G. Kumar, J.
1. Pannalal has filed this application for proceedings under Sections 3 and 4 of the Contempt of Courts Act against Sri R. K. Sinha, Sessions Judge, Fatehpur. In April 1960 the applicant had published a pamphlet alleged to be containing a defamatory matter against the then District Planning Officer and Harijan Welfare Officer. Fatehpur. with the result that on 5-10-1960 the Public Prosecutor instituted two complaints against Pannalal under Section 500 I. P. C. which were registered as Special Trial nos. 3 and 4 of 1900 Both the cases were being heard together and ultimately 27-7-64 was fixed for defence evidence On 27-7-64 the applicant, instead of adducing defence evidence, moved applications in both the cases raising a preliminary objection that the sanction granted by the State Government for prosecuting the applicant was not according to law; hence the court could not proceed further with those cases Thereupon the Sessions Judge (Sri R. K. Sinha) ordered that the applications were very belated and he would decide the point at the time of arguments. However, one more opportunity was given to the applicant and 3rd August 1964, was fixed for defence evidence and arguments
With a view to file applications under Section 561-A Cr. P. C. in the High Court against the aforesaid orders dated 27-7-64. the applicant came to Allahabad and is alleged to have sent telegrams from there on 3-8-64 to the Sessions Judge and his counsel at Fatehpur reading: 'Seriously ill. Medical certificate follows. Cases nos. 3 and 4 of 1960' These telegrams did not reach either of them till after the lunch hour, when the cases were called for the second time on 3-8-64. The applicant being absent, and no applications having been made by his counsel for adjournment of the cases, the Sessions Judge cancelled the bail of the applicant and issued non-bailable warrants in both the cases against him fixing 8-8-64 for his production
2. On 5-8-64 the applicant had moved a petition under Section 561-A Cr. P. C. in the High Court with regard to the order passed in Special Trial No. 3 of 1960. refusing to decide the preliminary objection forthwith; but no such application was filed that day with regard to the other case. viz., Special Trial No. 4 of 1960 Satish Chandra. J admitted the petition and stayed further proceedings meanwhile. On 7-8-64 the applicant went to the Court of the Sessions Judge along with an application and its annexures to be filed in Special Trial No. 3 of 1960 saving that on account of his illness the applicant was unavoidably absent on 3-8-64. The prayer contained in the application was for recalling his warrant and taking fresh sureties. At the end, it was stated that the High Court had already stayed further proceedings in the case and a certified copy of the order was being annexed thereto A similar application was also filed in Special Trial No. 4 of 1960 with suitable amendments, and it was also stated that the certified copy of the High Court's stay order has been filed in connected Trial No. 3 of 1960
3. There is considerable controversy about the sequence, time and manner of presentation of these applications before the court on 7 8-64. According to the applicant he had first presented the above application in person in Trial No. 3. together with its annexures. to the Sessions Judge, as soon as he had entered the court room, yet, after perusing the same as well as the accompanying stay order granted by the High Court, the Sessions Judge put the applicant in custody and then slaved the proceedings in the case: while, according to the Sessions Judge, the applicant had first been put under arrest (as soon as he had filtered the court room) and it was then that he had moved the aforesaid application. The Sessions Judge stated that on rending the contents of the application and the stay order, all further proceedings were stayed in compliance with the directions of the High Court, in case No. 3 while in case No. 4 the Judge himself stayed the proceedings, as prayed for by the applicant. Thus, according to the applicant, the Sessions Judge had intentionally disobeyed the order of the High Court by taking him into custody in spite of having read the stay order and thereby committed contempt of the High Court as well as of his own court. On the other hand, according to the Sessions Judge, he had implicitly obeyed the order of the High Court as soon as it came to his knowledge Rut he had already put the applicant under arrest before reading the order, therefore, he could not have granted his bail application in view of the stay order by the High Court. which had since been brought to his notice.
4. to 10. Omitted as not necessary for this report.)
11. The opposite party has put in long 15 years in the judicial service and has been working as Sessions Judge since 2-1-1962. It appears very unlikely that an experienced judicial officer of Sri Sinha's standing would dare intentionally flout the stay order of the High Court, if it had readily been brought to his notice, before he had put the applicant under arrest. Other circumstances of the case also tend to show that the contention of the opposite party is correct. The sequence of the orders record ed in the order sheet of the Special Trial nos 3 and 4 of 1960 also indicates that the applicant had first been put under arrest and it was then that he had presented application no 179 Kha and its accompanying stay order granted by the High Court. It is also significant that the applicant remined quiet for good six months before filing the instant contempt application and during all this long period hedid not make a grievance of it in writing before any higher authority or court.
12. Non-bailable warrants had admittedly been issued against the applicant on 3-8-64. The applicant was well known to the Sessions Judge, inasmuch as the proceedings had been pending before him for quite some time. aS deposed to by Sri Sinha, he fully remembered that warrants had already been issued against the applicant. The Court room was empty and the entry to the court room lies just in front of the seat of the Presiding Officer. Therefore it appears quite natural that as soon as the applicant stepped into the court room, he was asked to walk into the dock and taken into custody. Even the applicant admits that he had voluntarily walked into the dock, when asked to do so.
13. The fact that his counsel Sri Abdul Rauf Khan did not make any protest about the matter to the court, nor did he mention the same in the bail applications also tend to show that the applicant had really been put under arrest first and application (179 Kha) together with the copy of the slay order granted by the High Court was presented to the court a little later. This is also clearly borne out by Dhannalal's affidavit, referred to above, which was sworn wihin three days of the applicant's arrest. Once the applicant had been put under custody, in enforcement of the warrants issued against him, the warrants had exhausted themselves and the Sessions Judge was no longer competent to recall the warrants or grant bail till further orders of the High Court
14. No personal animosity or grouse between the applicant and the Sessions Judge has been suggested or proved by the former except that he had approached the High Court against the order of the Sessions Judge dated 27-7-64 refusing to decide the belated objection of the applicant regarding the legality of the sanction granted by the State Government for prosecuting the applicant under Section 500 I. P. C. This by itself was hardly any ground for the Sessions Judge to have taken the matter to heart and to wreak his vengeance on the applicant. The interlocutory orders of the lower courts are very often challenged before higher courts and the subordinate courts hardly ever resent such legal remedy, which is available to the litigants, in the ordinary process of law. At any rate, it was not such a serious matter so as to displease the Sessions Judge to such an extent that he would go out of his way to arrest the applicant in defiance of the order of the High Court
15. I have had occasion to sec and watch the demeanour of the applicant. He has not impressed me as a truthful witness on material points. He is belied by the affidavit of his own brother Dhannalal and the deposition of his counsel Sri Rauf
16. So far as the belated affidavit of his surety Ram Sanehi is concerned, it is true that he supports the case of the applicant to the effect that the stay order of the High Court had already been shown to the Sessions Judge before the applicant had been put under arrest. However, according to the applicant's own showing, Ram Sanehi was known to him from before; he had met the applicant per chance in the Collectorate, and had readily agreed to stand surety for him. Thus it is quite clear that Ram Sanehi is the own man of the applicant and cannot be called an independent person. So no credence can be given to the affidavit of such a man, particularly when the applicant's version has already been found to he false.
17. Sri M. A. Ansari, learned counsel for the applicant, has drawn my attention to the Hindi order sheet dated 7-8-64 in Special Trial no. 4 of 1960, which reads:
'Aj Sri Pannalal mulzim hazir adalat aye. Unhen hirasal men liya jayega. Unhen hirasat men le liya gaya hai.'
The suggestion of Sri Ansari is that till the time of recording the first two sentences of the order sheet, the applicant had not really been taken into custody and, therefore, he must have already presented the High Court's stay order before the Sessions Judge. The Hindi order sheet has been written by the Reader of the court and is evidently a translation of the English order sheet, recorded by the Sessions Judge in his own handwriting, which runs as under;
'Sri Pannalal accused is present in court. He should be taken in custody forthwith, and he has been put under custody.'
Sri Sinha in his deposition has explained the position that as soon as the applicant had entered his court room, he had asked the Court Moharrir to arrest him and the Judge himself had informed Pannalal that he was under arrest The applicant submitted to the arrest and walked into the dock. Then the Sessions Judge asked his Reader to bring the records of the two cases from the adjoining offices of the court The orders were written as soon as the relevant records had been fetched by his Reader. The order sheets faithfully record the events in their proper sequence as they had happened that day; that is, first there was a direction by the Judge to his Court Moharrir to take the applicant into custody: then in compliance with the order, the applicant was put under custody; hence the words in the order sheet 'He should be taken into custody forthwith and he has been put under custody.' These words were more or less correctly translated in the Hindi order sheet as 'Unhen hirasal me liya jayaga. Unhen hirasat men le liya gaya hai.' The words of the English or the Hindu order sheet do not mean that the applicant had been directed to be arrested later on, after he had already presented his application 179 Kha and had produced the stay order of the High Court before the Sessions Judge The argument has no substance.
18. Sri Ansari has next advanced a very ingenious argument. His contention is that in special trials nos. 3 and 4 of 1960 the applicant was accused of an offence under Section 500 I. P. C., which was a bailable offence.He had already been granted ball under the provisions of Section 496 Cr. P. C., which was an absolute and indefeasible right; therefore the Sessions Judge had no jurisdiction to cancel his bail and order his arrest in spite of the fact that he had absented himself and had failed to attend the court on 3-8-64. His contention further is that at any rate the Sessions Judge was bound to release him on bail despite the stay order of the High Court inasmuch as he was accused only of a bailable offence. In support of the above contention Sri Ansari has placed reliance on the case of T. H. Hussain v. M. P. Mondkar. AIR 1958 SC 376. The appellant in that case was also charged of bailable offence and under Section 496 Cr. P. C. he had been released on bail on December 9, 1957. by the Presidency Magistrate at Bombay. On January 4, 1958. an application was made by the complainant of that case before the magistrate for cancellation of the bail; the learned magistrate, however, dismissed the application on the ground that under Section 496 Cr. P. C he had no jurisdiction to cancel the bail. Against that order the complainant preferred a revision before the High Court of Bombay. Another application was also filed by the complainant before the High Court, invoking its inherent powers under Section 561-A. Cr. P. C. Chhagla. C. J. and Datar. J. dealing with those applications took the view that under Section 561-A Cr. P. C the High Court had inherent power to cancel the bail granted to a person accused of a bailable offence. On the material before them, the learned Judge cancelled the bail of the accused in the interests of justice and ordered his arrest forthwith. Against this order the accused went up to the Supreme Court by special leave. But the special leave was limited to the question of the construction of Section 496 read with Section 561-A Cr. P C. The point of law which fell for consideration in that case was whether in the case of a person accused of a bailable offence where bail had been granted to him under Section 496 Cr p. C. could it be cancelled in a proper case by the High Court in the exercise of itsinherent power under Section 561-A Cr. P C.
19. Dealing with the above limited question their Lordships of the Supreme Court came to the conclusion that Section 496 Cr. P. C. was not in conflict with the jurisdiction under Section 561-A. It was observed:
'The effect of the order passed under Section 561-A, just like the effect of an order passed under Section 497 (5) and Section 498 (2), would be not only that the bail is cancelled but that the accused is ordered to be arrest-ad and committed to custody. The order committing the accused to custody is a judicial order passed by a criminal Court of competent jurisdiction. 'His commitment to custody thereafter is not by reason of the fact that he is alleged to have committed a bailable offence at all: his commitment to custody is the result of a judicial order passed on the ground that he has forfeited his bail and that his subsequent conduct showed that, pending the trial, fie cannot be allowed to heat large. Now, where a person is committed to custody under such an order it would not be open to him to for back upon his order under Section 496, for Section 496 would in such circumstances be inapplicable to his case.' It may be that there is no specific provision for the cancellation of the bond and the rearrest of a person accused of a bailable offence; but that does not mean that Section 496 entitles such an accused person to be released on bail, even though it may be shown that he is guilty of conduct entirely subversive of a fair trial in the Court. We do not read Section 496 as conferring on a person accused of a bailable offence such an unqualified, absolute and an indefeasible right to be released on bail'
(the underlines (here in ' ') are mine).Apart from the fact that the Supreme Courtwas concerned with the limited question of thescope of Section 496 vis a vis Section 561-ACr. P. C., their Lordships have made it abundantly clear that if an accused has abused hisbail (by not attending the Court or otherwise)his commitment to custody thereafter is notby reason of the fact that he was charged of abailable offence. On the other hand, his subsequent commitment to the custody is on theground that he has forfeited his bail. In sucha case the accused could not fall back uponhis original right under Section 496 Cr. P. C.which had ceased to be applicable to his case,because of his default.
20. It is true that their Lordships of the Supreme Court had also remarked that there was no specific provision for the cancellation of the bond and rearrest of a person accused of a bailable offence. But this remark was evidently with reference to the powers of an appellate or revisional authority, like the High Court. It was not meant to cover the case of a court of first instance which had initially granted bail, as there is a specific provision in Section 92, Cr. P. C. conferring a right of cancellation of bond and re-arrest of the offender. At any rate, it appears that in T. H. Hussain's case AIR 1958 SC 376 (supra) the provisions of Section 92 Cr. P. C. had not been brought to the notice of their Lordships the relevant portion whereof reads as under:
'When any person who is bound by any bond taken under this Code to appear before a Court, does not so appear, the officer presiding in such Court may issue a warrant directing that such person be arrested and produced before him.'
21. Thus in the instant case on failure of the applicant to appear before the Sessions Judge on 3-8-64, the opposite party, who had initially granted bail, was fully competent to issue warrants against the applicant to enforce his attendance before him, irrespective of the fact that the applicant was originally charged of a bailable offence. In such a case the accused is ordered to be arrested because of his default and forfeiture of the personal and surety bonds, by failing to attend the courton the date fixed in the case. Therefore, the Sessions Judge (opposite party) had full jurisdiction not only to issue warrants for the arrest of the defaulting applicant but also to commit him to custody, when he appeared in the trial court on 7-8-64, before the stay order of the High Court was presented to the Judge. By doing so the opposite party did not abuse the process of law so as to amount to contempt of his own court.
22. From the foregoing facts, evidence and circumstances, I am fully satisfied that Pannalal had first been committed to custody on 7-8-64 by the Sessions Judge, Fatehpur. in utter ignorance of the stay order granted by the High Court. In fact it was after his arrest that the applicant had shown the copy the stay order of the High Court to the Sessions Judge That being the position, the opposite party did not intentionally flout the stay order issued by the High Court nor did he commit any contempt of this Court or of his own. The case is fully covered by the authority of the Supreme Court in B. K. Kar v. Chief Justice of Orissa High Court, AIR 1961 SC 1367 wherein their Lordships delivered themselves as under:
'Before a subordinate court can be found guilty of disobeying the order of the superior court and thus to have committed contempt of court, it is necessary to show that the disobedience was intentional There is no room for inferring an intention to disobey an order unless the person charged had knowledge of the order. If what a subordinate court has done is in utter ignorance of an order of a superior court, it would clearly not amount to intentional disobediance of that court's order and would, therefore, not amount to a contempt of court at all.'
23. In the result, the contempt application is hereby dismissed and the notice againstthe opposite party is discharged. As the hearing of this case had lasted several days, theapplicant shall pay Rs. 250/- as costs to theopposite party and another sum of Rs 250/-as costs to the State counsel Sri N. C. Upadhya.The costs shall be paid within two months.