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Shyam Sundar Halwasiya Vs. Jodhraj Halwasiya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1948Cal214
AppellantShyam Sundar Halwasiya
RespondentJodhraj Halwasiya
Cases ReferredMohendra Lall Hitter v. Anundo Coomar
Excerpt:
- .....in respect of which the order is made is a civil proceeding certainly does not make it a civil contempt; nor the fact that an order for imprisonment has been made necessarily makes it criminal. the distinction in english law is based on the ground as to whether the words or acts complained of constitute an obstruction of or interference with the administration of justice and hence amount to a public injury, or it merely involves disobedience to judgments, orders or other processes of the court and hence rank merely as private injuries.9. an elaborate discussion of these questions will be found in the judgment of the court of appeal in england in o'shea v. o'shea (1890) 15 p.d. 59 and that of the house of lords in scott v. scott (no. 1)('13) 1913 a.c. 417. the principles adopted.....
Judgment:

B.K. Mukherjea, J.

1. This appeal is directed against an order made by Edgley J. on 3-7-1947, by which the present appellant, who was the plaintiff in a civil suit, has been committed to prison for contempt of Court and further directed to pay a fine of Rs. 400. The facts so far as are material for our present purposes may be shortly stated as follows:

2. The appellant Shyam Sunder Halwasiya brought a civil suit against Seth Jodhraj Halwaisya in the Original Side of this Court which was registered as suit No. 1227 of 1946 and the suit came up for hearing before Edgley J. on 23-6-1947. On the afternoon of 24-6-1947, the plaintiff, who had examined himself as a witness in this case, was under cross examination by the defendant's counsel and before the cross-examination was finished the case was adjourned till the day following, It appears that one Gajanand Chamaria was instructing the defendant's counsel while ho was cross-examining the plaintiff, and it is said that the defendant requested Gajanand to depose in the suit in his favour. After the hearing of the case was adjourned, the plaintiff left the court room before Gajanand and defendant and he waited at the veranda which is immediately outside the northern wall of the room. As soon as Gajanand came out and stepped into the veranda the plaintiff, it is said, seized him by the throat and abused him threatening to kill him if he would dare depose in the suit against him. Edgley J., was still in court room hearing another matter and Gajanand through a learned counsel brought this incident to the notice of the learned Judge, who directed him to put in a formal petition. The petition was filed on 25th June and a rule was issued calling upon the plaintiff to show cause why he should not be committed for contempt of Court. The plaintiff appeared to show cause on 26-0-1947 and offered an unqualified apology through his counsel. Having regard to the seriousness of the charge, Edgloy J., thought that an enquiry should be held and thereupon affidavits were filed and the deponents were verbally examined in Court. The learned Judge came to the conclusion that the plaintiff had actually abused and assaulted Gajanand on 24-6-1947, and he did so in order to intimidate him and to interfere with proper administration of justice. On these findings the learned Judge directed the appellant to be committed to prison for a period of two weeks and in addition to that pay a fine of Rs. 400. It is against this judgment that the plaintiff has filed the present appeal.

3. The learned counsel appearing for the respondent has taken a preliminary objection challenging the competency of the appeal. It has been contended that the order passed by a single Judge of this Court in exercise of criminal jurisdiction cannot be challenged by way of appeal under Clause 15 of the Letters Patent. The point is an important one and as it appears not to have been considered in any other previous decision of this Court we deem it necessary to examine the matter carefully.

4. The material portion of Clause 15 of the Letters Patent bearing on this point runs as follows:

And we do further ordain that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal from the Judgment... not being a sentence or order... made in the exercise of criminal jurisdiction) of one Judge of the said High Court....

The whole controversy centres round the point as to whether the order of Edgley J. was passed in the exercise of criminal jurisdiction and if this question is answered in the affirmative obviously this appeal will be incompetent.

5. Mr. Gupta appearing for the appellant has argued before us that the expression 'criminal jurisdiction' occurring in Clause 15 of the Letters Patent refers to and means the jurisdiction that is exercised by a Judge of this Court under Clauses 22 to 29 of the Letters Patent and as these clauses apparently do not cover a case of inflicting penalty for contempt of Court an appeal is not barred under Clause 15 of the Letters Patent. The contention though plausible at first sight does not appear to us to be sound. It is true that the various clauses of the Letters Patent classify the different jurisdictions of this Court under different heads and Clauses 22 to 29 come under that part which is headed as 'Criminal Jurisdiction'. Mr. Gupta may be right in his contention that these clauses contemplate what is ordinarily known as criminal trial, and this is clear from the provision of Clause 25 which lays down that there shall be no appeal to the High Court of Judicature at Fort William in Bengal:

from any sentence or order passed or made in any criminal trial before the Courts of Original criminal jurisdiction which may be constituted by one or more Judges of the said High Court.

6. It would be pertinent to point out here that in the Letters Patent as it stood before the amendment of 11-3-1919, the expression used in Clause 15 was 'sentence or order passed or made in any criminal trial' and not 'an order made in the exercise of criminal jurisdiction'. As the orders in contempt cases arising out of civil proceedings cannot ordinarily be said to have been made in course of a criminal trial, it was held by Sargent C.J. in Nanivahoo v. Narotamdas ('83) 7 Bom. 5 that an appeal would lie against an order for attachment for contempt under Clause 15 of the Letters Patent as it then stood. Beaumont, C.J., was apparently not properly informed when in commenting on this decision in a subsequent case reported in Narayanrao Vithal v. Solomon Monses 20 A.I.R. 1933 Bom. 108 he observed that the exact wording of Clause 15 of the Letters Patent was overlooked by Sargent C.J., in the previous case. It is clear, however, that the amendment of the Letters Patent in the year 1919 deliberatley changed the expression, and the expression ''criminal jurisdiction' apparently has a wider connotation than a 'a criminal trial' as used in Clause 25 of the Letters Patent. If the jurisdiction which the Judge exercises in a contempt matter is criminal jurisdiction it is immaterial in our opinion whether the jurisdiction was derived from the Letters Patent or existed apart from it which was expressly preserved by Clause 38 of the Charter and we do not think that it would be correct to say that an appeal would lie against an order made in the exercise of criminal jurisdiction simply because there was no criminal trial in accordance with the provisions of Clauses 22 to 29 of the Letters Patent.

7. This leads us to enquire as to whether the order appealed from in the present case is or is not made in the exercise of criminal jurisdiction.

8. Subject to statutory provisions, if any, all superior Courts of record possess the inherent power of inflicting punishment for acts which amount to contempt of Court. In English law a distinction is made between a contempt which is criminal and one which is not so, and under Section 31 of the Judicature Act of 1925, (which corresponds to Section 47 of the Judicature Act of 1873,) no appeal lies from any judgment of the High Court in any criminal cause or matter. The question has come up for consideration in various cases before the English Courts as to whether the order made in a particular contempt case is an order made in a criminal cause or matter. The mere fact that the proceeding in respect of which the order is made is a civil proceeding certainly does not make it a civil contempt; nor the fact that an order for imprisonment has been made necessarily makes it criminal. The distinction in English law is based on the ground as to whether the words or acts complained of constitute an obstruction of or interference with the administration of justice and hence amount to a public injury, or it merely involves disobedience to judgments, orders or other processes of the Court and hence rank merely as private injuries.

9. An elaborate discussion of these questions will be found in the judgment of the Court of Appeal in England in O'Shea v. O'Shea (1890) 15 P.D. 59 and that of the House of Lords in Scott v. Scott (No. 1)('13) 1913 A.C. 417. The principles adopted by the English Courts are that a mere disobedience to an order of the Court by a party to a suit or proceeding even if wilful would not make it a crime. It implies primarily as between the parties to the proceeding a right to exercise or a liability to submit to a form of a civil execution or certain civil processes; though as between the party in defatilt and the State a penal or disciplinary methodis to be employed by the Court to enforce compliance with its order. As Cotton, L.J., observed in O'Shea v. O'Shea (1890) 15 P.D. 59.

There are many contempts of Court that are not of a criminal nature; for instance, when a man does not obey an order of the Court made in some civil proceeding, to do or to abstain from doing something-as where an injunction is granted in an action against a defendant, and he does not perform what he is ordered to perform, and then a motion is made to commit him for contempt-that is really only a procedure to get something done in the action, and has nothing of a criminal: nature in it.

On the other hand, when the acts complained of involve scandalizing of a Judge or intimidation or corruption of jurors or witnesses in a suit or the prejudicing of the case of any litigant in any pending proceeding such acts must certainly amount to criminal acts. (Vide per Lord Atkinson in Scott v. Scott (No. 1)('13) 1913 A.C. 417 at 455). These are public injuries and the offender aims at tainting the source of justice and obtain a result of a legal proceeding different from that which would follow in the ordinary course.

10. Mr. Gupta has drawn our attention to certain observations of Lord Atkinson in Scott v. Scott (No. 1)('13) 1913 A.C. 417 at p. 456 and he has argued that the distinction between civil and criminal contempt as made in English Courts is an artificial distinction which leads to various anomalies and these artificial rules should not be introduced into our law. The only anomaly pointed out by Lord Atkinson in the case referred to above is that disobedience of an injunction or order of the Court by a party upon whom the order is imposed is held to be a civil contempt in English law, whereas it is regarded as a criminal contempt if the same act is committed by an outsider who was no party to the suit. It may be, as Lord Atkinson points out, that the results are somewhat anomalous. But the distinction is sought to be made expressly on the ground that a person who is not a party to a suit or proceeding and is not amenable to the jurisdiction of the Court in the suit itself has no right to thwart or obstruct any order which the Court passes in respect of the subject-matter of the suit, and in this sense his acts would amount to obstruction or impeding the course of justice. Be that as it may, we are not certainly bound to follow any decision of the English Courts unless it is in consonance with the principles of equity, justice and good conscience, and we can import the English precedents only in cases where there is a total absence of Indian law on the particular subject. We need not and should not adopt any rule of English law which is based upon any technicality of the English system or seems to us to be artificial in its character. But the broad distinction made in English law between civil and criminal contempt is, in our opinion, not grounded on any technical rule of English law, but on sound juridical principles, and in the absence of any legislative enactment on the point, we do not think that we should hesitate to adopt that. The question whether the order for committal or attachment made in a contempt case has been or has not been made in the exercise of criminal jurisdiction would, in our opinion, have to be determined on the ground as to whether the penalty was imposed as a method of enforcing the order or processes of a civil Court or it was a summary punishment for a criminal act which tended to impede or obstruct the course of justice. On this view we have taken, it is clear that the order complained of must be deemed to have been made by the learned Judge in the exercise of criminal jurisdiction and consequently an appeal would not lie under Clause 15 of the Letters Patent. The view which we are taking receives entire support from the decision of the Bombay High Court in Narayanrao Vithal v. Solomon Monses 20 A.I.R. 1933 Bom. 108. As I have said above, there is no express decision of our Court on this point. The decision in Mohendra Lall Hitter v. Anundo Coomar ('98) 25 Cal. 236 (F.B.) to which our attention has been drawn by Mr. Gupta, does not at all consider this point and this decision can certainly be supported on the wording of the Letters Patent as it existed at the date when the decision was made.

11. If we could entertain the appeal we would have certainly considered the sentence that has been passed in this case to be very much excessive. On the first day that the plaintiff appeared before Edgley J., he threw himself unreservedly on the mercy of the Court and tendered unqualified apology through his counsel. There is no clear finding as to what was the nature of the abusive language that was used by the plaintiff. The fine which was imposed upon him, we are told, has already been paid, and as stated above if the appeal was competent we would have no hesitation in setting aside the sentence of imprisonment. As we are powerless to interfere, we can only say that it would be open to the appellant to approach the Provincial Government who in the exercise of their clemency might remit the sentence of imprisonment that has been made in this case. We stay the execution of the sentence for a further period of two months from this date, and the sureties will continue.

12. The appeal is dismissed as incompetent There will be no order as to costs.

Harries, C.J.

13. I entirely agree.

14. In English law a distinction has been drawn between contempts of a criminal nature and contempts of a civil nature. Generally, the distinction seems to be that contempts which tend to bring the administration of justice into scorn or which tend to interfere with the due course of justice are criminal in their nature, but that contempts in disregarding orders or judgments of a civil Court or in not doing something ordered to be done in a case are not criminal in their nature.

15. If a contempt is criminal in its nature it is difficult to resist the conclusion that a Judge dealing with such a contempt is exercising criminal jurisdiction. English Courts have now held that a sentence passed in respect of a criminal contempt is a sentence passed in the exercise of a Judge's criminal jurisdiction.

16. Mr. Atul Chandra Gupta argued strenuously that Courts in India should not accept this distinction which has been made in English law. He urged that the distinction was a purely technical one and based on no good reason whatsoever. My learned brother Mukherjea J., however, has pointed out that the distinction rests on a very firm juridical basis. Mr. Gupta urged that this Court should not make this distinction unless it was satisfied that it was based on equity, justice and good conscience. I agree with my learned brother that the rule of equity, justice and good, conscience requires us to make the same distinction in this Court.

17. However, the matter is not open for discussion because I find that in In re Moti Lal Ghose 5 A.I.R. 1918 Cal. 988 this Court drew this very same distinction. At page 240 Mookerjee J. observed:

A criminal contempt is conduct that is directed against the dignity and authority of the Court. A civil contempt, on the other hind, is failure to do something ordered to be done by a Court in a civil action for the benefit of the opposing party therein. Consequently, in the case of a criminal contempt, the proceeding is for punishment of an act committed against the Majesty of the Las and, as the primary purpose of the punishment is the vindication of the public authority, the proceeding conforms, as nearly as possible, to proceedings in criminal cases. In the case of civil contempt, on the other hand, the proceeding in its initial stages at least, when the purpose is merely to secure compliance with a judicial order made for the benefit of a litigant, may be deemed instituted at the instance of the party interested and thus to possess a civil character.

It will be seen that this Court has approved of the distinction and therefore we must accept and apply the distinction made in English law.

18. It is quite clear that the contempt alleged in this case was of a criminal nature, and I think it is impossible to argue that in dealing with this matter Edgley J. was exercising no criminal but civil jurisdiction. He was dealing with a matter criminal in its nature, and the judgment he delivered was in my view a judgment delivered in the exercise of his criminal jurisdiction. That being so no appeal can lie by reason of Clause 15 of the Letters Patent of this Court.

19. I further agree with my learned brother in the view that he takes of the punishment imposed in this case. The appellant threw himself unreservedly upon the mercy of the Court and proffered an ample and unqualified apology. A fine in my view would have been sufficient; and I agree that this is a case in which the Provincial Government might well exercise their powers of clemency and remit the period of imprisonment.


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