1. The First Class Magistrate, Jashpur, convicted and sentenced Pitrus and Boka each to undergo 4 months rigorous imprisonment under Section 7, Essential Supplies (Temporary Powers) Act, 1946, for contravention of the Foodgrains Control Order, 1945. 68 bags of grain weighing 170 maunds were also ordered to be forfeited. In appeal, the Additional Sessions Judge, Raigarh, arquitted the accused and set aside the order of forfeiture on the 18.10.1949. The State Government, Madhya Pradesh, appealed against the acquittal but their appeal was dismissed on 26.4.1950.
2. After the decisions of the Additional Sessions Judge and this Court. Pitrus made several attempts but without success to secure the return of the grain. About a month after the disposal of the State Government's appeal by this Court, it was removed from Tapkara to Jashpurnagar and sold on 24.5.1950 for Rs. 1,100 by the Tahsildar, without the knowledge of Pitrus or Boka, although the market rate was then Rs. 15 per maund. In July 1950, the Sub-Divisional Officer informed Pitrus that the grain had been auctioned for Rs. 1,100 and that he could have that amount less Rs. 284/4/- for expenses. He would thus, he claimed, be put to a loss of Rs. 1734/4/-; and he accordingly-filed the present application against the State Government, Madhya Pradesh, Sub-Divisional Officer and Tahsildar, Jashpur.
3. Shri N.H. Chourey, the Tahsildar at the relevant time, stated in his return that the order of the Additional Sessions Judge, Raigarh, or that of this Court had never been communicated to him, that the grain was sold by him in compliance with the Sub-Divisional Officer's order on 24.5.1950 & that it was sold at Jashpurnagar instead of at Tapkara because the number of foodgrain licensees was far greater at Jashpurnagar. Shri Chourey also pointed out that the quality of the grain was very bad and that it contained weevils. He had not, he added, acted 'mala fide' but in good faith and in obedience to the orders of the Sub-Divisional Officer.
4. Shri R.V. Dalai, the Sub-Divisional Officer, who as First Class Magistrate, Jashpurnagar, had, on 23.8.1949, convicted Pitrus and Boka and ordered the confiscation of the grain, also submitted a return. In it he declared that before he handed over charge at Jashpurnagar about 1.11.1949 prior to transfer to Raigarh, he had not received the appellate order of the Additional Sessions Judge, Raigarh. He was reposted to Jashpurnagar on 28.4.1950 and remained there until 1.7.1950, but he could not recall having given any order during that period for the sale of the grain and it took place without his personal knowledge. The appellate order, according to him, was not received until the end of June 1950. i.e., about a month after the sale of the grain; and the applicant Pitrus had not approached him during the aforesaid period of about 2 months for its return. He had, therefore, not treated with contempt the orders of the Additional Sessions Judge and this Court, but if he could be held to be in any way blameworthy he apologised therefor.
5. The Deputy Commissioner, Raigarh, in his memorandum to the Advocate-General, Madhya Pradesh, admitted that although the copy of the judgment of the Additional Sessions Judge. Raigarh, was received in his office on or about 19.10.1949, it was not sent to the trial Court, Jashpurnagar until about 26.6.1950. The reason for this delay was that, through an oversight on the part of the district office, the copy of the judgment remained with correspondence regarding the appeal filed in the High Court by the Government against the applicant's . acquittal. As soon as the mistake was discovered on 26.6.1950, the copy was sent to the Court concerned at Jashpurnagar; but the sale had taken place prior to this at a time when neither the Tahsildar nor the Sub-Divisional Officer was aware of the orders passed in anneal. The District Magistrate claimed, therefore, that there was no 'mala fide' or contempt on their part; and having expressed his regret for the office mistake promised to take action against the persons concerned in due course.
6. The Chief Secretary to Government in a return submitted in behalf of the State of Madhya Pradesh supported the explanations given by the other non-applicants, declared that the mistake was due to an official in the office of the District Magistrate, Raigarh, and expressed his regret for the loss caused to the applicant. He also pointed out that there had not been any contempt of Court on the part of the other non-applicants.
7. The applicant's learned Counsel did not press the application against the Tahsildar Shri N.H. Chourey and it was obvious that he was not liable for the commission of any contempt of any kind. We also consider that there is no case against Shri R.V. Dalai, the Sub-Divisional Officer, inasmuch as he had not received a copy of the appellate order of the Additional Sessions Judge, Raigarh, until the end of June 1950, i.e., about a month after the sale of the grain in question. His transfer to Raigarh took place shortly after that order had been passed and he was not reposted until 28.4.1950 to Jashpurnagar where he remained for nearly about 2 months. It is true that the sale of the grain took place during that period, but it apparently did so without his personal knowledge; and, as shown, it took place prior to the receipt by him of a copy of the order of the Additional Sessions Judge, Raigarh. We are, in the circumstances, unable to hold that he was liable for contempt of Court; and the application against him must be dismissed.
8. The position 'vis-a-vis' the State is not altogether on the same footing. The District Magistrate was patently aware of the fact that Pitrus and Boka had been acquitted by the Additional Sessions Judge, Raigarh, and that the latter in setting aside the order forfeiting the grain had directed its rendition to Pitrus, because the District Magistrate himself has admitted that on receipt of the appellate judgment action was taken to move the State Government to appeal against it. There was thus on and after 19.10.1949 non-compliance with the direction of the lower appellate Court. The State Government was also aware on 26.4.1950, when their appeal against the acquittal was dismissed by this Court, that the order of the Additional Sessions Judge, Raigarh, had been confirmed; but in spite of this the grain was not returned to Pitrus and it was sold about a month later without reference to him at a rate which, according to him, was appreciably lower than the market rate.
9. There was, therefore, contempt which, as held in - Miller v. Knox (1878) 4 BN.C. 574commonly consists in a party's doing otherwise than he is enjoined to do, or not doing what he is commanded or required by the process, order or decree of the Court. The contempt here was not, however, the result of wilful disobedience or wilful disregard of the orders in question, and as such it should not be visited with a penalty.
10. In fact, contempts of that kind are in English law not punishable. In - Mungean v. Wheatley (1851) 6 Ex 88 , a writ of attachment was granted against a County Court for trying an action after a certiorari had been issued, but, the contempt not being wilful, the attachment was ordered to lie in the office for a month so that the Judge might have the opportunity of complying with a second certiorari. An order, to quote from Oswald's Contempt of Court at page 102, 3rd edition, must be implicitly observed, but disobedience, if it is to be punishable as a contempt, must be wilful.
11. in - Dodington v. Hudson (1824) 8 M 510 Gifford C.J., observed that all the authorities show that before an attachment can be enforced, the party proceeded against must be proved to have committed a wilful disobedience of the order of the Court. The words 'wilfully disobeyed' were considered in - Stancomb v. Trowbridge Urban District Council ILR (1910) 26 407 , & it was held that they were intended to exclude casual, accidental or unintentional acts of disobedience. Tekchand at page 334 of his 'The law of Contempt of Court and of Legislature', 2nd1 edition, 1949, also notes that disobedience in order to be punishable must be wilful; and not merely casual, accidental or unintentional; and that the Courts shall not interfere unless the disobedience is shown to be wilful.
12. Their Lordships of the Judicial Committee of the Privy Council held in - Barton v. Field (1843) 4 M P.C. 273 that the failure of the Judge of the Vice-Admiralty Court at Gibraltar to comply with their monition was a contempt; and an attachment for such was granted him as well as the Registrar and Marshal of that Court. Their Lordships decided eventually, however, that the Judge of the Vice-Admiralty Court would not be visited with the penal consequences of the attachment for the contempt; and they did so in the following terms:
We are of opinion that it is not sufficient, for the purpose of visiting him with the penal consequences which it has been endeavoured to attach upon him, that he may-have committed an error of judgment. We think it must be proved to our satisfaction not only that there was error, but that, in addition to there being error, it was wilful error, and proceeded from corrupt or improper motives.
13. The papers in the present case shall accordingly be filed. The State Government, Madhya Pradesh, shall bear the entire costs of the paper-book.