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Prafulla Ranjan Sarkar Vs. Manindra Chandra Neogi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1968CriLJ248
AppellantPrafulla Ranjan Sarkar
RespondentManindra Chandra Neogi
Excerpt:
- c.n. laik, j.1. a senior advocate, mr. manindra chandra neogi, for short, mr. neogi usually practising in alipur courts appointed as a receiver by the learned subordinate judge, 24, parganas, in the estate of nalini ranjan sarkar,, deceased, is standing his trial for contempt for wilful disobedience and contumacious disregard of this court's order, which makes this case important.2. in the glaring context of ugly facts we removed mr. neogi on october 6, 1966 from the office of the receivership, as we had, in the judgment passed by us in appeal from original order no. 227 of 1961, in which the present petitioner, namely, prafulla ranjan sarkar, was the appellant held inter alia that the charges of gross negligence, unspeakable callousness, thorough incompetence, substantial mismanagement,.....
Judgment:

C.N. Laik, J.

1. A senior Advocate, Mr. Manindra Chandra Neogi, for short, Mr. Neogi usually practising in Alipur Courts appointed as a Receiver by the learned Subordinate Judge, 24, Parganas, in the Estate of Nalini Ranjan Sarkar,, deceased, is standing his trial for contempt for wilful disobedience and contumacious disregard of this Court's order, which makes this case important.

2. In the glaring context of ugly facts we removed Mr. Neogi on October 6, 1966 from the office of the Receivership, as we had, in the judgment passed by us in Appeal from Original Order No. 227 of 1961, in which the present petitioner, namely, Prafulla Ranjan Sarkar, was the appellant held inter alia that the charges of gross negligence, unspeakable callousness, thorough incompetence, substantial mismanagement, serious misconduct and proved incapacity were well-founded against him. We appointed a new Receiver and we directed Mr. Neogi to make over charge of the Estate in his possession to the new incumbent immediately, but in no event it should be beyond the 12th of October next, when the Civil Court would be closing for Durga Puja holidays. We recorded in our judgment:

Mr. Neogi is present in Court when the judgment is delivered. He has heard the directions stated in the judgment and particularly the portions where we have directed him to make over charge of the estate to the new receiver not later than 12th October, 1966

Mr. Arun Prakas Chatterjee, a learned Advocate of this Court, who appeared for Mr. Neogi in the appeal (and also in this proceeding) thereupon stated: 'It would be difficult to hand over the charge before the date'. We rejected the reasons put forward by him, as they did not find favour with us. We repeated the directions more than once on the receiver who was present in Court to make over the charge to the new Receiver not later than 12th October, 1966, otherwise we gave a sufficient warning that he 'would act at his peril'. We directed our officer to supply a copy of the extract of the relevant portion of the judgment to the new receiver, on which he was asked to act and take charge before October 12.

3. The applicant, after stating the above facts noted in our judgment passed in the said appeal, further stated, that the new receiver could not meet Mr. Neogi, as he was out of Calcutta from 9th of October to 11th of October, 1966. He wrote a letter to Mr. Neogi on October 9, intimating that he would take charge of the Estate from Mr. Neogi on October 12 at 8 in the morning, in the presence of the parties, who were also requested to be present at that time. On the 12th of October, at 7 in the morning, Mr. Neogi rang up the new receiver and requested him to take charge at 3 in the afternoon, instead of 8 in the morning, on the ground that he would be going to the Court and it would be inconvenient for him to make over charge in the morning. The new receiver agreed. At 3 P. M. when the new receiver had been to the residence of Mr. Neogi to take charge, Mr. Neogi asked the new receiver now to show him the 'Writ of possession'. The copy of the extract of our judgment, delivered to him, was produced before Mr. Neogi, yet he refused to hand over the charge to the new receiver in the absence of the formal writ of possession. It might be stated here that he ignored the following further specific direction in our said judgment:

the new receiver would act under the direction of the learned Subordinate Judge, Second Court, Alipore. Pending the issuance of the formal writ in favour of the new receiver, which might take some time due to the ensuing vacation, the new receiver would be entitled to act as such, under the provisions of Order 40 of the Code of Civil Procedure, on the strength of this order of ours.

4. To continue the account, the petitioner stated that Mr. Arun Prokash Chatterjee, the said learned Advocate for the receiver, then came to his residence at about the same time and after brief discussion with his client Mr. Neogi, he requested the new receiver and the parties including the petitioner to go outside the room for some time in order to enable him to have a private discussion with Mr. Neogi. Accordingly, all of them went out. They were called in sometime later. Then Mr. Neogi told the new receiver:

that he had been advised not to make over the charge of the receivership in the absence of a writ.

Mr. Neogi then and there recorded the said fact, in a letter dated October 12, 1966, addressed to the new receiver which runs as follows:

Dear Sir,

In absence of the writ of possession for taking delivery of the properties of Receiver in T.S. No. 84 of 1956 I am advised not to make over the charge of the office of Receiver.

A document purporting to be a judgment of Hon'ble JJ. Laik and Basu was shown to me but it does not show that I will have to make over charge of office and properties of Receiver even without the writ.

Yours faithfully,

(Sd.) M. C. Neogy.

This letter is Annexure 'B' to the application. It is forcefully stated, though not admitted, that the said letter was dictated by the learned Advocate Mr. Chatterjee and written by Mr. Neogi in his own hand. In any event, the same was stated to be written under the advice of Mr. Chatterjee. On October 13, 1966, the new receiver submitted a report to this Court annexing a copy of the said letter.

5. The petitioner came to know thereafter that on October 11, 1966, Mr. Neogi, on the one hand, moved an application before the Supreme Court of India for special leave to appeal against the said judgment of ours dated October 6, 1966, on which their Lordships directed the matter to be posted again after the filing of the certified copy of the judgment, and on the other hand, the respondent No. 2 in the above Appeal No. 227 of 1961, namely, Mr. Promode Ranjan Sarkar with whom the charge of collusion of Mr. Neogi was proved in the appeal, moved the Vacation Bench of this Court on October 12, 1966 against the same appointing the new receiver, but their Lordships directed the application to be renewed after the reopening of this Court after the long vacation. The petitioner submitted that Mr. Neogi had deliberately and with ulterior motive, refused to make over charge of the Estate mala fide, though definitely directed to do so, by this Court. The petitioner and his co-sharers sustained loss thereby. It was further submitted that the reason given by Mr. Neogi was frivolous and the same was a mere pretext, to avoid if possible, compliance with the order of this Court. It was finally submitted that by his contumacious and wilful disregard of this Court's order, Mr. Neogi has been guilty of gross contempt of this Court.

6. This application containing the above facts and submissions, was filed on 21st of November 1966. We issued the Rule on 24th of November, calling upon Mr. Neogi to show cause why he should not be committed for contempt of this Court and suitably dealt with for violation of the order complained of. I would like to observe here that it was never and it is not the practice of this Court to issue Rules for contempt except in grave and serious cases. The Rule was fixed for hearing on December 13, 1966 at 3-30 p.m. There was a direction by us for the service of the Rule personally on Mr. Neogi asking him to be present in the Court at the time of hearing of the Rule. On December 13, 1966, Mr. Arun Prokash Chatterjee, the said learned Advocate, appeared for Mr. Neogi and stated that his client was seriously ill and, therefore, he could not appear that day, before us. He prayed for certain time. In order to grant the period of adjournment, we directed Mr. Chatterjee to intimate the nature of Mr. Neogi's illness. Though Mr. Chatterjee prayed for two days' time, we granted him the whole week for the purpose. An application with the affidavit by Mr. Neogi's son was filed in which it has been stated that his father had an abdominal operation on November 12, 1966, and that he was discharged from the hospital on November 28, 1966. Time up to 29th of January, 1967 was prayed for, for his appearance and for the hearing of the Rule. We granted a longer time to Mr. Neogi for his appearance, i.e., up to February 10, 1967.

7. An affidavit-in-opposition has been affirmed by Mr. Neogi on February 9, 1967. He inter alia admitted that he was present in Court at the time of the delivery of the judgment but he stated that all the portions of the judgment, as pronounced, were not audible to him. He stated in paragraph 3 thereof:

it is true that I was directed to hand over charge of the estate to the new receiver not later than 12th October, 1966,

but at the time when this direction was read out from the judgment, the name of the new Receiver was not mentioned, and that he was not present at the time when Mr. Mukherjee was appointed as a new receiver. Further, he was not also aware that the parties were directed to act on a copy of the extract of the relevant portion of the judgment and apparently he 'missed that portion of the judgment'. He further admitted in paragraph 7 thereof that he requested the new receiver to take charge at 3 p.m. instead of 8 a.m. In paragraph 8 thereof he stated that ' he was willing to relinquish the office of the receiver in writing to him but he refused to accept such relinquishment and insisted on taking the charge of the registers, etc., which were lying with him whereupon I told him that I am advised by law not to make over the said registers, properties in my possession without a writ of possession being shown to me'. He repeated what he stated in the letter of 12th October quoted earlier. He admitted that the Advocate, Mr. Chatterjee came to his residence in the afternoon but he denied that the letter was dictated by him. On 12th October Mr. Neogi is stated to have addressed another letter to the new receiver which was Annexure 'A' to the affidavit to the following effect:

I was prepared to hand over charge officially to you this afternoon when you came to my chamber but you were not prepared to accept and did not accept it without also taking physical charge of the properties and the documents which could not be given to you in the absence of your possessing the Court writ, to which the new Receiver replied on October 15, that he was not interested in having simply a letter of relinquishment of the charge (Annexure 'B'). The filing of the application for leave to appeal to the Supreme Court and the moving the application before the Vacation Bench of this Court were admitted.

8. Mr. Neogi submitted - so the affidavit goes - that he did not violate the order of this Court and that there was no wilful negligence on his part to make over charge to the new receiver and that he never did interfere or attempt to interfere with the receiver's possession in the estate. He denied that he deliberately or with mala fide motive refused to make over the charge as directed by this Court. The reasons given in the letter of October 12, are not frivolous. He further submitted that he did not commit contempt of Court in wilful disregard of the order of this Court and that he was not guilty of contempt. In paragraph 14 of this affidavit he stated inter alia:

I have been practising as a lawyer for 35 years and I cannot even think of disobeying any order of Court. Our profession demands implicit obedience to the orders of Court and I have been scrupulously acting in accordance with the demands of my profession throughout my life. I have always taken pains to preserve the dignity of Court.

9. Mr. Neogi nevertheless submitted that the application for committal, made by the petitioner was illegal, ultra vires and without jurisdiction. He also submitted that the application was not maintainable. He stated that the order, alleged to be violated, was not served upon him. He, however, stated lastly in para 17 of his affidavit:

In spite of the above, if this Honourable Court thinks that any of my action or words have amounted to contempt of Court, I hereby offer unconditional and unqualified apology for the same and that the same may kindly be accepted.

10. On the date of hearing, i.e., on February 10, 1967, Mr. Snehansu Kanta Acharya, the learned Counsel, appeared for the first time on behalf of Mr. Neogi. Further appearance of the alleged condemner, who was present in Court, was dispensed with and time was granted to Mr. Neogi to enable him to file a further affidavit containing the apologies without any condition and qualification as the first affidavit seemed to indicate an indecorous sensitiveness which may well have been misunderstood. On February 21, 1967, Mr. Neogi filed an affidavit, inter alia stating that he did not fully understand the import of the judgment dated 6th October, 1966 and 'I hereby tender unqualified and unconditional apologies for not having given the papers to the new receiver in time'. As recognized by the learned Counsel about the necessity of a further affidavit, Mr. Neogi affirmed the same on March 6, 1967, which contained:

I do hereby tender my unqualified and unconditional apologies for not having complied with the directions of his Lordship's judgment dated 6.10.1966. As I did not fully understand the import of the direction in the judgment, I respectfully submit that the unconditional apologies may kindly be accepted and I may be pardoned.

11. On March 9, 1967, the matter came up for hearing. Mr. Acharya on behalf of the respondent submitted that he would not attempt to justify the action of the receiver but he prayed that the apologies tendered might be accepted. The respondent must, therefore, be taken to admit the substantive truth of the petitioner's allegations; and if they be only approximately true, they do undoubtedly show up Mr. Neogi in a very bad light. It is notorious that discipline was shockingly slack to Mr. Neogi. Mr. Acharya further submitted that the mitigating circumstances might be considered in favour of his client. The above is a summary of the facts and submission and we took (time?) to consider the judgment.

12. The startling proposition that this Court has no jurisdiction to punish for contempt and that this application is illegal arid not maintainable, raised in the first affidavit, make it necessary to state the law and it would not be right to pass them over without saying a few words on the subject. I have had to consider carefully about this Court's jurisdiction of committal for contempt over again but the answer remains ancient, and I take leave to say that the Court should always proceed with the thought that this should be most jealously and carefully applied and the power is to be cautiously exercised with the greatest reluctance and anxiety, because of the betterment and welfare of the State and because the privileges of the Judges are involved. I further observe that the Court should not be anxiously of the vulgar desire to elevate itself for grasping after a preeminence, by using this legal 'thumb-screw' injudiciously and punishing for this 'mysterious and indefinable offence', which is not only easy to commit but liable to 'prompt and condign punishment1. The Court, in my opinion, should not be over or hyper-sensitive. We should not exercise this jurisdiction upon a mere question of propriety or on any exaggerated notion of the dignity of the Judges. We must comport ourselves with the dispassionate dignity and decorum which befits this high office. It should be borne in mind that the Court is the protector of public justice and the Judges have no personal interest or concern in a case.

13. But at the same time, let it not be forgotten that contempt of Court is an offence in the nature of sui generis and this summary jurisdiction in punishing for contempt exists in the Courts for the very purpose of maintaining the authority of law and for affording protection to the interest of the litigants and the public, in the purity of the administration of justice. Sufficient should, therefore, be said to demonstrate that the seat of justice 'shall be kept sacrosanct and the fountain of justice may be kept pure in the interest of which, we the Judges exercise such powers wherever necessary and whenever occasion arises.

14. History tells us how a State is protected by its Courts and an independent judiciary is the cardinal pillar of the ordered progress of a stable Government. A high sense of civic conscience among the people should be infused by exercising such summary powers so as to generate a spontaneous regard for an implicit obedience to its Law Courts. It further tells us that if there is an over-enthusiastic executive, which attempts to belittle the importance of the Court and its judgments and orders, and to lower down its prestige and confidence before the public these summary powers are all the more necessary, and the dignity, decency and decorum of the Courts of justice are to be preserved in the very interest of the people and for the safety of the public. We get this opportunity of reminding that these powers are the legal brakes to sudden outbursts either by the litigants, the press or the executive. They are necessary to modulate their conducts so as to give all reverence to the temple of justice. We should always remember these cardinal principles, lest we might be tempted to abuse our inherent, extraordinary and limitless jurisdiction to punish for contempt. It would be idle to contend, therefore, that no such jurisdiction exists in this Court or that the application is not maintainable.

15. It is in the light of these principles, if we proceed to examine the facts of the present case, we would be satisfied beyond any doubt that there was a wilful disobedience of the order of this Court by Mr. Neogi, is not giving delivery of possession deliberately to the newly appointed Receiver of the Estate within October 12, 1966, and we would not be justified to dismiss this information. The charge has been proved rather on admission.

16. On reflection it will be apparent that it was undoubtedly Mr. Neogi's duty to carry out the mandatory order which we directed him to comply with. He was not at liberty to ignore it. He was an officer of the Court. His duty was to uphold the law. He disobeyed the order at his peril, which was made clear and was repeated more than once in the judgment passed in the appeal. He had no real justification, good ground and sufficient reason for flouting the same. His conduct is contumacious. His action can scarcely be justified. It is not of a technical character. That there is gross negligence only and it is an act of indiscretion on the part of Mr. Neogi, would be to take a wrong view of his action. It has not been due to Mr. Neogi's impulsiveness or to Ms neglect of common consideration of indene. It is a misconduct of Mr. Neogi which amounts to contempt. We looked to the Receiver to see that the order is carried out but it is a deliberate failure on his part to disobey the same, issued for the benefit of the petitioner and others. This wilful disobedience is an interference with the due course of justice. The order, mandatory in form, should have been implicitly observed. Every diligence and scrupulous care should have been exercised to obey it to the letter. There is nothing to be misled in the order. It was not impossible of compliance. It is not of ambiguous and contingent character and not dependent on certain other facts but a clear and present danger for the condemner.

17. Mr. Neogi is educated. It can be safely presumed that he should know his duty better than an illiterate and rustic person, if we are to believe him that he had no intention of committing contempt, as stated in his first affidavit, we would be constrained to say that his sense of appreciation and understanding was so sadly limited.

18. Even though the receiver might have wrongly but honestly believed that it was not safe to make over the charge to the new receiver till the writ is issued, or that he so acted under legal advice; those pleas, in the face of our mandatory order, would not afford any defence to him to the charge of contempt of Court.

19. Next, we do not think that Mr. Neogi can take up the plea that the order had not been officially communicated. It was fully known to him at the time of delivery of our judgment on October 6, 1966. We are unable to accept his sweeping statements that he missed only the relevant points in the judgment when it was delivered! His own letters to the new Receiver belies the other explanations sought to be given by him. It is scarcely possible to suppose that Mr. Neogi did not understand the import of the order. We hold that the account given in the petition is true. It would be remarkable defect in our law and procedure if official communication was again needed. Mr. Neogi was properly served with the copy of the Rule before he is charged with disobedience of it. The whole judgment of the appeal was pronounced in open Court in the hearing of the parties, including that of Mr. Neogi, who was specially directed to be present on the date of the delivery of the judgment so as to enable him to obey the emergent order directing him to deliver possession of the estate to the newly appointed receiver.

20. Gases like these tend to affect the confidence of the public in the effectiveness of the judicial orders. They tend to create distrust in the popular mind and impair the confidence of the people in the Courts, which are of prime importance to the litigants. We are, therefore, unable to accept the further proposition, in the facts and circumstances of this ease, that this Court should be reluctant to exercise its extraordinary power, as the action complained of is of slight or trifling nature and it does not cause any substantial loss or prejudice to the Estate, which also are not admitted.

21. We certainly, are of opinion and upon all principles we hold that the 'respondent, Mr. Manindra Chandra Neogi committed a contempt of this Court and that he is guilty of the said charge and we have been given no reason to doubt the same.

22. It now remains for us to consider what punishment we ought to inflict upon you, Mr. Neogi and the extent, amount or measure of the said punishment. Mr. Neogi should recall that punishment was, in ancient times, very severe, cruel and barbarous. Now it is comparatively mild. In my opinion, the Court should, where there are mitigating circumstances, generally lean to the side of mercy. The Court's power to punish for contempt, in | my judgment, always carries with it the power of pardon. Mr. Neogi is an Advocate and a senior member of the legal profession, practising for 35 years in the District Bar of Alipore. He is 61 years in age. Very recently he had suffered seriously by undergoing an abdominal operation. He, through Mr. Acharya the learned Advocate, did not really attempt to substantiate the allegations which he made in his first affidavit-in-opposition. Further, as stated, it is his first lapse. We believe that he acted under the legal advice of Mr. Chatterjee. We are indeed informed that most of the original share scraps have already been handed over to the new Receiver by Mr. Neogi. Lastly, he had tendered unqualified and unconditional apology, not robbed of all grace. It is lamentable that there was no genuine apology until Mr. Acharya appears for Mr. Neogi, who very frankly states on behalf of the respondent, that his client is tendering humble and unreserved apology to the Court, Everybody, who knows anything at all about the law of contempt, knows, that the first thing every lawyer is taught is, that one must tender apology at the earliest. The present behaviour of Mr. Neogi, through Mr. Acharya, shows sufficient amends for his misconduct and it is evidence of real contrition. He now realizes that he exceeded the limits and he has struggled to wash the stain that has stuck to him.

23. In a matter like this, the misconception that there can be both justification and apology, as sought to be done in the first affidavit by the respondent, has to be rooted out by a clear and emphatic pronouncement to the contrary and it should be widely made known that an alternative plea of apology does not merit consideration in the facts of such cases like the present. Ever since this Court is established it has, been the invariable rule to state the law in 'the same way as it sought to be done here, In the last affidavit, the apology of Mr. Neogi is real, sincere and genuine, an outpouring of a penitent heart and not merely an idle formulator phrase. The apology cannot be said to be slow, hesitant or tardy. It is not a lip service to the formula, which is the shorthand of a complicated historic origin, dependent on volume of legal opinions. It is not used as a convenient device, a last desperate throw in the game of chance. It is voluntary and indicative of remorse. The tendered apology is full and frank confession' of a wrong done and is not, in the language of lawyers, cringing wail of a coward shivering at the prospect of the stern hand of justice about to descend on his head'. We, therefore accept this apology, without accepting as a rule, the generality of the proposition maintained by certain well-known text-writers on the law of contempt about the co-existence of justification and apology in all cases. The contemner should remember that apology is not the surest way out in each case and we hope that there should not be any future occasion for such complaint against a lawyer-Receiver of a Court.

24. But for the fact of the appearance of Mr. Acharya in time and that such an apology has been offered by him at the earliest, we would have taken a very serious view of the case and we would not have hesitated to punish Mr. Neogi with a simple imprisonment for a term of not less than 30 days. We have, however, taken a very lenient view and did not inflict the said punishment with great forbearance. The tendered apology coupled with his serious illness and age, overtook the mischief and diluted the gravity of the offence and took the sting out of contempt to a great extent. I confess that I am influenced in coming to the conclusions by these considerations.

25. After a careful and anxious consideration of all the circumstances in the case and acting upon the apology and holding that Mr. Neogi had committed contempt of Court, we have reached the decision that the dignity of this Court would be sufficiently upheld, as we hereby unhesitatingly deprecate the conduct of Mr. Neogi in not making over the charge as directed and advisedly issue a strong admonition on him for the same, keeping in view that the condemnation of a senior Advocate, is itself a punishment for contempt of a Court and further by giving a warning to the respondent to the effect that the wrong-headed would not be permitted to err more than once and we expect that this warning would deter him from violating the orders passed by a Court of Justice, Upon this view we dispose of this Rule. There remains one other matter, viz., costs, as to which I feel some uneasiness and over which I am deeply conscious. In the absence of satisfactory alternative we direct you Mr. Neogi to pay a sum of Rs. 100 only to your learned Advocate Mr. S.K. Acharya, to be applied by him with the applicant's consent, for charitable or religious purposes.

26. Before leaving this case,, this Court would like to comment that let the contemner keep in mind that this Court has sufficient power to vindicate its dignity and to enforce obedience to its mandates and knows how to keep the course of justice free and to keep a blaze of glory around it and further let him make no mistake that it was from no weakness, from no mistaken indulgence, from no want of resolution on the part of this Court to perform its duty, that a course of mildness had been pursued but that such a chance had been offered to him, because it had been found by adequately analyzed experience in cases of this type that we should not only be merciful towards the individual having regard to his age, health, mental condition, tendered apology and either extenuating circumstances under which the offence was committed but justifiable to the lawyer community as a whole, although we are not concealing the fact by a technical pretence that Mr. Manindra Chandra Neogi, had not been convicted. I say no more.

D. Basu, J.

27. I agree.


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