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L.D. Khanna and ors. Vs. Chohan Huhtamaki (India) Pvt. Ltd. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1977CriLJ1530
AppellantL.D. Khanna and ors.
RespondentChohan Huhtamaki (India) Pvt. Ltd.
Cases ReferredBaradakanta Mishra v. Mr. Justice Gati
Excerpt:
- .....declining to discharge the notice issued by him on a motion made by the respondents for initiating contempt proceedings against the appellants.2. the state bank of patiala filed a suit against the respondents for recovery of rs. 20,32,004.57 p. the plaintiff made an application under order 38, rule 5 and order 39, rule 1 read with section 151 of the civil r c. on jan. 14, 1976 our learned brother chet ram thakur j. granted an interim injunction restraining the defendants from disposing of the property during the pendency of the suit and also directed them to furnish adequate security in order to satisfy such decree as may ultimately be passed. he directed notice to issue to the defendants to show cause why the interim injunction be not confirmed and why they should not furnish security......
Judgment:

R.S. Pathak, C.J.

1. This appeal Under Section 19 of the Contempt of Courts Act, 1971 is directed against an order of our brother Chet Ram Thakur J. declining to discharge the notice issued by him on a motion made by the respondents for initiating contempt proceedings against the appellants.

2. The State Bank of Patiala filed a suit against the respondents for recovery of Rs. 20,32,004.57 p. The plaintiff made an application Under Order 38, Rule 5 and Order 39, Rule 1 read with Section 151 of the Civil R C. On Jan. 14, 1976 our learned brother Chet Ram Thakur J. granted an interim injunction restraining the defendants from disposing of the property during the pendency of the suit and also directed them to furnish adequate security in order to satisfy such decree as may ultimately be passed. He directed notice to issue to the defendants to show cause why the interim injunction be not confirmed and why they should not furnish security. It appears that in purported compliance with his order warrants of attachment of property belonging to the defendants were issued and attachment was effected. Subsequently, on the matter coming to the notice of our learned brother and the error being discovered, he quashed the warrants of attachment and directed the release of the property from attachment. Property which had already been hypothecated with the Bank remained subject to hypothecation.

3. The present respondents then moved this Court for the institution of contempt proceedings against the appellants on the ground that although no order to that effect had been made by this Court they had secured the issue of the warrants of attachment and had thus committed an abuse of the process of this Court and were guilty of fraud practiced on the Court. The motion came on before our learned brother, and he directed issue of notice to the appellants. The appellants then applied for the discharge of that notice. Our learned brother, by his order dated Aug. 6, 1976, has declined to discharge the notice observing that there was no reason to do so on the facts as they stood before him and that 'it would be at a subsequent stage when they (the appellants) succeed in making out that they had not in any way misrepresented the facts and had bona fide got the orders issued nor had they in any way persuaded the Registry to issue these orders on misrepresentation of facts so as to flout the authority of the Court', that he would consider what order to make in the matter. Against that order, the appellants have brought the present appeal.

4. At the outset, the question is whether the appeal is maintainable. The appeal was filed Under Sub-section (1) of Section 19 of the Contempt of Courts Act, 1971. Section 19 provides :

19. Appeals :-- (1) An appeal shall lie as of right from any order or decision of a High Court in the exercise of its jurisdiction to punish for contempt--

(a) where the order or decision is that of a single Judge, to a Bench of not less than two Judges of the Court ;

(b) where the order or decision is that of a Bench, to the Supreme Court ;

Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union Territory, such appeal shall lie to the Supreme Court.

(2) Pending any appeal, the appellate Court may order that--

(a) the execution of the punishment or order appealed against be suspended ;

(b) if the appellant is in confinement, he be released on bail ; and

(c) the appeal be heard notwithstanding that the appellant has not pursed his contempt.. ... ... ... ... ... ... ...

The point for consideration is whether the order or decision of our learned brother can be described as an order of decision made in the exercise of this Court's jurisdiction to punish for contempt within the meaning of Sub-section (1) of Section 19. Learned Counsel for the appellants contends that the language of Sub-section (1) of Section 19 is of the widest amplitude, and that when the statute declares that an appeal lies from any order or decision it necessarily implies that every order or decision made by the court in the course of enquiring into or trying the alleged contempt is an appealable order or decision. It is pointed out that Parliament has not restricted the appeal to a 'final order' or 'final decision'. On the other hand, the case of the respondents is that Sub-section (1) of Section 19 contemplates an appeal from such order or decision only as finally disposes of the contempt proceeding.

5. It would be appropriate to examine what was the state of the law immediately preceding the enactment of the Contempt Of Courts Act, 1971. It is well settled that when fresh legislation is enacted in supersession of earlier legislation on a subject, in order to discover the true import and intent of the new law it is necessary to consider what was the mischief and defect for which the earlier law did not provide, what is the remedy provided now and what is the true reason for it, all this in order to discover what construction of the new law will suppress the mischief and advance the remedy. That is a rule of statutory construction as old as Heydon's case, (1584) a Co Rep 7a and it was re-affirmed in -- 'Eastman Photographic Material Co. v. Comptroller General of Patents, Designs and Trade Marks 1898 AC 571 where the Earl of Halsubry said :

It appears to me that to construe the statute in question, it is not only legitimate but highly convenient to refer both to the former Act and to the ascertained evils to which the former Act had given rise, and to the later Act which provided the remedy.

The rule has since been applied in several cases In India by the Supreme Court, one of them is Bengal Immunity Co. Ltd, v. State of Bihar : [1955]2SCR603 .

6. The Contempt of Courts Act, 1952 merely defined and limited the powers of the Courts in punishing for Contempt of Court. It was soon felt that more comprehensive legislation was necessary, and a Committee headed by the Solicitor-General of India, Shri H. N. Sanyal, was appointed to make recommendations for the drafting of a statute to deal with the law of contempt. Besides classifying the different kinds of contempt and suggesting the procedure for dealing with them,, the Report in Clause 25 of Chap. XI recommended :

Provision may be made for an appeal as of right from any order or decision of a High Court in the exercise of its jurisdiction to punish for contempt. The appeal should lie to a Bench of Judges of the High Court where the order or decision is of a single Judge. Where the order or decision is of a Bench, the appeal should lie to the Supreme Court.

As reason for the recommendation, the Report referred to the considerable criticism of the large powers enjoyed by the Court to punish contemners without a remedy by way of appeal as of right. It was pointed out that against an order punishing for contempt in the inherent powers of the High Court there was no specific provision for an appeal in the Letters Patent of the High Courts. An appeal in contempt cases from the decision of a High Court lay only in special cases to the Judicial Committee. The position remained unaltered on the enactment of the Constitution. Under Article 134 an appeal lay where the High Court certified that the case was a fit one for appeal to the Supreme Court, and Under Article 136 where the Supreme Court, acting in its discretion, granted special leave to appeal. The Sanyal Committee took note of several cases where an order made by the High Court punishing for contempt was found erroneous and needed to be modified or reversed. The Committee, being of the view that the discretionary right of appeal should be replaced by an absolute right of appeal, declared :. ... ... ... ... ... The right of appeal should be available in all cases and we accordingly recommend that against an order of the single Judge, punishing for contempt, the appeal should lie, in the High Court, to a Bench of Judges and against a similar order of a Bench of Judges of the High Court, the appeal should He as of right to the Supreme Court.

It is evident that the appeal recommended by the Sanyal Committee was intended to be an appeal against an order punishing for contempt. It was not intended to lie against an order merely directing issue of notice in a contempt proceeding or declining to discharge such notice. When, acting on the Sanyal Committee Report, Parliament enacted the Contempt of Courts Act, 1971, it included therein Section 19 in the terms set forth above. As the Supreme Court has observed in Baradakanta Mishra v. Mr. Justice Gati-krushna Misra C. J. of the Orissa High Court : 1975CriLJ1 , Section 19 was enacted pursuant to the recommendation of the Sanyal Committee set forth in Clause 25 of Chap. XI of its Report.

7. That the appeal Under Section 19 is contemplated only against an order or decision of the High Court made in disposing of a contempt proceeding is apparent from the intrinsic evidence provided by Section 19 itself. There is the statement in Sub-section (1) that the order or decision from which an appeal lies is an order or decision of the High Court made in the exercise of its jurisdiction to punisih for contempt. As is well known, the jurisdiction of a Court can be contemplated in comprehensive terms, ranging over the entire proceeding before it, from the enter-|taining of the proceeding to its final conclusion. The successive stages through which jurisdiction is exercised are exemplified in the four Claues (a) to (d) of Sub-section (1) of Section 14 of the Act. Section 14 reads :

14(1). When it is alleged, or appears to the Supreme Court or the High 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.

The concluding stage is the stage contemplated by Clause (d), where the Court exercises the jurisdiction to make an order for the punishment or discharge of the person accused of contempt. In our opinion it is to that stage of the exercise of jurisdiction that Sub-section (1) of Section 19 refers. It speaks of the High Court exercising 'its jurisdiction to punish for contempt'. The jurisdiction to punish for contempt is specifically referred to in Section 12 of the Act, which lays down the limits within which such jurisdiction will be exercised. Section 12 declares that a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both, and that no Court can impose a sentence in excess of such punishment. The jurisdiction to punish may alternatively be exercised, in the case of a civil contempt, by directing that the person found guilty be detained in a civil prison for such period not exceeding six months as the Court may think fit. The jurisdiction to punish for contempt may also be exercised in the case of a company. Section 12 details the various orders or decisions which the High Court may make in the exercise of its jurisdiction to punish for contempt. The more comprehensive jurisdiction, relating to the entire range of the proceeding, is indicated in provisions such as Section 11, which declares that a High Court shall have jurisdiction, 'to enquire into or try a contempt'. Another provision is Section 18, which declares that every case of criminal contempt Under Section 15 'shall be heard and determined' by a Bench of not less than two Judges. Had Parliament intended that Section 19 should provide an appeal from any order or decision of the High Court made at any stage during a contempt proceeding, one would have expected Section 19 to read :

19. An appeal shall lie as of right from any order or decision of a High Court in the exercise of its jurisdiction to enquire into or try (or 'to hear and determine') a contempt.

8. The view we are taking is reinforced by an analysis of the provisions of Sub-section (2) of Section 19. Clause (a) speaks of the suspension of 'the execution of the punishment or order appealed against'. The execution contemplated here could be either of an order of the kind mentioned in Section 12 or an order for costs. Clause (b) specifically refers to the appellant being in confinement, that is to say, pursuant to an order of punishment. Clause (c) likewise contemplates a stage where the appellant has already keen found guilty of contempt

9. Learned Counsel for the appellants has invited our attention to certain observations of the Supreme Court in Baradakanta Mishra 1975 Cri LJ 1 (SC) (supra), including the following :

Where the Court initiates a proceeding for contempt suo motu, it assumes jurisdiction to punish for contempt and takes the first step in exercise of it.' and again :

The exercise of the jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt, whether suo motu of on a motion or & reference.

10. A careful analysis of the judgment will demonstrate that the context in which those observations were made were wholly different from the matter before us. The Court did not have before it a controversy of the nature we have. There was no question there whether an order directing issue of notice on a contempt application was an appealable order. When making the observations, the Court did not have in mind the different stages into which a contempt proceeding could be divided. It was examining the whole proceeding in its entirety in a general sense, and that is because it was dealing with a situation anterior to the initiation of a proceeding for contempt. It held that when the Court rejected a motion or a reference and declined to initiate a proceeding for contempt, the order so made was not open to appeal. It seems to us that the appellants can derive no real support from that case.

11. Upon the aforesaid considerations, we are of opinion that an appeal lies Under Sub-section (1) of Section 19 against an order or decision of a High Court concluding the contempt proceeding, and not against an order declining to discharge the notice issued by the Court to the alleged contemner in a contempt proceeding.

12. Learned Counsel for the appellants urges that in the application filed by the appellants for discharge of the notice an attempt was made to establish that the facts alleged in the motion did not make out a case for taking contempt proceedings. When the learned single Judge rejected the application, it is said he acted without jurisdiction. On the view which has prevailed with us In regard to the scope of Sub-section (1) of Section 19 of the Act, this contention can be of no assistance to the appellants.

13. In our judgment, this appeal is not maintainable. It is, accordingly, rejected with costs.


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