manner, question of imposing punishment under the present Act does not arise. 17. The second important factor to be remembered is that in matters relating to civil contempt there is an order for the benefit of a party against some other party and the enforcement is for the benefit of one party against the other. On the contrary in a criminal contempt there is some kind of interference with the judicial proceedings or there is a scandalization of the courts to undermine their authority. If this is the real distinction between the two types of contempts, it is difficult to imagine how a subordinate Court will commit a civil contempt though courts are not exempt from the provisions of the Contempt of Courts Act, 1971. Section 16(1) of this Act says that subject to the provisions of any law for the time being in force, a Judge, Magistrate, or other person acting judicially shall also be liable for contempt of his own Court or of any other Court in the same manner as any other individual is liable and the provisions of this Act shall, so far as may be, apply accordingly. We do not, therefore, say that courts are exempt from all contempts. What we seek to point out is that it is difficult to imagine that a Court will commit a civil contempt. Non-compliance by a subordinate Court of the order of superior Court may amount in some circumstances to a contempt, but that action of the subordinate courts would be in the nature of putting obstruction in the course of enforcement of the superior Courts orders and as such they partake of the nature of the criminal contempts. In Halsburys Laws of England, Third Edition, Volume 8, page 2, paragraph 1 classifications of contempts of courts are given. 18. Contempt is described to be of two types. A criminal contempt and a contempt in procedure, which our statute calls the civil contempt. In Halsburys Laws of England, Third Edition, Volume 8, page 2, paragraph 1 classifications of contempts of courts are given. 18. Contempt is described to be of two types. A criminal contempt and a contempt in procedure, which our statute calls the civil contempt. In enumerating a list of acts which might amount to criminal contempt Halsbury in the said edition in paragraph 34 on page 19 includes the actions of the judges of inferior courts as amounting to criminal contempt. The learned author says that judges of inferior courts are punishable by attachment for acting unjustly, oppressively, or irregularly, in the execution of their duty, or for disobeying writs issued by the High Court requiring them to proceed or not to proceed in matters before them. However, so far as England is concerned, a great part of this jurisdiction is virtually superseded by statutes giving the Lord Chancellor power to remove a Judge of an inferior Court for inability or misbehaviour. In Oswalds Contempt of Court, 1911 Edition, we find the following observations at page 36 which are consistent with the above view : "And, generally, the distinction between contempts criminal and not criminal seems to be that contempts which tend to bring the administration of justice into scorn, or which tend to interfere with the due course of justice, are criminal in their nature; but that contempt is disregarding orders or judgements of a Civil Court or in not doing something ordered to be done in a cause, is not criminal in its nature." A distinction is made between a public injury or offence which is criminal in nature and a proceedings involving a private injury not criminal in nature. When a party to a litigation is ordered to do certain things for the benefit of other party and he refuses to comply that order, it is a contempt of a civil nature, against which proceedings are normally remedial than punitive. On the contrary where a public injury or an offence is alleged to have been committed the nature of the contempt is criminal and the remedy is mainly punitive. This distinction of civil and criminal contempts have been well recognized by courts in our country also. 19. A Division Bench, of the Patna High Court in (State v. Dasrath)1, held that there is a fundamental distinction between contempts that are criminal and those that are civil. This distinction of civil and criminal contempts have been well recognized by courts in our country also. 19. A Division Bench, of the Patna High Court in (State v. Dasrath)1, held that there is a fundamental distinction between contempts that are criminal and those that are civil. The former consists of a conduct that offends the Majesty of Law and undermines the dignity of the Court. A Civil Contempt on the other hand, is a failure to obey a Courts order issued for the benefit of the opposing party, and the principle object of civil contempt is to secure the endorsement of the order. The courts do not ordinarily interfere unless the disobedience is shown to be wilful. The Nagpur High Court was considering the question of granting leave to appeal to the Supreme Court and for that purpose the nature of an order passed in contempt proceedings. With a view to distinguish the two types of contempts following observations were made by the learned Judges in (Zakir v. State)2, in paragraph 6 of the report : "Contempt which is punished for disobedience of an order of the Court with a view to enforcing the rights of private parties is distinguished from contempt which is punished for vindicating the dignity of the Court. The latter is regarded as criminal and punitive, while the former is regarded as civil and remedical." We are thus of the view that though the two types of contempts are distinguished, they on many occasions seem to overlap each other. 20. However, this distinction has to be clearly borne in mind because what is allowed in the present case is that contempt of the High Court has been committed by a sub-ordinate Magistrate. The act provides a specific remedy for a criminal contempt of the High Court and when the statute provides a specific remedy and a procedure it must be adhered to before cognizance of that offence is taken and punishment imposed. 21. Provisions of sections 14 and 15 of the Act now may be briefly noted section 14 deals with the contempt of the Supreme Court or High Court committed in their presence and is, therefore, not relevant for the present purpose. 21. Provisions of sections 14 and 15 of the Act now may be briefly noted section 14 deals with the contempt of the Supreme Court or High Court committed in their presence and is, therefore, not relevant for the present purpose. Section 15(1) deals with a criminal contempt other than a contempt referred to in section 14, viz., one committed in the presence of the High Court or the Supreme Court, action on its own motion or on a motion made by- (a) the Advocate General, or (b) any other person, with the consent in writing of the Advocate-General. Sub-section (2) deals with a criminal contempt of a sub-ordinate Court and sub-section (3) deals with the content of the motion and the explanation definition defines the Advocate-General. 22. It is, therefore, clear that the Legislature now wants a criminal contempt of the High Court to be taken cognizance of only in 3 manners and none other. They are, in our view, three distinct manners and must be constructed as such. The first manner is the taking of the cognizance by the High Court its own motion. It need not be supposed that for taking a suo motu action the matter must arise through proceedings before the Court itself. It may be that a virulent speech affecting the dignity of High Court is made in a public place and the High Court comes into possession of authorised and bona fide information of what was said by the speaker in the meeting and on getting that information the High Court is of the view that a criminal contempt of itself has been committed, nothing prevents the High Court from issuing notice to show cause. However, the two other modes must also be conceived of as distinct modes to be pursued by different parties mentioned in the two Clauses of section 15(1). One is an Advocate General and the other is any person with the consent in writing of the Advocate General. However, the two other modes must also be conceived of as distinct modes to be pursued by different parties mentioned in the two Clauses of section 15(1). One is an Advocate General and the other is any person with the consent in writing of the Advocate General. If a private person, therefore, thinks that a certain occurrence event for speech, publication or any other utterances in the matter, amounts to contempt of the High Court and the High Court concerned to the Supreme Court ought to take cognizance of it, this act provides that he shall first approach the Advocate General, satisfy him that it is a fit case for making motion before the High Court and obtain his consent in writing. This is the only mode provided for a private citizen apart from the Advocate General, who is a law officer for moving the High Court for inducing it to take cognizance of a criminal contempt of itself. It will be a meet question to consider whether this is to be treated as a mere formality and any citizen is entitled to apply direct to the High Court by way of a motion of the present type for inducing it to take action against a party responsible. 23. When this question was raised by Mr. Jethmalani the reply given by Mr. Baadkar was that even in the case of criminal contempt of the High Court a petition of the present type can lie, not as a motion under Clause (b) of sub-section (1) of section 15, but as a mere letter to the High Court inducing it to take suo motu action. What was pointed out to us was that even if technically a motion could not be made under section 15(1)(b) a private citizen can collect evidence of contempt, where for instance a solid and flagrant speech has ben delivered and sent to the High Court through mail, the Registrar who receives the mail might still place it before an appropriate Division Bench and on that material the Court may issue rule. If that possibility cannot be ruled out and it often happens that this Court takes cognizance of such correspondence, why should not the present petition be treated in that manner and cognizance already taken be not treated as appropriate. 24. If that possibility cannot be ruled out and it often happens that this Court takes cognizance of such correspondence, why should not the present petition be treated in that manner and cognizance already taken be not treated as appropriate. 24. We think that though superficially the approach appears attractive in view of the statutory provision of the present Act, it is difficult to accept this argument. When material is merely supplied to the High Court and if the Judges read that material get the impression from the material itself that it is in the public interest to take suo motu action, they will do so. When, however, the material does not so obviously disclose an offence, but an argument is required to be made at the Bar, which leads to the issue of a notice, the private party has chosen a wrong procedure in applying to the Court. What is contemplated by the Act is that a private party, who wants to obtain orders in contempt matter must obtain consent in writing of the Advocate General and not to approach the Court direct. 25. Apart from that what is precisely done in this case is that a regular motion has been taken out in the form of a Criminal Application with all the technical compliance, of the High Court rules and that petition was placed before a Division Bench for motion hearing. At the motion hearing, after hearing the learned Advocate for the petitioner Mr. Baadkar, rule has been issued. This right to address the Court and to induce it to issue a rule in the matter of a criminal contempt of the High Court is not available to a party under the provisions of section 15. High Court in possession of material has to think on its own that action is necessary in public interest. It may be that a question whether there is a contempt of Court or not is a serious one. The exercise of it is made in a summary proceeding without a long drawn trial with cross-examination etc. It, therefore, behaves the Court to act with as great circumspection as possible making all allowance for errors of judgment and difficulties arising from inveterate practice in courts and Tribunals. 26. The exercise of it is made in a summary proceeding without a long drawn trial with cross-examination etc. It, therefore, behaves the Court to act with as great circumspection as possible making all allowance for errors of judgment and difficulties arising from inveterate practice in courts and Tribunals. 26. In the present case for instance if the contempt was reported merely by a layman and the High Court had called for the explanation of the Magistrate departmentally without an argument on behalf of the petitioner, it may be that the Court would have held that the delay in delivering the motor cycle, though unfortunate, was the result more of a certain procedure that has come to stay in the Court in the island of Bombay. The suo motu action must be based upon the satisfaction of the High Court or the Supreme Court uninfluenced by an argument of a private party that a serious proceedings under the contempt of Court Act is absolutely necessary and had to be taken. If the Court can be induced to do so by a petition of the present type, the procedure adopted would be contrary, both to the spirit and the letter of section 15(1) of the Contempt of Courts Act, 1971. This is alleged contempt can be described as a criminal contempt, pure and simple. We are of the view that the proceedings have been erroneously started by a motion by the petitioner who squarely falls under section 15(1)(b) of the Contempt of Courts Act, 1971 and had no right to address the Court on the strength of a petition of the present type. 27. We may now consider the real nature of the alleged contempt in view of the distinction between the two types of contempt which we have pointed out earlier. We are satisfied that the delay in delivering the motor cycle to the petitioner assuming it was deliberate, was in the nature of interfering with the proper execution of the order of the High Court. If, therefore, amounted to a criminal contempt and not a civil one. The order of delivery of property which was seized by the police in investigation is not in the nature of an order of a civil Court passed for the benefit of one against another party. If, therefore, amounted to a criminal contempt and not a civil one. The order of delivery of property which was seized by the police in investigation is not in the nature of an order of a civil Court passed for the benefit of one against another party. It is an order in the proceedings and such it is an order in the proceedings by the superior Court and the order ought to have been executed by the lower Court. Any hindrance to its execution if deliberate, is in the nature of criminal contempt of the High Court. Under the very definition adopted by the 1971 Act and on the basis of well established precedents we have no doubt that even if respondent No. 1 were to be treated guilty of deliberate action in not executing the order of the superior Court, the offence would be of criminal contempt and not of a civil contempt. If that is so the present petition is misconceived and ought not to have been entertained at all. In our view when a criminal contempt of the High Court is alleged and a petition of the present type is presented in Court by way of a judicial proceedings, it ought to have been rejected as a sort of proceedings which does not lie at all at the instance of a private party. If, however, such a motion is accompanied by a consent of the Advocate General in writing, it may be a proper motion and must be placed before appropriate Bench for judicial orders. 28. Though we could have disposed of the petition on this short ground, since all points were exhaustively argued before us we will briefly refer to them also. Mr. Baadkar the learned Counsel for the petitioner argued that we may still that this as suo motu action and the argument addressed by him is a voluntary assistance rendered by the petitioner to the Court for properly disposing if the petition. He says that new rule has been issued and the explanation of respondent No. 1 is on the record, here is full record available to the Court and it may still consider whether it would have chosen to take suo motu action and if so thought, the present proceedings themselves may be treated as suo motu proceedings. He says that new rule has been issued and the explanation of respondent No. 1 is on the record, here is full record available to the Court and it may still consider whether it would have chosen to take suo motu action and if so thought, the present proceedings themselves may be treated as suo motu proceedings. We have already printed out that such an approach would be contrary to the spirt and the letter of the Contempt of Courts Act, 1971. 29. It appears to be the view of the legislature that no proceedings in contempt ought to be lightly taken unless the courts thought so or the law officer of the stature of Advocate General felt like moving the Court or felt like giving his consent in writing after examining the material which may be produced before him by a person. These provisions are in the nature of protection against light exercise of the serious jurisdiction of the Court. A procedure of the present type could not be adopted to convert the proceedings ultimately into suo motu proceedings, as they will be cited as precedents, and applications of present type will continue to flow in. That must not be encouraged and the law must be clearly pronounced that viz. either the Court will act on its own such material as it comes to its notice, or the Advocate General or party with his consent in writing will alone induce the Court to take action under the Act. We, therefore, reject the argument of Mr. Baadkar in that behalf. 30. However, so far as the facts of the present case are concerned there is an additional difficulty in accepting the approach suggested by Mr. Baadkar. The alleged contempt is supposed to have occurred when a learned Single Judge of this Court was fully seized of the original criminal revision application, out of which the present proceedings arise. He passed the first order to deliver the motor-cycle on 17th December, 1974. While passing that order itself observations have been made by the learned Single Judge against the conduct of the Magistrate during the disposal of the notice taken out by the accused for releasing the motor-cycle. After describing the manner in which the motor-cycle was attached and refused to be released by the Magistrate, the learned Single Judge notices that Mr. While passing that order itself observations have been made by the learned Single Judge against the conduct of the Magistrate during the disposal of the notice taken out by the accused for releasing the motor-cycle. After describing the manner in which the motor-cycle was attached and refused to be released by the Magistrate, the learned Single Judge notices that Mr. Zari, learned Counsel for the criminal complainants, informs the Court that he had no objection to the release of the motor-cycle. There was evidence on the record to support this argument of the learned Counsel for the accused and the learned Single Judge further notices that the concession made by Mr. Zari was proper because he felt that it was futile to pursue the motor-cycle on the facts and circumstances of the case. The transfer of the motor-cycle has taken place much earlier and no claim could be laid to the motor-cycle. Having discussed the various stages of the proceedings and after considering the statements made by Advocate Angal for the accused before the Magistrate, from time to time, the learned Single Judge observes as follows : "Pausing for a while, I am contained to observe that the entire attitude adopted by the learned Magistrate, with respects, is devoid of decency and decorum. It was a high handed action and exhibited no application of mind such less exercise of judicial discretion, to the matters at issue................." The learned Single Judge has also discussed the manner in which Mr. Angal, the Advocate on record, was being pressurised by the Magistrate by his tactics in getting documents produced by Mr. Baadkar, another Advocate of the accused. In that behalf following comments have been made by the learned Single Judge :--- "If on the merits of the case, the learned Magistrate felt that the issues were interlinked, it was his choice to make an order to that effect in so many words and to leave Mr. Angal to his own remedy at law. But to corner Mr. Angal and the petitioner in this manner is something unheard of and unbecoming of a judicial officer holding such a high status............................................................ to speak the least, and to put it most modestly, is highly injudicious and sounds perverse. Angal to his own remedy at law. But to corner Mr. Angal and the petitioner in this manner is something unheard of and unbecoming of a judicial officer holding such a high status............................................................ to speak the least, and to put it most modestly, is highly injudicious and sounds perverse. Without further comments, it deserves to be set aside." Towards the conclusion of the order, the learned Single Judge has further made the following observations : "To conclude, that the learned Magistrate seems to be prejudiced and desires to measure his strength towards a respectable Advocate. This should not be the attitude of the officers presiding over the courts." We are pointing out the observations of the learned Single Judge for the simple reason that this was a Judicial assessment of the conduct of respondent No. 1 during the pendency of the criminal case before him and it is this order which directed delivery that was not properly executed by the respondent No. 1. 31. We may now add that being dissatisfied with immediate non delivery of the motor-cycle, the learned Single Judge from time to time called for reports and explanations or respondent No. 1. They are all on records of this case. We do not propose to discus in great detail the contents of these reports and the contents of the affidavits of the present petitioner in relation to them before us. To summarise the whole episode very briefly, it would appear that the Magistrate has signed undoubtedly a one word order comply on 26th of December, 1974. The writ of the High Court bears that order and though it was seized along with the applications of the present petitioner dated 19th December, 1974 and 21st December, 1974 by the Additional Registrar of this Court, there is no grievance that order was missing and was subsequently interpolated. This is the only saving grace in the whole case and short of this routine order passed by respondent No. 1, his conduct throughout the criminal case while it was pending before him and even after its transfer is far from commendable. 32. The contempt, however, alleged consists of two distinct allegations. One is that the Magistrate told the accused person, present petitioner, that he may go to the High Court, or the Supreme Court, but he will never get the motor cycle. 32. The contempt, however, alleged consists of two distinct allegations. One is that the Magistrate told the accused person, present petitioner, that he may go to the High Court, or the Supreme Court, but he will never get the motor cycle. Whether he said so is a question of fact and in a proceeding of the present type which are criminal or quasi criminal the principal of proving the facts beyond reasonable doubt is undoubtedly relevant. What we want to point out, so far as the present record is concerned is that the allegation of the present petitioner is made on oath by filing an affidavit. There is a denial by the Magistrate by himself on oath again and his denial is supported by two witnesses. One is the Prosecutor Mr. Mogal attached to his Court, who claims to be present at 4-45 p.m. on 19-12-1974 in the chamber of the Magistrate, and Mr. Nerurkar, who was the interpreter who led the petitioner into the chamber of the Magistrate. There is considerable force in the argument of Mr. Jethmalani that without the opportunity of cross-examination, when the Court has to consider an affidavit of an Interested party, who is encouraged by the attitude of the learned Single Judge of this Court towards the Magistrate, and three affidavits of Magistrate a respectable lawyer and a Court official, will it not be difficult to come to the conclusion that the allegation of facts has been proved beyond reasonable doubt. However, what we intend to point out at this stage is quite different. Before the learned Single Judge not only this allegation of the petitioner was there, supported by an affidavit on oath, but it was only opposed by a simple denial of the Magistrate by way of a report. It was not a denial on oath and the Magistrate had not submitted any additional explanations from the Prosecutor or the Interpreter. Not only that but from time to time when reports were submitted the learned Single Judge was dissatisfied with the correctness, precision, and accuracy of the reports. Till 28th of January, 1975 the learned Single Judge of this Court was receiving explanations and was expressing dissatisfaction. At one stage he observed that the Magistrate seems to be dodging the High Court. Till 28th of January, 1975 the learned Single Judge of this Court was receiving explanations and was expressing dissatisfaction. At one stage he observed that the Magistrate seems to be dodging the High Court. At another stage he observes that details of the enquiry made, orders passed, warning given and action taken should be communicated to the High Court. With all that, the order passed by the learned Single Judge on 28-1-1975 shows that the Magistrate was still directed to comply with the order and a rider is added that any disobedience will be seriously viewed. A report is again called for by 4th of February, 1975. That report was received on 3rd February, 1975. 33. The gist of the explanations, to summarise briefly again would be that, viz. the Magistrate passed a formal order on 29th December, 1974 but he and the office waited as usual according to the well developed procedure for the record and proceedings. After 8th of January, 1975 when the record and proceedings were received he did pass orders on the application of the petitioner on the 9th January, 1975 and was waiting for the petitioner to come. That was again a normal manner in which the persons interested approach the Court, take the copy of the order and lodge it with the Police Station for compliance. It may be remembered that such orders are never written out by the Magistrates but it is the Bench Clerk who prepares a memo and sends it with usual prefix By Order. The learned Single Judge was still dissatisfied with the procedure adopted and the explanation given and called for the motor cycle in the High Court itself for delivery to the complainant. That closed the entire matter when the motor cycle was delivered to the complainant on 13th February, 1975. 34. What we want to emphasise is that all the reports of the Magistrate, all the orders passed by him and all the comments made by the Judge himself against the conduct of the Magistrate were before the Judge throughout when he was seized of the Jurisdiction. In spite of such a conduct which was condemned in no uncertain terms and in spite of the fact that 1971 Contempt of Courts Act was in force the learned Single judge has not chosen to take cognizance of the contempt and commence proceedings against the Magistrate. In spite of such a conduct which was condemned in no uncertain terms and in spite of the fact that 1971 Contempt of Courts Act was in force the learned Single judge has not chosen to take cognizance of the contempt and commence proceedings against the Magistrate. This is a circumstance which must be given its proper weight in the Magistrate. This is a circumstance which must be given its proper weight in the present proceedings. We do not suggest that if a contempt takes place in the presence of one Judge or to the knowledge of one Judge, it is the contempt of that Judge alone and not of the Court. We do not further suggest that except that Judge no other Judge can take suo motu action. In fact what is contemplated by the provisions of section 15 is that Court will take suo motu action. Whoever can answer description of the word "Court" is entitled to take action. That could be law. But all said and done, the question of propriety also must be considered. 35. Prima facie it appears that the learned Single Judge seems to have felt that the motor cycle having been delivered to the petitioner, it was not worth while pursuing the matter and severe adverse criticism of the conduct of the Magistrate should be enough to serve as an eye opener to the Magistrate in the further part of his service. Propriety requires that unless the matter is so glaring that mere adverse remarks are not enough, ordinarily other brother judges would be slow in independently initiating action. We have made this observation regarding propriety simply because the matter has been argued before us thread-bare from every point of view including the detailed evidence led. As we have concluded earlier a motion of the present type is itself misconceived and ought not to have been entertained, the above circumstances add strength to the conclusion in this case that the rule ought not to have been issued. 36. So far as the question of taking suo motu action is concerned, Mr. Jethmalani drew our attention to the observations of the Court of Appeal in England in the case of (Balogh v. Crown Court at Albans)1. The facts of the case are rather peculiar. 36. So far as the question of taking suo motu action is concerned, Mr. Jethmalani drew our attention to the observations of the Court of Appeal in England in the case of (Balogh v. Crown Court at Albans)1. The facts of the case are rather peculiar. A casual clerk employed by solicitors got bored with the case which went on from day to day and wanted to enliven the Court by keeping the gas cylinder containing nitrous exide N-2. He wanted to open the cylinder and let loose the gas which has an exhilarating effect when inhaled. Probably he wanted the occupants of the rooms to inhale the gas. His plans did not succeed. He was detected before the release of the gas and admitted these facts when produced before the Senior Judge of Court at Albans. Action was taken against him immediately and he was sentenced. While hearing appeal from these facts, the appeal was ultimately allowed on the ground that making an attempt which if succeeded might become a contempt of Court is no contempt of Court itself and the appellant deserves to be acquitted. Incidently, however, they make observations that a suo motu action by the Court is uncalled for. The reason given by the learned Judges is that a Judge should act of his own motion only when it is urgent and imperative to act immediately. In all other cases he should not take it on himself to move. He should leave it to the Attorney-General or to the party aggrieved to make a motion in accordance with the Rules in RSC Ord. 52. 37. We are taken through the entire case and the three separate judgements delivered by three learned Judges. The emphasis in view of the provisions of the Rule prevalent in England seems to be that where immediate and urgent action is necessary the Court may act on its own motion. In all other cases where action could be taken in the course the matter should be left to the Attorney-General or the aggrieved party. 38. The approach to taking action suo motu under the provisions of the Contempt of Courts Act, 1971, will have to be dealt with from the point of view of the statutory provisions contained in the Act and in all cases the approach suggested by the Appeal Court of England may not be strictly relevant. 38. The approach to taking action suo motu under the provisions of the Contempt of Courts Act, 1971, will have to be dealt with from the point of view of the statutory provisions contained in the Act and in all cases the approach suggested by the Appeal Court of England may not be strictly relevant. Since we have already pointed out as to how an aggrieved party cannot take out a motion without the consent in writing of the Advocate General, for, what is misdescribed as suo motu action by the Court, any further discussion of this case does not seem to be necessary. 39. Mr. Baadkar very closely analysed the three affidavits filed by the Magistrate in this case and the reports submitted by him from time to time in relation to the queries made by the High Court. His emphasis was to point out that some of the explanations of the Magistrate are a mere make-belief. He did nothing and seems to have subsequently created record to show that he passed order on the application of the petitioner on 9th January, 1975 and also prepared a memorandum dated 17th January, 1975 addressed to the Bandra Police Station. His grievance was that there was no entry in the outward register and no evidence that a memo was really received by the Court Clerk attending the Bandra Court on behalf of the Bandra Police Station. He also urged that if the record of the criminal case was already transferred to Kalyan on 20th January, 1975 a notice to accused to remain present in Court for receiving property dated 21-1-1975 could not be prepared. His main argument was that realising the attitude of the High Court he has tried to some how explain the matter, though he remained inactive earlier. We have gone through the entire correspondence and we do feel that the Magistrate has not acted with responsibility and has not responded to the orders of the High Court promptly and efficiently. A part of it seems to be due to the usual lethargy present in the office and relying upon the so called practice prevalent. However, after the second letter received from the High Court he should have been more alert. His subsequent conduct and the steps taken by him or his lethargy to respond quickly to the orders of the Court, further disclose his administrative inefficiency. However, after the second letter received from the High Court he should have been more alert. His subsequent conduct and the steps taken by him or his lethargy to respond quickly to the orders of the Court, further disclose his administrative inefficiency. Indignance in such a matter has already been demonstrated by the learned Single Judge in his order. In addition we think that the learned Magistrate does not seem to have adequate administrative hold over the affairs of his Court. 40. In spite of the above conclusions we think that the present petition should not be entertained as a motion for contempt of Court by the respondent No. 1 nor could be treated as a suo motu action by this Court. Since the entire conduct has come to the notice of this Court it will be an adequate action to place all the adverse observations of the learned Single Judge and of this Bench before the learned Chief Justice for entering them into the service record of the learned Magistrate, if the learned Chief Justice so agrees. Whether any further departmental action seems to be necessary would be in the discretion of the learned Chief Justice. 41. In view of the conclusions arrived, the rule stands discharged. -----