Gostho Behari Das vs Dipak Kumar Sanyal

2023 INSC 653 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4725 OF 2023 (Arising out of SLP(C)No.13789/2022)

GOSTHO BEHARI DAS .. APPELLANT(S)

V.

DIPAK KUMAR SANYAL & ORS. .. RESPONDENT(S)

JUDGMENT

SANJAY KAROL, J.

Leave granted.

The question this Court must consider, is: –

“Whether the suspension of the Petitioner’s license to

practice medicine is alien to the nature and types of

punishment and penalties specified under the Contempt Signature Not Verified Digitally signed by

of Courts Act, 1971?” Indu Marwah Date: 2023.07.28 15:45:29 IST Reason:

2

THE FACTS

1. The present appeal stands filed against the judgement

rendered by the High Court of Calcutta, (Circuit Bench at

Jalpaiguri) in MAT No. 67 of 2022, by which it upheld

various orders passed by learned single Judge dated 5 th,

11th, 12th and 14th July, 2022 in contempt proceedings

bearing number WPCRC9 of 2022, whereby vide the order

dated 11th July,2022 the Petitioner/Appellant’s licence to

practice medicine, was suspended.

2. Further with the order dated 14th July 2022, while

extending the period of suspension till 19 th August 2022, the

petitioner was asked to show cause as to why such

suspension be not affected for a period of two years.

3. A perusal of the record reveals that the Appellant had

unauthorizedly constructed a structure which was in

deviation with the plans sanctioned by the Siliguri

Municipal Corporation.1 Respondent No.1(private party) filed

numerous complaints against such unauthorised

construction, but to no avail. Discontented by the non­

1 Hereafter, “SMC” 3

intervention of the Commissioner of SMC 2, and the SMC3 ­

appellant herein filed a writ petition before the High Court.

Vide order dated 22nd December 2016 passed in W.P No.

11464 (W) of 2016, Respondent No. 3 was directed to have

the construction so made, inspected and submit a report

before the court. On the next date of hearing, that is 19 th

December 2017 it was directed that the representation that

stood already filed before the Municipal Corporation dated

2nd August 2007, was to be considered and a reasoned order

was to be passed thereon.

4. Pursuant to the above direction, an order dated 13 th June

2018, directing the Respondents No. 3 to demolish the

unauthorised construction, was passed. This order however,

came to be quashed by the High Court observing the

Commissioner SMC, not to be the competent authority and

instead, only the Board of Councillors of the SMC, who

could pass orders for demolition. Subsequently, vide a fresh

order dated 25thJune 2019 the Board of Councillors of SMC

while observing the construction to be unauthorised,

ordered its demolition. In furtherance thereto, Respondent 2 Hereafter, Respondents No. 2 3 Hereafter, Respondents No. 3 4

No. 2 passed an order dated 3 rd August 2019 directing the

demolition to be carried out.

5. Aggrieved by this order, the petitioner, (Appellant herein)

filed a Writ Petition bearing No. 349/2019 before the High

Court of Calcutta (circuit bench at Jalpaiguri.) The same

was disposed of with the observation that an appeal from

the order dated 25th June 2019, lay before the Principal

Secretary, Urban Development and Municipal Affairs,

Government of West Bengal. The said authority passed

orders on 8thJanuary 2020 and 28thJuly 2020 directing the

SMC to take necessary steps to aid the petitioner in

undertaking self­ demolition of the unauthorised

construction and, in the event of his failure to do so,

directed that the SMC itself undertakes such steps to do so.

6. Respondent No. 1 then filed a contempt petition in WPA No.

349 of 2019. It is hereunder that the license to practice

medicine, of the Appellant herein, was suspended.

LAW ON THE ISSUE AT HAND 5

7. The grant, regulation and suspension of the licence to

practice medicine is governed by the National Medical

Commission Act, 2019. It facilitates the maintenance of a

medical register for India and enforces high ethical

standards in regards of all aspects of medical services. A

statutory body namely the National Medical Commission

looks after the above­mentioned activities.

8. A perusal of the provisions of this Act as well as the now

repealed, Medical Council Act, 1956 shows that the power to

punish a registered medical practitioner for “misconduct”

rest exclusively with the body envisaged under this Act. The

Act itself provides for an exhaustive, complete mechanism to

revoke the licence of a registered practitioner for

professional misconduct. The same may be done after

holding an inquiry and complying with the principles of

audi alterum partem.

9. The instant dispute involves the question as to whether

such a punishment could be handed down under the

Contempt of Courts Act, 19714.

4 Hereinafter referred to as the ‘Contempt Act’ 6

10. Contempt of Court is defined in the Act under Section 2(a) :

“2(a). “Contempt of Court” means civil contempt or criminal contempt;”

11. Civil contempt, with which the present case concerns itself,

is defined under Section 2(b) which reads as follows:

“2(b). “civil contempt” means wilful disobedience o any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;”

12. The punishment for contempt of Court is prescribed under

Section 12 of the Contempt Act, which reads as under:

“12. Punishment for contempt of court.­ (1) Save as otherwise expressly provided in this Act or in any other law, 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:

Provided that the accused may be discharged or the punishment awarded may be remitted or on apology being made to the satisfaction of the court.

Explanation.­ An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.

(2) Notwithstanding anything contained in any other law for the time being in force, no court shall impose a sentence in excess of that specified in sub­section (1) for any contempt either in respect of itself or of a court subordinate to it.

xx xx xx” 7

13. It may be noted that right from the Privy Council onwards,

judicious and sparing use of the power of contempt has

been an accepted proposition. In Parashuram Detaram

Shamdasani v. Emperor5 the Council had observed­

“… this summary power of punishing for contempt of court should be used sparingly and only in serious cases. It is a power which a Court must of necessity possess; its usefulness depends on the wisdom and restraint with which it is exercised…”

14. A Bench of seven judges in C.S. Karnan, In re6, had,

referring to various decisions of other jurisdictions, observed

“63. The authority to punish for contempt of court has always been exercised by the judiciary from times immemorial [ In one of the earliest legal pronouncements dealing with the subject, Justice Wilmot in R. v. Almon, 1765 Wilmot's Notes 243 :

97 ER 94 explained the philosophy behind the power to punish for contempt of court. The passage now a classic exposition runs as follows : (ER p.

100)“… and whenever men's allegiance to the laws is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice, and, in my opinion, calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the Judges, as private individuals, but because they are the channels by which the King's justice is conveyed to the people.”] . The justification for the existence of that is not to afford protection to individual Judges [ “14. … the law of contempt is not made for the protection of Judges

5 1945 AC 264 6 (2017) 7 SCC 1 8

who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.” [Douglas, J., Craig v. Harney, 1947 SCC OnLine US SC 79, para 14 : 91 L Ed 1546 : 331 US 367 at p. 376 (1947)]] but to inspire confidence in the sanctity and efficacy of the judiciary [ “… The object of the discipline enforced by the Court in case of contempt of court is not to vindicate the dignity of the court or the person of the Judge, but to prevent undue interference with the administration of justice.” [Bowen, L.J. — Helmore v. Smith (2), (1886) 35 Ch D 449 at p. 455 (CA)]] , though they do not and should not flow from the power to punish for contempt. They should rest on more surer foundations. The foundations are—the trust and confidence of the people that the judiciary is fearless and impartial.”

15. Krishna Iyer J. speaking for himself and Bhagwati J. in

Baradakanta Mishra v. Registrar Orissa High Court 7

(Constitution Bench), observed­

“65. … we would like to underscore the need to draw the lines clear enough to create confidence in the people that this ancient and inherent power, intended to preserve the faith of the public in public justice, will not be so used as to provoke public hostility as overtook the Star Chamber. A vague and wandering jurisdiction with uncertain frontiers, a sensitive and suspect power to punish vested in the prosecutor, a law which makes it a crime to publish regardless of truth and public good and permits a process of brevi manu conviction, may unwittingly trench upon civil liberties and so the special jurisdiction and jurisprudence bearing on contempt power must be delineated with deliberation and operated with serious circumspection by the higher judicial 7 (1974) 1 SCC 374 9

echelons. So it is that as the palladium of our freedoms, the Supreme Court and the High Courts, must vigilantly protect free speech even against judicial umbrage — a delicate but sacred duty whose discharge demands tolerance and detachment of a high order.”

16. In W.B. Administrative Tribunal v. SK. Monobbor

Hossain8, (two­Judge Bench) has observed that the tenor of

the dicta of this Court on the topic (contempt) is crystal

clear. The Court has time and again asserted that the

contempt jurisdiction enjoyed by the Courts is only for the

purpose of upholding the majority of the judicial system

that exists. While exercising this power, the Courts must

not be hypersensitive or swung by emotions but must act

judiciously. The principle of sparing use stood reiterated in

Prashant Bhushan, In re9

On the aspect of Punishment under a specified statute

17. A Bench of seven judges in Bar Council of Maharashtra

v. M.V Dabholkar10 had observed as follows, in respect of

the role of Bar Councils and the powers of disciplinary

action vested within them, as under­

8 (2012) 11 SCC 761 9 (2021) 3 SCC 160 10 (1975) 2 SCC 702 10

“24. The scheme and the provisions of the Act indicate that the constitution of State Bar Councils and Bar Council of India is for one of the principal purposes to see that the standards of professional conduct and etiquette laid down by the Bar Council of India are observed and preserved. The Bar Councils therefore entertain cases of misconduct against advocates. The Bar Councils are to safeguard the rights, privilege and interests of advocates. The Bar Council is a body corporate. The Disciplinary Committees are constituted by the Bar Council. The Bar Council is not the same body as its Disciplinary Committee. One of the principal functions of the Bar Council in regard to standards of professional conduct and etiquette of advocates is to receive complaints against advocates and if the Bar Council has reason to believe that any advocate has been guilty of professional or other misconduct it shall refer the case for disposal to its Disciplinary Committee. A most significant feature is that no litigant and no member of the public can straightaway commence disciplinary proceedings against an advocate. It is the Bar Council of a State which initiates the disciplinary proceedings.”

(emphasis supplied)

18. This Court in Supreme Court Bar Association v. Union

of India, (1998) 4 SCC 409 (five­Judge Bench) categorically

held that –

“39. Suspending the licence to practice of any professional like a lawyer, doctor, chartered accountant etc. when such a professional is found guilty of committing contempt of court, for any specified period, is not a recognized or 11

accepted punishment which a court of record either under the common law or under the statutory law can impose on a contemner in addition to any of the other recognized punishments.” (emphasis supplied)

19. A reading of sub­section (1) of Section 12 of the Act shows

that the punishment prescribed therein is simple

imprisonment, not exceeding six months or a fine not

exceeding Rs.2,000/­Sub­Section (2) reads

“notwithstanding anything contained in any other law for

the time being in force” this implies that save and except

the punishment provided in sub­Section (1) no other

punishment can be prescribed to a person guilty of

committing contempt of Court.

20. In view of the above, this Court has no hesitation in

holding that the punishment handed down to the

contemnor is entirely foreign to the Act and, therefore,

unsustainable. The Court, in awarding such punishment

showed complete disregard for the statutory text of the

Contempt of Courts Act 1971, which is abundantly clear in

respect of the punishment that can be imposed thereunder. 12

21. A medical practitioner guilty of contempt of Court may

also be so for professional misconduct but the same would

depend on the gravity/nature of the contemptuous conduct

of the person in question. They are, however, offences

separate and distinct from each other. The former is

regulated by the Contempt of Court Act, 1971 and the

latter is under the jurisdiction of the National Medical

Commission Act, 2019.

22. The Division Bench in the impugned judgment did not

consider or discuss this issue nor was any final decision

taken by the Single Judge in the subject contempt

proceedings.

23. The question raised in the instant appeal is answered in

the above terms.

24. The appellant has submitted before the High Court that

the requisite demolition has been carried out with the

exception of approximately 250 mm in the rear portion of

the concerned building as, removal of the same would have

rendered the building, legally constructed, to be unsafe. In

respect of the unauthorized construction that remains, we 13

direct that an undertaking be furnished before the

concerned High Court that remedial construction to

safeguard the soundness of the existing building and the

consequent demolishing of the unauthorized construction

shall be completed within a reasonable time.

25. Consequently, the judgment of the Court’s below, i.e., the

Division Bench and the orders of the Single Judge, High

Court of Calcutta, (Circuit Bench and Jalpaiguri) in MAT

No.67 of 2022 and orders dated 11 th, 12th and 14th of July

2022 are set aside. The licence of the appellant, to practice

medicine is revived.

26. The appeal is allowed accordingly. The pending

application(s), if any, stands disposed of. No costs.

………………………J. (B.R. GAVAI)

………………………J. (SANJAY KAROL)

Date : 28 July, 2023;

Place : New Delhi.