Dinesh Chandra Sharma v. B. K. Banerji — 1988 DIGILAW 688 (ALL)

ORDER K.C. Agrawal, J. - This application under S. 12 of the Contempt of Courts Act (hereinafter referred to as 'the Act') has been filed by Dinesh Chandra Sharma on the following facts- The applicant was served with a transfer order dated Jan. 11, 1977, transferring him to Sabina, Jhansi. He was thereafter served with a memorandum initiation enquiry for not joining the duties at Babina, where he was required to take over in pursuance of the transfer order aforesaid. The applicant challenged the validity of the transfer by means of a writ petition (Civil Misc. Writ Petn. No. 741 of 1977, (D. C. Sharma v. Union of India). The writ petition was allowed in part of Jan. 5, 1982: (reported in 1982 Lab IC 962), quashing his transfer from Meerut to Babina. The learned single Judge, however, did not adjudicate or decide as to whether initiation of proceedings against the applicant for not joining in pursuance of the transfer order is valid or not. The writ petition was dismissed with respect to disciplinary proceedings. The applicant submitted an application on Jan. 7, 1982 to the Controller of Defence Accounts, Central Command, Meerut (for short 'the Controller') under whose control the applicant was working. Prayer made in the application was that the transfer from Meerut to Babina had since been quashed, the applicant was entitled to be given charge at Meerut. But having felt frustrated by the Controller not acceding to his request for posting at Meerut and only intimating that the matter was under examination, the present application was filed. 2. The applicant alleged that the Controller was guilty of contempt having not obeyed the order. On May 12, 1982, this Court passed the following order on the contempt application : "Vipakshi ko notice jari kiya jaye ki yah avedan patra kyon na angikrit kar liya Jaye. Angikaran ke adesh hetu dinank 7th July, 1982 ko pesho ho." A counter-affidavit was filed on behalf of the opposite party submitting that the opposite party had not flouted the order of this Court. 3. Question that arises for consideration is whether the present application for taking contempt proceedings having not been filed within one year from the date on which the contempt is alleged to have been committed is liable to be rejected. 4. Section 20 of the Act provides a period of one year for initiating any proceeding for contempt. 3. Question that arises for consideration is whether the present application for taking contempt proceedings having not been filed within one year from the date on which the contempt is alleged to have been committed is liable to be rejected. 4. Section 20 of the Act provides a period of one year for initiating any proceeding for contempt. The period is to be computed from the date on which the contempt is alleged to have been committed. Section 20 applies where the Court proceeds on its own motion suo motu or on the application for a person aggrieved. There was no provision like S. 20 of the Act under the old Act. This provision has been incorporated in this Act, which was enacted in pursuance of the Sanyal Committee Report. This Act lays down a different scheme with regard to contempt of Courts than prevalent before. The preamble to the Act says, an Act to define and limit the powers of certain Court in punishing for contempt of Courts and to regulate their procedure in relation thereto. This is, therefore, an exhaustive Act providing for the procedure in relation to contempt of Courts. Contempt jurisdiction is of a special nature and should be sparingly used. The Court can exercise this power where there has been a real breach by substantial interference with due course of justice. In Ananta Lal v. A.H. Watson, AIR 1931 Ca1257 (atp. 261), Rankin, C. J. observed : "The Court's jurisdiction in contempt is not to be invoked unless there is real prejudice which can be regarded as a substantial interference with the due course of justice. It is not every theoretical tendency that will attract the action of the Court in its very special jurisdiction. The purpose of the Court's action is a practical purpose and it is reasonably clear on the authorities that this Court will not exercise its jurisdiction upon a mere question of propriety." The power, as stated by Oswald,. is to be exercised most sparingly and carefully watched. The purpose of the Court's action is a practical purpose and it is reasonably clear on the authorities that this Court will not exercise its jurisdiction upon a mere question of propriety." The power, as stated by Oswald,. is to be exercised most sparingly and carefully watched. What he stated in his book on 'Contempt of Court' 3rd Edn., p. 17 is as follows : "It should be borne in mind in considering and dealing with contempt of Court that it is an offence purely sui generis and that its punishment involves in most cases an exceptional interference with the liberty of the subject, and that too by a method or process which would in no other case be permissible or even tolerated. It is highly necessary therefore in all questions of that nature where the functions of the Court have to be exercised in a summary manner, that the Judge in dealing with the alleged offence should not proceed otherwise than with greater caution and deliberation and only in cases where the administration of justice would be hampered by the delay in proceeding in the ordinary course of law; and that when any antecedent process has to be put in motion, every prescribed step and rule, however technical, should be carefully taken, observed and insisted upon." 5. Seen in the background it was felt necessary by the Parliament that limitation was provided for exercising that power. Whether contempt proceeding is taken by the Court suo motu or on an application by someone is immaterial. For both the purposes, S. 20 applies. The reason is that action should be taken for the contempt committed within a period of one year as taking of action after long delays or after the expiry of that period is likely to do damage to the Court's prestige. Belated action would defeat the object with which the power has been given to Courts. Section 20 was interpreted by a Division Bench of our Court in G.N. Verma v. Har Govind Dayal, AIR 1975 All 52 and it was said that since the resolution by which contempt had been committed was passed beyond a period of one year from the date on which notice was issued to the contemner it was not open to the High Court to take that resolution into account. At page 366 another Division Bench took the same view. At page 366 another Division Bench took the same view. That case is reported in Gulab Singh v. Ramji Das, AIR 1975 All 366 . The view was that for taking action under the Contempt of Courts Act it was necessary that the proceedings for contempt were initiated within one year of the contempt committed. In Baradakanta Mishra v. Mr. Justice Gatikrushna Mishra, AIR 1974 SC 2255 the Supreme Court observed : "Even if the Court is prima facie satisfied that a contempt has been committed, the Court may choose to ignore it and decline to take action. There is no right in any one to compel the Court to initiate a proceeding for contempt even where a prima facie case appears to have been made out. The same position obtains even after a proceeding for contempt is initiated by the Court on a motion made to it for the purpose." In Dineshbhai v. Kripalu Co-operative Housing Society, AIR 1980 Guj 194 the High Court said that it is the duty of the person who initiates an action to satisfy the Court that it is within time. Section 20 in terms places an absolute fetter on the power of the Court to initiate proceedings for contempt after the expiry of a period of one year from the date on which contempt is alleged to have been committed. Once it is found that neither had the Court initiated proceedings under the Act suo motu nor on the application made for the purpose, it has no power to entertain an application after the expiry of the period mentioned in S. 20. Precisely for this reason the Supreme Court observed that the exercise of the jurisdiction to punish for contempt commences with the initiation of proceeding for contempt, whether suo motu or on a motion or a reference. That is why the terminus a quo for the period of limitation provided in S. 20 is the date when a proceeding for contempt is initiated by the Court. 6. Section 20 of the Act is a special provision regulating the conduct of contempt proceedings and the procedure applicable to the same. Section 20 places an absolute bar to perform or forbear from performing initiation of contempt proceedings within (sic) the period mentioned therein. There is no discretion given to the Court to take proceeding even beyond the period mentioned therein. Section 20 places an absolute bar to perform or forbear from performing initiation of contempt proceedings within (sic) the period mentioned therein. There is no discretion given to the Court to take proceeding even beyond the period mentioned therein. It is the rule that an absolute enactment must be obeyed or fulfilled exactly. The statute does not given any discretion to the Court and, therefore, there is no question of the Court extending the period for taking action in a case where it finds it to be a fit one for that purpose. In Dineshbhai v. Kripalu Co-operative Housing Society (supra) it has been discussed as to what constitutes initiation of. proceedings under S. 20 : "No contempt proceedings can be initiated by a Court after the expiry of a period of one year from the date of the alleged commission of contempt. Action under Contempt of Courts Act, 1971 can be taken if the Court has applied its mind and initiated proceedings by passing some order within a period of one year from the date of the alleged act of contempt. If an application for taking action under the Contempt of Courts Act, 1971 is filed within a period of one year from the date of alleged commission of contempt, but the Court has passed no order thereon before the expiry of one year from the said date, such application automatically fails and the jurisdiction of the Court is barred because the Court did not apply its mind to the complaint or information within a period of one year. It is this application of mind by the Court which amounts to initiation of proceedings within the meaning of S. 20." 7. Issuing of notice for showing cause why proceeding may not be taken for contempt is not an initiation of proceeding. It is simply asking the party to appear and give reasons as to why should proceeding for contempt be not initiated against him. Such a notice does not come within the four corners of S. 20 of the Act. In Peer Bux v. Raja Ram, 1988 All LJ 700, Hon'ble S. K. Mookerji, J. held, with which I respectfully agree, that issuing a notice to show cause why proceeding need not be initiated shall not amount to actual initiation of proceeding. To the same effect is the view of Mr. In Peer Bux v. Raja Ram, 1988 All LJ 700, Hon'ble S. K. Mookerji, J. held, with which I respectfully agree, that issuing a notice to show cause why proceeding need not be initiated shall not amount to actual initiation of proceeding. To the same effect is the view of Mr. Justice Anshuman Singh taken in Ram Naresh Singh v. Uma Shanker Bajpai, 1988 All LJ 114 and it was held that it is only when the Court decides to take action; that amounts to initiation of proceeding within the meaning of S. 20. I have mentioned above, in the instant case, notice had been issued giving an opportunity to the opposite party for showing cause against the action proposed to be taken. The action in the context of the present case was as to why contempt proceeding be not initiated. 8. Contempt of Courts Act since is a special Act to which S. 5 of the Limitation Act does not apply. The Schedule to Limitation Act does not prescribe any limitation for initiating proceeding under the Contempt of Courts Act, 1971. Limitation Act does not apply to the proceeding under the Contempt of Courts Act as has been held in Dineshbhai v. Kripalu Co-op. Housing Society, ( AIR 1980 Guj 194 ) (supra). 9. Taking all these decisions into consideration and being of the opinion that no proceedings have been taken within one year, this application is liable to be rejected.