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K.C. Nanda Vs. Certificate Officer - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1971CriLJ742
AppellantK.C. Nanda
RespondentCertificate Officer
Cases ReferredJugal Kishore Sinha v. Sitamarhi Central Co
Excerpt:
.....and highly derogatory to his prestige and cast serious reflection on his integrity and judicial capacity as an impartial institution. similarly tribunals discharging judicial functions enjoy partial immunity from action for anything done by them while performing their duties as tribunals. under chapter ii of the orissa public demands recovery act, 1962, a requisition is made to the certificate officer for recovery of public demand, and the certificate officer, after being suo motu satisfied that the demand is legal and not barred by limitation, signs the certificate and files it in the office. thus, it is clear that apart from all the trappings of a judicial tribunal, the essential condition, that is, existence of the power to give a decision or a definitive judgment which has finality..........or its subjects, whether the rights relate to life, liberty or property. the exercise of this power judicially does not commence until some tribunal possessing the power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action. they adopted the test of a judicial tribunal as laid down in the case of cooper v. wilson. 1937-2 kb 309 where it has been said:a true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites:(i) the presentation (not necessarily orally) of their case by the parties to the disputes;(ii) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the.....
Judgment:
ORDER

S.K. Ray, J.

1. This is an application for quashing proceedings of the Certificate Officer of Boudh in Certificate Case No. III-8/65 in which bv order dated 10-4-67 the said Certificate Officer has found | the petitioner to be liable to be committed Under Section 478 Cr.PC for an offence Under Section 228 IPC. and that he has also committed contempt of court by casting aspersions on the Certificate Officer to his integrity and judiciousness.

2. The background of this proceeding may be briefly stated. The petitioner is the Commercial Tax Officer. Ganjam II Circle, Bhanianagar. He assessed one Bhagaban Panda of Bhagiabahal to sales tax in exercise of his powers as Sales Tax Officer under the provisions of the Orissa Sales Tax Act of 1947. The assessee having defaulted to pay the tax, recourse was taken to certificate procedure under the Orissa Public Demands Recovery Act for realisation of the same. The requisition was sent Under Section 4 of the Orissa Public Demands Recovery Act of 1962 (Act I of 1963) whereby the present certificate proceedings commenced, Subsequent steps followed, On receipt of the notice from the Certificate Officer the certificate-debtor filed his objection Under Section 8 of the Orissa Public Demands Recovery Act. The petitioner as the certificate holder sent his comments and his opinion on all the objections advanced by the certificate-debtor by his letter dated 8-7-66 addressed to the Certificate Officer. This letter appears to have irritated the Certificate Officer because, according to him. it contained offensive expressions which are extremely impolite and highly derogatory to his prestige and cast serious reflection on his integrity and judicial capacity as an impartial institution. He was of opinion that he was a court within the meaning of the Contempt of Courts Act, 1952 and that the words used by the petitioner in his letter dated 8-7-66 amounted to Contempt of Court and also constituted an offence Under Section 228 IPC. committed in relation to the certificate proceeding pending before him.

He, therefore, issued a notice to the petitioner on 11-1-67 calling upon him to appear in person or through his pleader on 30-1-67 and to show cause why contempt proceeding will not be drawn up against him and why he will not be committed Under Section 478 Cr.PC to stand his trial Under Section 228 IPC The Petitioner appeared and showed cause in writing. The Certificate Officer heard him and rejected his contentions and passed the impugned order which is now sought to be quashed.

3. This case being a single Judge Case came before Hon'ble Justice A. Misra for hearing. He held that out of the three contentions raised before him on behalf of the petitioner the first contention related to the question as to whether a Certificate Officer exercising his powers and discharging his functions under the Orissa Public Demands Recovery Act is a 'Court' and the proceeding before him is a judicial (sic) opinion on this point. The Calcutta High Court in the case of Dwarkanath v. Srigobinda A.I.R. 1929 Cal 130 relied upon by the petitioner, decided that the Certificate Officer cannot, in any circumstances, be considered as a court and that he is a mere agent for speedy and summary recovery of dues. The view was adopted by the Patna High Court in the case of Mathura Prasad v. Emperor A.I.R. 1919 Pat 212 where it was held that the Certificate Officer when acting in discharge of his duties under the Bihar and Orissa Public Demands Recovery Act, acts as a court. He therefore has referred this case to Division Bench. That is how the whole case came before us.

4. Three contentions have been raised. The first is that in the admitted facts and circumstances of the case, no offence Under Section 228 IPC. can be said to have been made out. The second contention is that the Certificate Officer is not a court within the meaning of that term in the Contempt of Courts Act. and as such proceedings for contempt cannot be instituted against the petitioner even assuming that the latter by his actions injured the prestige and dignity of the Certificate Officer and cast serious reflection upon his rectitude and integrity. The third is that the petitioner's letter to the Certificate Officer containing the alleged insinuation against the impartiality of the officer are not really contemptuous in tenor. The letter merely contained the contentions on the question of law and fact as against the objections raised by the assessee before the Certificate Officer.

5. There are three essential ingredients of the offence Under Section 228 IPC. They are (a) Intention, (b) Insult or interruption to a Public Servant and (c) The Public Servant insulted or interrupted must have been sitting in any stage of a judicial proceeding. For an offence under this Section to be complete all the three ingredients must be present The offending expressions set out in the show cause notice do not appear to us to be insulting in their tenor and import. They are merely statements of facts and legal contentions. It is not insulting to point out to a court the legal limitations within which a party before it is to confine his objection and that he has been permitted to travel beyond the ambit of the legal provision prescribing the limitation. Even if those expressions be held to be insulting, they cannot, in the context of the facts and circumstances of the instant case, be said to have been intentionally offered by the petitioner. The intention to insult is not to be found within the four corners of the petitioner's letter to the Certificate Officer. The third ingredient requires that the insult must be intentionally offered to the Public Servant while sitting in any stage of judicial proceeding.

The petitioner wrote his letter out of court and sent it to the Certificate Officer either through post or any agent. The Certificate proceeding may be pending before the Certificate Officer but writing of that letter and sending it to the Certificate Officer, in the circum stances of the case, does not amount to intentionally offering an insult while the Certificate Officer is sitting in any stage of a judicial proceeding. What the Section requires is that the Public Servant must be actually dealing with the matter pertaining to the judicial proceeding at the moment when insult is offered. When a judicial proceeding is pending on the file of a public servant he cannot be said to the sitting over that judicial proceeding all the time that is pending on his file even though he is not actually dealing with it. Thus assuming that the petitioner's letter contains expression of in suit, it was not offered while the Public Servant was sitting over the certificate proceeding in question. For the aforesaid reasons, the offence Under Section 228 IPC. cannot be said to have been made out and the alleged offending words do not carry any sense of contempt for the Certificate Officer. Thus the first and third contentions succeed.

6. It is next to be seen whether the Certificate Officer is a 'court' within the meaning of Section 3 of the Contempt of Courts Act, 1952, Section 3 of the said Act runs as follows;-

3(1) Subject to the provisions of Sub-section (ii) every High Court shall have and exercise the same jurisdiction powers and authority, in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself.

Sub-section (ii) - No High Court shall take cognizance of a contempt alleg ed to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code.

7. The word 'court' has not been defined either in the Contempt of Courts Act or in the Code of Civil Procedure nor in the Bengal, Agra and Assam Civil Courts Act, 1889 nor in the Code of Criminal Procedure. This term, however, has been defined in the Indian Evidence Act but that definition is not exhaustive but framed only for the purposes of that Act and is not to be extended when such an extension is not warranted (Vide A.I.R. 1956 SC 66). The word 'court' in its restricted sense is used to designate and mean hierarchy of courts established and maintained in an organised state by its Constitution to exercise judicial power of the State for the purpose of administration of justice throughout the Union. This term in the Contempt of Courts Act has received an extended connotation so as to embrace within its ambit certain tribunals acting under special laws and discharging judicial functions (Vide A.I.R. 1956 SC 66 and A.I.R. 1967 SC 1494V By 'Tribunal' is meant those bodies who are appointed to decide disputes arising between parties as envisaged under special laws. Thus all courts are tribunals but all tribunals are not courts; but their functions are not essentially different. The Supreme Court has in a number of cases laid down tests to distinguish between tribunals who may be designated as courts from other classes of tribunals who cannot be categorised as such. The first case of the Supreme Court that considered this question in detail is the case of Brainandan Sinha v. Jyoti Narain. : 1956CriLJ156 . Their Lordships held:

It is dear, therefore, that in order to constitute a court in the strict sense of the term, an essential condition is that the court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement.

In rendering the definitive judgment the court has to exercise judicial power of the State and to act judicially. The Privy Council in the case of Shell Co of Australia v. Federal Commr. of Taxation. 1931 AC 275 defines 'Judicial power' as the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself or its subjects, whether the rights relate to life, liberty or property. The exercise of this power judicially does not commence until some tribunal possessing the power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action. They adopted the test of a judicial tribunal as laid down in the case of Cooper v. Wilson. 1937-2 KB 309 where it has been said:

A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites:

(i) The presentation (not necessarily orally) of their case by the parties to the disputes;

(ii) If the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence: ***

(iii) If the dispute between them is a question of law the submission of legal arguments by the parties: and

(iv) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law.

The term 'Judicial' in relation to a tribunal means that the proceeding before a tribunal ought to be conducted with the fairness and impartiality which characterises proceedings in courts of Justices. Similarly tribunals discharging judicial functions enjoy partial immunity from action for anything done by them while performing their duties as tribunals. Their Lordships held that neither the judicial function of a tribunal nor its enjoyment of immunity for discharge of their judicial functions are decisive tests for holding that the tribunal is a Court These factors are some of functions of the judicial tribunals which are enioved both by a 'court' and also by an Administrative Tribunal which may act also judicially: but still remain an Administrative Tribunal as distinguished from the 'court'. For this, their Lordships relied upon a passage from Halsbury's Laws of England, Hailsham Edition, Volume 8, page 526 which runs as follows: -

Many bodies are not courts, although they have to decide questions and in so doing have to act judicially, in the sense that the proceeding must be conducted with fA.I.R.ness and impartiality, such a& assessment committees, guardians committees, the court of referees constituted under the Employment Insurance Acts to decide claims on the insurance funds, the benchers of the Inns of Court when considering the conduct of one of their members, the General Medical Council, when considering questions affecting the position of a medical man

8. In the case of Virindar Kumar Satyawadi v. The State of Punjab : 1956CriLJ326 , the question was whether the returning officer acting under sec tions 33 and 36 (2) of the Representation of the People Act, 1951 and adjudicating on the validity or otherwise of nomination papers was or was not a court within the meaning of Sections 195(l)(b), 476 and 476-B of the Code of Criminal Procedure. There their Lordships said:

When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi-judicial tribunal, what has to be decided is whether haying regard to the provisions of the Act it possesses all the attributes of a Court.

They held that the Returning Officer was not a court after considering the functions and powers entrusted to that Officer under that Act. In reaching this conclusion, even though they held that the power exercised by the Returning Officer was judicial in character, they were influenced by the consideration that the parties before the Returning Officer had no right to insist on producing evidence which they may desire to adduce in sup port of their case and that there was no machinery provided for summoning of witnesses, or of compelling production of documents and that there was no lis in which the disputants were entitled to have their right adjudicated in a judicial manner and that the Returning Officer was entitled to act suo motu in the matter of summoning witnesses and producing documents.

9. In the case of Ramarao v. Narayan : 1969CriLJ1064 , their Lordships while considering whether the nominee of the Registrar appointed Under Section 95 of the Maharastra Cooperative Societies Act, 1960 was or was not a court within the meaning of Section 195 Cr.PC The nominee in this case was requited to act judicially i.e. fairly and impartially, but the obligation to act judicially does not necessarily make him a court within the meaning of Section 195 Cr.PC While negativing the contention that the nominee of the Registrar is a court, they said that:

He the nominee, derives his authority not from the statute, but from investment by the Registrar in his individual discretion. The power so invested, is liable to be suspended and may be withdrawn. He is therefore not entrusted with the judicial power of the State. He is merely an arbitrator authorised within the limits of the power conferred to adjudicate upon the dispute referred to him. His position is analogous to that of an arbitrator designated under a statutory arbitration to which the provisions of Section 47 of the Arbitration Act apply.

10. From the aforesaid decisions of the Supreme Court referred to above. it is clear that: (i) in order to constitute a Court, in the strict sense of the term, it must exercise judicial power of the State, namely, the power which every sovereign authority must of necessity, have to decide controversies between its subjects, or between itself or its subject, whether the rights relate to life, liberty or property, and as an essential condition thereof, it must have the power to give a decision or definitive judgment which has finality and authoritativeness; (HI The court, in exercising this judicial power of the State, must act judicially, namely, its proceedings must be conducted with fairness and impartiality normally characterising the proceedings in a court of justice; (iii) This judicial power must be invested with the court, by a statute, in other words, it must exercise jurisdiction by reason of the sanction of the law, and not merely by reason of voluntary submission to such jurisdiction; and (iv) The judicial decision which must thus be rendered presupposes existence of a lis, that is to say. controversies between two or more parties involving: (a) presentation of respective cases of the parties to the dispute, (b) determination of disputes on the question of facts and law by means of evidence adduced by the parties to the dispute and even with assistance of arrangement by or on behalf of the parties to the proceeding on the basis of the evidence recorded, and in the context of the law of the land.

Thus, the 'Court' in addition to possessing the essential power to give judgment having finality and authoritative-ness and binding upon the parties, must have the other aforesaid attributes. The distinction between a 'Court' and a 'Tribunal' which is not a court rests solelv upon the existence or absence of the power to render a definitive or authoritative decision.

11. It is next to be seen whether all the aforesaid requisites are to be found in the present case. It is, therefore, proper to consider the provisions of the Orissa Public Demands Recoverv Act under which the impugned proceedings have been initiated against the petitioner and to determine whether the Certificate Officer is a court within the meaning of the Contempt of Courts Act. Under Chapter II of the Orissa Public Demands Recovery Act, 1962, a requisition is made to the Certificate Officer for recovery of Public Demand, and the Certificate Officer, after being suo motu satisfied that the demand is legal and not barred by limitation, signs the certificate and files it in the office. Then notice is given to the Certificate-debtor of the tiling of such certificate, accompanied by a copy of the certificate, inviting objections, if any. After objections are received, the Act provides for hearing of the petition, taking of evidence, if necessary, and then on the conclusion of the hearing the Certificate Officer is to confirm or set aside or modify the certificate. These provisions are comparable, to some extent, with the provisions of Civil Procedure Code relating to institution of suits. Chapter III of the Public Demands Recovery Act deals with the execution of certificate. Provisions analogous to O XXI, Civil Procedure Code relating to execution of decrees have been set out in this Chapter. Section 45 of the Act provides that every question arising between the Certificate-holder and the Certificate-debtor, or their representatives, relating to the making, execution, discharge or satisfaction of a certificate duly filed under this Act, or relating to the confirmation or setting aside, by an order of a sale held in execution of such certificate, shall be determined by the Certificate Officer before whom such question arises. Thus, the functions of the Certificate Officer comprise of receiving requisition for recovery of a public demand, issuing notice of the same to the certificate-debtor, and permitting the latter to file his representation, and if there is a dispute between them as to any matter relating to the certificate, to hear them and to take evidence, if necessary, and to give his decision having finality and authoritativeness, both on question of fact and of law, regarding which there is controversy between the parties. The decision that is rendered by the Certificate Officer is final, subject to appeal in accordance with Section 60 of the Act Section 58 provides that the Certificate Officer shall have the powers of a Civil Court for the purpose of receiving evidence, administering oaths, enforcing the attendance of witnesses and compelling the production of documents. Section 57 lays down that the Certificate Officer in the discharge of his functions under the Act, shall be deemed to be acting judicially. Section 62 empowers the Certificate Officer also to review his own decision after notice to all persons interested, to review his own order or decision on account of any mistake or error either in the making of the certificate or in the course of any proceeding taken under this Act, Section 65 provides that the Certificate Officer shall be deemed to be a cotort and any proceeding before him shall be deemed to be a Civil Proceedings within the meaning of Section 14 of the Indian Limitation Act. The Certificate Officer has been invested with the same powers as have been given to Civil Court acting as Executing Court under Order XXI, C. P.C., having the power to issue notice, entertain objections of the certificate-debtor to summon witnesses and take evidence on oaths, to compel production of documents, to hear parties, and to pass final orders which are binding on parties before it, and to review the same, if necessary in proper cases.

Thus, it is clear that apart from all the trappings of a Judicial Tribunal, the essential condition, that is, existence of the power to give a decision or a definitive judgment which has finality and authoritativeness, is fully satisfied in the instant case.

12. The Supreme Court in the case, of Jugal Kishore Sinha v. Sitamarhi Central Co-op. Bank Ltd. : 1967CriLJ1380a held on similar grounds that an Assistant Registrar functioning as a Registrar Under Section 48 of the Bihar and Orissa Cooperative Societies Act, is a court subordinate to the High Court for the purpose oi Section 3 of the Contempt of Courts Act. This decision fully applies to the present case. The second contention therefore fails. Despite that, however, his application is bound to succeed as the petitioner has successfully maintained his first and third contentions.

We, therefore, direct that the proceedings in M. C. in C. C. No. III-8-65 initiated on the basis of the show cause notice dated 31-12-65 are quashed and the order of Sri G. C. Naik, Certificate Officer, Boudh, dated 10-4-67 passed in the aforesaid proceeding is set aside.

A. Misra, J.

13. I agree.


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