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2001 DIGILAW 1223 (PNJ)

Dharam Pal v. R. S. Malik

2001-10-31

BAKHSHISH KAUR

body2001
Judgment Bakhshish Kaur, J. 1. This is a petition under Section 12 of the Contempt of Courts Act (in short `the Act) for initiating contempt proceedings against the respondent for intentionally disobeying the order dated July 02, 2001 in Criminal Appeal titled as Dharam Pal Tewari v. State of Haryana. 2. Dharam Pal-petitioner was working as Lineman (Operation) in Sub Division Pataudi. A criminal case under Sections 452/354 IPC was registered against him vide FIR No. 15 dated 16.1.1997, at Police Station Jatusana, District Rewari. He was tried for the offences complained of. The Judicial Magistrate Ist Class, Rewari at the close of the trial, found him guilty. As per judgment dated 9.6.2001, he was convicted and sentenced to undergo one and a half years rigorous imprisonment and also to pay fine of Rs. 2000/- and in default of payment of fine, to undergo rigorous imprisoned for a period of three months. Aggrieved by the judgment dated June 09, 2001, he preferred appeal. The learned Additional Sessions Judge, Rewari vide his order dated July 02, 2001, stayed the operation of the judgment impugned therein and conviction order. He was also allowed bail during the pendency of the appeal. 3. The appeal is still pending. On 28.9.2001, the punishing authority passed an order terminating the services of the petitioner on the basis of the conviction recorded against him in the aforesaid case. 4. The petitioners grievance is that once the operation of the judgment of conviction and order of sentence has been stayed, the disciplinary authority could not pass any order affecting his service. In fact, no order adverse to the interest of the petitioner could be passed on the basis of judgment dated June 09, 2001 passed by the Judicial Magistrate Ist Class, Rewari. By passing the order Annexure P-3, respondent has wilfully disobeyed the order Annexure P-1 passed by the learned Additional Sessions Judge, Rewari. 5. It is well settled that the contempt proceedings cannot be initiated merely at the asking of the party. The jurisdiction to punish for contempt is summary but the consequences are serious. That is why the jurisdiction to punish for contempt in spite of a case of contempt having been made out are both discretionary with the Court. 6. In Murray and Co. v. Ashok Kr. The jurisdiction to punish for contempt is summary but the consequences are serious. That is why the jurisdiction to punish for contempt in spite of a case of contempt having been made out are both discretionary with the Court. 6. In Murray and Co. v. Ashok Kr. Newatia and another 2000(1) RCR(Crl.) 729 (SC) : JT 2000(1) 337 (SC), it has been held by the Apex Court in para 21 that unless the Court is satisfied that contempt is of such a nature that the act complained of substantially interferes with the due course of justice, question of any punishment would not arise. It is not enough that there should be some technical contempt of court but it must be shown that the act of contempt would otherwise substantially interfere with the due course of justice which has been equated with "due administration of justice." 7. Further in para 24 it has been held that, "The Contempt of Courts Act puts an obligation on the Court to assess the situation itself as regards the factum of any interference with the course of justice or due process of law." 8. In Mrityunjoy Das and another v. Sayed Hasibur Rahaman and others, 2001(2) RCR(Crl.) 260 (SC) : 2001 AIR SCW 1162, it has been held that the contempt procedure is to be sparingly exercised with due care and caution. The observation under para 14 of the judgment read thus :- "The other aspect of the matter ought also to be noticed at this juncture viz., the burden and standard of proof. 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 Court 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. The observations of Lord Dennning in Re. Bramblevale, (1969) 3 All ER 1062, lend support to the aforesaid. Lord Denning in Re Bramblevale stated : "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. The observations of Lord Dennning in Re. Bramblevale, (1969) 3 All ER 1062, lend support to the aforesaid. Lord Denning in Re Bramblevale stated : "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 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 inconsistent possibilities open to the Court, it is not right to hold that the offence is proved beyond reasonable doubt." 9. It is, therefore, well-established that the purpose of proceedings in contempt is mainly meant for upholding the majesty of law and dignity of the Court. The sole object of the Court wielding its power for contempt is for the cause of administration of justice and this power has to be exercised not in a casual manner or lightly but with great care and circumstances, and only in such cases where it is necessary to punish the contemnor to uphold the majesty of law and dignity of the Court. It is also well-settled that no person shall be punished for contempt by Court unless the contempt committed by him substantially interferes or intends (tends ?) substantially to interfere with the due course of justice. 10. Whether the passing of the order Annexure P-3 by the disciplinary authority amounts to substantial interference or intending to substantial interference with the due course of justice? 11. The petitioner was found guilty for committing the offences under Sections 452/352 of the Indian Penal Code. He was convicted and sentenced to undergo rigorous imprisonment by the trial Court. Though he has preferred appeal, which is pending before the Appellate Court, the Appellate Court released him on bail by suspending the operation of the judgment and conviction order. Whether the disciplinary authority is required to wait till the delinquent exhausts all the remedies available to him by filing appeal in the first appellate Court, then to the High Court and so on, and only thereafter pass necessary orders emanating from the conviction recorded against the delinquent ? Whether the disciplinary authority is required to wait till the delinquent exhausts all the remedies available to him by filing appeal in the first appellate Court, then to the High Court and so on, and only thereafter pass necessary orders emanating from the conviction recorded against the delinquent ? Further, whether by passing the order Annexure P-3 the disciplinary authority has disobeyed the order passed by the Appellate Court suspending the conviction and sentence of the petitioner ? 12. In B.R. Kapur v. State of Tamil Nadu and another, 2001 AIR SCW 3720 : JT 2001(8) SC 40, a question of great constitutional importance arose before the Apex Court: whether a person who has been convicted of the criminal offence and whose conviction has not been suspended pending appeal, can be sworn and can continue to function as the Chief Minister of a State, and it was observed by the Honble Judges of the Apex Court as under :- "....When a lower court convicts an accused and sentences him, the presumption that the accused is innocent comes to an end. The conviction operates and the accused has to undergo the sentence. The execution of the sentence can be stayed by an appellate Court and the accused is released on bail. In many cases, the accused is released on bail so that the appeal is not rendered infructuous, at least in part, because the accused has already undergone imprisonment. If the appeal of the accused succeeds the conviction is wiped out as cleanly as if it had never existed and the sentence is set aside. A successful appeal means that the stigma of the offence is altogether erased. But that it is not to say that the presumption of innocence continues after the conviction by the trial Court. The conviction and the sentence it carries operates against the accused in all their rigour until set aside in appeal, and a disqualification that attaches to the conviction and sentence applies as well." 13. It is also observed in B.R. Kapurs case (supra) that under Section 389 of the Code of Criminal Procedure, an appellate court can only suspend the execution of the sentence pending the disposal of appeal. It is also observed in B.R. Kapurs case (supra) that under Section 389 of the Code of Criminal Procedure, an appellate court can only suspend the execution of the sentence pending the disposal of appeal. The suspension of execution of the sentence does not alter or affect the fact that the offender has been convicted of a grave offence and has attracted the sentence of imprisonment of not less than two years. Thus, the petitioner cannot derive any benefit from the order Annexure P-3 for the purpose of making out a case of contempt under Section 12 of the Act because the conviction and the sentence if carried, operate against him until set aside in appeal. 14. In Murray & Co.s case 2001 RCR (Crl.) 729 (supra), as aforesaid, it was observed by the Honble Judges of the Apex Court, it is not enough that there should be some technical contempt of court but it must be shown that the act of contempt would otherwise substantially interfere with the due course of justice which has been equated with "due administration of justice." 15. In view of the aforesaid, I am of the considered view that the order (Annexure P-3) does not amount to interference or intending to interfere with the due administration of justice, much less substantially. The disciplinary authority is competent to pass necessary order as the case may be. If at all the petitioner is aggrieved by the said order (Annexure P-3), he is at liberty to challenge the same and avail the appropriate remedy available to him but in any case, no case is made out to initiate proceedings under the Contempt of Courts Act.