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2006 DIGILAW 2584 (ALL)

Kamal Kumari Singh v. State of U. P.

2006-10-13

RAFAT ALAM, SUDHIR AGARWAL

body2006
JUDGMENT By theCourt.—This special appeal has been preferred under Section 19 of the Contempt of Courts Act, 1971 read with Chapter VIII Rule 5 of the Rules of the Court against the order of the Hon’ble Single Judge of this Court dated 4.9.2006 calling upon the appellant to show cause as to why the matter may not be referred for initiation of proceeding for Criminal Contempt of Court for deliberate concealment of material facts/statement of half facts and for misleading the Court. 2. Sri Ravi Kant, learned senior counsel appearing for the appellant, however, contended that if an order is not a final order but even if notice is issued an appeal under Section 19 of the Act would lie and placed reliance on the following: 1. BaradKanta Vs. Justice Gatikrushna Misra, 1975 (3) SCC 533 = AIR 1974 SC 2255 2. Purshotam Das Goel Vs. Justice B.S. Dhillon 1978 (2) SCC 370 3. Union of India Vs. Mario Cabral E Sa 1982 (3) SCC 262 = AIR 1982 SC 691 4. D.N. Taneja Vs. Bhajan Lal 1988 (3) SCC 26 5. State of Maharashtra Vs. Mahboob S. Allibhoy 1996 (4) SCC 411 6. J.S. Parihar Vs. Ganpat Duggar 1996 (6) SCC 291 7. R.N. Dey Vs. Bhagyabati Paramanik 2000 (4) SCC 400 8. Kunwar Narendra Narain Singh Vs. V. Mathur 2004 (1) ESC 91 9. Smt. Subhawati Devi Vs. R.K. Singh 2004 (3) ESC 1853 10.V.M. Manohar Prasad Vs. N. Ratnam Raju 2004 (13) SCC 610 11.Modi Telfibres Ltd. Vs. Sujit Kumar Choudhary 2005(7) SCC 40 3. Having heard learned counsel for the parties at length, we are of the view that no appeal lies under Section 19 of the Contempt of Courts Act, 1971 (for short the Act) against the order merely calling upon a party to show cause as to why the matter be not referred for initiation of a criminal contempt. Section 19 of the Act provides that an appeal shall lie as of right from any order or decision of High Court in exercise of its jurisdiction to punish for contempt. Section 19 of the Act provides that an appeal shall lie as of right from any order or decision of High Court in exercise of its jurisdiction to punish for contempt. Whether an appeal would lie against any order or decision of the Court including interlocutory orders came up for consideration before the Hon’ble Apex Court in Barada Kanta Mishra v. Mr.Justice Gatikrushna Misra (Supra) and it was held that interlocutory orders pertaining purely to the procedure of the Court are not appealable under Section 19 of the Act. In Purushotam Dass Goel v. Hon’ble Mr. Justice B. S. Dhillon and others (Supra) following Baradakanta Mishra v. Mr. Justice Gatikrushna Misra, C.J. of the Orissa High Court (Supra) it was held that the order rejecting a motion or a reference and declining to initiate a proceeding for contempt amount to refuse to assume or exercise jurisdiction to punish for contempt and such a decision cannot be regarded as a decision in exercise of its jurisdiction to punish for contempt and is not appealable under Section 19 of the Act. It further held as under : “In our considered judgment, an order merely initiating the proceeding without anything further, does not decide anything against the alleged contemnor and cannot be appealed against as a matter of right under S. 19.” 4. Similar view has been expressed in D.N. Taneja v. Bhajan Lal (Supra) and Union of India and others etc. v. Mario Cabral E Sa (Supra). After considering the various decisions of the Hon’ble Apex Court a Division Bench of this Court in Vijay Krishan Goswami vs. Suresh Chand Jain, 1994 AWC 82 has held that an appeal lies from a decision as well as from an order under Section 19 of the Act. Decision means ‘’final decision of the contempt application’. However, since the word ‘’order’ has been used in the same provision, it would refer to some thing other than final judgment and, therefore, an appeal may be maintainable against an order, which does not finally disposed of the contempt proceeding, but such order must be one, which is passed in exercise of jurisdiction, to punish for contempt. 5. However, since the word ‘’order’ has been used in the same provision, it would refer to some thing other than final judgment and, therefore, an appeal may be maintainable against an order, which does not finally disposed of the contempt proceeding, but such order must be one, which is passed in exercise of jurisdiction, to punish for contempt. 5. In the case in hand, the very opening line of the order under appeal says that show cause is to be filed as to why reference be not made for initiation of criminal contempt and thus, it cannot be said to be an order or decision of the Court issued in exercise of its jurisdiction to punish the appellant for contempt. 6. We have also considered all the judgments relied upon by the learned counsel for the appellant and find that instead of supporting the appellant, either they are inapplicable to the facts of this case or go against him and fortify the view we have taken that the appeal is not maintainable. 7. In Baradkanta Mishra (Supra), the Apex Court in para-7 clearly observed where the Court initiates a proceeding for contempt by deciding to take action and initiate proceedings for contempt, it assumes jurisdiction to punish for contempt. Whether such initiation and decision is suo moto or on a motion is irrelevant. However, a stage earlier to that does not amount to initiation of proceedings contempt, e.g., where motion is made by the Advocate General or any person with the consent in writing of the Advocate General or a reference is made by a Subordinate Court, the motion or reference is for the purpose of drawing the attention of the Court to the contempt alleged to have been committed to decide in exercise of its discretion, whether or not, to initiate a proceeding for contempt. The aforesaid observations are applicable with full force in the case in hand, since the Hon’ble Single Judge has only issued notice to the appellant to show cause as to why the matter may not be referred for initiation of proceedings for criminal contempt, meaning thereby the Court has yet to decide whether the reference for initiation of contempt proceedings should be made or nor. Therefore, it cannot be said that the Court has passed an order or taken a decision in exercise of its jurisdiction to punish for contempt. 8. Therefore, it cannot be said that the Court has passed an order or taken a decision in exercise of its jurisdiction to punish for contempt. 8. In Purshotam Dass Goel (Supra), it was held that an appeal does not lie as a matter of right from any kind of order made by the High Court in the proceedings for contempt and must be an order deciding some bone of contention raised before it. The Apex Court further held as under : “No appeal can lie as a matter of right from any kind of order made by the High Court in the proceeding for contempt. The proceeding is initiated under Section 17 by issuance of a notice. Thereafter, there may be many interlocutory orders passed in the said proceeding by the High Court. It could not be the intention of the legislature to provide for an appeal to this Court as a matter of right from each and every such order made by the High Court. The order or the decision must be such that it decides some bone of contention raised before the High Court affecting the right of the party aggrieved. Mere initiation of a proceeding for contempt by the issuance of the notice on the prima facie view that the case is a fit one for drawing up the proceeding, does not decide any question.” 9. In Union of India Vs. Mario Cabral Sa (Supra), the Court referred to Purshotam Dass Goel (Supra) in para-6 of the judgment and did not take a contrary view taken thereof but since that appeal was preferred under Article 136 of the Constitution, the Court proceeded to decide the same on merits. Therefore, the said case has no application and does not help the appellant at all. 10. In D.N.Taneja (Supra), it was held that an order rejecting application for initiating contempt proceedings is not appelable since the right of appeal against such an order has not been provided under the Act, but a person aggrieved can move the Apex Court under Article 136 of the Constitution. In Para-11 of the judgment following Baradkanta Mishra (Supra) the Court also held that an appeal against rejection of contempt proceedings is not maintainable under Section 19 of the Act, but the aggrieved person can move the Apex Court under Article 136 of the Constitution of India. In Para-11 of the judgment following Baradkanta Mishra (Supra) the Court also held that an appeal against rejection of contempt proceedings is not maintainable under Section 19 of the Act, but the aggrieved person can move the Apex Court under Article 136 of the Constitution of India. Further, in Para-12 of the judgment it held : “12. Right of appeal is a creature of the statute and the question whether there is a right of appeal or not will have to be considered on an interpretation of the provision of the statute and not on the ground of propriety or any other consideration. In this connection, it may be noticed that there was no right of appeal under the Contempt of Courts Act, 1952. It is for the first time that under Section 19(1) of the Act, a right of appeal has been provided for. A contempt is a matter between the court and the alleged contemnor. Any person who moves the machinery of the court for contempt only brings to the notice of the court certain facts constituting contempt of court. After furnishing such information he may still assist the court, but it must always be borne in mind that in a contempt proceeding there are only two parties, namely, the Court and the contemnor. It may be one of the reasons which weighed with the legislature in not conferring any right of appeal on the petitioner for contempt. The aggrieved party under Section 19(1) can only be the contemnor who has been punished for contempt of court.” 11. In the case in hand, it is not the case of the appellant that he has been punished in exercise of the jurisdiction under the Contempt of Courts Act. Therefore, appeal under Section 19 of the Act is not maintainable. 12. In State of Maharashtra Vs. Mahboob S. Allibhoy (Supra), referring to the Baradkanta Mishra (Supra), the Apex Court held that appeal under Section 19 is not maintainable and observed as under : “The words “any order” has to be read with the expression ‘’decision’ used in the said sub-section which the High Court passes in exercise of its jurisdiction to punish for contempt. “Any order” is not independent of the expression ‘’decision’. They have been put in an alternative form saying ‘’order’ or ‘’decision’. In either case it must be in the nature of punishment for contempt. “Any order” is not independent of the expression ‘’decision’. They have been put in an alternative form saying ‘’order’ or ‘’decision’. In either case it must be in the nature of punishment for contempt. If the expression “any order” is read independently of the ‘’decision’ then an appeal shall lie under sub-section (1) of Section 19 even against any interlocutory order passed in a proceeding for contempt by the High Court which shall lead to a ridiculous result.” 13. In J.S. Parihar (Supra), also the appeal against order of rejection of contempt proceedings was held not maintainable under Section 19 of the Act. In R.N. Dey (Supra), the question, when appeal under Section 19 would be maintainable or nor has not been decided finally as would be apparent from para-13 of the judgment, where it is observed : “In the present proceedings the question whether appeal under Section 19 is maintainable or not is not required to be decided finally as, in our view facts of this case are grossly inadequate and the contempt proceedings were not required to be initiated at all.” 14. In Kunwar Narendra Narain (supra) also, the question whether the appeal is maintainable under Section 19 has neither been considered nor decided and, therefore, the same is not relevant for the purpose of the present case. In Subhawati Devi (Supra), this Court held that under Section 19 an appeal shall lie not only against an order to punish for contempt but also against an order passed in exercise of jurisdiction to punish for contempt deciding some issue. The Division Bench has enumerated some of such instances in para-11 of the judgment and ultimately held that where a contempt application is rejected and notice is discharged, no appeal under Section 19 is maintainable. In para-13 of the judgment referring to A.P. Varma (Supra), this Court further held that appeal under Chapter VIII Rule 5 of the Rules of the Court is also not maintainable where an appeal under Section 19 of the Act would be incompetent. In V.M. Manohar (Supra), the Apex Court held, if an order has been passed by the contempt Court which is not in exercise of its contempt jurisdiction against such an order, appeal would lie to a Court normally exercising the appellate jurisdiction. 15. In V.M. Manohar (Supra), the Apex Court held, if an order has been passed by the contempt Court which is not in exercise of its contempt jurisdiction against such an order, appeal would lie to a Court normally exercising the appellate jurisdiction. 15. In Modi Telfibres Ltd. (Supra), while holding appeal under Section 19, maintainable, the Apex Court found that the order passed by the Hon’ble Single Judge recorded a finding of fact that the employer has committed contempt against which the appeal was preferred as is apparent from Para-4 of the judgment. 16. Now coming to A.P. Varma (Supra), a careful reading of the entire judgment does not support the aforesaid submission. This Court after referring to the various judgment of the Hon’ble Apex Court and this Court including some of those, which we have already referred hereinabove, in para 5 observed as under: - “A conspectus of the authorities referred to above would show that there is no absolute bar of an appeal against an order passed at an intermediate stage. It will depend upon the nature of the contention raised and the manner in which the same has been disposed of by the Court. In case a contention which goes to the very root of jurisdiction is raised and the same is turned down or the order or decision is such which decides some bone of contention affecting the rights of the parties aggrieved, an appeal would be maintainable under Section 19(1) of the Act.” 17. Therefore, in A.P. Verma, Principal Secretary, Medical Health and Family Welfare, U.P. Lucknow and others Vs. U.P. Laboratory Technicians Association, Lucknow and others (supra) also this Court has not held that every order, as and when passed by a Hon’ble Single Judge, is appealable under Section 19 of the Act. 18. As we have already noted, the Hon’ble Single Judge, in the judgment under appeal, has not exercised power under the Act, but has issued notice to the appellant to show cause as to why the matter may not be referred for initiation of proceeding for criminal contempt of the Court. Meaning thereby, it is a proceeding anterior to the stage of initiation of contempt proceeding and, therefore, not an order which is appealable under Section 19 of the Act. 19. Meaning thereby, it is a proceeding anterior to the stage of initiation of contempt proceeding and, therefore, not an order which is appealable under Section 19 of the Act. 19. Sri Ravi Kant, learned senior counsel, further contended that part of the order, which restrain the appellant from working as officiating principal of the institution observing that the Court is satisfied that the appellant is not fit person, is appealable under Chapter VIII Rule 5 of the Rules of the Court. In our view, even this submission cannot be accepted for the reason that an appeal under Chapter VIII Rule 5 of the Rules of the Court lies against the “judgment”. The Hon’ble Single Judge while issuing notice to the appellant has passed an interlocutory order in the nature of restraining the appellant from working as officiating principal in the institution but there is nothing to show that the Hon’ble Single Judge has decided any issue or has recorded a finding of fact on any aspect of the matter against which part an appeal may lie under Chapter VIII Rule 5 of the Rules of the Court. 20. In view of the aforesaid discussion, this special appeal is not maintainable and is accordingly, dismissed. However, there shall be no order as to costs. Appeal Dismissed. ———