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2007 DIGILAW 709 (PAT)

Shrikrishna Pandey v. State Of Bihar

2007-04-09

RAMESH KUMAR DATTA

body2007
Judgment 1. Heard learned counsel for the parties. 2. The petitioner has filed the present application for initiating a proceeding for contempt against the opposite parties for willful and deliberate violation of the order and direction passed by this Court dated 4.3.2002 in Cr. Misc. No. 4695 of 2001. 3. Learned counsel for the opposite party has, at the outset, taken objection to the maintainability of the contempt proceeding since, according to him, against violation of the order under Sec. 147 Cr.P.C, the only remedy available is to initiate a proceeding under Sec. 188 IPC and not by way of a contempt petition before this Court. 4. The short facts of the case, relevant for the determination of the present issue, is that the petitioner Shrikrishna Pandey had filed an application under Sec. 147 Cr.P.C. with respect to obstruction to his right of way by the opposite party. By order dated 28.2.2000 passed by the Sub-Divisional Magistrate, Raxaul in Case No. 193(M)/97 under Sec. 147 Cr.RC. it was held that the first party (petitioner) had right of way with respect to the land in question which was being obstructed by the second party Baldeo Pandey (opposite party no. 5) and he was directed to reopen the closed passage IRasta) within one week, on violation of which proper legal action was to be taken against the second party for clearing the way. Against the said order the opposite party no. 5 filed Cr. Revision No. 168/66 of 2000/2000 which was dismissed by order dated 19.1.2001 by the 4th Additional Sessions Judge, Motihari holding that the impugned order dated 28.2.2000 does not suffer from any illegality or jurisdictional error. Against the same the opposite party no. 5 approached this Court by filing an application under Sec. 482 Cr.P.C. being Cr. Misc. No. 4695/2001 which was also dismissed by order dated 4.3.2002 by this Court holding that there was no reason to interfere with the impugned order of the Additional Sessions Judge. The said order was further challenged by filing SLP (Cr.) No. 2479/2002 before the Supreme Court which was dismissed in limine by order dated 8.7.2002. The petitioner has filed the present application for initiating a contempt proceeding for willful and deliberate violation of the order and direction of this Court dated 4.3.2000. 5. The said order was further challenged by filing SLP (Cr.) No. 2479/2002 before the Supreme Court which was dismissed in limine by order dated 8.7.2002. The petitioner has filed the present application for initiating a contempt proceeding for willful and deliberate violation of the order and direction of this Court dated 4.3.2000. 5. Learned counsel for the petitioner submits on the basis of the law laid down by the Supreme Court in the case of Kunnayammed and Ors. vs. State of Kerala and Anr: (2000)6 SCC 359 that once the matter had reached the higher courts after the original order was passed by the Sub-Divisional Magistrate under Sec. 147 Cr.P.C. then the doctrine of merger would apply and the order of the Sub-Divisional Magistrate merged in the order of the learned Additional Sessions Judge and ultimately in the order of this Court. Since the SLP had been dismissed by the Apex Court in limine, therefore, there was no further merger of the order of this Court in the order of the Supreme Court. Hence, the contempt petition would definitely lie with respect to violation of the orders of this Court. Learned counsel further relies upon a decision of the Supreme Court in the case of Pritam Pal vs. High Court of Madhya Pradesh, Jabalpur through Registrar: 1993 Supp. (1) SCC 529 in which it has been laid down that the power of the High Court and the Supreme Court to deal with their own contempt is inherent power under Articles 129 and 215 of the Constitution of India and are not restricted by any ordinary legislation like Contempt of Courts Act and the Code of Criminal Procedure. Learned counsel further relies on another decision of the Supreme Court in the case of R.L. Kapur vs. State of Madras: (1972)2 SCC 651 in which similar proposition has been laid down. 6. On the basis of the aforesaid cases, it is argued by the learned counsel that now what is to be implemented is the order dated 4.3.2002 of this Court and since the opposite party no. 5 has continued to violate the order and the other opposite parties-State officials have not taken care to implement the said order, therefore, all of them are guilty of having committed contempt of this Court and liable to be punished for the same. 7. 5 has continued to violate the order and the other opposite parties-State officials have not taken care to implement the said order, therefore, all of them are guilty of having committed contempt of this Court and liable to be punished for the same. 7. Learned counsel for the opposite party, on the other hand, states that the doctrine of merger will not apply in the present matter since the order has been passed by this Court not in its appellate or revisional jurisdiction but only on an application under Sec. 482 Cr.P.C. filed by him and thus, there is no merger. It is further submitted that the remedy of the petitioner can only be by filing a criminal case under Sec. 188 IPC. 8. On a consideration of the facts and circumstances of the case and the rival submissions of the learned counsel for the parties, this Court is of the view that no case for invoking the contempt jurisdiction of this Court has been made out in the present matter. The order dated 28.2.2000 was passed in exercise of powers conferred by Sec. 147 Cr.P.C. which is in the nature of an administrative/executive power for the maintenance of public order and tranquility under Chapter 10 of the said Code. It is evident from the nature of the directions that can be given by a Magistrate that the same are not any declaration of the legal rights of the parties by a judicial Court but by an executive authority in order to maintain public order and tranquilty subject to any final decision on the legal rights of the parties by the Civil Courts and against such orders it is open to the aggrieved party to invoke the revisional jurisdiction under Section 397 Cr.P.C. of this Court or the Sessions Judge only for the purpose of satisfying the Court concerned as to the correctness, legality of propriety of any order of the court below. Merely because the order of executive nature has been tested before the learned Sessions Judge or this Court, it cannot change the nature of the said order and will not convert the same into a judicial order. It is evident that the contempt jurisdiction only lies with respect to any judicial order that may be passed by this Court. Merely because the order of executive nature has been tested before the learned Sessions Judge or this Court, it cannot change the nature of the said order and will not convert the same into a judicial order. It is evident that the contempt jurisdiction only lies with respect to any judicial order that may be passed by this Court. Thus, when revision is filed either before the learned Sessions Judge or before this Court, then unless specific orders or directions are passed or made by this Court, there cannot be any applicability of the contempt jurisdiction merely because it has been held by this Court that the order of the Executive Magistrate under Sec. 147 Cr.P.C. is not fit to be interfered with. 9. It is evident that in case any such order under Sec. 147 Cr.P.C. is violated by any party concerned, the remedy of the other side is to file a criminal case against the said party under Sec. 188 IPC and not by invoking contempt jurisdiction of this Court merely because the matter has travelled up to this Court. 10. In the aforesaid facts and circumstances and the applicable provisions of law, this Court is of the view that the contempt application filed by the petitioner is not entertainable and it is accordingly dismissed.