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Mrs. V.G. Peterson Vs. O.V. Forbes - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1962CriLJ118
AppellantMrs. V.G. Peterson
RespondentO.V. Forbes
Excerpt:
.....disentitles her to challenge the correctness or the validity of the..........an earlier order passed by a bench of the erstwhile chief court of avadh. it is not pleaded by the learned counsel that there was any error of fact justifying the review of the earlier order. from the discussion' given above, it is clear that the was no error as regards the belief of the courts that the property belonged to mr. o. v. forbes and in case there was any such error that would disentitle mrs. peterson from the reliefs prayed for by her.5. the learned counsel has also urged that the property is still in the custody of this court, [in his arguments the learned counsel has assumed the correctness of this statement inasmuch as the counter affidavit filed by the state government does not clearly state that this property had ever been confiscated or declared forfeit to the-state.....
Judgment:

B.N. Nigam, J.

1. Mrs. v. G. Peterson has filed the present petition which has been referred to a Bench by a learned Single Judge by order dated 22nd of May 1961 on the ground that the original con. tempt proceedings were being heard by a Bench.

The facts of this case 'have been, in the main, given in judgment of my learned brother and I will mention only a few more facts given in the petition,. It appears that the petitioner's mother had executed, a will on 23rd of January, 1938 devising all lire property to her three children including the present petitioner and Mr. O. V. Forbes. On 30th November 1939 a probate was granted in respect of this will and in proceedings connected with that probate, the applicant Mrs. V. G. Peterson filed an application on 6-5-1943 alleging that Mr. O. V. Forbes, now dead, had committed slander against the Court. Thereupon a notice was issued to Mr. Forbes. He failed to appear and the Court then by order dated 23rd September. 1943 took action to compel the attendance of Mr. Forbes, The relevant portion of the order reads:

Accordingly we order that action be taken under Section 87 of the Code of Criminal Procedure against Mr. Forbes and direct the issue of a written proclamation requiring him t appear in this Court on the 25th November, 1943, at 10 A.M. This proclamation will be issued in strict as cordage with the requirements of Section 87, Criminal Procedure Code ... Under Section 88 of the Code of Criminal Procedure we further order attachment of the movable and immovable property belonging to Mr. Forbes within the jurisdiction of this Court including.

(1) G. P. Notes and bonds for Rs. 1,07,080/-in the hands of the Registrar of this Court;

2. Rs. 12,250/- deposited in this Court in the personal ledger, Trustees and Stake Holders Fund;

3. G. P. Notes belonging t0 Mr. Forbes of the face value of Rs. 55,000/- attached in Execution Case No. 16 of 1942 in the court of the Civil Judge Lucknow Dr. Hari Shankar Dubey v. O. V,. Forbes.

A copy of this order was directed to be served upon Mrs. Peterson. She was directed not to pay over any sum or property in her custody as an executrix to Mr. O. V. Forbes Or to any Ono on his behalf. Prohibitory orders restraining the Registrar of 'his Court and the Civil Judge, Lucknow were also directed to be issued..

2. Then by a subsequent order dated South March, 1944 after recording evidence a Bench of the Chief Court of Avadh slated:

We have recorded the evidence im tine 'absence of Mr. Forbes, who has not appeared. It is not possible under the circumstances to finally dispose of these applications unless and until Mr. Forbes voluntarily appears or is arrested and is brought before us. These applications will therefore be adjourned sine die until Mr. Forbes appears or is arrested.

We direct the District Magistrate of tuck-now to arrest Mr. O. V. Forbes under a non bailable warrant whenever he enters the United Provinces and produce him before this Court

(2a) Another order was passed on 21st September 1944 and therein it is stated :

On 'the 23rd September, 1943, we passed an order Under Section 88 of the Code1 of Criminal Procedure directing attachment of the movable and immovable properties belonging to Mr. O. V. Forbes within 'the jurisdiction of this Court.

The three properties attached were then mentioned and there was a reference to the prohibitory orders issued. The Bench then stated;

By a subsequent order dated the 30th March, 1944. we took action under Sub-section (7) of See. 88 of the Code of Criminal Procedure and ordered that the aforesaid property was at the disposal of the Government. As the City Magistrate 'has .been directed by the Provincial Government to take suitable action for (she disposal of the properly of M''. O. V. Forbes, it is necessary that the prohibitory order issued against the Registrar and the Civil Judge of Lucknow should now be withdrawn. Accordingly, We withdraw the prohibitory order and the property which was attached; and was in the custody of tile Registrar and the Civil Judge should now be sent to the City Magistrate for disposal according to law.

A further order was passed on the same day and the directed :

As all the property of Mr. Forbes is at the disposal of the .Provincial Government and the City Magistrate has been directed by the Government to take suitable action for the disposal of his property if will be necessary for Mrs. Peter-son, the executrix, to 'hand over all the property in her possession. which she may be holding as a custodian for Mr. O. V. Forbes.

We order accordingly.

(2b) From the above quotations it won]-I appear that what the Court intended to attach was property belonging to Mr. Forbes, The same position. was taken up by Mrs. Peterson in several of the documents presented on her behalf, Annexure 7 is- a copy of the letter sent by Mrs. Peterson, do the State U. P. on 4th April, 1980. In paragraph 7 of this application she states that she was possessed of the property of Mr. Forbes and a copy of the order was served on her requesting her to make over to Government 'the aforesaid property belonging to Mr. O. V. Forbes'. Again in the next two paragraphs the reference is to the assets of Mr. Forbes. In the writ petition moved by Mrs. Peterson in this Court on 29th November,' I960 she stated in paragraph 6 :

That on 23-9-1943 the aforesaid court was pleased to order attachment of the moveable and immoveable property of the aforesaid O. V. Forbes Under Section 88 of the Code of Criminal Procedure.

The second ground taken in the said petition is that no order of confiscation was passed by the Court at any stage of the proceedings and accordingly 'the attached property reverts to the heirs of Mr. O. V. Forbes.

Now this position has been abandoned. The position now taken up is that the property which was attached by the court, was not the property belonging to Mr. O. V. Forbes tout is a not of the undistributed assets left by Mrs. A. E. Forbes. In paragraph 8 of the present petition it is stated :

The said attached property was at the time an undistributed part of the estate of the late Mrs. A. E. Forbes.

Again in paragraph 10 the attached property is referred to as 'an undistributed p3rt of the estate of the late Mrs. 'A., E. Forbes'1, In the writ petition also the petitioner took up the position, that the securities and the money, which were ultimately transferred to the Government were 'part of the unadministered estate of the ate Mrs. A, E. Forbes.

3. As I' have indicated1 earlier, this Court never intended to attach any part of the unadministered estate of Mrs. a. E. Forbes. this Court attached property belonging to Mr. O. V. Forbes and that is made clear in the extracts given by me earlier and also, in the position taken up b the present petitioner at earlier stages. In any case the order dated 21-9-1944 makes it clear that Mrs. Peterson was to hand Over that property which she may be 'holding as a custodian for Mr. O. V. Fortes.

4. The position thus is that this attached the property belonging to Mr. Forbes. Mrs. Peterson handed over the property treating it to be the property of Mr. O. V, Forbes. But now it suits Mrs. Peterson to allege that the property was the undistributed assets of Mrs. A. E., Forbes.

If the property belonged to Mr. O. V. Forbes, the present petitioner has- no locus sandy. She does not claim the property as heir of M'1. O. V.' Forbes. She claims it as the undistributed assets left by Mrs. A., E. Forbes. If she claims the property as an heir of Mr. O. V. Forbes, the; right procedure for her would be first to obtain a succession certificate and thus establish her right as heir to Mr. O. V. Forbes. Again it appears to me that if the property did' not belong to Mr. O. V. Forbes, Mrs. Peterson should have never handed over the property voluntarily and if it was attempted to be taken from her, she should have filed an objection that the property did not belong 'to Mr. O.V. Forbes and should have contested it. The fact that she voluntarily handed the property Over as belonging to Mr., Forbes and actually suggested that this particular property be attached clearly amounts to. it appears to me, an admission of the ownership of the property vesting in Mr. O. V. Forbes and the property not being part of the undistributed assets in the possession of Mrs. Peteison as executrix to Mrs. A. E. Forbes.

Further I would like to point out that the present petition is practically an application for a review of an earlier order passed by a Bench of the erstwhile Chief Court of Avadh. It is not pleaded by the learned Counsel that there was any error of fact justifying the review of the earlier order. From the discussion' given above, it is clear that the was no error as regards the belief of the Courts that the property belonged to Mr. O. V. Forbes and in case there was any such error that would disentitle Mrs. Peterson from the reliefs prayed for by her.

5. The learned Counsel has also urged that the property is still in the custody of this Court, [In his arguments the learned Counsel has assumed the correctness of this statement inasmuch as the counter affidavit filed by the State Government does not clearly state that this property had ever been confiscated or declared forfeit to the-State Government. That may be so. I would a little later discuss the contentions of the learned Counsel based on| the assumption that the property is still in the possession, of the court. But I would like to point out that there is no warrant for this assumption.

6. In paragraph 5 of the present petition-itself it is stated :

The property was directed to be made over to -She City Magistrate, Lucknow.

The same statement is made in paragraph 5 of the accompanying affidavit. Aging in paragraph 7 of the Writ Petition it was stated :

The aforesaid court was pleased to order that the entire attached property be transferred to the City Magistrate Lucknow for disposal according to the directions of the Government.

7. Paragraph 8 of the petition makes It clear that subsequently the City Magistrate Sent the attached properly to the finance Secretary, Government of U. P. The same statement is made in paragraph 8 of the accompanying affidavit and a similar statement is made in paragrahph 8 of the writ petition moved in this Court wherein Mrs. Peterson stated :

The then City Magistrate Lucknow, Sri S. G. Bose- Mullick was pleased to transfer the same to the Finance Secretary to U. P. Government, Lucknow in August 1948.

From the letter of the Reserve Bank of India dated 17-10-1947 it is clear that the City Magistrate started taking action for transfer of this attached property to the State Government. In the penultimate paragraph it is stated:

We are, however prepared to renew the same in favour of the Financial Secretary to the Government of United Provinces, provided be necessary receipts for the same ate supplied by him on the notes.

From the letter of the City Magistrate annexure 4, it appears that the City Magistrate stated :

It is requested that the necessary action may be taken by you to credit the sum under the Head 'Fines and Forfeitures'. The requirements of Reserve Bank indicated in their 'ester have been complied with at this end,

It does appear 'that ill was throughout the intention of this Court to part with the custody of the attached' property and to hand it over to the City Magistrate who deal; with the property without consulting this Court or taking its instructions but took instructions from the State Government. It is thus clear that there is no warrant for the suggestion that the attached property is still in the possession of this Court.

8. On both these points even without considering the contentions 61 the learned Counsel, this petition is liable to be dismissed.

9. However as the learned Counsel has taken considerable 'Ump of this Court and has discussed the matter, as my learned brother put it, for days and not for hours, it is only propai1 that I should consider his contentions.

10. The first contention of the learned Counsel is that this Court had no jurisdiction to attach the property. This contention is based on three arguments. It was urged before us that Mr. Forbes was at Calcutta and therefore, being outside the territorial jurisdiction of the Chief Court of Abash no action could be taken against him. Apparently, the learned Counsel is1 mixing up between afoul arrest and acing steps for securing presence in a ease of contempt O-T court. I agree with the learned Counsel that no action could be taken to arrest the person of Mr. Forbes outside the territorial limits of the Chief Court of Avadh's jurisdiction but there is no authority and no warrant for the contention, that to proceedings for contempt of court can be taken against a person outside the territorial limits of the court's jurisdiction.

The learned Counsel has relied on the decision in Benjamin Guy Horniman, In re A.I.R. 1944 Bom 127. Then it was not held that the Higu Court could not proceed for contempt of court against a person outside its territorial jurisdiction. All that was held in that case was the life High Court had. no power to arrest such i person outside the jurisdiction, of the High Court. As a matter of fact alt page 128 of the report it was stated :

I have no doubt that, if the Allahabad; High Court considers that Mr. Horniman has committed contempt of that Court, although the contempt may have been committed outside the jurisdiction of that court, it could deal with Mr. Horniman, if the were within its jurisdiction.

The second link in the argument of the league counsel is that in proceedings in contempt of court there can be no attachment- of property. The learned Counsel has referred me to page be of the Law of Contempt by Talk Chand and H.L. Sarin. The difficulty is that at page 24 the learnel authors are discussing only the definition of 'attachment'' given in Jacob's Law Dictionary and they are referring to attachment of pa-son. The learned Counsel; has not drawn our attention to any passage hi the book dealing with the processes that may be taken out 'to enforce the presence of the per, son against whom the charge of contempt co court is laid. At page 346 the learned authors deal with the situation arising after the attendance of the accused and state:

After the presence of be accused, has bee' secured the committal proceedings begin and an order for committal is made upon motion to the court, notice of which must be served on the person sought to be committed.

I am prepared to concede that it was open to the Bench' concerned to take ex parte proceedings in contempt of court and to impose a fine or even to Pass a sentence of imprisonment; even in absence of Mr. O. V. Forbes, But I am not prepared to hold that if ;the court did not want to take ex parte proceedings, it was powerless t n take steps to enforce the attendance of Mr. Forbes in order to answer the charge against him.

The suggestion of the learned Counsel the these proceedings are no criminal in character is also not borne out by the decision in and Paul Terence Ambard v. The Attorney .General of Trinidad A.I.R. 1936 PC 141 Lord Atkin, while delivering the judgment of the Board, stated :

It is sufficient to say that such interference when they amount to contempt of Court are quasi-criminal acts, and orders punishing then should, generally speaking, be treated as orders in criminal cases, and leave to appeal against them should only be granted....

The third argument of the learned Counsel is that the proceedings in contempt of court a not criminal. I do not disagree- I agree with the learned Counsel that the Cods of Criminal' Procedure is not directly applicable. We have the authority of the Supreme Court on this-point.

In Sukhdev Singh v. Hon'ble C.J., S. Teja Singh and the Hon'ble Judge of the Papsu High Court at Patiala A.I.R. 1954 SC 186 it was held :

Section 1 (2), Criminal Procedure Code expressly excludes special jurisdiction from its scope. Hence, the Code of Criminal Procedure does not apply in matters of contempt triadic by the High Court. The High Court can deal with it summarily and 'adopt its own procedure.

A similar view was taken in the Full Bench case of this Court in State v. Padma Kant : AIR1954All523 . Then again it was held that the contempt of court wets not an offence within the meaning of Section, 5{2) of the Criminal Procedure Code, in Paragraph 40 of the judgment, however, the question, was discussed and it was pointed out that contempt could be divided into civil contempt and criminal contempt. As regards Procedure, the matter came up before this Court in the case of Shyam Sunder v. Daw. Dayal' Kbanna : AIR1956All79 . Dealing with the question of procedure, Desai J. as 'he then was, in paragraph 2 stated :

Contempt proceedings are neither civil nor criminal but sui generis. A High Court punishes contempt of Court as a Court of record in exertisa of its inherent jurisdiction and the procedure that it adopfts is governed neither by the Code of Civil Procedure nor by the Criminal Procedure Code. Subject to the limit imposed by the Contempt of Courts Act, on the punish. t that can be inflicted by it, it can adopt procedure and pass any order that it thinks fit.

Again in paragraph 3 it was stated :

The power to enforce it must be deemed to have been implied in the power to pass it sentence). Therefore, a High Court has inherent jurtadiction to enforce it. There are no limits to its power to enforcfe it,. it can be enforced in any manner it deems proper....

It is, therefore, clear that even though Contempt of Court is not an offence and the Code of Criminal Procedure is not directly applicable, Hone'blie contempt, that was prirna facie committed 'by Mr. Forbes was a contempt which must be deemed to be a criminal contempt and not a civil contempt. It is also clear that the Bench could adopt its own procedure for enforcing the attendance of the delinquent and if it adopted the procedure prescribed in the Code of Criminal Procedure, I can see no warrant for the contention that the Procedure adopted was wrong, improper and beyond the jurisdiction of the court.

11. The next argument urged before us is that this Court can still pass orders. It is suggested that the procedirigs are still pending. The learned Counsel refers to the order dated) oath March 1944 and points out that the applications have been postponed sine die.

The reference is to the two applications for contempt of court which were registered as numbers 47 and 48 of 1943. Those applications were certainly adjourned sine die but the matter of attachment was finally disposed of by the court when it handed over the property to the City 'Magistrate. Again the petitioner does not want further orders in the petition. The petitioner actually wants a cancellation, or a review of the order of attachment previously passed, I am Of opinion that the contempt proceedings, which are still pending, should be consigned to records as having abated, Mr. Forbes being dead. No proceedings in respect of the attached property are at present pending.

12. The learned Counsel has urged, (on the assumption that the proceedings relating to the property are still pending)' that as no order of forfeiture or confiscation has been passed by the State Government, no question of laches arises and this Court should proceed to pass orders. The learned Counsel has again relied on a ease of the Bombay High Court. That case is Secretary of State v. Ahalyabai Narayan A.I.R. 1938 Bom 321. This decision was given in a second appeal arising out of a civil suit. It was then held that as the property had not been solid and no order of forfeiture 'had been passed, the Civil Court still had jurisdiction to deal with the matter. The learned Judge held) at page 323 :

That however, does not mean that an independent suit They that person is not maintainable.... If he succeeds in obtaining such a decree before Government have finally disposed of the property, that decree would be binding against Government ante the property could be disposed of subject to the rights established under such decree.

It is not my intention to suggest that a civil suit will docile. Prima facie it appears to meat the remedy, if any, is by a civil suit. As point, ed out this Court is no longer in possession, of the attached property, having handed it over to the City Magistrate for being passed on to the State Government, this Court can, therefore', not pass any orders in respect of the property. Besides no further Orders are necessary so far as the property is concerned.

13. The third argument urged by the) learned Counsel is that this Court has jurisdiction to review the orders passed previously. There is no doubt in the mind of either of us that the court has such jurisdiction. We have not even raised the bar of the existence of an alternative) remedy., It is, therefore, unnecessary for me to refer to the seven cases relied upon by the learned Counsel. A briefl reference to them would be sufficient.

The cases cited before us are Debi Baksh Singh v. Habib Shah 40 Ind App 151 (155) (PC) Jai Berham v. Kedur Nath A.I.R. 1922 PC 269 (271 Col. 2), Sattar v. Nazir Khan : AIR1929All147 , Mt. Champa Devi v. Mt. Asa Devi : AIR1988All8 , Raj Kumar v. Ved RoOp JsTarain : AIR1950All293 , Mt. Surji v. Manki Ram : AIR1951All381 and Mukum Chand v. Kamalanand Singh ILR 33 Cal 927 (980-932). There are however, several reasons why I am unable to agree with the learned Counsel that this Court should pass any orders reviewing the earlier order. The question of delay has already been dealt with at considerable length by my learned brother and as I respectfully agree with, the observations made by him, I consider it unnecessary to add any observations of my own, Again, the question that the earlier order was passed at the instance of Mrs. Peterson 'herself has also been discussed at sufficient length by my learned brother.

It appears to me that the fact that Mrs. Peterson was the person at whose instance this order was passed clearly disentitles her to challenge the correctness or the validity of the order. The third point in this connection, is the fact that Mr. Forbes, even though he was aware of the proceedings against him and of the Order of attachment, did not attend this Court within a period of two years and claim release of the property under the provisions of Section 89 of the Code of Criminal Procedure nor did he though he was represented by Mr. Wad in the proceedings before this Court, challenge the jurisdiction of this Court to Pass the order of attachment nor did he, though he did not diet till November 1953, at any time challenge the correctness and validity of this Court's order.

There can, as pointed out by any learned brother, be no equity in favour of a man who has flouted the court's order and refused to appear before it in the proceedings pending against him. In these circumstances, it appears t0 me, and I am in respeetfui agreement with my learned brother, that it is not in the interests of justice, in fact it would be contrary, to such interests, to review the order after a lapse of about 18 years.

14. The learned Counsel has then urged that assuming that the order of the court was within jurisdiction, it is not possible for this Court to go further. He points out that Section 89 of the Code of Criminal Procedure was not applied and rtfaerefore this Court should not take any further action. The learned Counsel appears to be Undre some misapprehesion. this Court is not going to take any further anions. But it is not prepared to wipe out the effects of the orders already passed. The petitioner Should seek such remedy, as she claims, from the Government or from the Civil Court, Assuming, as he learned Counsel does for the purpose of this argument, that the Bench had the jurisdiction lo pass the order it did, this Court is not directing any further proceedings. The action taken by ft has already placed the property outside it custody and therefore no further action except the order that the contempt proceedings still pending be consigned to records as abated is necessary.

15. I therefore, propose that the contempt proceedings, i.e., Criminal Miscellaneous Applications Nos, 47 and 48 of 1943 be consigned to records as abated, that no review of the previous orders is possible and that no direction can be issued lo the Finance Secretary as he is not holding anything for and on behalf of this Court. I would, therefore, reject this petition with, costs.


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