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Sm. Manisha Mukherjee Vs. Asoke Chatterjee - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1985CriLJ1224
AppellantSm. Manisha Mukherjee
RespondentAsoke Chatterjee
Cases ReferredDr. Janardan Prasad Gupta v. Dr. O. P. Chakraborty
Excerpt:
- .....to confine attention strictly to what had taken place on 17-9-81 only. he argues that opposite party's conduct prior to 17-9-81 may also be looked into for punishment under section 15 of the contempt of courts act.7a. regarding section 22 of the contempt of courts act and article 215 of the constitution in relation to punishment for contempt, we may on the basis of judicial decisions available broadly observe that prior to the contempt of courts act 1971, it was held that the high court had inherent power to deal with contempt of itself summarily and to adopt its own procedure, provided that the procedure was a fair one and gave a reasonable opportunity to the contemnor to defend himself. but it has been held in dr. janardan prasad gupta v. dr. o. p. chakraborty 1975 cri lj 164 (all).....
Judgment:

N.G. Chaudhuri, J.

1. This is a petition complaining of contempt of Court. It has been filed with the consent of the Advocate-General given under Section 15(l)(b) of the Contempt of Courts Act, 1971. The petitioner alleges that the statement the contemnor-opposite party made before Division Bench of this Court in connection with the hearing of Criminal Appeal No. 382 of 1979 on 17-9-81 to the effect that he had no confidence in the Bench constituted by the Judges named without disclosing any reason or material in support thereof amounted to contempt inasmuch as it scandalised or lowered the authority of the Court, interfered with the course of judicial proceedings or obstructed the administration of justice. In the appeal aforesaid the petitioner was appellant and the opposite party was respondent.

2. For proper appreciation of the charge of contempt of Court brought by the petitioner it is necessary to give the antecedent facts in some details. The petitioner filed a complaint in the Court of Chief Metropolitan Magistrate against the opposite party in 1975 under Section 493 of the I.P.C. On 2-4-79 the opposite party was convicted by the learned Magistrate trying the case. The petitioner has given in details in her petition various steps taken by the opposite party in the said proceeding with a view, solely to delay the proceeding. The steps included moving revision petitions against orders passed by the learned Magistrate at various stages of the proceedings and obtaining adjournments. Opposite party filed appeal against the order of his conviction in the City Sessions Court, - Calcutta. The Chief Judge, City Sessions Court after hearing the learned Advocates of the parties allowed the appeal and set aside the order of conviction and sentence passed by the trial Court. The petitioner filed an appeal against the appellate order of acquittal in the High Court which was admitted as Criminal Appeal No. 388 of 1979. The appeal coming up in the list of Mr. Justice Borooah and Mr. Justice B. N. Maitra could not be heard because of repeated adjournments obtained by Mr. S. D. Banerjee, the learned advocate for the opposite party. The appeal later appeared in the list of the Bench consisting Mr. Justice N. C. Mukherjee and Mr. Justice Monoj Kumar Mukherjee, but the appeal was not fixed for hearing before the Bench because Mr. Justice Monoj Kumar Mukherjee in his capacity as advocate had taken up the brief of the petitioner at one stage. The appeal was assigned to the Bench presided over by Mr. Justice Anil Kumar Sen. After a few months the said Bench ordered the appeal to go out of their list on account of their preoccuption with civil matters. The appeal was assigned to the criminal Bench presided over by Mr. Justice 5N. C. Mukherjee and Mr. Justice N. G. Chaudhuri. For some reasons Mr. Justice N. C, Mukherji declined to hear the appeal. The appeal was assigned to the Bench presided over by Mr. Justice B. N. Maitra and Mr. Justice Amitabha Dutta. Mr. Justice Maitra for some reasons declined to hear the appeal. T he appeal was assigned to a Bench constituted by Mr. Justice S. M. Guha and Mr. Justice Amitabha Dutta, but Mr. Justice Dutta did not like to hear the appeal for some reasons. The appeal was ultimately assigned to the Bench constituted by Mr. Justice S. M. Guha and Mr. Justice N. G. Chaudhuri. Because of throat trouble of Mr. S. D. Banerjee, the learned advocate for the opposite party, the said Bench adjourned the appeal on 14-8-81 to 4-9-1981 for fixing a date of hearing.

3. On 4-9-81 overruling the suggestion put forward by the learned advocate for the opposite party that the date of hearing be fixed sometime after the Puja vacation, the Bench consisting of Mr. Justice Guha and Mr. Justice Chaudhuri fixed 16,17 and 18th Sept. 1981 for hearing of the appeal. The reasons for rejecting the suggestion of the learned advocate for the opposite party regarding the date was the possibility of Mr. Justice Guha being involved in certain matters resulting in delay in the hearing of the appeal. The petitioner alleged that the learned advocate, of the opposite party named in the petition gave out that it would not be possible for any of them to appear on 16,17 and 18-9-81. In the list of 14-9-81 the matter appeared as marked for hearing on 16-9-81, but on 16-9-81, the date scheduled for hearing the appeal disappeared from the list. The matter was mentioned at 2 p.m. by the counsel for the petitioner and Mr. Justice Guha observed in open Court that it was mysterious that the case was omitted from the list of 16-9-81 though the same was printed in the list of 14-9-81 and 15-9-81. Mr. Justice Guha directed the appeal to be printed in the list for the next day, that is, on 17-9-81 and gave out that he along with Mr. Justice Chaudhuri would sit on 17-9-81 and begin hearing of the appeal.

4. On 17-9-81 at 10-30 a.m. in the morning the learned advocate for the petitioner was on the point of opening his case when Mr. S. D. Banerjee the learned advocate for the opposite party submitted before the Bench that his client contemnor had something to say to the Court. Mr. Banerjee asked his client to go into the witness box; and from there the contemnor opposite party first said that the appeal should be taken up after the holidays. But the Hon'ble Judges refused such prayer. The contemnor opposite party then said that he had no confidence in the Bench. The Hon'ble Judges asked him why he had no confidence in the Bench, but the contemner kept silent and did not answer the question. The petitioner alleges that the conduct and utterance of the opposite party amounted to gross criminal contempt and the contemnor by his conduct interfered or tended to interfere with or obstructed or tended to obstruct the administration of justice, because it is obvious that his purpose throughout was to delay the hearing of the appeal against his acquittal. It is alleged that the contemner's conduct and utterance prejudiced or interfered or tended to interfere with the due course of judicial proceeding inasmuch as, he did not allow the hearing of the appeal to begin and to continue. In this case the petitioner alleges that the contemnor had resorted to dilatory tactics in the trial Court, full account of which has been given in the petition.

5. The O.P. in his petition of objection at the very outset submits that he had great respect for the Court, he never intended to undermine the respect in which it is held or its authority in any way; still if unwillingly he had indulged in conduct for which he may be found guilty of contempt, he offers his unqualified apology. He traverses the allegations made in different petitions and denies that he was actuated by the motive attributed to him, and explains why he took steps in relation to the case then pending in the Court of Metropolitan Magistrate, which had delayed disposal of the case. He states that the criminal appeal filed by the petitioner appeared in the list of Division Benches constituted by different Judges on seven different occasions, to be released from their lists for one reason or other and the Division Bench consisting of Justice N. G. Chaudhuri and Justice S. N. Sanyal constituted on the eighth occasion actually heard and disposed of the appeal. In paras 16 to 26 of his affidavit in opposition he has given his version as to what happened before different Division Benches. In para 25(a) of the affidavit in opposition he states what happened on 17-9-81 before Justice S. M. Guha and Justice N. G. Chaudhuri, what his counsel did and he himself did He states that he was advised to pray for release of the appeal by the Bench concerned.

6. Mr. Arun Prakash Chatterjee, the learned advocate for the petitioner reads out the affidavit in support of the petition and affidavit in reply in their entirety to lay foundations for his argument that the intention of the contemnor ever since filing of the petition of complaint was to delay the hearing., and disposal of the case on flimsy grounds. In this connection he refers us to the definition of 'criminal contempt' as given in Section 2(c) of the Contempt of Courts Act, 1971:

2(c) 'criminal contempt' means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which -

(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;

Mr. Chatterjee contends that the unreasonable conduct of the contemnor aimed solely to delay the proceedings interfered or tended to interfere with judicial proceedings referred to in the petition and conduct of the contemnor before the Division Bench on 17-9-81 was vitiated by the same motive. He emphasizes that the statement of the contemnor that he had no confidence in the Bench without disclosing the reasons for such statement amounted particularly to scandalising the Court and lowering or tending to lower the authority of the Court. In this connection he argues that if the contemnor felt that he could not get justice from the Bench concerned or from the High Court in Calcutta, he could file a petition for transfer of the appeal before appropriate Court. If he had done so, such a petition would have been treated as a petition for legal relief or redress, whatever may be its merit, and no question of committing contempt would have arisen. But the contemnor stated before the Bench that he had no confidence in the Bench without disclosing grounds for lack of confidence; on the basis of such statement obtained an adjournment of hearing of the appeal; and delayed disposal of the same. Mr. Chatterjee submits that if serious notice of such conduct of the contemnor is not taken, if he is not appropriately dealt with, his conduct would set up a bad precedent and litigants may be tempted to get hearing of matters in which they are interested adjourned and delayed in similar fashion, namely, stating before the Bench concerned that he had no confidence in the Bench.

7. Mr. Balai Roy, the learned advocate for the opposite party raises a legal point as a bar to the present proceedings involving a factual inquiry if the opposite party is guilty of contempt as alleged He argues that the present petition having been filed with the consent of the Advocate General, the conclusion is inescapable that it is a petition under Section 15 of the Contempt of Courts Act, 1971. The said section, Mr. Roy points out and emphasizes, commences with the words 'In the case of criminal contempt, other than a contempt referred to in Section 14'. He proceeds on to argue that Section 14 of the Act lays down the procedure to be followed where contempt is in the face of the Supreme Court or High Court and prima facie the opposite party was, on the allegations of the petitioner, guilty of contempt committed in the presence or hearing of the High Court. Accordingly, he contends, the Bench before which the alleged contempt was committed not having adopted the exclusive procedure prescribed by Section 14 of the Act, no one else can avail himself of the general procedure laid down by Section 15 of the Act. In this connection he contends that the High Court or Supreme Court has the solemn duty and responsibility to punish contempt committed in its presence and hearing and this cannot be delegated to a third party nor such a party can take upon itself the said duty or responsibility. If the concerned Bench did not start proceedings under Section 14 of the Act against the opposite party in spite of the conduct attributed to the opposite party, the inference is permissible that the Court was satisfied that the opposite party was not motivated by a desire to scandalise the Court or to lower its authority; or that consistent with its dignity the Court considered it to be improper to take a vindictive attitude. In this connection he refers to the preamble to the Contempt of Courts Act, 1971 'An Act to define and limit the powers of certain Courts in punishing contempt of courts and regulate their procedure in relation thereto.' He points out that the 1952 Act repealed by the Act of 1971, had, as its preamble declared, the objective 'to define and limit the powers of certain courts in punishing contempt of Court.' Mr. Roy contends that the procedure for punishing the kind contempt alleged herein prescribed under Section 14 of the Act of 1971 is mandatory and cannot be departed from. It is also pointed out that Section 13 of the Act provides that no Court shall impose a sentence under the Act for contempt of Court unless it is satisfied that the contempt is of such a nature that it substantially interfered or tended substantially to interfere with the due course of justice. Laying emphasis on the word 'substantially' Mr. Roy argues that possibly the Division Bench before which the contemnor allegedly indulged in the contumacious conduct did' not think that there was substantial interference with the due course of justice. Mr. Chatterjee, the learned advocate for the petitioner in reply has drawn our attention to the words 'when it is alleged or appears to the Supreme Court or the High Court upon its own view' used at the commencement of Section 14(1) of the Act and contends that a third party may make allegations of contempt committed in the presence or hearing of the Court and in the event of such allegations being made the procedure laid down in Section 15 of the Act may be followed with impunity. His second line of argument is that the Contempt of Courts Act, 1971 is not an exhaustive Code on the subject of contempt. To drive home his point he refers to Section 22 of the Act. 'The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law relating to contempt of Court'. He also refers to Article 215 of the Constitution of India. Every High Court shall be Court of record and shall have all the powers of such Court including the power to punish for contempt of itself. Mr. Chatterjee forcefully argues, if in point of fact the Court finds that the opposite party is guilty of contempt, the provisions of the Act relating to procedure should not operate as a brake on the Court's power to punish for contempt. The third line of argument adopted by Mr. Chatterjee is that the conduct of opposite party on 17-9-81 was in line with his previous conduct aimed at delaying disposal of the matter. The conduct he indulged in on 17-9-81 was only the culmination of the conduct he had resorted to from the commencement of the criminal proceedings with a view to delay the same and thereby to interfere with the course of justice. In the above background he contends that it is not necessary to confine attention strictly to what had taken place on 17-9-81 only. He argues that opposite party's conduct prior to 17-9-81 may also be looked into for punishment under Section 15 of the Contempt of Courts Act.

7A. Regarding Section 22 of the Contempt of Courts Act and Article 215 of the Constitution in relation to punishment for contempt, we may on the basis of judicial decisions available broadly observe that prior to the Contempt of Courts Act 1971, it was held that the High Court had inherent power to deal with contempt of itself summarily and to adopt its own procedure, provided that the procedure was a fair one and gave a reasonable opportunity to the contemnor to defend himself. But it has been held in Dr. Janardan Prasad Gupta v. Dr. O. P. Chakraborty 1975 Cri LJ 164 (All) that the procedure has now been prescribed by the Contempt of Courts Act, 1971 in exercise of power conferred by Entry 14 of List III of the Seventh Schedule to the Constitution. So we hold that on account of the provisions of Section 22 and Article 215 referred to earlier it is possible for a Court to punish a contemnor for contempt of kind not expressly contemplated in the Act, but the procedure for imposing punishment to be followed is as prescribed by the Act.

8. Analysing the provisions of the Act of 1971, we find that Section 2 of the Act classifies contempt into two broad categories, 'Civil' and 'Criminal' and defines them in Clauses (b) and(c). In the present case, there is no dispute that criminal contempt on the part of the contemnor has been alleged. Section 11 of the Act empowers the High Court to enquire into contempt of itself or of subordinate Courts. Section 12 of the Act prescribes punishment. Section 13 adds that no punishment shall be imposed unless substantial interference with the course of justice has been caused by the offending conduct. The importance of the section lies in this that by implication it prevents the Court from taking a technical view or a vindictive attitude. Consistent with the respect arid dignity in which the Court is held the Court is expected to conduct itself in a decent and magnanimous fashion.

9. For our purposes Sections 14(1) and 15(1) of the Act are very important and are quoted below:

14(1) When it is alleged, or appears to the Supreme Court upon its own view, that a person has been guilty of contempt committed in its presence or hearing, the Court may cause such person to be detained in custody, and, at any time before the rising of the Court, on the same day, or as early as possible thereafter, shall -

(a) cause him to be informed in writing of the contempt with which he is charged;

(b) afford him an opportunity to make his defence to the charge;

(c) after taking such evidence as may be necessary or as may be offered by such person and after hearing him, proceed, either forthwith or after adjournment, to determine the matter of the charge; and

(d) make such order for the punishment or discharge of such person as may be just.

15(1) In the case of a criminal contempt, other than a contempt referred to in Section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by -

(a) the Advocate-General, or

(b) any other person, with the consent in writing of the Advocate-General.

10. Comparing the above provisions we find that two different procedures have been prescribed for conduct amounting to contempt indulged in two broadly different circumstances. When the offending conduct has been indulged in the presence or hearing the Supreme Court or High Court, the Court will follow the procedure laid down in Section 14. In all other cases, that is to say, when offending conduct was resorted to at places outside the presence or hearing of the Supreme Court or High Court, the procedure prescribed by Section 15 of the Act is to be followed. Section 14 occurs first and Section 15 coming subsequently expressly mentions 'In cases of criminal contempt, other than criminal contempt referred to in Section 14'. Section 15 thus excludes from its ambit the cases covered by Section 14. So the conclusion is unavoidable that two sections are mutually exclusive and apply to two different types of cases, otherwise there was no necessity for prescribing two different procedures for two different types of cases under the Act.

11. Under Section 14, when it appears to the Supreme Court or High Court that the contemnor has been guilty of contempt committed in its presence or hearing the Court may draw up proceedings as prescribed suo motu. When a third party makes allegation of such conduct against anybody, even then the Court may adopt the procedure prescribed by Section 14 only if the conduct has been indulged in close proximity of the court room, namely in its presence or hearing unnoticed by the Court itself. The character of the procedure under Section 14 is summary and requires detention of the offender in custody immediately. The procedure under Section 15 of the Act is not summary nor does it require the offender to be detained in custody immediately. Section 14 applies to gross and desperate conduct and arms the Court with power to deal with such conduct, in summary and peremptory fashion for its own protection and protection of its dignity. Section 15 on the other hand contemplates a detailed enquiry, because the contempt has been committed away from the court premises. Now the question, is even if contempt has been committed close to the court room, is a third party precluded from resorting to procedure prescribed by Section 15 of the Act? We are tempted to answer the question in the negative, use of the expression 'other than a contempt referred to in Section 14' in Section 15 excluded application of the procedure to such cases. Further proceedings under Section 14 are summary. A third party may make allegations regarding conduct of a contemner contemplated in Section 14 unnoticed by the Court itself, but as soon as such allegation has been made the person to be proceeded against is required to be detained in custody, informed of the charge, and he is to take his defence immediately. The implication of the above is that the allegation is to be made soon after the conduct has been indulged in before the offender has left the precincts of the Court. But allegations may be made under Section 15 of the Act within a reasonable time after the impugned conduct was indulged in; and at the time of making the allegation the offender may be away from the Court for which he is to be personally served with notice under Section 17 of the Act. Service of notice personally required under Section 17 does not apply to proceedings under Section 14. In the present case no allegation was made against the contemnor on 17-9-81 when he was within the Court premises. So he could not be detained in custody under Section 14 of the Act. We, therefore, reach the conclusion that proceedings under Sections 14 and 15 of the Contempt of Courts Act, contemplate two entirely different types of contempt of Court with mutually exclusive procedure. In the present case the conduct complained of was indulged in, in the presence and hearing of the High Court. Still the Court did not proceed in the fashion prescribed by Section 14. In the circumstances the procedures prescribed by Section 15 could not be availed of because of the words used in the section.

12. Regarding the third branch of Mr. Chatterjee's argument that the conduct resorted to by the contemner on 17-8-81 was culmination of the delaying tactics he had adopted from the beginning, has, according to our view no force. The Rules framed by the High Court require that the particulars of the conduct complained of should be already alleged and prayer in relation to that conduct is to be made. From the cause title of the petition under consideration and the prayer made we have no hesitation to conclude that attention has been focussed on the conduct indulged in by the contemnor only on 17-8-81 and not on any prior date. In this connection one year's limitation prescribed by Section 20 of the Act has some relevance. Considering all we overrule this branch of Mr. Chatterjee's argument.

13. In the result we hold that the present application is barred by the express provisions of Section 15 of the Contempt of Courts Act and is not maintainable. The petition is accordingly dismissed on contest. We make no order as to costs.

S.N. Sanyal, J.

14. I agree.


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