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2007 DIGILAW 1494 (ALL)

JAI KARAN LAL VERMA v. RAJESH KUMAR PATHAK

2007-05-16

ALOK KUMAR SINGH, O.P.SRIVASTAVA

body2007
O. P. SRIVASTAVA, J. The above appeals have been filed under Section 19 of the Contempt of Courts Act (in short act) against the orders passed by Honble single Judge in contempt proceeding, holding the appellants, prima facie, guilty of contempt and framing charges against them. 2. The respondent has raised preliminary objection regarding maintainability of said appeals under Section 19 of the Act on the ground that appeal under said section is maintainable only against an order imposing punishment for contempt and not against any other order passed in the contempt proceeding. Reliance has been placed on the recent judgment of Honble Supreme Court in Midnapore Peoples Co- op. Bank Ltd. and others v. Chunilal Nanda and others, AIR 2006 SC 2190 . 3. Learned counsel for the appellants although did not dispute the contention of learned counsel for respondent that according to judgment of Honble Supreme Court in Midnapore Peoples Co-op. Bank Ltd. s case (supra), the appeal under Section 19 of the Act is maintainable only against an order imposing punishment for contempt but he urged that the observations in said judgment is only an obiter dicta having no binding effect because of non-consideration of judgment of larger Bench of Honble Supreme Court in Baradakanta Mishra v. Mr. Justice Gatikrushna Misra. C. J. of the Orissa H. C. , 1975 Cr LJ 1. He submitted that according to the judgment in Baradakanta Mishra case (supra), an appeal lies against an order passed by Honble contempt Judge in exercise of its jurisdiction to punish. He further submitted that Section 19 (1) of the Act is also clear inasmuch as it permits the filing of appeal against an order or decision passed in exercise of jurisdiction to punish for contempt. It is submitted that since the impugned order reveals that it was a decision holding the appellants, prima facie, guilty and order regarding framing of charge passed in exercise of jurisdiction to punish, the appeal under Section 19 of the Act is clearly maintainable. 4. Learned counsel for the appellants further cited several other judgments of various High Courts and also Honble Supreme Court in support of his contention. 5. The Midnapore Peoples Co-op. Bank Ltd. s case (supra), is latest judgment on the controversy involved in above appeals. 4. Learned counsel for the appellants further cited several other judgments of various High Courts and also Honble Supreme Court in support of his contention. 5. The Midnapore Peoples Co-op. Bank Ltd. s case (supra), is latest judgment on the controversy involved in above appeals. It is not disputed by the learned counsel for appellants also that according to the said judgment, the above appeals are not maintainable but the argument as advanced by the learned counsel for appellants is that said judgment of Honble Supreme Court cannot form the precedent because of non-consideration of judgment of larger Bench in Baradakanta Mishra case (supra ). Therefore, the only point for consideration that arises in the above appeals is whether judgment in Baradakanta Mishra case (supra), was taken into consideration in Midnapore Peoples Co-op. Bank Ltd. s case (supra), or it suffers from principle of sub silentio. 6. On going through the judgment in Midnapore Peoples Co-op. Bank Ltd. s case (supra), we find that said judgment does not suffer from principle of sub-silentio as it is apparently clear from Paragraph 10 of the said judgment. Honble Supreme Court while dealing with the matter regarding maintainability of appeal under Section 19 of the Act not only considered in detail the judgment in Baradakanta Mishras case (supra), but also other judgments of Honble Supreme Court on the subject. 7. The relevant para in Baradakanta Mishras case (supra), has been dealt with in Para 10. The point for consideration in Baradakanta Mishras case (supra), was whether in case of refusal to initiate contempt proceeding, the provision of Section 19 (1) of the Act could be invoked or not. Honble Supreme Court held that since the said order was not passed in exercise of jurisdiction to punish, the appeal against said order was not maintainable. In this case, Honble Supreme Court did not go beyond that as observed by Honble Supreme Court in Midnapore Peoples Co-op. Bank Ltd. s case (supra ). The relevant paragraph is extracted hereinbelow : "10. 1 In Baradakanta Mishra, a three-Judge Bench of this Court held that an order declining to initiate a proceeding for contempt amounts to refusal to assume or exercise jurisdiction to punish for contempt and therefore, such a decision cannot be regarded as a decision in the exercise of its jurisdiction to punish for contempt. 1 In Baradakanta Mishra, a three-Judge Bench of this Court held that an order declining to initiate a proceeding for contempt amounts to refusal to assume or exercise jurisdiction to punish for contempt and therefore, such a decision cannot be regarded as a decision in the exercise of its jurisdiction to punish for contempt. The question as to whether an appeal would be maintainable under Section 19 where the Court initiates a proceeding for contempt but after due consideration and hearing finds the alleged contemnor not guilty of contempt, or having found him guilty declines to punish him, was left open. 8. Therefore, the question as to whether appeal under Section 19 could be maintainable in the matters where no punishment was awarded, was not even attended to in Baradakanta Mishras case (supra ). 9. In view of the above, it cannot be said that Honble Supreme Court while dealing with Midnapore Peoples Co-op. Bank Ltd. s case (supra), did not take into consideration the judgment in Baradakanta Mishras case (supra ). The judgment in Midnapore Peoples Co-op. Bank Ltd. s case (supra), therefore, in our opinion does not suffer from the principle of sub silentio. The judgment in Baradakanta Mishras case (supra), was limited only to the question of maintainability of appeal in regard to an order declining to initiate a proceeding for contempt. While Honble Supreme Court in Midnapore Peoples Co-op. Bank Ltd. s case (supra), discussed in detail the entire circumstances which may arise even after contempt proceedings have been initiated. Honble Supreme Court enumerated in Para 11 of the judgment all possible situations, which may arise in contempt proceeding and has clearly laid down that appeal is maintainable only in case an order of punishment is imposed in contempt proceeding and in no other case. The Honble Supreme Court has further laid down that aggrieved party in respect of any other order passed in contempt proceeding is not without remedy but such remedy can be availed either by means of intra court appeal if permissible under rules or through S. L. P. before Honble Supreme Court. 10. The judgment in Midnapore Peoples Co-op. Bank Ltd. s case (supra), is nether orbital or admits any ambiguity in regard to the maintainability of appeal under Section 19 of the Act. 11. 10. The judgment in Midnapore Peoples Co-op. Bank Ltd. s case (supra), is nether orbital or admits any ambiguity in regard to the maintainability of appeal under Section 19 of the Act. 11. The next contention of learned counsel for appellants was that in every case where there was an order on bone of contention raised before the contempt Judge, an appeal under Section 19 would lie. He cited the judgment of Honble Supreme Court on this point also in Purshottam Doss Goel v. Justice B. S. Dhillon, AIR 1978 SC 1014 . 12. The said Judgment alongwith many other judgments on the subject have been considered by Honble Supreme Court in Midnapore Peoples Co-op. Bank Ltd. s case (supra) and almost all possible situations that may arise in respect of contempt proceedings have been considered by Honble Supreme Court but upon elaborate consideration, it has been unambiguously held that appeal against an order of contempt Judge would lie only in case punishment is imposed and not in cases where order is for initiation of proceedings or refusal to initiate the proceedings and even in the matter where the contemner is not found guilty. Words "any order" occurring in Section 19 has been also interpreted in the following terms : "__the words any order has to be read with the expression decision used in 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. 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 proceedings for contempt by the High Court which shall lead to a ridiculous result. " 13. In Midnapore Peoples Co-op. Bank Ltd. case (supra), Honble Supreme Court has conclusively held that when High Court does not impose any punishment on the alleged contemner, the High Court does not exercise its jurisdiction or power to punish for contempt and therefore, if no punishment is imposed, the order cannot be said to be in exercise of jurisdiction or power as conferred on High Court by Article 215 of the Constitution. Therefore, so long as no punishment Is made by the High Court, it cannot be said to be exercising its jurisdiction or power to punish for contempt under Article 215 of the Constitution. The aggrieved party under Section 19 (1) can only be contemner who has been punished for contempt. 14. Thus, the present appeals, which are not against an order imposing punishment, are not maintainable at any rate under Section 19 (1) of the Contempt of Courts Act. 15. In view of the above, we hereby allow the preliminary objection raised on behalf of the opposite party regarding maintainability of appeals and dismiss the above appeals as not maintainable under Section 19 (1) of the Contempt of Courts Act. .