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Ram Rup Pandey Vs. R.K. Bhargava and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Contempt of Court
CourtAllahabad High Court
Decided On
Case NumberCriminal Misc. Contempt No. 137 of 1968
Judge
Reported inAIR1971All231; 1971CriLJ764
ActsContempt of Courts Act, 1952 - Sections 3(1); Code of Civil Procedure (CPC) - Order 39, Rule 2(3)
AppellantRam Rup Pandey
RespondentR.K. Bhargava and ors.
Appellant AdvocateA.D. Giri, Adv.
Respondent AdvocateJ.P. Bhatnagar, ;K.N. Singh and ;S.N. Singh, Advs. for Opposite Party No. 3 and ;S.K. Tewari, ;G.K. Shukla and ;R.D. Gupta, Advs.
DispositionApplication dismissed
Excerpt:
.....act should be imposed, or in a proper case that imprisonment should be awarded'.in that case, the alleged contempt was the failure of a mutawalli to furnish information which also constituted an offence under the waqf act. ' but, such cases must be exceptional and clear. each of its paragraphs, however, contains a swearing clause so as to make it look like an affidavit. whether the applicant had actually informed the ahdyaksha, who was presiding at the meeting, by giving some reliable proof or he had refrained from giving information and had participated in the election due to some ulterior object in view, are matters which cannot be decided by this court on such evidence as there is before it. and show the court of the munsif how the adhyaksha had disobeyed its order notwithstanding..........was taken to the jurisdiction of the high court to proceed under the act on the ground that the alleged contempt constituted an offence punishable under section 499, i. p. c. section 2 sub-section (3) of the act lays down as follows:--'no high court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the indian penal code.'it was clarified by the supreme court that the jurisdiction of the high court was only barred where the alleged offence of contempt was itself punishable as a contempt under the indian penal code. thus, the jurisdiction would be barred in a case in which an offence under section 228 i. p. c. was committed by the alleged contemner. in the course of its judgment.....
Judgment:
ORDER

M.H. Beg, J.

1. This is an application filed under the Contempt of Courts Act, 1952 (hereinafter referred to as 'the Act') invoking the powers of this Court to punish the alleged contemners contesting opposite parties for a contempt of an order of this Court and another contempt of an injunction of the Munsif, Mirzapur, said to have been awarded on 9th of November, 1968, prohibiting the holding of an election which was to be held by opposite party No. 1, the Adhyaksha (the Collector and District Magistrate of Mirzapur), on 9th November, 1968.

2. So far as the contempt of any order of this Court is concerned, no order or direction of this Court given to any of the opposite parties has been placed before me which could have been said to have been disobeyed. What is alleged by the petitioner, who is a practising lawyer in Mirzapur and a member of the Managing Committee of Babulal Jaiswal Inter College, is that opposite party No. 2, one Shankar Lal Chaurasia had filed a writ petition in this Court claiming that he and opposite party no. 3. Purshottam Jaiswal, were the nominated members of the Managing Committee. It is alleged that the right to the membership of the Managing Committee was claimed on the ground that they, once having been nominated by certain donors Messrs. Bhagirath Ram Garib, continued as nominated members irrespective of the wishes of the donors. The order on the aforesaid writ petition, of which a copy is filed as annexure 'C' to the application before me, shows that the petition was dismissed on the ground that a donor who nominates a member could withdraw the nomination at any time the donor wanted to do so. In other words, the petitioner could not claim a right which was enforcible under Article 226 of the Constitution. The right depended on the sweet-will of the donor. This Court did not decide that the opposite parties Nos. 2 and 3 to the application before me now, whose rights were under consideration, could not be members at all of the Managing Committee in any case whatsoever. There was no order or direction given to any party or person, the writ petition having been dismissed at the admission stage. There could, therefore, be no contempt of any order of this Court in merely holding an election on 9-11-1968.

3. The second contempt, however, is alleged to consist of a disobedience of an injunction granted by the learned Munsiff of Mirzapur in a suit filed by the applicant now before me, as plaintiff in which he impleaded opposite parties Nos. 1 to 3 as defendants along with four others. No copy of the actual order passed by the learned Munsiff has been filed by the applicant. It is, therefore, not possible to say what the precise terms of that injunction order were. It is also not stated that the applicant prayed for any steps, such as the appointment of a commissioner, to serve the Munsif's order immediately on opposite party No. 1 as he should have done, or that any such order for ensuring service was actually passed by the learned Munsiff. However, even assuming that there was such an order, the question arises whether the applicant should not be left to his remedy provided under Order 39, Rule 2, Sub-rule (3) of the Civil P. C., instead of permitting him to invoke the jurisdiction of this Court under the Act.

4. A preliminary objection has been taken on behalf of the contesting opposite parties that this is not a suitable case for proceeding further as an alternative remedy is available to the applicant. In support of this proposition, reference was made to B.R. Reddy v. State of Madras : 1952CriLJ832 where an objection was taken to the jurisdiction of the High Court to proceed under the Act on the ground that the alleged contempt constituted an offence punishable under Section 499, I. P. C. Section 2 Sub-section (3) of the Act lays down as follows:--

'No High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code.'

It was clarified by the Supreme Court that the jurisdiction of the High Court was only barred where the alleged offence of contempt was itself punishable as a contempt under the Indian Penal Code. Thus, the jurisdiction would be barred in a case in which an offence under Section 228 I. P. C. was committed by the alleged contemner. In the course of its judgment the Supreme Court observed:--

'It seems, therefore, that there are offences which are punishable as contempt under the Indian Penal Code and as subordinate courts can sufficiently vindicate their dignity under the provisions of criminal law in such cases the legislature deemed it proper to exclude them from the jurisdiction of the High Court under Section 2(3), Contempt of Courts Act but it would not be correct to say that the High Court's jurisdiction is excluded even in cases where the act complained of, which is alleged to constitute contempt, is otherwise an offence under the Indian Penal Code.'

Hence, it was held by their Lordships that an offence punishable under Section 499, I. P. C. may also constitute a punishable ground of action under the Act by a High Court. This case does not directly help the opposite parties before me.

5. Another case cited was Ali Mahomed Adamalli v. Emperor where the Privy Council held that 'the question of committal or non-committal is one for the exercise of the discretion of the Court before whom the application to commit is brought, and unless there is found to be a serious disregard of the principles of natural justice, their Lordships would be slow to interfere with that discretion' It went on to observe: 'No doubt the fact that there is another remedy available is a matter for the Court to consider when exercising its discretion whether to commit or not to commit, but on the other hand the desirability of speed and the necessity of ensuring that the orders of the Court should be obeyed are also matters of importance. The Court may, therefore, consider that after two years of disobedience a heavier fine than that permitted by the Waqf Act should be imposed, or in a proper case that imprisonment should be awarded'. In that case, the alleged contempt was the failure of a Mutawalli to furnish information which also constituted an offence under the Waqf Act. Here also the provisions of Section 2, Sub-section (3) of the Act were construed by the Privy Council. It held that, although the jurisdiction of the Court was not barred, yet, the power to take action was discretionary. If that is so, the grounds upon which a discretionary relief is granted or refused would be open for either side to urge in a case such as the one before me now.

6. Reference was also made to a Full Bench decision of the Travancore-Cochin High Court in N. C. Thomas v. Thomokutty, AIR 1952 Trav-Co 113 where an order under Section 144, Cr. P. C. was alleged to have been disobeyed. It was held there that, there being an alternative mode of redress against such a violation, the powers of the Court under the Act should not be invoked although its jurisdiction was there.

7. Mr. K.N. Singh, appearing for the Adhyaksha, relied on A. Ramalingam v. V.V. Mahalinga Nadar : AIR1966Mad21 where it was held that the High Court should not exercise its discretionary jurisdiction under the Act in a case where a detailed enquiry could be made under Order 39, Rule 2, Sub-rule (3), Civil P. C., by the Court which had passed the injunction order. This case is a direct authority which supports the submission of the alleged contemners.

8. It is true that in a case where the contempt is serious and there is an apprehension that the Court whose order has been disobeyed may not be able to award adequate sentence, or it may otherwise find itself in difficulties in dealing with the case, this Court may take action under the Act notwithstanding the specific provisions of Order 39, Rule 2, Sub-rule (3), Civil P. C. which provides as follows:--

'In case of disobedience, or of breach of any such terms, the Court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding six months, unless in the meantime the Court directs his release.'

But, such cases must be exceptional and clear. I do not find any special reason, in the case before me, for dealing with the alleged contempt under the Act, here. The opposite party no. 1 is not even the Adhyaksha or Collector and District Magistrate of Mirzapur now.

9. In the instant case, I find that the applicant had sworn an affidavit in this Court in support of the application before me in which he asserted that the Adhyaksha, who was presiding at the meeting at the college on 9-11-1968, was informed, before the actual voting commenced, by means of an application and an affidavit that this Court had already held that opposite parties Nos. 2 and 3 had ceased to be members of the Managing Committee and had no right to vote and also that the Court of the Munsif, Mirzapur, had issued an injunction restraining the Adhyaksha from holding the election. The first assertion was not quite correct as this Court had not held, as is evident from the copy of the order of this Court (Annexure 'C'), filed by the applicant, that opposite parties were not members and not entitled to vote, but it had only expressed the view that, on the assertion made by the petitioner before this Court on that occasion, the petitioner, S.L. Chaurasia, would not have a legally enforcible right. The second allegation was made, in paragraph 9 of the application (corresonding to paragraph 10 of the supporting affidavit), in such a way as to create the impression that information of the learned Munsif's order was also given to the Adhyaksha by means of an affidavit. Copies of the alleged application and affidavit (Annexures 'A' and 'B') were, however, also filed by the applicant. It is only the application which mentions the Munsif's order. The so-called affidavit also begins as though it was an application. Each of its paragraphs, however, contains a swearing clause so as to make it look like an affidavit. The applicant, who is a practising lawyer, called it an 'affidavit' in paragraph 9 of the application, which was reproduced in paragraph 10 of the supporting affidavit sworn by him, and he called it 'the accompanying affidavit', in paragraph 10 of the application which was repeated in paragraph 11 of the supporting affidavit, so that there could be no room for any doubt that the applicant was asserting, by means of a solemnly sworn affidavit filed in this Court, that he had filed an affidavit before the Adhyaksha. But, when Sri R.K. Bhargava, the Adhyaksha filed a counter-affidavit denying that any application or affidavit was filed before him by the applicant at the meeting, the applicant admitted that he had not filed an affidavit but pleaded that it was only a draft of an affidavit which could not be sworn by him as he was in a hurry. The manner in which the applicant has drafted and sworn some of the paragraphs of his affidavits does indicate that the applicant is careless. I find, for example, in paragraph 32 of his Rejoinder affidavit, in reply to the counter-affidavit of the Adhyaksha, R.K. Bhargava, the applicant has used the word 'so' for 'Sworn'. The explanation for the assertion made in the affidavit filed in this Court in support of the application, about the filing of an affidavit before the Adhyaksha on 9-11-1968, which is now admitted to be incorrect, is not quite satisfactory. But, as a suit was filed by the applicant after 9-11-1968, in the Court of the Munsif, in which, according to paragraph 23 of the counter-affidavit of Sri R.K. Bhargava, the election of the Vice President and Treasurer have been challenged and the correctness of the versions of each side, as to what took place at the meeting, of 9-11-1968 has still to be determined, I think it expedient and proper to leave determination of correct facts about the meeting of 911-1968 in proceedings already pending.

10. It may be mentioned that the applicant participated in the election at the meeting and stood for the office of Vice-President. If detailed evidence were taken, it may transpire that the applicant had participated in the election because he took the chance of being elected and that he did not really convey the information to the Adhyaksha so that he may raise the question about the validity of the election in case he was not elected. On the other hand, it is submitted on behalf of the applicant that information was given and that it is inconceivable that the applicant should after having learnt of the order of the learned Munsif, not bring it to the notice of the Adhyaksha who was presiding at the meeting. Whether the applicant had actually informed the Ahdyaksha, who was presiding at the meeting, by giving some reliable proof or he had refrained from giving information and had participated in the election due to some ulterior object in view, are matters which cannot be decided by this Court on such evidence as there is before it. It necessarily involves taking of oral evidence of members of the managing committee and the cross-examination of witnesses before whom the communication to the Adhyaksha is alleged to have been made. The applicant could, if so advised proceed under Order 39 Rule 2 (3) C. P. C. and show the court of the Munsif how the Adhyaksha had disobeyed its order notwithstanding its communication to the Adhyaksha in a reliable manner. The evidence here is not sufficient for a satisfactory decision of this question. And, it is not a case in which this Court should, in exercise of its discretionary powers to take proceedings for contempt of the authority of a subordinate court, proceed further notwithstanding the existence of an alternative procedure provided by Order 39, Rule 2 (3), Civil P. C. for punishing disobedience of an iniunction granted under Order 39, Rule 1, Civil P. C. Accordingly, I dismiss this application and discharge the notices against opposite parties.

11. The applicant is a practising lawyer. He is expected to be fully aware of the contents of any affidavit sworn by him and to take care that it does not contain the kind of allegation made by him about an affidavit filed, the incorrectness of which was admitted by the applicant, even due to negligence, if the mis-statement could really be attributed to negligence. He should also have known that, even on allegations made by him, the opposite parties 2 and 3, could not be held responsible for holding the election in which the applicant himself had participated just as they had done. However, as the case had not proceeded beyond the stage of notice to each of the three opposite parties who had to engage counsel and file counter-affidavits, I award Rs. 100/- only as costs to each of the three opposite parties. I also award Rs. 100/- as costs to the Government Advocate to whom notice was sent.


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