Om Prakash Jaiswal vs D.K. Mittal & Anr

L.....I.........T.......T.......T.......T.......T.......T..J

This appeal is directed against an order dated

23.11.1989 passed by the High Court of Allahabad whereby

proceedings under Section 12 of the Contempt of Courts

Act, 1971 (hereinafter `the Act', for short) have been

directed to be dropped as barred by Section 20 of the

Act.

We are not concerned with the merits of the

allegations made by the appellant and denied by the

respondents, constituting the gravamen of alleged

contempt. We are concerned only with the question

whether the bar created by Section 20 of the Act was

attracted to the facts of the case or not.

It appears that the appellant was sought to be

dispossessed by the Nagar Mahapalika, Allahabad and

Allahabad Development Authority by demolishing and

removing certain construction existing over a piece of

land. The appellant filed a Civil Miscellaneous Writ

Petition No.20471 of 1986 before the High Court of

Allahabad seeking a writ or direction commanding the

respondents not to dispossess or interfere with the

possession of the appellant. On 19.12.1986 Shri A.K.

Mohiley, the learned counsel appearing on behalf of the

respondents gave an undertaking before the Court in the

following terms :

"Shri A.K. Mohiley, counsel for Nagar Mahapalika, Allahabad undertakes before us that the Nagar Mahapalika will not disturb or demolish the construction in question made by the petitioner till the disposal of the Writ Petition.

The undertaking is placed on record. The application accordingly dismissed."

According to the appellant, the employees of the

respondents demolished the appellant's construction in

the morning of 11.1.1987. The appellant moved an

application before the Court seeking initiation of

proceedings under Section 12 of the Act against the

respondents. On 15.1.1987 the Court passed the

following order :-

"Issue show cause notice to opposite parties as to why contempt proceedings should not be initiated against them for defiance of order dated 19.12.1986 passed by this court in civil writ petition no.20471 of 1988, O.P. Jaiswal Vs. Nagar Mahapalika and others. List it for orders on 4.2.87."

(underlining by us)

The respondents, i.e., the alleged contemners

appeared before the Court and filed their reply. On

16.12.1987 when the matter came up for hearing before

the Court, the Court passed the following order :-

"Apparently till now notice to show cause has been issued to the opposite parties as to why proceedings be not initiated. Manifestly the application would become non maintainable after 11.1.1988.

The learned Advocate General has very fairly conceded that in view of the matter having been heard on several dates the notices to show cause to the opposite parties as to why they should not be punished for disobeying the order of this court dated 19.12.1986 can be issued."

It appears that the abovesaid order, though it was

dictated in the Court, was not signed by the presiding

Judge. The attention of the Court having been invited

to this fact, on 6.1.1988 the Court passed the following

order:-

"6.1.1988 The case could not be taken up on the date fixed i.e. 5.1.1988. Learned Counsel for the opposite party, Shri Ashok Mohiley agrees that the notices be issued in view

of statement earlier made by the learned Advocate General fairly conceding that the notices be issued to show cause why the OPs be not punished to disobeying the order dated 19.12.1986. Issue notice to the O.Ps. However, notices be not sent to the opposite parties as Shri Ashok Mohiley accepts them on their behalf. List for hearing on 28.1.1988.

Sd/- Judge."

(underlining by us)

On 23.11.1989 the High Court, without going into

the merits of the allegations made, formed an opinion

that mere issuing of notice for showing cause against

did not amount to `initiation of proceedings' under the

Act and inasmuch as the proceedings were not initiated

till then the bar enacted by Section 20 of the Act was

attracted and therefore the application filed by the

appellant was liable to the rejected.

The short question arising for decision is whether

the order dated 6.1.1988 amounts to initiation of

proceedings for contempt.

Section 20 of the Act reads as under:-

"20. Limitation for actions for contempt. - No Court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed."

The expression - `initiate any proceedings for

contempt' is not defined in the Act. Words and Phrases,

(Permanent Edition) defines `initiate' to mean -an

introductory step or action, a first move; beginning;

start, and `to initiate' as meaning - to commence.

Black's Law Dictionary (Sixth Edition) defines

`initiate' to mean commence; start; originate;

introduce; inchoate. In Section 20, the word `initiate'

qualifies `any proceedings for contempt'. It is not the

initiation of just any proceedings; the proceedings

initiated have to be proceedings for contempt.

The expression was dealt with by this Court in

Baradakanta Mishra Vs. Mr.Justice Gatikrushna Misra, CJ

of the Orissa High Court AIR 1974 SC 2255. It was

held:-

"It is only when the court decides to take action and initiates a proceeding for contempt that it assumes jurisdiction to punish for contempt. The exercise of the jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt, whether suo motu or on a motion or a reference. That is why the terminous a quo for the period of limitation provided in Section 20 is the date when a proceeding for contempt is initiated by the Court."

Several decisions of the High Courts dealing with

the meaning of the above said word `initiate' in various

settings of facts were also brought to our notice.

However, we would like to mention only three Division

Bench decisions, namely, The Advocate General Vs. A.V.

Koteswara Rao - 1984 Cri. L.J. 1171 and Kishan Singh Vs.

Honourable Mr. T.Anjaiah, Chief Minister and others -

1985 Cri. L.J. 1428 by the Andhra Pradesh High Court and

Dineshbhai A. Parikh Vs. Kripalu Co-operative Housing

Society, Nagarvel, Ahmedabad and others - AIR 1980

Gujarat 194 by Gujarat High Court.

Following this Court's decision in Bardakanta

Mishra, in the two decisions abovesaid the Division

Benches of the Andhra Pradesh High Court speaking

through Jagannadha Rao, J.(as His Lordship then was)

stated that the word `initiation' of contempt

proceedings has a distinct connotation and cannot be

equated with the mere presentation of the petition and

observed :-

"initiation of the contempt proceeding is the time when the Court applies its mind to the allegations in the petition and decides to direct, under S.17 the alleged contemners to show cause why he should not be punished."

In order to appreciate the exact connotation of

the expression `initiate any proceedings for contempt'

we may notice several situations or stages which may

arise before the Court dealing with contempt

proceedings. These are :

(i) (a) a private party may file or present an

application or petition for initiating any

proceedings for civil contempt;

or

(b) the Court may receive a motion or

reference from the Advocate General or with his

consent in writing from any other person or a

specified Law Officer or a Court subordinate to

High Court;

(ii)(a) the Court may in routine issue notice to

the person sought to be proceeded against;

or

(b) the Court may issue notice to the

respondent calling upon him to show cause why the

proceedings for contempt be not initiated;

(iii) the Court may issue notice to the person

sought to be proceeded against calling upon him to

show cause why he be not punished for contempt.

In the cases contemplated by (i) or (ii) above, it

cannot be said that any proceedings for contempt have

been initiated. Filing of an application or petition for

initiating proceedings for contempt or a mere receipt of

such reference by the Court does not amount to

initiation of the proceedings by Court. On receiving

any such document it is usual with the Courts to

commence some proceedings by employing an

expression such as `admit', `rule', `issue notice' or

`issue notice to show cause why proceedings for contempt

be not initiated'. In all such cases the notice is

issued either in routine or because the Court has not

yet felt satisfied that a case for initiating any

proceedings for contempt has been made out and therefore

the Court calls upon the opposite party to admit or deny

the allegations made or to collect more facts so as to

satisfy itself if a case for initiating the proceedings

for contempt was made out. Such a notice is certainly

anterior to initiation. The tenor of the notice is

itself suggestive of the fact that in spite of having

applied its mind to the allegations and the material

placed before it the Court was not satisfied of the need

for initiating proceedings for contempt; it was still

desirous of ascertaining facts or collecting further

material whereon to formulate such opinion. It is only

when the Court has formed an opinion that a prima facie

case for initiating proceedings for contempt is made out

and that the respondents or the alleged contemners

should be called upon to show cause why they should not

be punished then the Court can be said to have initiated

proceedings for contempt. It is the result of a

conscious application of the mind of the Court to the

facts and the material before it. Such initiation of

proceedings for contempt based on application of mind by

the Court to the facts of the case and the material

before it must take place within a period of one year

from the date on which the contempt is alleged to have

been committed failing which the jurisdiction to

initiate any proceedings for contempt is lost. The

heading of Section 20 is `limitation for actions for

contempt'. Strictly speaking, this section does not

provide limitation in the sense in which the term is

understood in the Limitation Act. Section 5 of the

Limitation Act also does not, therefore, apply. Section

20 strikes at the jurisdiction of the Court to initiate

any proceedings for contempt.

A look at the concept of contempt and need for

care and circumspection to be exercised before

initiating proceedings for contempt would show the

necessity for enacting Section 20 and devising therein

the concept of `initiation of proceedings for contempt'.

Availability of an independent judiciary and an

atmosphere wherein Judges may act independently and

fearlessly is the source of existence of civilisation in

society. The writ issued by the Court must be obeyed.

It is the binding efficacy attaching with the commands

of the Court and the respect for the orders of the Court

which deter the aggrieved persons from taking the law in

their own hands because they are assured of an

efficacious civilised method of settlement of disputes

being available to them wherein they shall be heard and

their legitimate grievances redeemed. Any act or

omission which undermines the dignity of the Court is

therefore viewed with concern by the society and the

Court treats it as an obligation to zealously guard

against any onslaught on its dignity. In Re, Clements,

Republic of Costa Rica V. Erlanger - (1876) 46 L.J. 37,

385, Sir George Jessel M.R. said :-

"It seems to me that this jurisdiction of committing for contempt, being practically arbitrary and unlimited, should be most jealously and carefully watched, and exercised; if I may say so, with the greatest reluctance and the greatest anxiety on the part of Judges, to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject. I say that a Judge should be most careful to see that the cause cannot be fairly prosecuted to a hearing, unless this extreme mode of dealing with persons brought before him on accusations of contempt should be adopted. I have myself had on many occasions to consider this jurisdiction, and I have always thought that, necessary though it may be, it is necessary only in the sense in which extreme measures are sometimes necessary to preserve men's rights, that is if no other pertinent remedy can be found, probably that will be discovered after consideration to be the true measure of the exercise of the jurisdiction."

The jurisdiction to punish for contempt is summary

but the consequences are serious. That is why the

jurisdiction to initiate proceedings in contempt as also

the jurisdiction to punish for contempt in spite of a

case of contempt having been made out are both

discretionary with the Court. Contempt generally and

criminal contempt certainly is a matter between the

Court and the alleged Contemnor. No one can compel or

demand as of right initiation of proceedings for

contempt. Certain principles have emerged. A

jurisdiction in contempt shall be exercised only on a

clear case having been made out. Mere technical

contempt may not be taken note of. It is not personal

glorification of a Judge in his office but an anxiety to

maintain the efficacy of justice administration system

effectively which dictates the conscience of a Judge to

move or not to move in contempt jurisdiction. Often an

apology is accepted and the felony condoned if the Judge

feels convinced of the genuineness of the apology and

the prestige of the Court having been restored. Source

of initiation of contempt proceedings may be suo motu,

on a Reference being made by the Advocate General or any

other person with the consent in writing of the Advocate

General or on Reference made by a Subordinate Court in

case of criminal contempt. A private party or a

litigant may also invite the attention of the Court to

such facts as may persuade the Court in initiating

proceedings for contempt. However, such person filing

an application or petition before the Court does not

become a complainant or petitioner in the proceedings.

He is just an informer or relator. His duty ends with

the facts being brought to the notice of the Court. It

is thereafter for the Court to act on such information

or not to act though the private party or litigant

moving the Court may at the discretion of the Court

continue to render its assistance during the course of

proceedings. That is why it has been held that an

informant does not have a right of filing an appeal

under Section 19 of the Act against an order refusing to

initiate the contempt proceedings or disposing the

application or petition filed for initiating such

proceedings. He cannot be called an aggrieved party.

In the case at hand the order which was passed on

15.1.1987 had called upon the respondents only to show

cause why contempt proceedings be not initiated. After

the cause was shown the Court was to make up its mind

whether to initiate or not to initiate proceedings for

contempt. It was not an initiation of proceedings. We

will ignore the order dated 16.12.1987 as it was not

signed. But the order dated 6.1.1988 issuing notices to

the opposite parties to show cause why they be not

punished for disobeying the order dated 9.12.1986, shows

and it will be assumed that the Court had applied its

mind to the facts and material placed before it and had

formed an opinion that a case for initiating proceedings

for contempt was made out. Need for issuance of such

notices was conceded to by the Advocate General as also

by the counsel for the respondents. That is why it

directed the respondents to be called upon to show cause

why they be not punished for disobedience of the order

of the Court. The proceedings were therefore initiated

on 6.1.1988 and were within the limitation prescribed by

Section 20 of the Act. The impugned order directing

dropping of the proceedings is based on an erroneous

view of Section 20 of the Act and hence is liable to be

set aside.

The appeal is allowed, the impugned order is set

aside. The proceedings are restored to the file of the

High Court which shall hear the parties and then proceed

ahead in accordance with law.

Before parting, we may make it clear that during

the course of hearing we had asked the learned counsel

for the parties about the result of the main writ

petition wherein the undertaking was given on behalf of

the respondents. The learned counsel for the parties

were not duly instructed to assist this Court on this

aspect. The findings arrived at by the Court in the

main case, if the same has been disposed of, would have

a material bearing on the discretion of the Court to

proceed or not to proceed ahead with the proceedings for

contempt. We leave that aspect to be taken care of by

the High Court.