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Dulal Chandra Bhar and ors. Vs. Sukumar Banerjee and ors. - Court Judgment

LegalCrystal Citation
SubjectContempt of Court;Criminal
CourtKolkata High Court
Decided On
Case NumberLetter Patent Appeal No. 75 of 1958
Judge
Reported inAIR1958Cal474,1958CriLJ1162,62CWN595
ActsContempt of Courts Act, 1952 - Sections 1, 2 and 3; ;Constitution of India - Article 215; ;Code of Criminal Procedure (CrPC) , 1898 - Section 145 and 145(6)
AppellantDulal Chandra Bhar and ors.
RespondentSukumar Banerjee and ors.
Appellant AdvocateAtul Chandra Gupta, ;S.S. Mukherjee, ;Alak Gupta, ;Rajendra Kumar Bhattacharjee and ;Devaprosad Chaudhuri, Advs.
Respondent AdvocateHari Prosanna Mukherjee and ;Jagannath Gangopadhyaya, Advs.
Cases ReferredHem Bala Dasi v. Sundar Shaw
Excerpt:
- p. chakravartti, c.j. 1. on 17-1-1958, the three appellants before us were committed to jail by an order of n. k. sen, j.,to be detained in simple imprisonment for six months for contempt of this court and also, it would appear, contempt of the court of a magistrate of barrackpore. along with the appellants a fourth person, a police officer, was also arraigned for contempt and punished by the learned judge with a fine. he has not appealed. the contempt found against the appellants was violation of an order made by the learned judge himself in a criminal revision case arising out of a proceeding under section 145 of the code of criminal procedure and also, though this is doubtful, some further orders of the magistrate passed in order to give effect to the learned judge's order. the.....
Judgment:

P. Chakravartti, C.J.

1. On 17-1-1958, the three appellants before us were committed to jail by an order of N. K. Sen, J.,to be detained in simple imprisonment for six months for contempt of this Court and also, it would appear, contempt of the Court of a Magistrate of Barrackpore. Along with the appellants a fourth person, a Police Officer, was also arraigned for contempt and punished by the learned Judge with a fine. He has not appealed. The contempt found against the appellants was violation of an order made by the learned Judge himself in a Criminal Revision Case arising out of a proceeding under Section 145 of the Code of Criminal Procedure and also, though this is doubtful, some further orders of the Magistrate passed in order to give effect to the learned Judge's order. The appellants contended before' the learned Judge that they hud not been guilty of contempt, but having been convicted, they have now appealed.

2. The question, first to bo decided is whether the appeal lies. It can be beld to lie only if it can be shown that the order appealed from is appealable under Clause 15 of the Letters Patent and it can be shown to be appealable under that Clause only if it is not an order of one of the excepted kinds and if it amounts to a judgment within the accepted meaning of that term. Two of the exceptions mentioned in Clause 15 may at once be put on one side, because no one can contend that in passing his order, the learned Judge was exercising appellate or revisional jurisdiction. The remaining exception is as to orders passed in the exercise of criminal jurisdiction and the question is whether it was in exercise of that jurisdiction that the learned Judge punished the appellants for contempt. From one point of view it can be said that since the learned Judge undoubtedly passed his original order in the Revision Case in exercise of a criminal jurisdiction, the order for contempt, having been passed merely in aid of the original order, was also passed in exercise of the same jurisdiction. An analysis of the real nature of the order would, however, show that such a contention would not be correct. The jurisdiction to pass an order for contempt is per se neither civil or criminal, but is sui generis. It is, however, well settled that when a Court punishes a person for criminal contempt, he exercises criminal jurisdiction and no appeal lies at all as to the merits of his order, although an appeal on the question of jurisdiction may lie. Where, however, the contempt concerned is civil contempt and the order contains a finding as to the words or deeds which, in the view of the Judge, constituted contempt, an appeal would lie. It has, therefore, to be seen whether the contempt in the present case, assuming contempt was committed, was civil or criminal contempt.

3. The line between civil and criminal contempt can be broad as well as thin. Where the contempt consists in mere failure to comply with or carry out an order of a Court made for the benefit of a private party, it is plainly civil contempt and it has been said that when the party, in whose interest the order was made, moves the Court for action to be taken in contempt against the contemner with a view to an enforcement of his right, the proceeding is only a form of execution. In such a case, there is no criminality in the disobedience and the contempt, such as it is, is not criminal. If, however, the contemner adds defiance of the Court to disobedience of the order and conducts himself in a manner which amounts to obstruction to or interference with the course of justice, the contempt committed by himis of a mixed character, partaking as between him and his opponent of the nature of a civil contempt and as between him and the Court or the State, of the nature of a criminal contempt. In cases of this type, no clear distinction between civil and criminal contempt can be drawn and the contempt committed cannot be broadly classed as either civil or criminal contempt. There is, however, a third form of contempt which is purely criminal and which consists in conduct tending to bring the administration of justice to scorn and to interfere with the course of justice as administered by the Courts. Contempt of this class is purely criminal, because it results in an offence or a public wrong, whereas contempt consisting in disobedience of an order made for the benefit of a private individual results only in a private injury. To put the matter in other words, a contempt is merely a civil wrong where there has been disobedience of an order made for the benefit of a particular party, but where it has consisted in setting the authority of the Courts at naught and has had a tendency to invade the efficacy of the machinery maintained by the State for the administration of justice, it is a public wrong and consequently criminal in nature.

4. It is necessary at this stage, in order to determine the true nature of the contempt alleged in the present case and the proceedings taken for its punishment, to state a few facts. I have already stated that the order which is said to have been violated was passed in a Criminal Revision Case arising out of a proceeding under Section 145 of the Code of Criminal Procedure. The dispute in that proceeding related to premises No. 99B Barrackpore Trunk Road, an area of about 9 bighas of land with a structure on it and a tank. The property now belongs to a private limited company, called Bhusan Chandra Bhar Estate Limited. It appears that there was a person named Bhusan Chandra Bhar who died, leaving two sons, named Jahar and Fakir. Jabar has three sons named Dulal, Gopal Gobinda and Sanatan, of whom Gopal Gobinda is a person of unsound mind. Fakir, who is now dead, left four sons named Rajkrishna, Gangaram, Gadadhar and Panchkari. The heirs of Bhusan appear to have formed a private limited company and transferred to it the ownership of the properties left by their ancestor. The company appears to have been formed on 13-5-1951 and the first directors were the two sons of Bhusan, Jahar and Fakir, and one son of each son, namely Dulal, son of Jahar, and Gangaram, son of Fakir. The property with which these proceedings are concerned belongs to a third party, but a lease of it for a period of sixty-one years was taken by one Rajkrishna Bhar on 6-2-1948. On 29-3-1952, Rajkrishna assigned the property to the Bhusan Chandra Bhar Estate Limited. Fakir died on 15-6-1951 and, since then, the relations between the two branches of the family appear to have been anything but cordial. It is stated that Jahar's branch, particularly Dulal, was so badly treated by the other branch that he had to leave the property for a considerable time, though he claims to have returned to it a short while ago on the occasion of the marriage of a daughter and stayed on. The dispute between the two branches of the family regarding the management of the company and its properties is now bitter, each branch repudiating the rights ofthe other to deal with either the company or its assets.

5. Into this dispute between two branches of the family of Bhusan, a third party entered towards the close of 1956. On the 9th November of that year, one Sudarsan De, claiming to be a director of another company called the Popular Iron and Steel (Private) Limited, obtained from Gangaram a lease of 3 1/2 bighas of the land and on the 13th of November following, one Manasa Prosad Banerjee, claiming to be another director, obtained a lease of another 5 bighas. The two leases are said to have been consolidated subsequently and on the strength of the right claimed thus to have acquired, the Popular Iron and Steel (Private) limited entered the land in December, 1956. It is claimed by the company that it obtained vacant possession and that it not only set up a boundary wall, but also installed some machinery for carrying on its business of iron and steel fabrication. It was the entry of the lessees from Gangaram upon the land which started the proceedings out of which the present appeal has arisen.

6. On or about 16-12-1956, Sanatan who, it will be remembered, is one of the sons of Jahar, is said to have gone upon the land, abused the lessees' men and started throwing away the articles kept or installed there. Both sides were in a belligerent mood and as there was an apprehension of a breach of the peace the local Magistrate, one Mr. Naha drew up proceedings under Section 145 of the Code of Criminal Procedure. To that proceeding be made Jaharlal Bhar and his three sons the first party, The second party were the four sons of Fakir and three directors of the Popular Iron and Steel (Private) Limited, namely Sukumar Banerjee, Sudarsan Dey and Manasa Prosad Eanerjee. The last-named three appear to have represented it to the Magistrate that into the dispute between the co-sharers or rather co-shareholders of the Bhusan Chandra Bhar Estate Limited, they should not be dragged and that pending the settlement of that dispute, they might be appointed Receivers of the property. The Magistrate did not accede to that request and in making an order under Section 145 (4) of the Code of Criminal Procedure, he appointed the Officer-in-Charge of the Baranagore Police. Station caretaker of the property and directed him to take charge of it. The order of the Magistrate was made on the 24th of December, 1956. The lessees appear to have brought ft to the notice of the Magistrate that they had! a large number of valuable articles lying on the land and thereupon the Magistrate asked the caretaker to prepare an inventory of the articles. An inventory was prepared on the 28th oft December, 1956 and sixtyfour articles were entered in it, of which two only were shown as claimed by both parties. On the next day, the lessees prayed to the Magistrate that they might be allowed) to take away nineteen of the articles which really belonged to their customers and on that prayer being made, the Magistrate, by an order made on the 29th of December, 1956, gave them the permission sought and added that the rest of the articles should be returned to the company, that is to say, the Popular Iron and Steel (Private) Limited, as and when they might want to take them away. The lessees availed themselves of the first part of the Magistrate's order, but actually they took away not nineteen articles, but seventeen.

7. At that stage, the lessees, who had failed to obtain a release from the proceedings, moved this Court in revision and prayed that the Magistrate's order initiating a proceeding under Section 145 of the Code of Criminal Procedure might bo set aside, they themselves might be appointed Receivers of the attached property and an order under Section 144 of the Code of Criminal Procedure might be passed against the members of the first party. A rule was granted on the application and Criminal Revision Case No. 1 of 1957 was started. Ultimately, by an order passed on the 18th of January, 1957, this Court discharged the Rule in the view that it would not be right to interfere with the proceedings. In the course of its judgment, the Court made the following observations:

'It appears that they (that is, the members of the first party) drove away the petitioner's men from, the premises. There is also no doubt that the petitioners obtained actual physical possession of the premises even though it was for a very short period of time.'

8. Upon the termination of the Criminal Revision Case, the Magistrate resumed the proceedings under Section 145 and made his final order o n 13-3-1957. He held that the first party should retain possession of the disputed land and passed an order in the following terms:

'I hereby pass order under Section 145(6) of Cr. P. C. and declare the 1st party to be entitled to possession of the disputed land until evicted therefrom in due course of law and forbid all disturbance of such possession until such eviction'.

9. Against that order, the three directors of the Popular Iron and Steel Private Limited moved this Court again in revision. They obtained a Rule and thereupon Criminal Revision Case 332 of 1957 was started. In their petition they alleged that they had obtained a lease or rather a sub-lease of the land from a party, competent to grant a lease on behalf of of the Bhusan Chandra Bhar Estate Limited and accordingly they submitted that they should not have been excluded from possession of the land. It was also alleged by them that after the first party had re-entered the land in pursuance of the Magistrate's order, they had wrongfully removed and probably disposed of the articles which the petitioners had taken to and left on the land and which had never been claimed by the first party. The application succeeded. N. K. Sen, J., who dealt with it held that the Magistrate had been under a complete misapprehension about the nature of the possession of the petitioners before him, because the only possession which they had claimed in the proceedings and were still claiming was possession as tenants under the Bhuan Chandra Bhar Estate Limited. The Magistrate had found that the temporary possession which the lessees had obtained of the land had been obtained by dispossessing the first party wrongfully and forcibly within two months from the date of his initial order and it was on that basis that he had held the first party to be entitled to possession. N. K. Sen, J., held that the lessees had not dispossessed anybody or dispossessed him wrongfully and forcibly, tut had entered upon the land on the strength of a lease obtained from the Bhusan Chandra Bhar Estate Limited and that whichever of the two rival parties might be entitled to the management of the company, the status of the lessees as tenantsor lessees under the company would, in any event, remain unaffected. He, accordingly, held that it was the petitioners before him, namely the lessees, who had been wrongfully and forcibly ousted from possession by the first party and that accordingly their right to possession should be declared. The learned Judge, however, made it clear that his order would not mean that the Magistrate's order in favour of the first party would cease to have effect, but only that the petitioners before him would have possession as lessees simultaneously with the possession of the first party as holders of the superior title. The actual order which the learned Judge made was in the following terms:

'I therefore order, while affirming the order of the learned Magistrate, that the possession of the petitioners as tenants under Bhusan Chandra Bhar Estates Private Limited be maintained and the Rule be disposed of accordingly'.

He made a further order with regard to the goods which reads as follows:

'The petitioners, in their petition before me, have alleged that the goods belonging to them which were not claimed by opposite parties Nos. 1 to 4, had been removed and the learned Magistrate, on being apprised of this matter, did not pass any order on that application. It is, therefore, ordered that the goods not claimed by opposite parties Nos. 1 to 4 but belonging to the petitioners, must be returned to them'.

The order of the learned Judge was made on 21-8-1957.

10. It is the above order which the appellants are said to have violated and thereby made themselves guilty of contempt of Court. It appears that after obtaining the order, the lessees went back to the Magistrate and made an application to him on 2-9-57, praying that the Magistrate might restore possession of the land to them and return the articles mentioned in the inventory. On that application being made, a notice was served on the appellants and one of them, Sanatan appeared and contended that this Court had! not made any specific order directing them to deliver possession to the lessees. Thereupon, the Magistrate passed an order on 11-9-1957, directing the Officer-in-Charge of the Baranagoro Police Station to take necessary action for restoring possession of the premises to the lessees and to return the goods to them.

11. Thereafter sundry proceedings followed to which it will be necessary to return later. It will be sufficient to state here that on 25-9-57, the lessees made another application to the Magistrate in which they stated that they had gone upon the land to serve a copy of this Court's order on the appellants before us, but they had been abused and threatened with assault. A series of further applications followed, but in each one of them, the complaint was that the Officer-in-Charge of the Baranagore Police Station was taking no step towards restoring possession of the land to the petitioners or returning to them the rest of the articles. The Officer-in-Charge, it appears, submitted an explanation to the Magistrate in which he stated that after the order of 13-3-1957, by which the Magistrate had declared the first party to be entitled to possession, he had delivered to them possession of the premises and he had also delivered the articles to the first party on obtaining from them a jimmanama, as directed by the Magistrate himself. In those circumstances, he stated that he could do nothing further. Thereupon, the Magistrate directed the lessees to take against the first party and the Officer-in-Charge whatever legal steps it might be open to them to take.

11a. In pursuance of the above direction of the Magistrate, the lessees, who are the respondents before us, moved this Court for action to be taken against the appellants for contempt of Court. The alleged contemners were the three members of the first party, who are the appellants before us, and one J. C. Kar, the Officer-in-Charge of the Baranagore Police Station. The fourth member of the first party, namely Gopal Gobinda, was obviously left out for the reason that he was a person of unsound mind. The petition recited the successive applications which the respondents had made before the Magistrate for obtaining possession of the property and return of the articles without success and ended with the prayer that this Court might

'commit the opposite parties to prison and order for restoring the petitioners to the possession of their lease-hold premises No. 99, Barrackpore Trunk Road house and the articles taken charge of by the opposite party No. 4 and or in lieu thereof sufficiently compensating the petitioners by attachment of the goods of the opposite parties or such of them and pass such other or further order or orders as to your Lordships may think flit and proper.'

The prayer for compensating the petitioners by attachment of goods belonging to the opposite parties is rather diverting and it must have found place in the petition, because the draftsman, having come across the word 'attachment' in the literature relating to contempt of Court, took it to bear its ordinary meaning of distraint of goods for the purpose of the realisation of debts. Be that as it may, it is clear that they were asking for the assistance of the Court for securing the benefit which had been already awarded to them by the Court's earlier order and they were invoking the Court's jurisdiction to take proceedings in contempt for the purpose of the enforcement of their right. The allegations upon which these prayers were based were only that on one occasion, when the petitioners themselves had tried to serve on the appellants a copy of an order of this Court, they had been abused and threatened with assault, that the first party, had not voluntarily restored possession of the land to them, nor returned the articles and that the Officer-in-Charge of the Baranagore Police Station had done nothing to assist them by carrying out the Magistrate's orders.

12. In the above state of facts. I am clearly of opinion that the contempt alleged in the present case was purely civil contempt and that the proceedings initiated on the application of the respondents were proceedings in the nature of execution. Whether or not there was any violation of any order in the present case, I shall have presently to consider, but assuming there was violation, it was not a violation which resulted or tended to result in any public wrong. It is true that the order was not an, injunction passed in a civil case, but was an order passed in a proceeding under Section 145 of the Code of Criminal Procedure. It is also true that Section 145 of the Code of Criminal Procedure is designed to meet cases of apprehended breaches of the peace and, therefore, it may be said that when an order is made under the Section in favour of a particular partyand declaring its right to possession of the land, such order is not concerned with upholding or maintaining any civil right, but concerned only with maintaining the peace which is a matter of public interest. But once an order under Section 145 is made and parties are directed to abide by it till their rights are adjudicated on finally in a civil Court, the object of providing for maintenance of the public peace is achieved. I shall concede that if in a proceeding under Section 145 of the Code of Criminal Procedure an order is made under Sub-section (6) directing restoration of possession to a party forcibly and wrongfully dispossessed and public officers, trying to restore possession in pursuance of such an order, are obstructed or resisted, such resistance may partake of the nature of a criminal contempt. I may further concede that if, on the facts of a case, it appears that a party, directed to conduct himself in a certain way by an order under Section 145 of the Code of Criminal Procedure, does not comply with the direction, but conducts himself in such a way as again creates an apprehension of the breach of the peace, the wrong resulting from his misconduct may become a public wrong and, therefore, the contempt may be regarded as a criminal contempt. Where, however, as here, the only allegation made is that the private party, in whose favour the order was made, himself made an attempt to serve the order and was then abused and the only other complaint made is that the adverse party has not voluntarily restored possession or returned certain goods, but nothing is said as to any contumaciousness to the Court itself, nor as to any apprehension of the breach of the peace, there cannot, in my opinion, be any question of any criminal contempt. The true shape of the proceeding initiated by the respondents in the present case was that they were merely trying to obtain in fact the benefits to which this Court had declared them by its order to be entitled in law and, having failed to obtain them amicably, they were invoking the coercive process of the Court for securing to them the benefits which they, by their own efforts or the efforts of the authorities below, had failed to. secure. In a case of that type, it appears to me that, although the original proceeding was a criminal proceeding, the stage of averting a public wrong by making appropriate orders has long been passed. The matter has reached a stage where the question between the parties has become purely a question of the enforcement of certain rights in which no public interest is any longer in any way involved. I am, therefore, of opinion that the contempt alleged in the present case was civil contempt and the order for committal made by the learned Judge was merely a civil process taken to enforce obedience to an order, although the remote origin of the process lay in certain criminal proceedings.

13. If such was the nature of the contempt and such the nature of the order made, I am of opinion that on all the authorities an appeal lies. The principles which govern appeals against orders for committal made by way of punishing disobedience of a Court's order were explained by me in some detail in the case of Hem Bala Dasi v. Sundar Shaw, : AIR1953Cal627 (A). I do not consider it necessary to repeat them here. Even the allegations made in the present case did not take the contempt beyond civil contempt and the remedy asked at the hands of the Court wasclearly a remedy in the nature of the enforcement of a right or compensation for loss, as isI clear from the prayer in the petition which 1 have already read. In such a case, if the view of the Judge who has made the order for committal is based upon his opinion that certain acts or words of the respondent constitute violation of an order by which certain rights of the petitioner had been declared and that because such rights were still not being conceded by tile alleged contemner, he should be punished, the order clearly deals with a matter touching the merits of the controversy between the parties and being thus a judgment, is appealable.

14. If the contempt in the present casehad been criminal contempt, it would be beyond our jurisdiction to consider the merits of the learned Judge's order, although his jurisdiction to make the order, if challenged, would, fall to be examined. In a case of a contempt of a mixed character, an appeal has been held to lie, but we need not consider the scope of such an appeal in the present case. The contempt here being a civil contempt and the order being based on a certain view of the rights of the parties, its merits are within the scope of the appeal. We have, therefore, to see whether on the facts of the case, it had been made out that there was occasion for proceedings in contempt and whether the order, for committal was rightly made.

15. To begin with I cannot but, with respect, comment on the terms of the Rule issued on the application of the respondents. By it, the appellants were merely called upon to show cause why they 'should not be dealt with for contempt of this Court,' without being given any particulars at all as to what words or deeds were alleged to have constituted contempt and what the precise charge was which they were to answer. It is also to be seen that although the learned Judge appears to have remarked frequently on violation of certain supplementary orders of the Magistrate, the Rule does not comprise any contempt of the Magistrate's Court, nor had the Magistrate made a report to this Court against the appellants, which is the proper procedure to follow under the Contempt of Courts Act in cases of contempt of subordinate Courts. We may therefore leave aside contempt of the Magistrate's Court altogether. As regard's the contempt of this Court also, the Rule as framed is, in my view, palpably deficient in essential particulars, for it is well established now that a notice or Rule for contempt must set out precisely and in detail the deeds or words which are said to constitute contempt and that if such details of the charge are not given there is no case to answer. This point, however, is of not much importance in the present case, because no complaint was ever made by the appellants that they did not understand what the charge against them was and did not, know what answer to make. I am pointing out the bareness of the Rule only to emphasise that if any question arose as to whether the appellants had made a full answer to the charge against them, the defect might as well have proved fatal.

16. To proceed now to the merits of the order, I do not wish to be too critical of the form in which the original order was passed, but its form is such as invites comment. All that the learned Judge directed by his order of21-8-1957, was, that the possession, of the respondents before us, in the capacity of tenants under the Bhusan Chandra Bhar Estate Limited, be maintained. This language would suggest that the respondents were already in possession and that their possession was to continue. In any event, the order does not say by whom the possession was to be maintained and certainly does not direct anyone to restore possession to the respondents. The learned/ Judge was merely supplementing the order made by the Magistrate under Section 145 (6) of the Code of Criminal Procedure and adding to the possession of the appellants as superior Landlords the possession of the respondents as tenants under them. That he was doing on the finding that the respondents had! been forcibly and wrongfully dispossessed within two months from the date of the initial order, but he did not pass, as he might have done, an order directing restoration of possession to the respondents. Section 145 (6) of the Code of Criminal Procedure provides that if the Magistrate decides that one of the parties should, under the first proviso to Sub-section (4), be treated as being in possession of the property concerned, he shall issue an order declaring such party to be entitled to possession and, 'may restore to possession the party forcibly and wrongfully dispossessed.' N. K. Sen, J., could do what the Magistrate could have done and when he declared the respondents to be entitled to possession under Sub-section (4) of Section 145, he might have made a further order in the terms I have just read from Sub-section (6) of the the section. If he had made such an order and if, as I have already said, any public Officer in trying to restore possession to the respondents had been resisted, a question of contempt would undoubtedly arise and it would plainly be contempt of a criminal nature. The order actually made, however, is an order in the passive voice, merely declaring that the possession of the respondents be maintained and it appears to me that whatever other proceedings may rightly be taken for non-compliance with or violation of an order of that kind, it is impossible to found on it a proceeding for contemot, when the party concerned had not been disturbed or obstructed in exercising his rights of an existing possession. The order made with regard to the return of the goods bristles with greater difficulties. It is surprising that any order with regard to movable properties should at all have been made in a proceeding under Section 145 of the Code of Criminal Procedure, but perhaps since the articles were on the land, some kind of order was inevitable, although, strictly speaking it would not be an order under Section 145. The order of this Court as regards the goods was that

'the goods not claimed by opposite parties Nos. 1 to 4 (that is to say, the appellants before us and their insane brother) but belonging to the petitioners, must be returned to them.'

It is not an order which says specifically that certain named goods, which the Court finds to belong to the petitioners, must be returned to them by certain named parties. It is, on the other hand, an order which raises prima facie at least debatable questions of fact and provides an excellent coyer for persons who might not want to carry it out. When the order speaks of 'the goods not claimed by opposite parties Nos. 1 to 4,' it remains to be found what those goods are and similarly when it speaks of goods 'belonging to the petitioners,' the goodsintended to be covered by the order again require further specification. The learned Judge did not decide for himself that certain goods belonged to the respondents, nor that they had never been claimed by the appellants; he did not specify what those goods were; did not find by whom they had been removed, whether by all the appellants or by one or more of them; did not direct anyone specifically to return them; but left the whole matter at the allegations of the respondents and merely directed in a general way goods, not claimed by the opposite parties before him and belonging to the petitioners, to be returned. Whatever answer to these difficulties might be in other proceedings, it appears to me that no proceedings for contempt can be founded on the alleged violation of an order which is not clear and specific and which is by its own terms of a contingent character, the direction contained in it being dependent on certain, other facts which are left undetermined by the order and remain to be determined.

17. I would not, however, base my decision even on the unpreciseness of the order said to have been violated because, in my view, so far as the charge of contempt is concerned, it is clearly answered by the facts. I have now to return to a narration of events after the original order of N. K. Sen, J., which I said I would take up some time later. I have already stated that on 2-9-1957, there wag an application to the Magistrate, asking for restoration of the possession of the premises and a return of the articles. On that application, the Magistrate made an order on the Officer-in-charge of the Baranagore Police Station to take necessary action and to return the goods. On the 25th of September following there was another application, which also I have already mentioned, by which the respondents informed the Magistrate of the experience they had had at the hands of the appellants when they had gone on the land to serve a copy of the Court's order. Two days later, on 27-9-1957, the Officer-in-charge reported that they had already served an order on Jaharlal and Sanatan, directing them to return the goods, but Sanatan had sent to him a petition in which he stated that the goods were not goods not claimed by the first party, but that they had been claimed in the written statement filed in the original proceedings. Sanatan seems also to have said that Sukumar Banerjee had already taken away all the articles which was obviously not a fact. On the same day, the Magistrate made another order on the Police Officer to recover the goods from the first party and to return them to the petitioners and thereafter, for about a month and a half, nothing much appears to have happened. On 14-11-1957, the respondents made another application to the Magistrate by which they prayed that the Officer-in-charge of the Baranagore Police Station might be directed to give possession of the property with police force, that he might restore the goods and that the petitioners might have leave to move against the Police Officer and the members of the first party for contempt. They annexed with that application a copy off a First Information they had lodged with the Officer-in-charge, by which they had charged the members of the first party with criminal misappropriation and theft. On that application, the Magistrate made an order on the Officer-in-charge to make a report and the Officer made the report to which I have already referred. He said thatpossession of the premises had been delivered to the first party in. pursuance of the original order made by the Magistrate and that the goods also had been handed over to the members of the first party under an order made by the Magistrate himself and, therefore, he was not the person to give possession of either the premises or the goods. There seems to be some obscurity as to whether the Magistrate had in fact passed an order after he had made his order under Section 145 (6) that not merely the premises, but the goods also were to be returned to the members of the first party on obtaining a proper receipt. The respondents alleged in more than one petition to the Magistrate that the Officer-in-Charge was setting up and relying on such an order, although no such order appeared in the order-sheet. They might have been misinformed, but what is surprising is that in the explanation submitted to the Magistrate himself, the Officer-in-Charge stated that the Magistrate had made such an order and the Magistrate, in dealing with that application, did not say a word to contradict it. This, however, is not relevant for our present purpose. All that is necessary to state further is that after receiving the explanation from the Officer-in-Charge, the Magistrate directed the respondests to take whatever steps they could against the members of the first party and the Officer-in-Charge and thereafter this Court wag moved on 23-12-1957.

18. I have narrated the facts in some detail in order to show that according to the respondent-petitioners themselves, after the order of N. K. Sen, J., passed in Criminal Revision No. 382 of 1957, on 21st of August of that year, nothing had happened except that, on one occasion, the respondents had, been abused when they had gone on the land to serve a copy of the ord'er and except that they had made a series of applications to the Magistrate for directions on the Officer-in-Charge to restore to them the possession of the property and the goods without any success and that the Officer-in-Charge had been wholly non-co-operative. So far as the appellants arc concerned', barring the allegation of abuse on the day when the order was sought to be served by the private agency of the respondents themselves, there is no allegation whatever, against them except that they had not voluntarily come forward to give up possession in favour of the respondents and had not voluntarily returned the goods. I am entirely unable to see how any proceeding for contempt can be founded on such allegations or lack of allegations. All that the learned Judge had said was that the possession of the respondents had to be maintained and that goods not claimed by members of the first party, but belonging to the respondents, should be returned. It is well-settled that if contempt is sought to be founded on a breach of a mandatory order, the same cannot be done unless it is shown that the mandatory order directed the alleged contemner to do a particular thing by a particular date or on a particular day and that he had not carried out the direction. If it is said that the particular party's possession of the property be 'maintained', it is almost impossible to make out a breach of that order such as will constitute contempt, unless disturbance of existing possession or some defiance of the Court or some aggressive act, after the party entitled to possession had resumed possession is proved. The position is the same with regard to the order for the return of goods, because even assuming that the order was sufficientlyfull and precise as regards the ownership of the respondents and the identity of the goods, there could be no contempt unless there was a positive direction to return the goods within a particular period or by a particular date. The jurisdiction in contempt being a jurisdiction of very special character and the party, against whom proceedings in contempt are initiated, being obviously at a disadvantage when asked to defend himself in a summary proceeding, the utmost particularity is required to be observed in the framing of the order, the violation of which is intended to be punished with committal for contempt, if violation should occur.

19. I am, also of opinion that even in cases where non-compliance with an order made under Section 145 of the Code of Criminal Procedure or even its violation occurs, a very strong case will have to be made out, if proceedings are sought to be taken in contempt instead of proceedings under the ordinary law. To judge the matter by a simple test, if a Magistrate makes an order under Section 145 of the Code of Criminal Procedure and declares a certain party to be entitled to possession, but such order is violated, it would! clearly be inappropriate to proceed against the party who violated the order for contempt of Court instead of proceeding against him under Section 188 of the Indian Penal Code. I do not think that any Magistrate would ever think of reporting such a violation to this Court as contempt. It cannot be any the more contempt, because the order was passed by this Court. The reported cases show that, normally, offending party in such a case is proceeded against under Section 188 of the Indian Penal Code if he has violated the order and under Section 107 of the Criminal Procedure Code, if he is threatening violation.

20. It is certainly clear from the proceedings that the appellants have not liked the order made against them on 21-8-1957 and that they have shown no eagerness, either to allow the respondents to resume possession of the land or to return their goods. The manoeuvring for possession in which they have indulged are patent and many of them may even be wicked. But to find that they have been guilty of contempt of this Court on such passive non-compliance with the implications of the Court's order appears to me to be impossible. I say nothing as to whether the appellants could be proceeded against successfully in other proceedings, but having given the matter my best consideration and bearing fully in mind the fact that a learned Judge of this Court made the order by way of passing judgment on a finding that an order of his own had been wilfully violated, I find myself unable to hold that, whatever the faults or defaults of the appellants may have been they have been guilty of contempt of Court or that proceedings in contempt could be rightly taken against these for what they had done after this Court's order. The jurisdiction in contempt, as I have said before, is a very special jurisdiction and is certainly a jurisdiction which it is necessary for the superior Courts to have and exercise whenever it is found that something has been done which tends to affect the administration of justice or which tends to impede its course or tends to affect public confidence in the ability of the Courts to enforce their orders. At the same time, it is a jurisdiction of a drastic character and its very usefulness depends on the restraint with which it is used and on the refusal of the Courts to use it except when theyfind that, in addition to failure to comply with their orders which may be punished under the ordinary laws, obstruction has been caused to their primary function of administering justice as authorities charged with that function. I cannot find that there was any impediment caused in the present case to the administration of justice by this Court by what the appellants had done after this Court had disposed of the Revision Case and made the order which it considered fit and proper. In my view, while it is necessary to exercise the jurisdiction in contempt on proper occasions, it is of equal importance that the integrity of the proceedings in contempt ought to be maintained by taking the utmost care that it is not used on occasions or in cases to which it is not appropriate.

21. For the reasons given above, I find myself unable to uphold the order of the learned Judge. This appeal is, accordingly, allowed and the order of the learned Judge, dated 17-1-1958, committing the appellants to prison for six months, is set aside. They shall be released forthwith.

22. We make no order for costs.

S.C. Lahiri, J.

23. I agree.


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