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All India Sugar Mills Ltd. Vs. Sardar Sunder Singh - Court Judgment

LegalCrystal Citation
SubjectContempt of Courts
Decided On
Reported inAIR1937Cal601
AppellantAll India Sugar Mills Ltd.
RespondentSardar Sunder Singh
Cases ReferredH.D. Rajah v. C.H. Witherngton
- .....known to the court and to the respondent who elected to proceed.2. the second hearing was on 30th march; the facts in connection with this are deposed to on behalf of the applicants in an affidavit sworn on 10th april 1937 by one mohun lal mukherjee. according to this testimony, a certified copy of the interim order was handed up to the magistrate, the contents were explained to the complainant, and the complainant again elected to proceed.3. on 27th april 1937 there was a further hearing at a place called bias, and an order was made (ex. a to the present petition). it reads:i have again told the complainant that if he wants to get this case filed for the present or not. he says that after having read the notice of the calcutta high court he would still proceed with the case and not.....

Ameer Ali, J.

1. This is a second application to commit for contempt in respect of a prohibitory order made by me on 5th March of this year. The dates are material. The interim order was made on 5th March 1937, and it restrained, so far as it is material, the defendant to the suit, Sardar Sunder Singh, from proceeding with certain criminal proceedings in the Punjab in respect of the subject matter of the suit, i.e. the proceedings pursuant to a complaint against the Directors of the plaintiff company for cheating. On 12th March, the interim order was served by registered post under directions contained in the original order. It was admittedly received by the respondent (that admission was made on a previous application) on 13th March. On 12th March 1937 there was a hearing of the criminal proceedings. The facts are deposed on behalf of the applicant in an affidavit dated 19th March 1937. It is apparent that the making of the interim order was known to the Court and to the respondent who elected to proceed.

2. The second hearing was on 30th March; the facts in connection with this are deposed to on behalf of the applicants in an affidavit sworn on 10th April 1937 by one Mohun Lal Mukherjee. According to this testimony, a certified copy of the interim order was handed up to the Magistrate, the contents were explained to the complainant, and the complainant again elected to proceed.

3. On 27th April 1937 there was a further hearing at a place called Bias, and an order was made (Ex. A to the present petition). It reads:

I have again told the complainant that if he wants to get this case filed for the present or not. He says that after having read the notice of the Calcutta High Court he would still proceed with the case and not withdraw from the prosecution of the accused.

4. And the proceedings continued. On 11th May the order was made absolute and on that day I requested counsel for the defendant to give an undertaking not to proceed, but on instructions he declined to do so. This application was taken out on 15th May 1937. On 17th May notice of this application was personally served, and the order of 5th March was personally served. On 17th May (the same day) according to the evidence of the respondent in para. 7 of his affidavit, he applied for an adjournment of the proceedings, and they were adjourned until 18th June. A copy of the order, possibly a certified copy, was handed up to me. It is not an affidavit, but, if [not] here, I shall refer to it again. A copy also, obviously not certified, of the application was also handed up which explains the nature of the order made by the learned Magistrate on 17th May, the learned Magistrate pointing out that no facts were stated, the order of the Calcutta Court has not been produced and was not quoted in the petition.

5. The first hearing of this application was on 24th May and under somewhat peculiar circumstances which will appear from the note taken of a statement of a certain representative of the defendant, I adjourned the matter. In any event an affidavit has now been filed by Sardar Sunder Singh, and the defence made is, first of all, that he was advised by his lawyers that the order was not effective, and need not be obeyed, and secondly that on 27th April he did in fact apply for adjournment, and the learned Magistrate would not grant it, but asked him to withdraw finally from the proceedings. That I do not believe that there was any application for adjournment on 27th April by Sardar Sunder Singh.

6. Some little difficulty arises from the fact that the order of that day speaks of 'filing the case' and 'withdrawal from the prosecution'. So far as I understand (and I accept counsel's statement that 'filing' in this connection means something more than adjournment, but considerably less than dismissal) it means putting away, taking it off the file of the current and pending proceedings; it is put aside until again restored by some application of the plaintiff, I think that at that time (the 27th) no distinction was made between 'adjournment' and 'filing'. The fact is that on 27th April the applicant was not prepared to have the matter adjourned. The fact also is that when an application for adjournment is made, the Magistrate did grant such application.

7. With regard to the defences, in my opinion, the fact that the respondent acted upon the advice (and I shall for this purpose assume he did) is not a defence. He takes the risk. It may affect the question of punishment but not of liability. I can find no authority for the proposition that because the defendant is advised or thinks that the order is wrong in law and that he is justified in disobeying it. The second defence is that there is no personal service of the order. In my opinion, in the circumstances I have stated, the respondent having been served with the order, and being aware of the order, the fact that there has been no personal service in the manner provided by the Code is no defence. It would be better however to avoid these pleas, the personal service order should be effected as soon as possible. I do not think the delay in this case affords the respondent any justification.

8. The last point is jurisdiction. The offence was committed in the Punjab. Mr. Clough, counsel for the applicant, relies on the decision of McNair, J. in Chandan Mall Karnani v. Sardari Lal Thapar (1937) 1 Cal 345 at p. 349, in which case an order was made for the committal of a person who committed contempt of this Court in the Punjab. In that case the contempt was in breach of an undertaking given to this Court, but I see no logical distinction, and the only question is whether I should differ from that decision. Mr. Ghose relied upon the authority in H.D. Rajah v. C.H. Witherngton AIR 1934 Mad 423, that authority however, though the view is to be inferred that jurisdiction follows the place of the committal of the offence, is not a direct authority on the point, the point raised being the question of jurisdiction where the respondent was living or situate outside the jurisdiction. With regard to McNair, J.'s decision, I do not find it categorically stated that this Court has jurisdiction where the offence is committed in another province, but the order was issued, and Mr. Clough is entitled therefore to rely upon the decision. It is a decision from which I do not propose to differ until and unless I have the guidance of the Court on appeal.

9. The question remains as to the order to be made. I propose to make an order in the form indicated by McNair, J. It is not to be executed, if the respondent, Sardar Sunder Singh, within a fortnight satisfies this Court that he has applied to the learned Magistrate with a copy of this order which, for the adjournment or for the filing of the proceedings in the alternative, pending the hearing of the civil suit, and on the counsel for the respondent undertaking not to take any steps in these proceedings other than making the application I have referred to. I direct that the affidavit of the respondent be filed within a fortnight from today and the application by the respondent to the Magistrate will be made within a week of the completion of the order of today. In default the order will be for committal to prison for a fortnight. The respondent will pay the costs of this application taxed as between attorney and client. With regard to the costs incurred by the accused in the proceedings in Amritsar which should not have been proceeded with, these are assessed on the amount produced by Mr. Clough by my officer at Rs. 1,100. Those costs will be payable by the respondent. Execution may be had forthwith for the costs of the application and the sum of Rs. 1,100.

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