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Ukkan Chakku Thomas Vs. Thomokutty and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1952CriLJ658
AppellantUkkan Chakku Thomas
RespondentThomokutty and ors.
Cases ReferredPenal Code. See Kisan Krishnaji v. Nagpur Conference of Society
Excerpt:
.....corresponding to section 188 of the indian penal code. even according to the limited meaning the high courts mentioned above give to the provision quoted, this court will have no jurisdiction to entertain this application if it is found that there exists in the penal code provision to punish the disobedience complained of as a contempt or court. the heading of chapter x (chapter ix in cochin) of the indian penal code where section 188 (section 174 in cochin) occurs is 'of contempt's of the lawful authority of public servants' and when the contempt here is the disobedience of the order of a public servant functioning as a court we fail to see how it could be held that there is no provision in the penal code to punish such contempt as contempt of court. in that case the act complained of..........174 of the cochin penal code, a section corresponding to section 188 of the indian penal code.the high courts of allahabad, calcutta, lahore, patna and nagpur have interpreted sub-section (3) of section 2 of the contempt of courts act to mean that where under the penal code there is, already a provision for punishing a contempt of court as a contempt of court the contempt of courts act shall have no application. these high courts say that the provision does not mean that when the act which has constituted the contempt of court also constitutes an offence under the penal code, it may not be punished under (tie contempt of courts act. in other words according to the high courts above-mentioned the prohibition has reference only to cases where the penal code empowers the court to punish.....
Judgment:

Koshi, J.

1. This is an application under Section 3(1) of the Cochin Contempt of Courts Act, XXXII of 1111, invoking this Court's jurisdiction to commit the twenty-nine respondents herein for Contempt of the Court of the Second Class Magistrate, Trichur, on the ground that they held a meeting of the parishioners of the Trichur Chaldean Syrian Church in violation of an order passed by the said Court under Section 125 of the Cochin Criminal Procedure Code (Section 144 of the Indian Code) prohibiting any such meeting. The petition and the affidavit filed in support thereof show that during recent years there started serious dissensions among the parishioners of the said Church and that they are now divided into two hostile camps. The petitioner belongs to one faction while most, if not all the respondents belong to the opposite faction. When the respondents wanted to call together a meeting to decide certain questions affecting the church and issued the necessary notices in that behalf seven priests who apparently belong to the opposite faction petitioned the Second Class Magistrate, Trichur to prohibit the holding of the meeting and also wanted him that unless that was done there will be serious breach of the peace.

The Magistrate after calling for a report from the police issued an order under Section 125, Criminal Procedure Code, prohibiting the convening of the meeting. It is alleged that notice of that order was given to some of the parishioners and that a copy of the notice was affixed in a conspicuous place in the Church premises. The petitioner's complaint is that notwithstanding the prohibitory order, the respondents actually held a meeting to which the members of the opposite faction were excluded, it is alleged, with the active support of responsible police officers, stationed at Trichur. The Magistrate's order prohibiting the meeting was passed on 5.1.1125 and the meeting itself was to be held on the same day. This petition was filed on 16.3.1125 when more than two months had elapsed after the incident complained of.

2. One of us before whom the petition first came up for hearing referred the matter to a Division Bench after obtaining a report from the Magistrate regarding the incident. The Division Bench before whom the petition was first posted directed notices to be issued on the petition to the respondents and to the State. After the respondents and the State entered appearance the petition came up for hearing before another Division Bench when the Public Prosecutor and Counsel for respondents raised a preliminary objection that under Section 3(3) of the Cochin Contempt of Courts Act the matter had to be heard by a Division Court of three Judges. The petitioner's Counsel contended that the provision contained was impliedly repealed by Section 21(vii) of the Travancore-Cochin High Court Act, V of 1125 and that under that provision it was competent for a Division Court of two Judges to hear the petition. As the point appeared to be important the petition was referred to a Full Bench for decision, and direction as to whether a Bench of three Judges or a Bench of two Judges should hear the matter. In due course this Bench was constituted and when the petition came up for hearing before us there was a change in the personnel of Counsel appearing for the petitioner and Mr. Ramanan who now appears for the petitioner withdrew the argument that it was within the competence of a Division Court of two Judges to hear and dispose of the matter. All the Counsel appearing in the case now agree that a Bench of three Judges alone has competence to deal with the petition. In these circumstances We then and there intimated Counsel that we did not propose to decide the question of tie implied repeal of Section 3(3) of Contempt of Courts Act on this occasion but that we shall deal with the petition itself.

3. At that stage, Mr. Ramanan wanted the petition to be posted for evidence to prove that all the 29 respondents openly defied the Magistrate's order and thereby brought themselves within the mischief of the Cochin Contempt of Courts Act. Regard being had to all the circumstances and the contents of the records called for from the Magistrate's Court we feel far from satisfied that we should further enquire into this matter. In a case where the party really aggrieved had an alternative remedy we cannot find sufficient justification for three Judges of this Court devoting their time and labour in an enquiry to establish the necessary facts to warrant the committal of the respondents for contempt, especially when the Magistrate concerned or his immediate superior, the District Magistrate has not chosen to move this Court. Before we proceed to set out further reasons why we have decided to exercise our discretion that way we must advert to a preliminary point.

4. The Cochin Contempt of Courts Act is for all practical purposes the same as the Contempt of Courts Act, XII of 1926, passed by the Indian Legislature. Sub-section 2 of Section 2 of the Cochin Act corresponding to Sub-section 3 of Section 2 of its Indian counter-part enacts that the High Court shall not take cognizance of a Contempt of Court alleged to have been committed in respect of a Court subordinate to it where such contempt is an offence under the Cochin Penal Code, Act I of 1059. Admittedly the act complained of in the present petition amounts to an offence under Section 174 of the Cochin Penal Code, a section corresponding to Section 188 of the Indian Penal Code.

The High Courts of Allahabad, Calcutta, Lahore, Patna and Nagpur have interpreted Sub-section (3) of Section 2 of the Contempt of Courts Act to mean that where under the Penal Code there is, already a provision for punishing a contempt of Court as a contempt of Court the Contempt of Courts Act shall have no application. These High Courts say that the provision does not mean that when the act which has constituted the contempt of Court also constitutes an offence under the Penal Code, it may not be punished under (tie Contempt of Courts Act. In other words according to the High Courts above-mentioned the prohibition has reference only to cases where the Penal Code empowers the Court to punish for contempt as contempt. In the case reported in Ali Mahommed Adamalli v. Emperor AIR (32) 1945 PC 147, the Privy Council left the question as an open one.

5. Though attention of Counsel appearing in the case was invited to this aspect and it was even suggested that the provision referred to might serve as a bar to this Court taking cognizance of the alleged contempt nobody appeared to be inclined to take the hint. The petitioner's Counsel, no doubt, contended there was no bar. Even according to the limited meaning the High Courts mentioned above give to the provision quoted, this Court will have no jurisdiction to entertain this application if it is found that there exists in the Penal Code provision to punish the disobedience complained of as a Contempt or Court. The heading of Chapter X (Chapter IX in Cochin) of the Indian Penal Code where Section 188 (Section 174 in Cochin) occurs is 'of Contempt's of the Lawful Authority of Public Servants' and when the contempt here is the disobedience of the order of a Public servant functioning as a Court we fail to see how it could be held that there is no provision in the Penal Code to punish such contempt as contempt of Court. Contempt's of the lawful authority of Courts of Justice, of officers of Revenue, of officers of police, and of other public servants are punishable under the said chapter.

6. The decisions giving a limited meaning to Subjection 3 of Section 2 of the Contempt of Courts Act in India are all referred to in a recent Pull Bench decision of the Allahabad High Court reported in State v. Brahma Prakash AIR (37) 1950 All 558, and except in one of the cases mentioned there Jnanendra Prasad v. Gopal Prasad AIR (20) 1933 Pat 204, the view taken is what is set forth above. In fact in one of the cases referred to by the Allahbad Pull Bench a Division Bench of the Calcutta High Court, Dharanidhar Singha v. Satish Chandra AIR (19) 1932 Cal 705 while stating that the argument that Sub-section 3 of Section 2 prohibits cognizance toeing taken of any offence punishable under the Indian Penal Code is too wide, expressly stated that there was considerable force in the counterargument that it is only contempt's punishable as such under Chapter X of the Code (e.g., an offence punishable under Section 173, I.P.C.,) that are excluded from the purview of the Act.

No doubt the latter observation was made as 'obiter' but a recent Division Bench of the same High Court cited the above observation with approval and followed it. See Naresh Kumar v. Umraomal 52 CriLJ 1030 (Cal.) In the Patna decision mentioned above AIR (20) 1933 Pat 204, the point was raised when the delivery of the judgment had almost concluded and the judgment discusses the point after entering conviction and pronouncing the sentence. The order regarding costs was also made before this discussion started. With respect we doubt whether it is only contempt of the Court of the character set forth in Section 228, I.P.C. that would come within the ambit of the prohibition. In another case reported in the same volume Kaulashia v. Emperor AIR (20) 1933 Pat 142, the same learned Judge had explained the prohibition in the sense the recent Full Bench decision of the Allahabad High Court and the decisions referred to there interpret it. If an offence of the character mentioned in Section 228 of the Penal Code alone was sought to be exempted nothing was easier for the Legislature than to so state it instead of employing such general terms as those that we find in the provision.

In a decision of the Nagpur High Court, Bose, J., (now of the Supreme Court of India) pointed out that the prohibition in Section 2(3), Contempt of Courts Act, 1926 is not confined solely to the offence described in Section 228, Penal Code. In that case the act complained of constituted an offence under Section 186 of the Penal Code. See Kisan Krishnaji v. Nagpur Conference of Society AIR (30) 1943 Nag 334. However as Counsel have not chosen to urge this preliminary point and as there was no serious argument at the Bar about it we do not propose to rest our decision on the petition on the preliminary point or even decide it. As the point is important we thought it proper to mention it.

7. It is settled on authorities that whether there is another remedy available is a matter for the Court to consider when exercising its discretion whether to commit, or not, a person for contempt of Court. This is recognised in the Privy Council decision referred to earlier and in even, so many English cases which are all referred to on pp. 76 to 88 in the law of Contempt of Court and of Legislature, by Tek Chand (2nd Edn. 1949). Whether Sub-section 2 to Section 2 of the Cochin Contempt of Courts Act prohibits this Court from entertaining1 this application or not, that the Magistrate concerned could have prosecuted the offenders under Section 174 of the Cochin Penal Code admits of no doubt. He had brought this matter to the notice of the District Magistrate and for ought we know the latter officer did not think that any action was called for. Neither of them thought it necessary to move this Court under the Contempt of Courts Act. The petitioner belongs to one of the rival factions in the Church and it la the members of the opposite faction that are sought to be proceeded against here.

The petition, particularly paragraphs 5 and 8, show that the purpose behind the petition is more to obtain a pronouncement of this Court about the validity or otherwise of the meeting alleged to have been held in violation of the Magistrate's order than to uphold the dignity and prestige of the Court. As many as twenty-nine persons are made respondents to the application and an enquiry as to whether all these persons had knowledge of the prohibitory order must certainly entail much time, labour and money. The petition and the affidavit accompanying it show that responsible police officers had actively assisted the respondents to hold the meeting. There is no explanation why no action is sought to be taken against these officers. It is, therefore, clear that this is not a 'bona fide' motion but one calculated to harass the respondents. More than two years have expired after the incident took place and in cases where an alternative remedy is open it is with a view to award prompt punishment that proceedings for contempt are initiated. To borrow the language James, L.J., used on a similar, occasion to further proceed with the enquiry would itself be contempt of Court as it would tend to waste public time.

8. In the circumstances we think that the appropriate course for us is to discharge the notice and to dismiss this application without costs. We order accordingly.


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