Research › Search › Judgment

Allahabad High Court · body

2008 DIGILAW 1882 (ALL)

ANUKUL SINGH v. MOHAMMAD BABAR

2008-09-04

AMAR SARAN, S.C.NIGAM

body2008
AMAR SARAN AND S. C. NIGAM, JJ. Heard Shri R. R. Singh, learned Counsel for the applicant and Shri Zaffar Abbas, learned Counsel appearing for the opposite party-noticee, Shri Mohammad Babar, In spector, police station Bilari, District Moradabad and perused the record of the case. 2. This criminal miscellaneous con tempt application has been moved for drawing contempt proceedings against the noticee for having violated an order of this Court dated 24. 5. 2004 whereby this Court had stayed the criminal proceedings in case No. 25 of 2003, under sections 467, 468, 420 IPC against the applicant. In spite of the said order the applicant was arrested by the noticee on 8. 4. 2007. 3. It is contended by the learned Counsel for the applicant that the same amounts to flagrant violation of the order of this Court. 4. Learned Counsel for the respondent noticee has drawn our attention to Annexure-6 to the contempt application filed by the applicant, which is an order of the learned Additional Chief Judicial Magistrate, Court No. 2, Moradabad in case No. 2463 of 2005 (State v. Netrapal Singh and others ). The said order clearly mentioned that the order of the High Court dated 24. 5. 2004, of which the learned Magistrate showed utmost respect, was filed in the Court on 9. 4. 2007 and that prior to this date, on 17. 3. 2004 and 24. 5. 2004, he had already issued non-bailable warrants in this case. 5. However, learned Counsel for the applicant seeks to argue that even though the order was not filed before the Court concerned after it was passed by the High Court, but it was handed over to the SP and CO of the police station, Bilari. 6. Interestingly, in paragraph 9, it is not even mentioned as to when the said order was handed over to the SP and CO of police station Bilari. Therefore, there is no reason for us to presume that the said order was handed over to the noticee prior to the date of his effecting the arrest. 7. Moreover, in the situation of the case, we are of the view that even if the order of the High Court existed and it was handed over to the noticee, SO of police station Bilari, Mohammad Babar, as there was direct non-bailable warrants issued by the Magistrate on 17. 3. 2004 and 24. 5. 7. Moreover, in the situation of the case, we are of the view that even if the order of the High Court existed and it was handed over to the noticee, SO of police station Bilari, Mohammad Babar, as there was direct non-bailable warrants issued by the Magistrate on 17. 3. 2004 and 24. 5. 2004 in respect of which no application have been made by the applicant for vacation of the same and the noticee on an order passed by this Court staying the proceedings, he could well have been in a state of dilemma as to whether to comply with the direct orders of the Magistrate issuing non-bailable warrants for the arrest of the applicant or the order of the High Court dated 24. 5. 2004 staying further proceedings in one of the cases against the applicant. 8. For all these reasons, we think it would not be proper for this Court to take action against the notice in its contempt jurisdiction, as the Court is to exercise powers for initiating contempt proceedings very sparingly. 9. Learned Counsel for the applicant has placed reliance on a case of the Apex Court in Bijay Kumar Mahanty v. Jadu alias Ram Chandra Sahoo 2003 (2) AIC 47 (SC) = 2003 (1) SCC 644 = 2003 Cri. L. J 841 In that case even though the accused had earlier been granted bail by the Sessions Judge on 6. 11. 1990, but he was arrested on 13. 11. 1990 and the Apex Court was of the view that the action amounted to a gross violation of the rule of law and such action by the police would bring the whole administration of justice into disrepute. 10. Apart from one puzzling feature in that case that in paragraph 2, it was mentioned that offence in question has been committed on 13.11.1990. whereas the bail order of the Sessions Judge was dated 6.11.1990, in that case there was a clear finding that the High Court on appreciation of the evidence, reached a conclusion that the copy of the bail order was produced be fore the appellant, who arrested the respondent in spite thereof. That finding of fact was not interfered into by the Apex Court. The situation, for the reasons we have mentioned above, is quite different in the present case. That finding of fact was not interfered into by the Apex Court. The situation, for the reasons we have mentioned above, is quite different in the present case. Hence, the said case is clearly distinguish able from the instant case on facts. 11. It was next argued by the learned Counsel for the applicant that he had wrongly filed the application for a criminal contempt and in fact the noticee is guilty of civil contempt and that he has now moved an application for modifying this application from a criminal contempt to a civil contempt. 12. We may note that there is an order of the earlier Division Bench dated 24. 7. 2007 that an argument was raised that no permission of the Advocate General had been taken in this case and it is first to be considered whether it was a civil contempt or criminal contempt and that hearing was to be done on that issue also. 13. Apart from the fact that we felt that in this case the applicant was blowing hot and cold at the same time. At one stage he filed a criminal contempt application and subsequently seeing the difficulty that no permission of the Advocate General had been taken, he now seeks to move an application for converting it to a civil contempt. 14. Even from a perusal of the provision of Contempt of Courts Act, 1971, a civil contempt is defined under section 2 (b), which means wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court. 15. In our view the situation of civil contempt would arise if the noticee failed to honour the order of the Magistrate issuing non-bailable warrant for the arrest of the accused because it would amount to committing wilful disobedience of that direction. On the similar facts, in the case cited by the learned Counsel for the applicant in Bijay Kumar Mahanty (supra), it was a mat ter of criminal contempt because the allegations here are that by the action of the noticee in effecting the arrest he had tended to interfere and obstruct with the administration of justice to lower the authority of the High Court. 16. This matter is clearly covered under section 2 (c) of the Contempt of Courts Act, 1971. 16. This matter is clearly covered under section 2 (c) of the Contempt of Courts Act, 1971. But for the reasons mentioned above that there is no good reason to think that the said order was communicated to the noticee, we think that no action for contempt can be taken against the noticee. In this view of the matter, there is no force in this application. It is accordingly dismissed.