1. These proceedings relate to contempt of the Court of the Additional Munsiff of Cuttack alleged to have been committed by Shri S. S. Roy, a 1st Class Magistrate, and by Sri Sankar Charan Sahu, a Sub-inspector of Police. Original Criminal Miscellaneous Case No. 11 of 1951 was started on the basis of a report submitted to this Court by the Additional Munsiff of Cuttack Sri B. K. Das. Original Criminal Miscellaneous Case No. 14 of 1951 was started on a petition filed before this Court by M. S. Rao, a Senior Advocate of this Court. Both the cases refer to the same incident and consequently they have been heard analogously and will be governed by the same order.
2. Mr. M. S. Rao had obtained a decree in 1935 against one Hrudananda Sahu and the execution of that decree was pending in the Court of the Additional Munsiff (Second Munsiff) of Cuttack in Execution Case No. 18/258 of 1948/46. In that execution case a warrant of arrest under Order 21, Rule 18, C.P.C., was issued against the judgment-debtor Hrudananda Sahu on 14-10-1949, for the realisation of the balance of the decretal amount of Rs. 836/1/- and it was handed over to a process-server of the Munsif's Court named Brundaban Mohanty for execution. There was perhaps considerable difficulty in arresting the judgment-debtor in execution of the warrant and the decree-holder Mr. M. S. Rao appears to have carefully watched the movements of the judgment-debtor with a view to give timely intimation to the Civil Court process-server for effecting his arrest. That opportunity presented itself on the 15th April 1950, when the judgment-debtor Hrudananda Sahu appeared as an accused in the Court of Mr. E. Pal. a 1st Class Magistrate of Cuttack, in Case No. 610, C-1/144T/48. He was ordered to be released on bail at about 8 a.m. (morning sittings) by the Court; but presumably there was some delay in getting the bail bond duly executed. In the mean time, however, Mr. M. S. Rao noticed the presence of Hrudananda Sahu in the Criminal Court premises and after giving due intimation to the Civil Court process-server began to take necessary steps so as to facilitate Hrudananda Sahu'sarrest after his departure from the Criminal Court. Hrudananda Sahu also noticed Mr. M. S. Rao in the Criminal Court premises and being apprehensive of his arrest filed a petition through his Advocate Mr. A. Das under Section 144, Criminal P.C., in the Court of Sri S. S. Ray, Magistrate 1st Class, for restraining the Civil Court process-server Brundaban Mohanti from arresting him and claiming immunity from arrest under Section 135, Civil P. C. The learned Magistrate heard Mr. A. Das in support of the petition and M. S. Rao against the petition. He then passed an order purporting to be under Section 144, Criminal P.C., restraining the Civil Court process-server Brindabana Mohanty from arresting Hrudananda Sahu till he reached his home. He further directed that the notice of the order under Section 144, Criminal P.C., should be served on Brudabana Mohanti under Section 134, Criminal P.C., (sic) at once. The Magistrate then left the place and when Hrudananda Sahu proceeded in his car to his home he was stopped on the road close to the Police Office at Cuttack. The Civil Court process-server Brundabana Mohanti met him there, showed him, the warrant and demanded payment of the sum mentioned in the warrant failing which he was to remain under arrest. The judgment-debtor pleaded for half an hour's time. In the meantime, a crowd collected there & a telephonic message was sent from the office of the Deputy Superintendent of police to the Sub-inspector of Police of Lalbag P. s. Sri Shankar Charan Sahu to come with a few constables to prevent breach of peace. Sri Shankar Charan Sahu at once went to the spot and found the judgment-debtor sitting in the car with the road blocked & the process-server Brundabana Mohanty standing close-by with the warrant in his possession. Till then the order under Section 144, Criminal P.C., passed by Sri S. S. Ray had not been served on the process-server. No formal notice as prescribed by Form No. XXI of Schedule V of the Criminal Procedure Code, containing the signature and seal of the Magistrate had, in fact, issued from his office. But the original record of the proceedings under Section 144. Criminal P.C., containing the order of the Magistrate was immediately produced before the S. I., by somebody on behalf of Hrudananda Sahu himself. The Sub-inspector of police then showed that order to the Civil Court process-server, got his signature on the order itself, dispersed the crowd and allowed Hrudananda Sahu to proceed in car. The net result of the action of the Sub-inspector of police was the release of the judgment-debtor from the custody of the Civil Court process-server and the facility afforded to him to reach his home thereby preventing the process-server from executing the process.
3. The Civil Court process-server then submitted a report to the Additional Munsiff of Cuttack. The decree-holder Mr. M. S. Rao also filed a petition before the same Munsiff for action under Section 186, I.P.C., and for reporting to the High Court for contempt of Court against the Sub-Inspector of Police. In that petition he alleged that the judgment-debtor Hrudananda Sahu was the father-in-law of Sri Dinabandhu Sahu. an Advocate and a member of the Orissa Legislative Assembly, and suggested (though not expressly) that on account of influence of Sri Dinabandhu Sahu the Magistrate as well as the Sub-inspector of Police acted in this unusual manner obstructing the due execution of process by the Civil Court process-server. The learned Munsiff stated a Miscellaneous Case No. 107 of 1950 and after examining the Deputy Superintendent of Police and getting certain documents marked as exhibitsforwarded his report to this Court along with important papers connected with the proceedings under Section 144, Criminal P.C., in the Court of Sri S. S. Roy and also copies of the depositions in a connected criminal case of the Sub-Inspector of Police Sri Shankar Charan Sahu and the judgment-debtor Hrudananda Sahu. The Munsiff, however, should have marked the aforesaid two depositions, the order under Section 144, Criminal P.C., the explanations submitted by the Magistrate to the A. D. M. Mr. P. K. Das and other papers as exhibits in his Miscellaneous Case No. 107 of 1950 before submitting the record to this Court for action. This is however a minor irregularity. All the papers on which the Munsiff and Mr. M. S. Rao have relied in support of the contempt proceedings were typed in the Paper Book and the opposite party were fully aware that those documents were being used against them in these proceedings. In this Court also we got the original petition and the order of Sri S. S. Roy under Section 144, Criminal P. C., marked as Ex. 1 though a copy of the same had been forwarded to this Court by the Munsiff himself.
4. The case against Sri S. S. Roy, Magistrate, 1st class, may be taken up first. His order under Section 144, Criminal P.C., was as follows:
'Heard Mr. A. Das, Advocate and Mr. M. S. Rao, Advocate. The petitioner Hrundananda Sahu attended the Court of Mr. B. Pal, Magistrate, 1st Class, Cuttack in Case No. 610-C/144T/48, in which he is an accused today at about 8 a.m. and has been ordered to be released on bail. But till he writes this order, about 10 minutes to 12 noon, I find no bail bond has been executed and the Advocate ascribes the delay in furnishing bail bond due to non-availability and non-arrival of the bailor. Anyway, it is established beyond doubt that the petitioner is still in the Court premises in connection with a criminal case which he has attended this very morning. Section 135 of Civil Procedure Code lays down that no party shall be arrested while coming and going back from the Court. Under the circumstances, under Section 144 of Criminal P.C., I restrain the Civil Court peon, Brundabana Mohanty to arrest the petitioner till he reaches his home. A notice is to be served on Brundabana Mohanty under Section 134, Criminal P.C., at once.
(Sd) S. ROY,
For S.D.M., Sadar, Cuttack.'
An order under Section 144, Criminal P. C., can be passed by either (1) the Sub-divisional Magistrate or (2) a first or second class Magistrate specially empowered by the Government or by the District Magistrate. Sri S. S. Roy was not the Sub-divisional Magistrate of Cuttack but he was in charge of the current duties of the Sub-divisional Magistrate on that date. It is admitted and also well proved by the note of Mr. P. K. Das, Additional District Magistrate of Cuttack, dated 26-5-1950 that Sri S. S. Roy
'had no power under Section 144, Criminal P.C., on the date in question.'
It is thus established that he passed the order under Section 144, Criminal P. C., without having the necessary jurisdiction. His explanation is that there was a general order of the District Magistrate authorising him to remain in charge whenever the Sub-divisional Magistrate was absent and that he was under the impression that the said authorisation empowered him to pass orders under Section 144, Criminal P.C., also. No such order of the District Magistrate authorising him to passorders under Section 144, Criminal P.C., was, in fact in existence as pointed out by the Additional District Magistrate himself in his note dated 26-5-1950. Therefore if Sri S. S. Roy would form an impression that a general order of the District Magistrate authorising him to remain in charge during the absence of the Sub-divisional Magistrate would necessarily imply the conferment of powers to pass orders under Section 144, Criminal P.C., it is obvious that he was grossly negligent. As a first class Magistrate it was his first duty to satisfy himself that he had necessary powers to pass a judicial order. He cannot obviously act on vague impressions that he might have formed on the basis of some previous orders passed by the District Magistrate. His order itself shows that Mr. M. S. Rao objected to the passing of the order under Section 144, Criminal P.C. The Magistrate should, therefore, have called for the necessary papers and satisfied himself about his competence to pass such an order before proceeding further.
5. Apart from lack of jurisdiction the order is on the face of it highly improper. The Magistrate has stated in his application that he passed theorder in good faith on being satisfied:
'after hearing the parties that a serious apprehension of a breach of the peace was apprehended and the situation demanded an immediate order under Section 144, Criminal P.C.'
I cannot accept this explanation because neither in the petition of Hrudananda Sahu nor in the orderof the Magistrate dated 15-4-1950 is there any mention of apprehension of breach of peace. The order has been quoted in full and it will he noticed that not only is there complete omission about any apprehension of breach of peace but also theonly reason giving for passing the order is the Magistrate's view of the immunity from arrest conferred on Hrudananda Sahu by Section 135, Criminal P.C. Similarly, in the petition for action under Section 144, Criminal P.C., filed by Hrudananda Sahu, apart from complaining about the illegality of his arrest, there is not a word suggesting that serious breach of peace was likely to result if he was arrested. Consequently the order does not satisfy the conditions required to be fulfilled under Sub-section (1) of Section 144, Criminal P.C., before such a drastic order can issue. It will be highly improper for a Magistrate to take recourse to Section 144, Criminal P.C., with a view to confer immunity on a judgment-debtor from arrest under Section 135, Criminal P.C. That question should in the first instance, be examined by the Civil Court which issued the warrant for the arrest of the judgment-debtor. The order of the Magistrate Sri B. Pal granting bail to Hrudananda Sahu had been passed at 8 a.m., that day. The Munsiff's Court was hardly a furlong away from the Criminal Court. Hrudananda Sahu had by then become aware that the decree-holder Mr. M. S. Rao was hovering round the precincts of the Criminal Court and was trying to get him arrested on his return from the Criminal Court. His own deposition is to the effect that he suspected foul play. If therefore Hrudananda Sahu thought that he was Immune from arrest under Section 135, Civil P.C., he should have instructed his lawyer Mr. A. Das to rush to the Court of the Munsiff and get an order directing the process-server not to arrest the judgment-debtor.
In his explanation Sri S. S. Roy stated that when he passed the order under Section 144, Criminal P.C., it was about 12 noon and the Civil Court had either closed or 'was about to close.' The petition of Hrudananda Sahu had been filed much earlier and some time was taken up in first sending it to Sri B. Pal and receiving it back from him. insteadof thus wasting time Sri S. S. Roy should have told the petitioner to seek the protection of the Munsiff first. There is no necessity for S. S. Roy to take upon himself the task of protecting the judgment-debtor from arrest. He knew very well that if the party really wanted such protection there was sufficient time prior to his passing order under Section 144, Criminal P.C. to get the necessary protection from the Munsiff's Court itself. In any case the power of a Magistrate under Sections 144, Criminal P.C., is meant to prevent imminent breach of peace and not for conferring immunity on a judgment-debtor under Section 135, Civil P.C. His order was intended to have the effect and, in fact, had the effect of preventing the process-server of the Civil Court from executing the process issued to him by the Munsiff and as such amounts to contempt of Court. The Magistrate has offered an unqualified apology. But I think that in this case interference with the administration of justice is too serious to be treated lightly.
6. An attractive argument was advanced by the Government Advocate to the effect that even if there was no apprehension of breach of peace, an order under Section 144, Criminal P.C., may be passed with a view to prevent obstruction or annoyance to a person 'lawfully employed.'' He urged that Hrudananda Sahu was lawfully employed on the date in question and that when preparations were being made to arrest him in contravention of the provisions of Section 135, Civil P.C., the Magistrate was justified in using Section 144, Criminal P.C., to prevent such obstruction and annoyance to Hrudananda Sahu. It is however unnecessary to decide whether on the date in question Hrudananda Sahu was 'lawfully employed' as contemplated in Sub-section (1) of Section 144, Criminal P.C. The Magistrate has categorically stated in explanation that he passed the order under Section 144, Criminal P.C., because he apprehended a serious breach of peace. It has been already shown that this apprehension is not supported either by the petition filed by Hrudananda Sahu or by the order of the Magistrate. It is, therefore, futile and academic to discuss whether the order can be justified on any other ground.
7.In these contempt proceedings it is unnecessary to decide whether Hrudananda Sahu could reasonably claim immunity from arrest under Subsection (2) of Section 135, C.P.C., on the date in question. That will depend on a full investigation of the various facts and circumstances leading to his stay in the Criminal Court premises till 12 noon that day and his return to his temporary lodging at Cuttack by car. Admittedly he is a resident of Kaspur in the moffusil and had come to Cuttack to appear as an accused in the criminal case and was staying in temporary lodgings in the town. There was a connected criminal case in which this question appears to have arisen and as that is also pending in this Court in a separate revision petition I do not think it necessary to discuss it here. Whatever that may be, if the process-server was prepared to take the risk of arresting the judgment-debtor and if the latter would not apply to the Civil Court which issued the warrant of arrest against him for protection under Section 135, C.P.C., it was not necessary for the Magistrate to take upon himself the role of the protector of a judgment-debtor from arrest.
8. The conduct of the Sub-Inspector of Police Sri Sankar Charan Sahu is equally surprising and unjustifiable. He says that he went to the spot for the purpose of preventing breach of peace and that he did nothing else except disperse the crowdand refer the parties to the Civil Court. He has relied on his powers under Sections 149, Criminal P.C., and Section 23 of the Police Act. This explanationcan hardly stand scrutiny. He admitted that Hrudananda Sahu was sitting in his car on the road and the process-server Brundabana Mohanty was also standing there and showing the warrant of arrest issued to him by the Civil Court. Undoubtedly there was some crowd collected thereand obstructing the traffic. But it is admitted by the S. I., in his deposition that none was armed with any dangerous weapon and there was no attempt by any member of the crowd to beatanyone else. There could be no reasonable apprehension of breach of peace. The obvious duty of the police officer was to disperse the crowd and not to allow the judgment-debtor to escape from the custody of the process-server. The apprehensionof breach of peace even if it existed in the imagination of the S. I., could have been prevented without in any way permitting the judgment-debtor to run away in his car. Doubtless the Sub-Inspector of Police has been careful enough not to say either in his deposition in the connected criminal case or in his petition filed before this Court that he allowed the judgment-debtor to escape from the custody of the process-server. But in the deposition of Hrudananda Sahu this fact is practically admitted in the following passage:
'The S. I., then removed the people and 'asked me to go and I proceeded further on, on dispersal of the crowd.'
Thus the Sub-Inspector's action though ostensibly taken for the purpose of dispersing the crowd collected on the road, facilitated the escape of the judgment-debtor from the custody of the Civil Court process-server and effectively prevented the latter from executing the process.
9. I may now examine whether the order under Section 144, Criminal P.C., passed by Sri S. S. Hoy would be a justification for the action of theSub-inspector of Police. The Sub-inspector says that the original order (Ex. 1) was shown to him. It will be noticed that the order directed that a notice should be served on Brundabana Mohanty under Section 134, Criminal P.C,, at once. There is no endorsement on the order to the effect that the notice should be served through the police. In fact, no order in Form No. XXI of Schedule V o the Criminal Procedure Code had been prepared in the office of the Magistrate nor had it been sealed or signed. Unless the order was duly promulgated the question of preventing any disobedience of the order does not arise. Doubtless some irregularities in the mode of promulgation may not be material. But where there is no promulgation at all the Sub-Inspector of Police need not have shown excessive 7,eal in coming to the rescue of the judgment-debtor. An officer of the position of a Sub-Inspector of Police must have known that for such promulgation the order should be served in the manner oE summonses under Sections 68 and 69, Criminal P.C. That is to say the notice should be in duplicate signed and sealed by the officer of the Court and should substantially comply with the requirements of Form No. XXI of Schedule V of the Criminal Procedure Code. If there was such a notice and if the Sub-Inspector had tendered personally a copy of the notice to the process-server Brundabana Mohanty his action may be exonerated as having been done in good faith. But where apart from a judicial order on the back of the petition of Hrudananda Sahu passed! by a first class Magistrate there was no due promulgation as required by the Criminal Procedure Code and where the Magistrate had not asked the Sub-Inspector to get such an order served on the process-server if he on thebasis of such an order would prevent the process-server from executing the lawful process issued to him by the Civil Court I cannot understand how it can be justified as having been done in good faith. Here there was no question of any conflict between the process issued by the Criminal Court and that issued by the Civil Court. No process had in fact been issued by the Criminal Court, at all and there was thus no room for genuine misunderstanding on the part of the Sub-Inspector.
10. The jurisdiction of this Court to punish contempt of subordinate Courts admits of no doubt in view of Section 2(1) of the Contempt of Courts Act, 1926. Sub-section (3) of that section however says:
'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 urider the Indian Penal Code.'
The act complained of may perhaps amount to an offence under Section 186, I.P.C, A question may therefore arise as to whether by virtue of Subsection (3) of Section 2 of the Contempt of Courts Act this Court has no jurisdiction to punish summarily contempts of this type. But the words 'Where such a contempt is an offence punishable under the Indian Penal Code' have been construed. in 'JNANENDRA PRASAD BOSE v. GOPAL PRASAD SEN', 12 Pat 172', 'EMPEROR v. JAGANATH PRASAD' AIR 1938 All 358; 'SUB-JUDGE, HOSHANGABAD v. JAWHAR LAL', AIR 1940 Nag 407 and 'BENNETT COLEMAN & CO. v. G. S. MONGA', AIR 1936 Lah 917, as not extending to offence punishable under the Penal Code otherwise I than as contempt. In the Patna case cited above' it was held that resistance to process-server is punishable both under Section 186, I.P.C., and also under the Contempt of Courts Act. In Halsbury's Second. Edition Vol. 7, p. 13, also it is pointed out that:
'Obstructing a process-server in the execution of his duty is generally speaking a contempt of Court.'
The learned Government Advocate fairly did not urge that the act complained of would not amount to contempt of Court.
11. If the Magistrate and the Sub-Inspector of Police had acted in good faith under a mistaken view of their statutory powers I would have treated the whole incident somewhat lightly. I am not inclined to accept the suggestion made by Mr. M. S. Rao that these two officers were influenced by the relationship of the judgment-debtor with Sri Dinabandhu Sahu, M.L.A., but all the same, I cannot but hold that they acted with gross negligence. Public officers while purporting to exercise their statutory powers must always act reasonably without negligence, and due care (Halsbury, 2nd edition, vol. 31, p. 533). Both of them were fully aware that the process-server was merely executing the process issued by the Civil Court and instead of assisting him in the execution of his process they have by their action, obstructed the administration of justice. In the matter of the petition of 'RAHAMAT-ULLAH', 17 All 485 at p. 489, it was pointed out:
'as Magistrate his duty in connection with the execution of a Civil Court decree begins and ends with the rendering of the necessary protection to the officers of the Civil Court lawfully executing the decree of the Civil Court, and neither he nor Local Government, under Section 144 has any jurisdiction to make any order restraining the execution of a Civil Court decree, or threatening with a prosecution under Section 188 of the IndianPenal Code any person who attempts to execute a Civil Court decree in the particular place without the Magistrate's permission,'
12. I am fully aware that sometime an emergency of such an extraordinary nature may develop which may necessitate the restraining of even a lawful act by an order under Section 144, Criminal P.C. For instance, if the judgment-debtor is surrounded by fanatical supporters who are determined on breaking the peace if the process-server should venture to arrest him and the force at the disposal of the Magistrate is wholly inadequate to dispose those supporters, he may be justified in temporarily preventing the due execution of the process until he has mobilised adequate force to assist the process-server in the discharge of his duty. But such occasions are very rare and in the present case it cannot be said that such an extraordinary situation had developed. The place of occurrence is in the heart of Cuttack town in close proximity to the law Court and to the Police Office and there could be no question of non-availability of sufficient force to assist the process-server in the discharge of his duty.
13. As both the officers have unconditionally apologised I think that a sentence of fine would suffice. I would further discriminate slightly between the Magistrate Sri s. S. Roy and the Sub-Inspector of Police Sri Shankar Charan Sahu because the latter was presumably misled by the order under Section 144, Criminal P.C.
14. Sri S. S. Roy, Magistrate, 1st Class, is adjudged guilty of contempt and sentenced to pay a fine of Rs. 100/- in default of which he should undergo simple imprisonment for two months. Sri Shankar Charan Sahu, Sub-Inspector of Police, is also adjudged guilty of contempt and sentenced to pay a fine of Rs. 50/- in default of which he should undergo simple imprisonment for one month.
15. In conclusion, I would impress on the District Magistrate of Cuttack the necessity of making searching enquiries and punishing the persons responsible for allowing the original record of the proceedings under Section 144, Criminal P.C., to be taken out of the Criminal Court and handed over to the S. I., on the 15th April 1950. The record appears to have remained in the custody of the Bench-clerk of Sri S. S. Roy named S. Mohapatra. It was clearly his duty to see that the record was kept in safe custody until deposited in the Record Room or called for by the Superior Court. It was also his duty to take further steps for implementing the order of the Magistrate by filling up Form No. XXI of Schedule V of the Criminal Procedure Code and after obtaining the orders of the Magistrate to send the notices to the persons authorised to serve the same on the parties. But he had no authority to allow the original record to be taken away from the Court room by any party or by any police officer. Rule 48 in Chapter VI of Part III of the G. R. C. O. (Criminal), Vol. I, is clear and explicit on the subject. I trust that the District Magistrate will, after obtaining the explanation of the staff concerned, take proper disciplinary action against the persons responsible for this serious irregularity.
16. I agree and have nothingto add.