Skip to content


The High Court Vs. S.K. Mathur, Commissioner of Income-tax and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Original No. 16 of 1975
Judge
Reported in[1975]101ITR180(P& H)
ActsIncome Tax Act, 1961 - Sections 132 and 132(5); Contempt of Courts Act, 1971 - Sections 2, 12 and 12(1)
AppellantThe High Court
RespondentS.K. Mathur, Commissioner of Income-tax and ors.
Appellant Advocate J.N. Kaushal, Adv. General
Respondent Advocate D.N. Awasthy and; R.K. Jhingan, Advs.
Cases ReferredIn Debabrata Bandopadhyay v. State of West Bengal
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....sharma, j.1. civil writ no. 150 of 1975 filed by shri hira lal sibal, senior advocate, challenging the legality of the search warrant of his office-cum-residence issued under section 132 of the income-tax act, 1961 (hereinafter called 'the act'), came up for hearing on january 13, 1975, when the motion bench passed the following order i'notice of motion for january 20, 1975. notice of the prayers for interim relief for. january 20, 1975. in the meantime ex parte interim relief is granted as prayed for in paragraph 32(ii)(v) to (viii) of the petition. no order to be passed under section 132(5) of the 1961 act. operation of any order already passed but not yet communicated to the petitioner is stayed.'2. shri s. c. sibal, the advocate of the petitioner, noted down the above order and went.....
Judgment:

Sharma, J.

1. Civil Writ No. 150 of 1975 filed by Shri Hira Lal Sibal, Senior Advocate, challenging the legality of the search warrant of his office-cum-residence issued under Section 132 of the Income-tax Act, 1961 (hereinafter called 'the Act'), came up for hearing on January 13, 1975, when the Motion Bench passed the following order i

'Notice of Motion for January 20, 1975. Notice of the prayers for interim relief for. January 20, 1975. In the meantime ex parte interim relief is granted as prayed for in paragraph 32(II)(v) to (viii) of the petition. No order to be passed under Section 132(5) of the 1961 Act. Operation of any order already passed but not yet communicated to the petitioner is stayed.'

2. Shri S. C. Sibal, the advocate of the petitioner, noted down the above order and went to the office of the Income-tax Officer to inform her about it. He reached her office at about 2.30 p.m. when she was not present there and a clerk of her office was shown this order. The said clerk copied it out in his own handwriting and stated that he would place it before the Income-tax Officer when she returned. The clerk also informed Mr. S. C. Sibal that the Income-tax Officer had gone to the office of the Inspecting Assistant Commissioner, Mr. J, S. Dulat. What happened thereafter is given in paragraph 3 of the affidavit sworn by Shri S. C. Sibal, which reads as under :

'That the deponent with the order of the hon'ble High Court and the copy of the petition left immediately for the office of the Inspecting Assistant Commissioner where he reached at about 2.45 p.m. The Income-tax Officer was sitting in the office of the Inspecting Assistant Commissioner. She was shown the order of the hon'ble High Court which she read herself. She further remarked that if the order had been obtained earlier, she would have been saved the trouble of processing this case. At that time, Mr. J. S, Dulat, Inspecting Assistant Commissioner, was not sitting in the office. After a few minutes, the Inspecting Assistant Commissioner also came to the office. He also read the order of the hon'ble High Court, The deponent told them that the hon'ble High Court has stayed the passing of the final order in the case of Mr. H. L. Sibal.'

3. At about 3'45 p.m. a peon of the office of the Income-tax Officer came with the order of the said officer in duplicate and approached Mr. Hira Lal Sibal. In this order it was mentioned that Shri H. L. Sibal should produce Shri Kapil Sibal and Shri Baikunth Lal before the Income-tax Officer in her office on January 14, 1975. Shri H. L, Sibal retained one copy of this order and made an endorsement on the other copy of the order to the effect that this court had stayed further proceedings in thecase. The copy of the order on which Shri Sibal made the endorsement at 3'45 p.m. is present on the record of the office of the Income-tax Officer.

4. On January 14, 1975, the following news item appeared in the Daily Tribune :

'Search of advocated residence challenged :

(From our Correspondent.)

Chandigarh, January 13--A Division Bench of the Punjab and Haryana High Court today issued a notice of motion in the Writ Petition of Mr. H. L. Sibal, a Senior Advocate, and. former Advocate-General of Punjab, challenging the search by the income-tax authorities of his office and residence and seizure of some cash and documents. The Chief Justice, R. S. Narula, and Mr. Justice M. L. Verma, on a prayer made by Mr. Kuldip Singh, counsel for the petitioner, stayed further proceedings and passing of the final order by the income-tax authorities under Section 132 of the Income-tax Act regarding the retention of the seized property. The judges further directed the income-tax authorities to produce original search warrants and also the record showing information received by the Income-tax Commissioner on the basis of which the search was made.'

5. On January 17, 1975, Shri Hira Lal Sibal received an envelope containing an order dated January 14, 1975, passed under Section 132(5) of the Act by the Income-tax Officer, Chandigarh, at Camp Patiala.

6. On January 18, 1975, he filed C. M. No. 157 of 1975, in which it was prayed that the order under Section 132(5) of the Act passed after the stay order granted by this court be quashed and 'any further suitable action in this connection may be taken against the respondents as the court deems fit and proper in the interests of justice'.

7. Reply to this civil miscellaneous application was filed on behalf of the Income-tax Officer. It was stated therein that Shri S. C. Sibal, advocate, showed to the Income-tax Officer what purported to be the last page of the petition with some lines scribbled in hand at the back of that page. Ho stated that it was an order passed by the High Court on a writ petition filed by Shri Hira Lal Sibal. In the meantime, Shri J. S. Dulat also came into the room and Shri S. C. Sibal also told him that this court had passed the stay order. Thereafter, he left in a hurry without leaving any document or copy of the stay order said to have been passed by this court. Paragraph 3 of the affidavit of Shri S.C. Sibal about what happened when he went to inform the Income-tax Officer and in which it is specifically mentioned that, on seeing the order, the Income-tax Officer remarked that if the order had been obtained earlier, she would have been saved the trouble of processing the case has been replied in the following terms ;

'That para. 3 of the application is admitted in so far as Shri S. C. Sibal had informed respondents Nos. 2 and 4 about the passing of the order and had showed the same to them.'

7. In other words, the allegation that the Income-tax Officer was by implication satisfied about this court having passed the order has not been specifically denied.

8. It was, however, pleaded that no affidavit of the party regarding this court having passed the order was filed before her and oral communication of an interested party was not considered sufficient to hold up the passing of the order especially when the period during which it had to be passed was about to expire. It was also stated that all the respondents had got the highest regard for the authority of the High Court under whose advisory jurisdiction they function under the Income-tax Act. The material portion of the accompanying affidavit dated January 20, 1975, filed by the Income-tax Officer along with this written reply reads as under:

'That on 13th January, 1975, the deponent had gone to the office of respondent No. 2 in connection with certain important departmental matters, the discussion of which kept her there till late in the evening.

On 14th January, 1975, the deponent left for Patiala at 11 a.m. By the time she left for Patiala she did not receive any stay order from the High Court; nor did anybody in her office inform her about the receipt of any such order. The other facts are fully mentioned in the written statement, annexure 'X' hereto.'

9. The Commissioner of Income-tax, apart from repelling the suggestion that approval to an order under Section 132(5) of the Act had been given in defiance of the authority of this court, stated the following on affidavit :

'In this case since there was no affidavit filed by the petitioner either before the Income-tax Officer or before the Inspecting Assistant Commissioner of Income-tax, it was felt by the deponent that an oral communication made in this manner reported to the deponent will not be sufficient to grant the protection against the danger of an order under Section 132(5) of the Act being time-barred.'

10. Shri Hira Lal Sibal filed a replication to the written-statement filed by Miss R. K. Chahal, Income-tax Officer, in which it has been stated that the record of proceedings of the case maintained by the office of the Income-tax Officer told a different story. On the order sheet, it had nowhere been mentioned that an order be issued to Mr. Hira Lal Sibal to produce the two witnesses on January 14, 1975, and about, that day a no no mention had been made in any relevant order that the order issued by her had actually been served on Shri Hira Lal Sibal or not. From this, it is sought to be inferred that the Income-tax Officer had come to know that the proceedings had been stayed by this court and she purposely did not record any proceedings on January 13 and 14, 1975. According to Mr. Sibal, it was obvious that she was not prepared to obey the orders of this court. Instead of refraining from taking further proceedings, the Income-tax Officer went to Patiala, informed the Commissioner of Income-tax about everything, passed the final order which was approved of by the latter in spite of the knowledge of this fact that this court had stayed the passing of the final orders.

11. The Commissioner of Income-tax and the Income-tax Officer filed additional affidavits. The former stated that in the situation arising out of the numerous proceedings under Section 132 of the Income-tax Act, the department had to maintain a uniform practice in order to safeguard the interests of the revenue and the manner in which an oral communication was made in the instant case to respondents Nos. 2 and 4 was not considered sufficient without, a certified copy of the order or at least an affidavit of the party concerned. He also repelled the suggestion that there had been any wilful defiance or disobedience of the orders passed by this court. Paragraph 3 of this affidavit reads as under :

'That the respondents, therefore, deeply deplore and express their unhappiness at the turn of events in this case and sincerely express their profound and unqualified regret for the sequence of events culminating in the passing of the order under Section 132(5) of the Act.'

12. The following portion of the additional affidavit of the Income-tax Officer deserves a special mention :

'The deponent was faced with a difficult situation. She honestly believes that the manner of communication of the order was not correct. If in a similar situation it had transpired that no order was in fact passed, the plea of the revenue would not have been accepted that the Income-tax Officer acted under the belief that such an order had been passed. Thus at worst the deponent had only been guilty of an error of judgment in this case. However, in retrospect she has no hesitation in expressing her sincere regret.'

13. Again, she did not deny that she had stated before Mr. S. C. Sibal that had the stay order been obtained earlier she would have been saved the trouble of processing the case. According to Mr. J. S. Dulat:

'That the deponent and the Income-tax Officer agreed that it would not be safe to accept the type of the communication made to them. It is for this hon'ble court to decide whether this opinion of the deponent and the Income-tax Officer was correct or not. However, the deponent entertains this opinion honestly, particularly about the proceedings of this type. It is further submitted that the deponent has unbounded and unqualified respect for the authority of this hon'ble court.'

14. The matter came up before us on April 18, 1975, We felt somewhat intrigued about the respondents deeply deploring and expressing their unhappiness 'over the turn of events in this case', but adjourned the hearing to April 21, 1975. On that day, we were of the view that prima facie a case was made out against the Commissioner of Income-tax, Shri S. M. Mathur, Inspecting Assistant Commissioner of Income-tax, Chandigarh, Shri J.S. Dulat, and the Income-tax Officer, Miss R.K. Chahal, for initiating proceedings against them under Section 12 of the Contempt of Courts Act, 1971, and directed that notices under that section read with Rule 9(a) of the Contempt of Courts (Punjab and Haryana) Rules, 1974 (hereinafter called the Rules), be issued to the respondents in the prescribed form to appear before us on May 5, 1975, to answer the charge of having allegedly disobeyed the stay order issued by this court on January 13, 1975. The respondents appeared in person on that date and on an undertaking being given by Mr. Awasthy that they shall appear in court as and when called upon to do so, we dispensed with their personal appearance, under sub-Rule (7) of Rule 6 of the Rules, till further orders. Under Sub-rule (3) of Rule 15 of the said Rules, we appointed the Advocate-General, Haryana, for conducting the proceedings on behalf of the court. The respondents filed written statements in reply to the notices and the learned Advocate-General, Haryana, stated that he would like to file a counter-affidavit in reply to the affidavits of the respondents. He was allowed to do so within ten days after serving an advance copy of the counter-affidavit on Mr. Awasthy. The case was ordered to come up on May 15, 1975.

15. On that date, the learned Advocate-General, Haryana, did not file any counter-affidavit in reply.

16. Shri S. N. Mathur, Commissioner of Income-tax, Punjab, Patiala, in his affidavit dated May 5, 1975, stated that on January 14, 1975, right from the early hours of the morning, he was very busy with the numerous orders brought to him by the various Income-tax Officers from all over the area of his jurisdiction and other routine official work. As a matter of fact, he did not find any time for even the day's newspapers and thus the newspaper report regarding this case escaped his notice. However, Miss R. K. Chahal under instructions of the Inspecting Assistant Commissioner of Income-tax, Chandigarh, had brought to his notice on that date that on January 13, 1975, some time after 3 p.m., Shri S. C. Sibal had called at the office of the Inspecting Assistant Commissioner of Income-tax at Chandigarh and had informed him and Miss Chahal who was with him at that time that an order had been passed by this court. Shri S. C. Sibal did not leave any copy of the writ petition and so intimation of the stay order was practically an oral communication made by him. During the course of the present series of cases, there were instances in which affidavits given bythe parties were accepted and further proceedings under Section 132(5) of the Act, were stayed without waiting for the communication of the formal order from the High Court. The two instances mentioned arose out of Civil Writ No. 5775 of 1974, Hari Kishan Lal Bajaj v. Commissioner of Income-tax, and Civil Writ No. 131 of 1975, Sudarshan Kumar Bhatia v. Commissioner of Income-tax. In both these cases, the petitions were admitted on January 13,1975, and further proceedings under Section 132(5) of the Act were stayed on the petitioners concerned filing attested affidavits regarding the grant of stay orders of the High Court. He has further stated that if he or any other officer of the department had been shown the authenticity of the factum of the order of the High Court, through the production of a certified copy or even an affidavit, they would have refrained from going ahead with the proceedings under Section 132(5) of the Act. Last of all, it was stated as under :

'That, however, in view of the issue of the notice by this hon'ble court suo motu, I respectfully submit that in case this hon'ble court does not agree with my above submissions, I unhesitatingly tender my unqualified apology as I do not ever intend or did ever intend to defy the unquestionable authority of this hon'ble court.'

17. Mr. J. S. Dulat in his affidavit has also stated that he and the Income-tax Officer had a bona fide belief that, considering the nature of the proceedings under Section 132(5) of the Act, in order to stop the running of time there should either be a certified copy of the order or at least an affidavit from the petitioner that a stay order had been passed. Since the Income-tax Officer was taking the draft order under Section 132(5) of the Act in the case of Shri Hira Lal Sibal, he advised her to bring this matter to the notice of the Income-tax Commissioner so that he might decide whether the order should be finalised or not. The affidavit filed by the Income-tax Officer is on the same lines. She has stated that she had all along acted in the bona fide belief that no order had been passed by this court and has towards the end stated that in case this court does not agree with her above submissions, she unhesitatingly tendered her unqualified apology 'as I do not ever intend or did ever intend to defy the unquestionable authority of this hon'ble court'. In this affidavit also, it is not denied that she expressed before Shri S. C. Sibal that had the stay order been obtained earlier, she would have been saved the trouble of processing the case.

18. In the light of the aforementioned pleas, it has to be considered whether the respondents have wilfully disobeyed the order passed by this court or not. The position of a contemner is that of an accused person. Whoever alleges that a contemner has disobeyed the orders passed by the court has to prove this fact. At the same time it is not the requirement of law that oral evidence alone should be led to prove that the contemner had knowledge of the stay order issued by the superior court. Finding on this point can also be given on the basis of circumstantial evidence brought on record.

19. In Hoshiar Singh v. Gurbachan Singh, AIR 1962 SC 1089 it was held that in the matter of prohibitory order it was well settled that it was not necessary that the order should have been served upon the party against whom it had been granted in order to justify committal for breach of such an order, provided it is proved that the person complained against had notice of the order aliunde. The court cited with approval a passage from Oswald's Contempt of Court, which was to the effect that the knowledge of a party could be fixed even on the basis of a newspaper report and observed :

'The order in the present case was a prohibitory order and if the appellants knew that the High Court had prohibited delivery of possession till May 23, 1958, it was undoubtedly the duty of the appellants to carry out that order. We do not think that the appellants can take up the plea that as the order had not been officially communicated to them, they were at liberty to ignore it. The appellants were officers whose duty it was to uphold the law and if they knew that a valid order had been made by the High Court staying delivery of possession, they disobeyed that order at their peril. There may be circumstances where officials entrusted with the duty of carrying out a legal order may have valid reasons to doubt the authenticity of the order conveyed to them by interested parties and in those circumstances it may be said that there was no wilful disobedience of the order made.'

20. In Aligarh Municipal Board v. Ekka Tonga Mazdoor Union, AIR 1970 SC 1767 it was held that knowledge of the exact order was sufficient and official communication was not a condition precedent when there was no reason to doubt the authenticity of the order Further :

'Contempt proceedings against a person who has failed to comply with the court's order serves a dual purpose : (1) vindication of the public interest by punishment of contemptuous conduct, and (2) coercion to compel the contemner to do what the law requires of him. The sentence imposed should effectuate both these purposes. It must also be clearly understood in this connection that to employ a subterfuge to avoid compliance of a court's order about which there could be no reasonable doubt may in certain circumstances aggravate the contempt.'

21. On behalf of the respondents reliance has been placed on Bunna Prasad v. State of U.P., AIR 1968 SC 1348 This case arose out of the following facts. A petition was filed in the High Court regarding the transfer of a criminal case on which ad interim stay order was passed. Information about the grant of this stay order was conveyed telegraphically by the counsel to the party concerned. On receipt of this information, the party is alleged to have filed a copy of the telegram along with an affidavit before the sarpanch of the nyaya panchayat but these facts were held to be not proved. On the date when the nyaya panchayat met, Mahabir, accused, filed an application before it stating therein that his case had been admitted by the High Court, which had stayed the proceedings before the panchayat. A document purporting to be an affidavit was also attached with this application but the so-called affidavit had not been sworn before any person authorised to administer oath. Before the High Court, it was pleaded on behalf of the panches that the affidavit had not been acted upon because it did not contain the date of the stay order passed by the High Court. Another panch submitted that he told Mahabir, petitioner, to bring a proper affidavit on a good quality paper. The High Court held that there was no reasonable ground for the panches to have doubted the averments made in the application and affidavit of Mahabir. However, if it wanted to ascertain the matter, they could have at best stayed the proceedings for a short while and should have asked the accused to produce a certified copy of the stay order, or in the alternative they should have verified from the Sub-Divisional Magistrate whether Mahabir had really filed an application or an affidavit before him. On these facts, the High Court held the panches guilty. In appeal by special leave, the Supreme Court held that the application of Mahabir filed before the panchayat on December 25, 1963, was not supported by an affidavit sworn before a person authorised to administer oath and the application did not contain the date of the stay order, nor was a copy of the document attached with the application. The panches before whom the affidavit was produced were themselves not satisfied with it. Regarding them, it was observed :

'It must be borne in mind that panches are not well versed in law and procedure and the records maintained by them should not be judged in the same manner as that of ordinary courts.'

22. Under these circumstances, it was held that the bona fides of the panches could not be doubted if they refused to accept the mere statement of the party that the High Court had stayed the proceedings before it.

23. This case is not an authority for the proposition that even if the subordinate court does not question the authenticity of the information conveyed, it is entitled to ignore the order passed by the superior court.

24. The evidence brought on record may now be examined. It is not disputed that Mr. S. C. Sibal, advocate, did inform the Income-tax Officer that further proceedings in the case had been stayed by this court. His allegation that when the Income-tax Officer was conveyed this information, sheremarked that had the stay order been passed earlier she would have been saved the trouble of processing the case, has not been specifically denied. In these circumstances, it must be held that the Income-tax Officer had no doubt in her mind about the authenticity of the information conveyed to her, for, otherwise, she would have informed Shri S. C. Sibal that he should either file an affidavit of the party or a certified copy of the order passed by this court. It has not been averred by her that she informed Shri Sibal that she was not satisfied about the information conveyed by him. Even if there was any doubt in her mind while discussing the matter with respondent No, 2, after Shri S. C. Sibal had left, she could have resolved the same by making a telephonic call to the Registrar of this court.

25. Shri J. S. Dulat has also not stated that being dissatisfied by the oral information conveyed by Shri S. C. Sibal, he advised him either to file an affidavit of the party or to file a certified copy of the order passed by this court. However, in this case the redeeming feature is that he advised the Income-tax Officer to seek the guidance of the Commissioner of Income-tax and himself did not take any action in disregard of the stay order.

26. It has earlier been indicated that a news item appeared in the Daily Tribune on January 14, 1975, about the further stay of proceedings under Section 132(5) of the Act against Shri Hira Lal Sibal, The Income-tax Officer has not stated on affidavit that she omitted to read the morning paper, though the Income-tax Commissioner has done so. It is stated by the Income-tax Officer that she left for Patiala on January 14, 1975, at about 11 a.m. Her office opens at 10 a.m. She obviously came to Patiala with the draft order under Section 132(5) of the Act for obtaining the approval of the Commissioner. A notice issued by her calling upon Shri H.L. Sibal to produce two witnesses before her at 10 a.m. had been sent back by Mr. H. L. Sibal with an endorsement that the High Court has stayed further proceedings. If she did attend office on January 14, 1975, before proceeding to Patiala, it is unthinkable that she had not cared to have a look at the duplicate copy of the notice served upon Shri H. L. Sibal. This notice must have become a part of the file by then and could not have escaped the attention of respondent No. 1. The affidavit dated April 18, 1975, sworn by respondent No. 3 gives an impression that she left the office of the Inspecting Assistant Commissioner of Income-tax, Chandigarh, for her home on January 13, 1975, and on the following day went straightaway to Patiala. In other words, she did not even wait to see whether Shri H. L. Sibal would bring his witnesses to her office on that day or not. This stand is obviously incorrect and she made this statement to make the court believe that she did not see the endorsement of Mr. Sibal on the notice dated January 13, 1975, before going to Patiala on the following day.

27. Assuming while not admitting that her subsequent affidavit is correct that she went to Patiala on January 14, 1975, without going to her office, then the irresistible conclusion is that she was of the firm belief that this court had stayed further proceedings, and, therefore, it was not necessary to go to the office for recording evidence.

28. It is the normal practice with the quasi-judicial tribunals to record day-to-day proceedings on an order sheet attached to the file. The order sheet attached to the file or proceedings under Section 132(5) of the Act reads as under:

'24/10

Notice u/s 132(5) issued.

6/11

A letter of ' A ' received.

12/11

Reply to ' A ' sent.

18/11

Reply to notice u/.-i 132(5) filed.

7/12

Letter of enquiry issued to ' A '.

10/12

Letter of ' A ' received and placed on file.

17/12

Letter from ' A ' received for adjustment of seized cash towardsinstalment of advance tax ; requesting for adjourn-ment and reply to letterof enquiry. Adjournment allowed to 19/12 and refusedthe adjustment asked for.

26/12

Reply to enquiry letter filed.

28/12

Letter sent to ' A ' for recording his statement on 31/12.

31/12

Statement of the ' A ' recorded.

2/1

Letter from ' A ' received and placed on record.

6/1

A letter from ' A ' received and placed on record.

12/1

Order discussed with the C.I.T.

14/1

The order discussedwith the C.I.T. finally and passed the order.

5/4

Copy of order sheet entries given to ShriB. M. Khanna. The documents seized sealed with I.T. seal and sealofShri S. C. Sibal.'

29. It is her own case that the initial notice under Section 132(5) of the Act was issued to Shri Hira Lal Sibal by her predecessor in office Shri Dhar. Strangely enough, the relevant order of that date is recorded and initialled by her. Again, on January 13, 1975, a notice was issued to Mr. Sibal to produce two witnesses on the following day. This fact is not mentioned on the order sheet. We cannot lose sight of the fact that on January 12, 1975, the Income-tax Officer had discussed the case with respondent No. 1 and the notice to produce two witnesses had been issued after this discussion. In normal course of business, the order sheet should have contained a note to this effect. On January 14, 1975, respondent No. 3 had to examine the two witnesses to be produced by Mr. Sibal. The reasons for which the examination of these two witnesses had become unnecessary on that date are also not recorded on the order sheet. If the present order sheet is silent about these matters, they must have been recorded on the original order sheet which has been replaced by a newly written order sheet. This order sheet had in all probability been prepared after January 14, 1975. These circumstances must be considered in conjunction with the legal inference to be drawn from the statement which she made before Shri S. C. Sibal that had the stay order been passed earlier she would have been saved the trouble of processing the case. It is abundantly clear that the present order sheet attached to the file does not depict the correct, picture of day to day events. The fact that the proceedings were initiated by Shri Dhar and the order dated October 24, 1974, appears in the handwriting of respondent No. 3 indicates that the original order sheet had been torn out of the file and substituted by one which was written out later on.

30. The question arises why was it considered necessary to do so The only logical inference which can be raised is that when she visited Patiala and apprised the Commissioner of Income-tax that the High Court had stayed further proceedings in the case, she was either coaxed or coerced to proceed ahead in the matter. For that purpose, evidence had to be created that she was at least 'legally' unaware of the stay order passed by this court.

31. The Commissioner of Income-tax has stated that he did not consider the oral communication of the stay order issued by this court to the Income-tax Officer sufficient for saving limitation in time-bound proceedings. Information may be oral so far as the Income-tax Commissioner is concerned, but one cannot forget that he was being informed by a responsible Income-tax Officer who is proved to have been satisfied about the authenticity of the information. It was at that stage the duty of the Commissioner of Income-tax either to accept the information or to advise the Income-tax Officer to make necessary enquiries for getting official confirmation of the same. Even from Patiala telephonic information could have been, obtained from the Registrar of this court. These circumstances clearly indicate that the Commissioner of Income-tax was in an undue hurry to go ahead with the matter in spite of the knowledge that further proceedings had been stayed by this court.

32. It is no defence on the part of the Commissioner of Income-tax to say that where interested parties filed affidavits the proceedings were stayed and this uniform policy had to be adopted in the instant case also. It has nowhere been stated by him that he brought this policy of the department to the notice of the Income-tax Officer or he ever told her to abide by this policy. Though there is no positive evidence to indicate that he was instrumental in having the quasi-judicial record of the case altered, yet it is obvious that this extreme step was taken by the Income-tax Officer pursuant to the go-ahead suggestions made by him to her.

33. To sum up, we are of the view that the Income-tax Officer was satisfied with the information conveyed to her by Shri S. C Sibal about the stay order dated January 13, 197.5, passed by this court. There are strong reasons to believe that she did attend her office on the morning of January 14, 1975, and also saw the duplicate copy of the summons on which Shri Hira Lal Sibal had made an endorsement that the proceedings had been stayed by this court. She carried this file to Pattala and showed it to respondent No. 1 and by that time the duplicate copy of the summons with the endorsement of Shri H. L. Sibal had become its part. It is equally reasonable to infer that the Commissioner applied his mind to the file before according his approval to the order under Section 132(5) of the Act. The duplicate copy of the summons bearing the endorsement made by Shri H. L Sibal could not have escaped his notice especially when the Income-tax Officer had been advised by respondent No. 2 to explain to him the circumstances under which information regarding the stay order had been communicated to her. At that stage, he failed to take the necessary steps or to administer proper advice to the Income-tax Officer for getting this information confirmed either through the Registry of this court or by asking the party concerned to file an affidavit on the point. On the contrary, in his zeal to achieve the result desired by him, he even advised the Income-tax Officer to ignore the communication regarding stay order about which she herself was satisfied. In our considered opinion, this action on the part of respondent No. 1 shows that he did have knowledge of the fact that this court bad stayed further proceedings when he accorded approval to the order under Section 132(5) passed by respondent No. 3. Respondent No. 3 by passing an order under Section 132(5) of the Act and respondent No. 1 by according approval to the same in wilful disobedience to the order dated January 20, (sic) 1975, passed by the Motion Bench have committed civil contempt as defined in Section 2(b) of the Contempt of Courts Act, 1971 (hereinafter called 'the 1971 Act'). We accordingly hold them guilty of the said charge.

34. Respondent. No. 2 merely directed respondent No. 3 to apprise respondent No. 1 of the manner in which Shri S. C. Sibal apprised them of the aforementioned order passed by the Motion Bench to seek guidance from the latter. By so doing, he did not himself disobey any order passed by this court. The rule against him deserves to be discharged and we order accordingly.

35. It is now to be seen what action, if any, should be taken against respondents Nos. 1 and 3 under Section 12 of the 1971 Act, in view of the apology tendered by them. An apology available to a contemner as a defence must be sincere and offered at the earliest occasion. Under the old law a conditional apology was not regarded as an apology at all. In M. Y. Shareej v. Hon'ble Judges of the Nagpur High Court, AIR 1955 SC 19 it was held that there could not be both justification and an apology. The two things were incompatible with each other, and it was observed as under I

'The proposition is well-settled and self-evident that there cannot be both justification and an apology. The two things are incompatible. Again an apology is not a weapon of defence to purge the guilty of their offence ; nor is it intended to operate as a universal panacea, but it is intended to be evidence of real contriteness.'

36. The Explanation appearing at the end of Sub-section (1) of Section 12 of the 1971 Act now provides that an apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide. Whether a conditional or bona fide (sic) apology is or is not an apology depends on the circumstances of each case. We are, however, of the view that where a contemner is aware of his misconduct from the very beginning and still does not purge himself of the wrong committed by him at the earliest occasion even by tendering a qualified apology and offers the same at a later stage of the proceedings on realising that the subterfuge employed by him to avoid obeying the stay order issued by a superior court had been exposed the apology tendered should not be regarded as bona fide. In his affidavit dated April 17, 1975, respondent No. 1 deeply deplored and expressed his unhappiness at the turn of events in this case and sincerely expressed his profound and unqualified regret for the sequence of events culminating in the passing of an order under Section 132(5) of the Act. This expression of regret was not an apology in the eyes of law. Such a regret can also be expressed by a person who finds that the conduct of some strangers is distasteful to him. It may not necessarily amount to an admission of guilt on his own part. Had a proper apology been tendered at that stage, we might perhaps have not taken serious view of the matter. In Debabrata Bandopadhyay v. State of West Bengal, AIR 1969 SC 189 it was observed :

'Of course an apology must be offered and that too clearly and at the earliest opportunity. A person who offers a belated apology runs the risk that it may not be accepted, for such an apology hardly shows the contrition which is the essence of purging of a, contempt.'

37. The additional affidavit (sic) which persuades us to take a serious view is that the respondents went to the extent of tampering with public records to show that they had no knowledge of the stay order passed by this court. The employment of this subterfuge to avoid compliance with the order passed by this court undoubtedly aggravates the contempt, as laid down by their Lordships of the Supreme Court in Aligarh Municipal Board's case. In the case of respondent No. 1, the other circumstance which can be taken into consideration is that being a responsible officer it was his duty not only to obey the orders passed by this court but also to see that the officials working under him did not treat such orders in a light manner. He not only persuaded respondent No. 3 to pass the order under Section 132(5) of the Act but himself accorded approval to it. In these circumstances, we ignore the apology tendered by him. We are also of the view that a sentence of fine alone will not meet the ends of justice and that a sentence of imprisonment is necessary in this case. Accordingly, he is ordered to be detained in a civil prison for a period of two weeks and is also ordered to pay a fine of Rs. 200. In default of payment of fine, he shall be further detained in the civil prison for a period of one week.

38. The case of respondent No. 3 stands on a different footing. She has rightly stated on oath that she was faced with a difficult situation. On the one hand she was confronted with a stay order issued by the Motion Bench and on the other she had to comply with the directions of her superior officer, respondent No. 1. We have no doubt in our mind that left to herself, she would have obeyed the injunction issued by this court. The omission on her part to offer an apology at the earliest stage is also explainable because she had to fall in line with her superior officer. We feel that the interests of justice would be met if she is administered a stern warning that any lapse of the like nature on her part shall be severely dealt with in future. We order accordingly.

R.S. Narula, C.J.

39. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //