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Ponnuswamy Aiyar and ors. Vs. K. Ganapathi Iyer, Sub-divisional Magistrate of Mayavaram - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in81Ind.Cas.241
AppellantPonnuswamy Aiyar and ors.
RespondentK. Ganapathi Iyer, Sub-divisional Magistrate of Mayavaram
Cases ReferredVenkatachela Patirao v. Kameswaramma
Excerpt:
contempt of high court - order of high court staying proceedings--telegram by vakil informing magistrate of stay order--order not communicated officially--magistrate, refusal of, to adjourn case--bona fides. - - ..after reading the evidence again i came to the conclusion that the examination of the court witness may very well be dispensed with. but the english decisions have clearly laid down that notice of an order can be given otherwise than by an official communication of it. 230. he says :it is perfectly clear that he (the sheriff's officer) knew that an act of bankruptcy had been committed, and he admits that a telegraphic communication had been made to him before the sale of the fact that an injunction to restrain the sale had been ordered by the court. the high court cancelled..........legal assistance. the magistrate thereupon made an order dispensing with, the evidence of the accused's vakil and this is what the magistrate says in his order:3. 'the court after reading the evidence of the prosecution and defence witnesses considered that the evidence of n. kuppuswamy iyer will help in the decision of the case. it accordingly adjourned the case to the 8th... after reading the evidence again i came to the conclusion that the examination of the court witness may very well be dispensed with.... to avoid delay in the disposal i dispense with the examination of the court witness now present:' the magistrate then makes a note: 'the vakil, mr. kuppuswamy iyer, does not appear for argument. the case is adjourned for judgment at 3-30 p.m.' the accused, however, were not in.....
Judgment:

Venkatasubba Rao, J.

1. This is an application of a somewhat unusual kind. I have been asked to commit to prison Mr. K; Ganapathi Aiyar, Sub-Divisional Magistrate of Mayavaram, for his wilful disobedience of the order of this Court, dated the 10th April 1923. In C.C. No. 50 of 1922 pending before the said Magistrate, an application was made by some of the accused for examinalion as a witness of the Pandarasannadhi of Thiruvaduthurai Mutt. That application was refused by the Magistrate by his order dated the 6th April 1923. On the same day the parties applied for a copy of the order and the stamp papers were called for on the 9th April. They were furnished immediately, and the parties were granted the copy at 7 P.M. on the 9th. On the 10th, a revision case was filed in the High Court, impeaching the correctness of the order of the 6th and on the application of the accused at about 2-15 P.M. on the same day, I made an order staying further proceedings in C.C. No. 50 of 1922 pending the disposal of the Criminal Revision Case.

2. The case before the Magistrate was taken up in the usual course on the llth to which date it stood adjourned. A telegram had been sent by Mr. K. 8. Jayarama Aiyar, Vakil for the accused informing the Magistrate of the order made by this Court. This telegram, it is admitted, reached the Magistrate at about 9 A.M. on the llth. Finding that the Magistrate was not disposed to act on this telegram, a formal petition was filed supported by the affidavit of K. Sundaresa Iyer, who was instructing the Vakil for the accused and who was also present in Court when the stay order was made by the High Court. In that affidavit are set out the facts relating to the application to this Court and the order made staying proceedings. A copy of the telegram and the receipt obtained from the Telegraph Office in token of the telegram having been despatched, were annexed as Exhibits to the affidavit. The Magistrate declined to adjourn the case. It is stated, inter alia, in his order that the accused had sufficient opportunities to have moved the High Court in time so that the order of the High Court could have been formally communicated to the Magistrate. In this he was obviously wrong, because as I have shown the accused acted with great expedition and applied for stay at the earliest possible moment. When the accused found that the Magistrate insisted upon proceeding with the case, they put in another petition stating that their own Vakil had been cited as a Court witness, that in view of the stay order they had not engaged another Vakil to represent them at the trial and that in the circumstances an adjournment should be granted to enable them to obtain proper legal assistance. The Magistrate thereupon made an order Dispensing with, the evidence of the accused's Vakil and this is what the Magistrate says in his order:

3. 'The Court after reading the evidence of the prosecution and defence witnesses considered that the evidence of N. Kuppuswamy Iyer will help in the decision of the case. It accordingly adjourned the case to the 8th... After reading the evidence again I came to the conclusion that the examination of the Court witness may very well be dispensed with.... To avoid delay in the disposal I dispense with the examination of the Court witness now present:' The Magistrate then makes a note: 'The Vakil, Mr. Kuppuswamy Iyer, does not appear for argument. The case is adjourned for judgment at 3-30 P.M.' The accused, however, were not in a mood to submit to this order of the Magistrate and so they again requested the Magistrate to send a telegram to the proper officer of the High Court at their expense and ascertain if, as a matter of fact, the High Court did make a stay order. The Magistrate refused to comply with the request. The accused next applied.for an adjournment on the ground that they intended to move the High Court for a transfer of the case to the file of some other Magistrate. This application again met with a similar fate. Mr. Kuppuswamy' Aiyar, Vakil, whose evidence was dispensed with, then put in a memo, of appearance on behalf of the accused noting in it that at 2 P.M. the Court made an order dispensing with his evidence and also noting that the memo, itself was put in at 2-30 P.M. The correctness of these statements in the memo, is not disputed. The Vakil then commenced to argue the case, but he was told by the Magistrate that the judgment would be delivered at 3-30 P.M. and thereupon the Vakil filed the following statement dated llth April 1923 at 2-50 P.M.: 'On my rising to argue the case the Court observes that the matter is ripe for delivery of judgment by 3-30 P.M. Under the circumstances I beg to submit that my argument would be of no use and as such I am unable to do any justice by making any farce of an argument at this juncture,' The Vakil thus refused to further argue the case and the Magistrate forthwith read a judgment which had been previously written and which is said to consist of about 20 to 25 typed pages.

4. These are the facts regarding which there is no controversy, and I have carefully avoided reference to the allegations made on behalf of the accused but denied by the Magistrate.

5. I shall first deal with the question of law raised. It is said that the Magistrate was not guilty of contempt, as he was not bound to obey the order of the High Court until it was officially communicated to him. The Magistrate in this case had before him not only the telegram purporting to have been sent by the Vakil at Madras but there was also a sworn statement to the effect that the High Court had ordered a stay of proceedings. It is argued that it is not necessary to enquire whether the officer believed the statement or not, because in no circumstance was it incumbent upon him to act upon any statement or evidence, when there was no formal communication from the High Court to the officer concerned. Apart from authority, I think this proposition is unsound. I do not think it will be in the interests of justice to hold that an order of the High Court can be defied with impunity by a party or an officer who having knowledge of it chooses to disregard it. When orders are made or injunctions granted, the Court must insist that they shall be obeyed. The parties concerned may be very injuriously affected by disobedience; it may occasion loss of property or seriously imperil the liberty of a person. Apart from this, it seems to me that it is hardly consistent with the dignity of the Court to permit its orders to be disobeyed by a party who chooses with full knowledge to set them at defiance and treat them with contempt. In connection with contempt proceedings, this question does not appear to have been decided in India. But the English decisions have clearly laid down that notice of an order can be given otherwise than by an official communication of it. Thesiger, L.J., in Ex parte Langley, Ex parte Smith (1880) 13 Ch. D. 110 : 49 L.J. Bk. 1 : 43 L.T. 181 : 28 W.R. 174, observes:

That, under certain circumstances, a telegram may constitute such a notice of an order of a Court as to make a person who disregards the notice and acts in contravention of the order, liable for the consequences of a contempt of Court.

6. James, L.J., expresses himself to the same effect.

7. The same view was taken by Bacon, C.J., in In re Bryant (1877) 4 Ch. D. 98 : 35 L.T. 489 : 25 W.R. 230. He says :

It is perfectly clear that he (the Sheriff's Officer) knew that an act of bankruptcy had been committed, and he admits that a telegraphic communication had been made to him before the sale of the fact that an injunction to restrain the sale had been ordered by the Court. He and the auctioneer are both equally to blame. They both violated what they must have known to be the plain law, and proceeded to sell.

7. I said there are no decided cases in India on the point. In Sati Nath Sikdar v. Ratanmani Naskar 14 Ind. Cas. 808 : 15 C, L, J, 335 the question was whether the order of the District Munsif under consideration in that case was or was not without jurisdiction. After the High Court directed a stay of proceedings, the Munsif made an order for assessment of mesne profits refusing an adjournment, although an affidavit was filed in which it was specifically stated that the High Court had stayed proceedings, and to the affidavit was annexed as an exhibit a letter confirming the statements in the affidavit, written by the Vakil who had obtained the Rule in the High Court, to the Pleader in charge of the case in the Munsifs Court. The High Court cancelled the order for assessment of mesne profits as being wholly without jurisdiction, and very strong observations were made to the effect that the act of the Munsif plainly amounted to a contempt of the authority of the High Court. These observations are no doubt obiter dicta, as there was no application before the High Court to commit the Munsif for contempt, but they express the law as laid down by English decisions. In In the matter of Surjya Narain Singh 5 C.W.N. 110 the learned Judges referring to the conduct of a Magistrate, who proceeded with a case after he had been shown a telegram stating that a rule for stay of further proceedings had been granted by the High Court, observed that it was most injudicious of the Magistrate to have proceeded with the case, after he had been credibly informed that the High Court had ordered stay.

8. In Hem Chandra Kar v. Mathur San-thai 17 Ind. Cas. 78 : 16 C.W.N. 1031 : 13 Cr. L. 3. 766 the Magistrate refused to pay heed to a similar telegram, and the High Court considered that the Magistrate acted injudiciously in summarily rejecting the application for adjournment and that he ought to have directed the party to verify the statement contained in the telegram. See also Babu Ratnes-sari Pershad Narayan Singh v. Empress 2 C.W.N. 498.

9. In Ramanathan Chetty v. Arunachalam Chetty 22 Ind. Cas. 99 : 38 M. 766; (1914) M.W.N. 46 : 15 M.L.T. 151 : 26 M.L.J. 275 : 1 L.W. 22 Spencer, J., takes the same view and refers to the Calcutta cases with approval.

10. Mr. T.R. Ramachandra Aiyar, who appeared for the respondent, in the course of his able argument, contended that under the decisions of this High Court, his client could not be held to be guilty of contempt and relied on Queen-Empress v. Virasami 19 M. 375 : 6 M.L.J. 195 : 2 Weir 680 : 6 Ind. Dec.967, Muthu Kumarasiuami Rowthan v. Kuppuswami Aiyangar 3 Ind. Cas. 82 : 33 M. 74 : 6 M.L.T. 159 and Venkatachelapatirao v. Kameswaramma 43 Ind. Cas. 214 : 41 M. 151 : 22 M.L.T. 330 : 33 M.L.J. 515 : 6 L. W, 617; (1917), M.W.N. 785 F.B.). Whatever the View taken in the English decisions or the Calcutta cases may be, I am, of course, bound by the rulings of this Court. But, after having carefully considered the latter, I have come to the conclusion that they have no bearing upon the present question and that it will be wrong to say that the Madras cases have by implication introduced a new doctrine as regards the law of contempt, a doctrine which is at variance with the established rule as laid down in English text-books and English cases of great authority.

11. In Queen-Empress v. Virasami 19 M. 375 : 6 M.L.J. 195 : 2 Weir 680 : 6 Ind. Dec. 967 the Sessions Judge was justified in the circumstances in not believing the telegram and refusing to act upon it.

12. In Muthu Kumaraswami Rowthan v. Kuppuswami Aiyangar 3 Ind. Cas. 82 : 33 M. 74 : 6 M.L.T. 159 the question to be decided had reference to the validity of a sale, and it was held that, although there was an order by the Appellate Court for a stay of sale, inasmuch as the, order was not communicated to the lower Court, the sale was valid. There is nothing in the report to show that the lower Court was in fact aware of the order made by the Appellate Court, and in any event, this cannot be treated as an authority on the question of contempt.

13. Venkatachelapatirao v. Kameswaramma 43 Ind. Cas. 214 : 41 M. 151 : 22 M.L.T. 330 : 33 M.L.J. 515 : 6 L. W, 617; (1917), M.W.N. 785 F.B. had similarly to deal with the validity of an attachment effected after an order of stay of execution made by an Appellate Court, and it was held that the attachment was legally valid. In the first place, I may observe that neither the decree-holder nor the Court of first instance had notice in fact of the order of the Appellate Court. The Full Bench approved of Bessesswari Ghowdhurani v. Horro Sundar Mozumdar 1 C.W.N. 226. It is to be noted that the judgment in the latter case expressly states that neither the decree-holder nor the Court executing the decree was aware of the stay order made by sthe Appellate Court. In the second place, there is no point connected with contempt, argued before the Full Bench, and I cannot, therefore, accept Venkatachela Patirao v. Kameswaramma, 43 Ind. Cas. 214 : 41 M. 151 : 22 M.L.T. 330 : 33 M.L.J. 515 : 6 L. W, 617; (1917), M.W.N. 785 F.B. as an authority on this point.

14. Having so far stated the law, as I understand it, I have next to deal with the question, did the respondent wilfully disobey the order of the High Court? In other words, did he refuse to adjourn the case, knowing or having reason to believe that the High Court had stayed proceedings? Mr. K.S. Jayarama Iyer, who, on behalf of the petitioners very carefully placed all the facts before me, urged that, whatever might be said of the telegram, the Magistrate was bound to act upon the affidavit of Sundaresa Aiyar. In fact, the argument presented to me was that the Magistrate believed the statements contained in the telegram and the affidavit to be true and yet refused to grant the adjournment. In support of this contention, reliance was placed upon the wording of the order refusing adjournment. I have read the order carefully and although there is much to be said in favour of Mr. Jayarama Iyer's contention, I feel that I am bound to read the order liberally and that I must not, unless I am driven to it, construe, the order as indicating that the Magistrate believed that the High Court ordered a stay, and nevertheless he would not adjourn the case. Then it was contended that the conduct of the Magistrate was extraordinary, firstly, in dispensing with the evidence of the Court witness, secondly, in fixing in advance an hour for the delivery of the judgment and giving barely 30 minutes to the accused's Lawyer to sum up the case and, thirdly, in coming to the Court with a judgment that had been written long before the accused's Lawyer had an opportunity to argue the case. The trial of the criminal case commenced in June 1922 and a charge was framed on the 25th December 1922. It was tried by several successive Magistrates of whom the respondent was the last. Twenty-seven witnesses for the pro-secuiton and 54 witnesses for the defence were examined and the record was voluminous. It is said that in these circumstances the Magistrate could have had only one object in preventing an argument on behalf of the accused, and that object, it is contended, was to be able to finish the case before an official communication of the order of the High Court could reach his hands. I must say that this argument is very legitimate in the circumstances. But the liberty of a subject is involved, and I am, moreover, dealing with a responsible officer of some standing. I shall, therefore, give the benefit of every doubt to the respondent, and When two inferences are possible, shall accept that which is consistent with the bona fides and uprightness of the Magistrate. The conduct of the Magistrate in writing a judgment in advance is very objectionable, but what inference can I draw from it? In his explanation he states that he commenced to write the judgment several days before he received the telegram, and I quite believe it. It is impossible to have written the judgment consisting of about 25 typed pages between 9 o'clock when the telegram reached him and 12 o'clock when he sat on the Bench. I cannot, therefore, draw any inference adverse to the Magistrate in this connection, from the fact that he came to the Court ready with a judgment. Then, as regards the order dispensing with the examination of the Court witness, though the suggestion of Mr. Jayarama Iyer that the Magistrate passed this order with a view to hasten the case cannot be said to be utterly unfounded, it is quite probable that the Magistrate honestly came to the conclusion in the course of his writing the judgment, that this additional evidence was unnecessary, and I am not, therefore, prepared to impute to him mala fides. The strongest fact against the Magistrate, it is next said, is, that he effectually prevented the accused's Vakil from arguing the case. By this, he has no doubt rendered himself liable to grave censure; but I am willing to accept the suggestion of Mr. Ramachandra Aiyar that the Magistrate had made up his mind and thought that no argument could make him alter his decision and was of the opinion that a speech at the conclusion of the case was a superfluity. As I have said, however much I am disposed to condemn the procedure of the Magistrate, I do not think that the only inference possible is that he wilfully cut short the argument with a view to finishing the case and delivering the judgment before the receipt by him of the order from the High Court. The Magistrate states in his explanation that he was specially directed by the Government and the District Magistrate to dispose of the case at an early date. This, no doubt, to a certain extent, operated on the respondent's mind, and the information conveyed to him regarding the stay order at the last moment, after he had taken the trouble to write a long judgment, produced in him a state of irritation and clouded his judgment, and, he was not in a mood to dispassionately consider the application on its merits, and I am disposed to think that all the subsequent acts of the Magistrate are thus traceable to the absence of judicial calmness and that the facts do not make only one conclusion imperative, namely, that he intended to set at defiance the order of the High Court. I must add that it is a redeeming feature of this case that the Magistrate has not persisted in justifying his conduct, but has on the contrary himself and through Mr. Ramachandra Aiyar, most frankly admitted its impropriety and expressed in unqualified terms regret for what has happened. I have held that the Magistrate has not been guilty of contempt; but I have been able to arrive at this conclusion, only by rigidly excluding every hypothesis inconsistent with his honesty even where circumstances are suspicious and I cannot, therefore, direct the petitioners to pay the respondent's costs. The accused had ample justification for making this application, and I may also remark that it has not been shown to me that they were guilty of causing any delay at any stage of the case. I would, therefore, dismiss this application, but make no order as to costs.


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