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2003 DIGILAW 946 (PAT)

Haridwar Pandey v. State Of Bihar

2003-09-03

B.N.P.SINGH, S.N.JHA

body2003
Judgment S.N.Jha, J. 1. This Miscellaneous Appeal under Section 19(1) of the Contempt of Courts Act, 1971 is directed against part of the order dated 11.8.2003 in Cr. Misc. No. 21709 of 2003 by which the learned Single Judge while taking action for the alleged contempt in the face of the Court under Section 14 of the Act rejected the oral prayer of the appellant for bail. 2. Section 19(1) of the Act provides for appeal "as of right from any order decision" in exercise of the jurisdiction to punish for contempt. However a doubt arose about maintainability of the appeal considering that it arises from an interlocutory order. Shri Ram Balak Mahto, a Senior Advocate of this Court, was requested to assist the Court on the limited point of maintainability of the appeal. He submitted that in terms of Section 19(1) of the Act appeal lies as of right from any order and not only against final decision of the Court in exercise of courts jurisdiction to punish for contempt, but appeal would not lie against every order unless there is some determination by the order. He referred to two decisions of the Apex Court in Purushotam Dass Goel V/s. Honble Mr. Justice B.S.Dhillon and Ors, AIR 1978 SC 1014 and R.N.Dey & Ors. V/s. Bhagyabbati Pramanik & Ors., (2000) 4 SCC 400 , and a decision of the Calcutta High Court in Ashoke Kumar Rai V/s. Ashoke Arora & anr., 96 CWN 278. 3. In the case of Purushotam Das Goel (supra) the appeal was preferred by the alleged contemner against initiation of the proceeding of contempt. The Court observed that the proceeding is initiated on a prima facie view that the case is fit one for drawing up a proceeding, and the appellate Court for the first time cannot be asked in appeal to decide whether the person proceeded against has committed contempt of Court or not. The matter has to be decided either finally or, may be, even at an earlier stage if an order is made which decides a contention of the alleged contemner asking the High Court to drop the proceeding. The Court observed that it is neither possible, nor advisable, to make an exhaustive list of the type of orders which may be appealable under Section 19. The Court observed that it is neither possible, nor advisable, to make an exhaustive list of the type of orders which may be appealable under Section 19. It would be useful to quote the following observations from the judgment : "We may repeat that it may be a different matter if the order does decide some disputes raised before it by the contemners asking it to drop the proceeding on one ground or the other. But unless and until there is some order or decision of the High Court adjudicating upon any matter raised before it by the parties, affecting their rights the mere order issuing the notice is not appealable." (emphasis added) In R.N.Dey V/s. Bhagyabati Pramanik (supra) the State had preferred appeal against the award of the Land Acquisition Judge in the High Court. The High Court ordered interim payment to the respondents. The State later filed application for vacating the interim order regarding payment on the ground that the respondents had committed fraud in obtaining the award and the information in this regard had recently become available to the State. Meanwhile the respondents filed contempt application against the officials. The appellants tendered unqualified apology. However without discharging the rule issued in the contempt matter the High Court directed the appellants to deposit the amount with the Registrar while the appeal remained pending. On appeal by the officials the Supreme Court held that where after initiation of the contempt proceeding the Court passes order without discharging the rule issued in the proceeding, such an order would be an order or decision in exercise of its jurisdiction to punish for contempt, And appeal will be maintainable against such order. Following observation may be quoted from the judgment : "When the court either sua motu or on a motion or a reference, decides to take action and initiate proceedings for contempt, it assumes jurisdiction to punish for contempt. The exercise of jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt and if the order is passed not discharging the rule issued in contempt proceeding, it would be an order or decision in exercise of its jurisdiction to punish for contempt. The exercise of jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt and if the order is passed not discharging the rule issued in contempt proceeding, it would be an order or decision in exercise of its jurisdiction to punish for contempt. Against such order, appeal would be maintainable." Ashoke Kumar Rai V/s. Ashoke Arora (supra) learned Single Judge of the High Court directed the alleged contemner to make delivery of possession after finding him guilty of contempt but he was not awarded any punishment. On appeal to the Division Bench it was contended by the other side that the order impugned was not appealable as no punishment had been awarded to the contemner. The plea was rejected and the appeal was held maintainable by the Division Bench. 4. I may refer to the relevant provisions of Section 14 of the Act at this stage as under : Procedure where contempt is in the face of the Supreme Court or a High Court- (1) When it is alleged, or appears to the Supreme Court or the High Court upon its own view that a person has been guilty of contempt committed in its presence or hearing, the Court may cause such person to be detained in custody, and at any time before the rising of the Court, on the same day, or as early as possible thereafter, shall- (a) cause him to be informed in writing of the contempt with which he is charged; (b) afford him an opportunity to make his defence to the charge; (c) after taking such evidence as may be necessary or as may be offered by such person and after hearing him, proceed, either forthwith or after adjournment, to determine the matter of the charge; and (d) make such order for the punishment or discharge of such person as may be just. (2) ......... (3) ......... (2) ......... (3) ......... (4) Pending the determination of the charge, the Court may direct that a person charged with contempt under this section shall be detained in such custody as it may specify : Provided that he shall be released on bail, if a bond for such sum of money as the Court thinks sufficient is executed with or without sureties conditioned that person charged shall attend at the time and place mentioned in the bond and shall continue to so attend until otherwise directed by the Court : Provided further that the Court may, if it thinks fit, instead of taking bail from such person, discharge him on his executing a bond without sureties for his attendance as aforesaid." 5. From a bare perusal of Sub-section (4) of Section 14 it would appear that where alleged contemner is detained on the charge of committing contempt in the face of the Court, "he shall be released on bail, if bond for such sum of money as the Court thinks sufficient is executed with or without sureties ...". It is thus manifest that grant of bail under Sub-section (4) of Section 14 is a rule and bail has to be granted almost as a matter of course where the alleged contemner furnishes the requisite bond. This is a right conferred on him by the Act. It is to be kept in mind that detention under Sub-section (1) of Section 14 is without any hearing. The alleged contemner is detained upon prima facie view that he is guilty of contempt committed in the face of the Court. In the ordinary course, for the alleged contempt including criminal contempt which the appellant has allegedly committed, he is to be first made aware of the charge, given due opportunity to defend himself before being awarded sentence of imprisonment, if any. However, where the contempt is committed in the face of the Court under Section 14 it is open to the High Court (or the Supreme Court) to immediately detain him in custody and, thereafter, apprise him of the charge, in writing giving him opportunity to make his defence to the charge. In other words, the alleged contemner is taken in custody first and thereafter informed about the charge and given opportunity to defend, himself. In other words, the alleged contemner is taken in custody first and thereafter informed about the charge and given opportunity to defend, himself. Since the custody is immediate and without even apprising him of the charge, muchless giving opportunity of hearing, the law entitles the alleged contemner to bail as a matter of course no sooner than he furnishes the requisite bond with or without sureties. This is a valuable right of the alleged contemner. Where the contemner is denied bail, even though prayer to this effect is made, and thus deprived of the right, it cannot be said that nothing was done except to initiate the proceeding against him so as to make the provisions of Section 19(1) of the Contempt of Courts Act inapplicable. 6. In the case of Purushotam Dass the Supreme Court made it amply clear that where the order decides some matter "affecting the rights of the person" the appeal would be maintainable. It may be recalled this appeal is directed not against initiation of the proceeding but against that part of the order by which the appellants prayer for bail was rejected and he was sent to custody. The order is clearly punitive in nature and effect, and therefore, even if a narrow view of Section 19(1) of the Act were to be taken that appeal would lie only against order or decision imposing punishment, the present appeal directing appellants custody without trial would be maintainable. 7. It may be mentioned that when the aforesaid aspects of Section 14 were pointed out to Shri Ram Balak Mahto, he agreed that the appeal may be maintainable. Even Shri Bibhuti Prasad Pandey, who appears for the Cabinet (Vigilance) Department, the prosecuting agency in the case giving rise to the connected Cr. Misc. case, fairly stated that he would not oppose the prayer for bail though he was hesitant in taking clear stand about maintainability of the appeal. 8. A question would then arise about the interim order. As indicated above under proviso to Section 14(4) of the Act grant of bail is a rule. Misc. case, fairly stated that he would not oppose the prayer for bail though he was hesitant in taking clear stand about maintainability of the appeal. 8. A question would then arise about the interim order. As indicated above under proviso to Section 14(4) of the Act grant of bail is a rule. Use of the word shall in contrast with the word may order in Section 19(2) of the Act leaves no room for doubt that whereas bail is to be granted as a matter of course in case of alleged contempt in the face of the Court, where appeal arises from final decision/punishment, it would be discretion of the appellate court to release the contemnor on bail or suspend execution of the order appealed against. As indicated above, even Shri Bibhuti Prasad Pandey fairly stated that he would not oppose the prayer for bail. 9. In the circumstances I would admit this appeal and direct that the appellant be released on furnishing bond Rs. 10,000/- with two sureties of the like amount each to the satisfaction of the Registrar General of this Court, undertaking inter alia, to appear on each and every date fixed in the proceeding unless his presence is dispensed with by the learned Single Judge. This order, it is made clear, is without prejudice to the merit of the contempt proceeding pending before the learned Single Judge and it will have no bearing on it. B.N.P.Singh, J. 10 I have the privilege of listening to order passed by Brother Justice S.N.Jha, dictated in open Court and since I do not find myself persuaded to concur with the views expressed by his Lordship, for whom I have greatest respect, I record my own views and conclusion separately. 11. For abusing judicial system and scandalising Judges & Court on its face, the appellant taking recourse to provisions of Section 19(1) of the Contempt of Courts Act, 1971 has chosen this forum for release from custody, on rejection of his prayer by a learned Single Judge of this Court, who directed his detention in custody while exercising jurisdiction under Section 14 of the Contempt of Courts Act, 1971. 12. The order passed in contempt proceeding can be broadly put in three heads. Firstly the final order imposing punishment in contempt proceeding. 12. The order passed in contempt proceeding can be broadly put in three heads. Firstly the final order imposing punishment in contempt proceeding. Secondly interlocutory orders passed in contempt proceeding and thirdly consequential orders made consequent to order of violation of which has been complained of. 13. There has been no difficulty in application of Sub-section (1) to the cases where appeal is directed from an order imposing any punishment contemplated by Section 12 of the 1971 Act but problems of interpretations and consequent uncertainty has arisen in applfcation of Section (1) to the appeals from orders which do not impose any punishment within Section 12 and yet are made in course of contempt proceeding or terminating such proceedings. 14. Though word order and decision occur in Section 19(1) of the Act, in my view the word "any order" is not independent of expression "decision" and hence the word "any order" has to be read with expression "decision" used in Clauses (a) and (b) of Sub-section (1) of Section 19 of the Act and in either case it must be in the nature of punishment for contempt. The matter can be looked into from another angle too. The word expression "order" or "decision" of the High Court in exercise of its jurisdiction to punish for contempt, refers to imposition of any punishment prescribed for contempt under Section 12 and the exercise of the jurisdiction to punish for contempt, in my view is confined to the passing of an order of punishment under Section 12 of the Act, and where the Court does not exercise jurisdiction to punish for contempt, and where no punishment is imposed and consequently an order which does not impose any punishment although passed in a proceeding for contempt, is not appealable under Section 19(1) of the Act. 15. Since there is lack of unanimity in decisions of the Court, some decision can however be noticed. Though in case of Purushotam Dass Goel V/s. Honble Mr. 15. Since there is lack of unanimity in decisions of the Court, some decision can however be noticed. Though in case of Purushotam Dass Goel V/s. Honble Mr. Justice B.S.Dhillon, reported in (1978) 2 SCC 370 , which is a two Judge Bench decision, the Supreme Court had broaden the area of appealability of an order which decides some bone of contention raised before the Court affecting right of party, whether passed at final stage or at the earlier stage, sounded a note of caution that it was never the intention of the legislature that any order passed in contempt proceeding provides for an appeal, as a matter of right from any order made in exercise of contempt jurisdiction. However a larger bench of three Judges of Apex Court in D.N.Taneja V/s. Bhajanlals case reported in (1988) 3 S.C.C. 26 , after analysing spirit of Section 19(1) of Act, while considering even dismissal of contempt proceeding, had occasion to hold that appeal under Section 19 would be only from an order imposing punishment. 16. Yet there is another decision of the Apex Court rendered in case of Mahboob S. Allibhoy V/s. State of Maharashtra reported in (1996) 4 SCC 411 , which is a two Judge Bench decision of the Court, and in that case the views expressed in D.N. Tanejas case was again reiterated restricting area of appealability only to an order imposing punishment and the Court held that any order to be appealable, the order or decision must be in the nature of punishment for contempt. The Apex Court while interpreting the word order and decision occurring in Section 19, observed that the words "any order" is not independent of the expression decision and had to be read with the expression decision and in either case it must be in the nature of punishment for contempt. Again in the case of J.S. Parihar V/s. Ganpat Duggar reported in (1996) 6 SCC 291 , a three Judge Bench of the Apex Court, in no uncertain terms held that an appeal would lie under Section 19, when an order, in exercise of jurisdiction of the High Court punishing the contemner has been passed, and since in that case the High Court had not made any order punishing the respondent for violation of the order of the Court no appeal would lie. In a decision, High Court of Himachal Pradesh too in the case of L.D. Khanna & Ors. V/s. M/s Chohan Huhtamaki (India) Pvt. Ltd., reported in 1977 Criminal Law Journal 1530, held the view that an appeal under Section 19 of the Contempt of Courts Act is maintainable only against the order or decision of the High Court concluding contempt proceeding. 17. I am not however oblivious with the dissenting views expressed by Calcutta High Court in case of Ashoke Kumar Rai V/s. Ashoke Arora & Anr., reported in 96 CWN 278 and case of Hoogly District Central Cooperative Bank Ltd V/s. Anoj Kumar Roy reported in 1997 Criminal Law Journal 864. Though the Court took a different view, the ratio of decision of Mahboob S. Allibhoys case was not noticed and hence observations made by Calcutta High Court in those cases is clearly in conflict with the observations and the ratio of the judgment of the Supreme Court in Mahboobas case, and hence is precedentially unsound. The decision of the Apex Court reported in (2000) 4 SCC 400 , which is a two Judge Bench decision in case of R. N. Dey & Ors. V/s. Bhagyabati Pramanik & Ors, can also be noticed in which though the Apex Court relied on Purushotam Dass Goels case but, without noticing ratio of decision of Mahboobas case (supra) held that in contempt proceeding if an order is passed not discharging the rule issued, it would be an order or decision in exercise of its jurisdiction to punish for contempt, and against such order an appeal would lie, but this fact cannot lost sight of that the matter which had come before the Court for determination was as to whether order refusing to drop the contempt proceeding was appealable. While taking notice of the dissenting views expressed by Calcutta High Court and also the Supreme Court, reported in (2000)4 SCC 400 , the controversy must be held to be set at naught in view of decision of larger Bench of three Judges of Supreme Court, in D. N. Taneja V/s. Bhajan Lals case, and in that view of the matter it has to be held that the appeal against the impugned order, is not maintainable under section 19(1) of the Act. 18. 18. It is fallacious to argue that since it is mandatory for the Judge issuing rule to release contemner on bail as enjoined in Section 14(4) of the Act, power of Appellate Bench too were co-extensive, as no such command in mandatory nature for release on bail flows from Section 19(1) of the Act. The words in which sub section 19(1) have been couched, make it explicitly clear that a right to appeal from any order or decision is restricted to the order or decision passed in contempt proceeding, punishing contemner for contempt. 19. On other permises too, the contention raised at Bar has to be rejected. Since the impugned order is in the nature of interlocutory order, for that reason too the order was not appealable and for which decisions are galore on the subject and in my view since no punishment was imposed on the contemner, the appeal was not competent under Section 19(1) of the Contempt of Courts Act, 1971. It was also brought to the notice of the Court at the fag end of the argument that though the prayer for release of the appellant on bail has been rejected by learned Single Judge on oral submissions, a petition for release on bail was yet pending for consideration before the Bench. 20. In the result, the appeal being not maintainable before this forum, and hence being meritless, is dismissed. By Court: In view of difference of opin.on between us iet the records of this case be placed before the Honble Chief Justice for needful.