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PETITIONER: BUNNA PRASAD AND ORS.

       Vs.

RESPONDENT: THE STATE OF U.P. & ANR.

DATE OF JUDGMENT: 24/04/1968

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. SHELAT, J.M. BHARGAVA, VISHISHTHA

CITATION:  1968 AIR 1348            1969 SCR  (1) 115

ACT: Contempt  of Courts Act, 1952, ss. 4 and 5-Accused  applying to  Panchayat  not to proceed with matter  because  of  stay order  granted  by High Court-No proper affidavit  or  other evidence   to  support  application-Panchayat   disbelieving applicant and continuing trial-If guilty of contempt-Whether bound to adjourn for better proof.

HEADNOTE: M,  an accused person in certain proceedings pending  before the  Nyaya Panchayat filed a petition under Art. 227 in  the High  Court  and  obtained  a stay  of  the  proceedings  on December  20,  1963 . Thereafter when the Panchayat  met  to proceed with the matter, he made an application supported by a  document purporting to be an affidavit stating  that  the High  Court  had admitted his writ petition and  had  stayed further proceedings before the Panchayat; and that therefore nothing further should be done in the matter.  However, the, Panchayat  did not allow his application and  proceeded  (to hold M and others guilty and imposing fines on them. M, thereafter filed an application under ss. 4 and 5 of  the Contempt of Courts Act. 1952, alleging contempt of the  High Court by the Panchayat.  An affidavit filed before the  High Court  by the Sarpanch stated that the document filed by  M, by way of an affidavit in support of his application had not been verified by any proper authority and for this and other reasons  the Panchayat did not believe that the  High  Court had stayed the proceedings.  The High Court held the members of  the  Panchayat guilty of contempt and observed  that  if they  wanted  to ascertain the matter, they should  have  at best stayed the proceedings for a short while and asked  the applicant to produce a certified copy of the stay order;  in not doing so, the Panchas had obviously not acted bona  fide and  their  action amounted to, wilful disobedience  of  the High Court’s order. On appeal to this Court, HELD : The appeal must be allowed and the judgment and order of the High Court set aside. The  only material before the Panchayat was the  application dated  December  25. 1963, which was not supported  by  ’any affidavit sworn to before a person authorised to  administer

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oaths.  Further, the application did not contain the date of the  order; even a copy of the telegram stated to have  been sent  by M’s advocate in the High Court was not attached  to the  application.   On this material the bona fides  of  the Panchas  could not be doubted if they refused to accept  the mere  statement of the party that the High Court had  stayed the  proceedings  before them.  In such  matters  those  who assert  that a person had knowledge of the order must  prove this  fact  beyond all reasonable doubt.  If  there  is  any doubt. the benefit, ought to be given to the person  charged with contempt of court.[120 F-H; 121 A--B] It  is  true  that  in  certain  cases  proceedings  can  be adjourned to enable the parties to file better proof, but  a judicial  officer  is not bound (to do so and, if  the  bona fide  does  not in his discretion  adjourn  proceedings,  it cannot be said that he has committed contempt of court. [121 C-D] 116

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.112  of 1965. Appeal  by  special leave from the  jurisdiction  and  order dated April 29, 1965 of the Allahabad High Court in Criminal Misc.  ’Contempt Case No. 43 of 1965. A. S. R. Chari, M. K. Ramamurthi, Vineet Kumar and  Shyamala Pappu, for the appellants. O. P. Rana, for respondent No. 1. J.  P.  Goyal, V. C. Prasar and S. P. Singh  for  respondent No. 2. The Judgment of the Court was delivered by Sikri,  J. This appeal by special leave is directed  against the judgment of the Allahabad High Court adjudging the  five appellants  guilty of contempt of court and sentencing  each of  them to pay a fine of Rs. 1,000/- and  further  ordering that   in  case  of  default  they  shall   undergo   simple imprisonment  for two weeks.  The High Court held  that  the five appellants had disobeyed an order of stay passed by  it staying  proceedings  pending before  the  Nyaya  Panchayat, Jokha Khas, District Deoria. The  relevant  facts  are  these.   On  September  2,  1963, Yashoda,  son  of Raj Kumar, filed a  complaint  before  the Nyaya  Panchayat,  Jokha Khas, against Jagdeo,  Mahabir  and Laxmi  alleging that he had been abused and be laboured  and his property worth Rs. 40/- damaged.  On September 10, 1963, the  Nyaya Panchayat assembled and evidence was  led  before it.   The  case  was adjourned to  December  25,  1963.   On October  11,  1963, Mahabir, accused,  made  an  application under s. 85 of the U.P. Panchayat Raj Act, 1947, to  S.D.M., Deoria,  to transfer the proceedings on the ground that  the complainant Yashoda was father of Bunna Prasad, Sarpanch  of Nyaya  Panchayat,  Jokha Khas.  On November  28,  1963,  the S.D.M.  rejected this application.  On December 13, 1963,  a notice  was issued to the five members of the  Panchayat  to assemble  on  December  25, 1963, and  hear  the  case.   On December  20, 1963, Mahabir moved an application under  Art. 227 of the Constitution challenging the order of the S.D.M., dated November 28, 1963, and on the same day the High  Court admitted  the  application and  stayed  further  proceedings before the Nyaya Panchayat.  An urgent copy of the order was applied  for and obtained on that very day and  the  counsel sent a telegram in the following words "Allahabad He 20

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Baldeopd cashier Trust  Sdr GR  Mahabir application admitted stay granted                               Banwarilal." 117 It  is alleged on the side of the applicant,  Mahabir,  that immediately after the receipt of the telegram an application accompanied by an affidavit and the telegram of his  counsel in  the High Court was presented before the Nyaya  Panchayat with the prayer to stay further proceedings but the Sarpanch refused to take it.  This fact was denied and the High Court seems  not to have relied on this fact in its judgment.   It seems to us that it is not proved on the evidence here  that any  such application was made before the  Nyaya  Panchayat. No  application  dated  December 21,  1963,  which  was  not accepted by the Nyaya Panchayat, has been produced. On  December 23, 1963, Mahabir submitted an  application  in the  Court of Shri R. Singh, S.D.M., Deoria,  alleging  that "writ  petition has been admitted and a stay order has  been issued.   But  notwithstanding my  informing  the  Panchayat Adalat of that, I am not getting any hearing there, and when an  application  is made there, it is not  entertained."  He prayed  that  the Panchayat Adalat be directed  to  postpone proceedings  pending  the  receipt of the  stay  order.   He produced the telegram received from the Advocate before  the S.D.M.  In  the  affidavit  accompanying  the   application, however,  no mention was made about Mahabir having  informed the Panchayat Adalat of the stay order or the fact that  the order  and the application was not being entertained by  the Adalat.  It happened that the S.D.M. was absent on  December 23,  1963, and papers were put up before Shri S. K.  Srivas- tava,  Additional Sub-Divisional Magistrate, who issued  the order "Put up with records".  Apparently he did not take any further  action till December 26, 1963.  But as  the  notice against  Shri  Srivastava has been discharged  by  the  High Court,  we  need  not give any  further  details  about  his various orders, On December 25, 1963, the Nyaya Panchayat met and  proceeded to hear the case.  The order sheet reads thus :               "Put  up today the 25th December,  1963.   The               complainant and the accused are present.   The               statements   of   the  complainant   and   his               witnesses,  Bhabhuti and Damri, are  recorded.               The accused refused to make statements and put               down   their  signatures.   Today,  the   25th               December,  1963, Mahabir has made an  applica-               tion  to  the Court and signed it  before  it.               Hence judgment shall be given on 25-12-63." This order was signed by three Panchas, Phagu Parsad,  Jagat Dubey  and Badri Yadav.  On the same day a final  order  was made  holding the accused guilty and imposing a fine of  Rs. 3/-  each on accused Nos.  1 and 3, and Rs. 9/-  on  accused No. 2. The application of Mahabir, referred to in the order, reads thus: 118 .lm15 Sir, It  is  submitted that I have filed a writ petition  in  the above case, in the High Court.  It has been admitted by  the High Court which has stayed proceedings also in this case. It  is, therefore, prayed that the proceedings in this  case may be stayed." A document purporting to be an affidavit was also  attached, in which it was stated               "I make oath and say that in the above case  I

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             have filed a writ petition in the High  Court,               that   it   has  been   admitted,   and   that               proceedings  in the case have been  stayed  by               the High Court." We looked at this so-called affidavit and found. that it has not been sworn to before any person authorised to administer oaths. On  May 21, 1964, Mahabir filed an application under  ss.  4 and 5 of the Contempt of Courts Act, 1952, against the  five appellants   and  S.  K.  Srivastava,  A.S.D.M.   The   main allegation,  apart  from reciting the facts  which  we  have already detailed above, was that "in spite of the  knowledge of  the  interim stay dated 20-12-63 passed by  the  Hon’ble High  Court the Sarpanch, the Opposite Party No. 1  and  the members of the Bench, Opposite Parties Nos. 2 to 5 disobeyed the order of the Hon’ble High Court and disposed of the case on 25-12-63 and thus they committed contempt of the  Hon’ble High  Court."  Affidavits were filed in the  High  Court  by Baldeo  Prasad,  pairokar  of  Mahabir,  Burma  Prasad,  the Sarpanch,  and Mahabir, and statements of Phagu  Prasad  and Bunna  Prasad were recorded on oath.  Bunna Prasad,  in  his affidavit,  stated  that  as the  Nyaya  Panchayat  was  not satisfied  for want of evidence by way of  proper  affidavit etc.,  the Nyaya Panchayats proceeded with the case.   Phagu Prasad. in his statement, stated               "As  the  paper of Mahabir’s  application  and               affidavit  was not good, we had asked -him  to               get  them written on a proper  paper  obtained               from the Tehsil.  We had also told him to  get               the  affidavit  verified  before  some  Tehsil               authority.   We  had  told  Mahabir  as  above               before   we  had  read  the  application   and               affidavit    presented   before   the    Nyaya               Panchayat.   Mahabir  told us that he  is  not               prepared  to go to Tehsil, but  is  presenting               before  the Panchayat whatever he has  got  in                             his possession." Phagu  Prasad  further stated that "no other  affidavit  had ever  been  filed  before us, but we knew that  in  the  law courts the 119 affidavits,which   are   filed,   are   verified   by   some authority."He  further added that "the reason why we did not believe theaffidavit  of  Mahabir was that  it  did  not contain any date of theHigh  Court’s  stay  order."  Bunna Prasad, in his statement, stated that he had told Mahabir to bring  the affidavit on a good quality paper of  full  size, and  Mahabir  thereupon  told  him  that  he  would  present whatever he had.  According to him, the Panchas did not tell Mahabir  that his affidavit was not proper;  they,  however, told him to get it verified in Tehsil and that it should  be duly sealed. The High Court, on examination of the evidence, came to  the conclusion  that  it  was the  Sarpanch  who  bad  initially declared that the affidavit of the applicant was not  proper and  that  the  matter should file  a  proper  affidavit  in support of his allegations, though the Sarpanch had admitted in  his deposition that he had to authority to tell  Mahabir that his affidavit was not proper.  It appeared to the  High Court   that  "the  Sarpanch  first  wanted  to  avoid   the petitioner’s  affidavit  being  brought  on  the  record  by declaring  that it was not proper because it did  not  fully evidence  the fact that the High Court had passed  an  order staying  proceedings before the Nyaya Panchayat."  The  High Court  further  held  that  "the  Nyaya  Panchas  faithfully

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accepted  the objections raised by the Sarpanch and  dittoed him about the impropriety of the petitioner’s affidavit  and inadequacy  of the evidence contained therein regarding  the stay order alleged to have been. passed by the High  Court." The  High Court disbelieved the explanation of  the  Panchas given before it because no mention of these was made in  the order sheet dated December 25, 1963.  The High Court held :               "There  was  no  reasonable  ground  for   the               Panchas to have doubted the averments made  in               the application and affidavit of Mahabir  that               the High Court had stayed further  proceedings               before  the Panchayat, nor is there any  thing               in  the order sheet to show that  the  Panchas               did   not   believe  the   contents   of   the               application,   and   affidavit   of   Mahabir.               However,  if  they  wanted  to  ascertain  the               matter,  they should have at best  stayed  the               proceedings for a short while and should  have               asked  the  applicant to produce  a  certified               copy  of the stay order.  In the  alternative,               they  should have verified from the Sub  Divi-               sional  Magistrate whether Mahabir had  really               filed an application and affidavit before  him               along with the original telegram received from               his counsel at Allahabad saying that the  High               Court  had  already  stayed  the   proceedings               before  the Nyaya Panchayat.  But the  Panchas               did  nothing of the kind.  The action  of  the               Nyaya  Panchas in not doing so  was  obviously               not bona fide and 120 amounts to wilful disobedience of the High Court’s order. The learned counsel for the appellants, Mr. Chari, says that no contempt of court has been established because a Court is entitled  not  to  act  on  an  application  which  is   not accompanied by an affidavit properly sworn to or a certified copy  of  the  order  He urges  that  the  Nyaya  Panchayats exercised judicial powers and, even if the Panchas erred  in not  staying   proceedings, before finding  them  guilty  of contempt  of court it should be definitely proved  that  the order  was passed deliberately to by-pass the order  of  the High Court. This  Court quoted with approval the following passage  from Oswald’s  Contempt of Court, in Hoshiar Singh v.  Gurbachan. Singh(1):               "The judgment or order should be served on the               party  personally,  except  in  the  following               cases : (1) prohibitive orders, the drawing up               of which is not completed;........               In order to justify committal for breach of  a               prohibitive order it is not necessary that the               order  should have been served upon the  party               against  whom  it has been granted, if  it  be               proved  that  he  had  notice  of  the   order               aliunde, as by telegram, or newspaper  report,               or otherwise, and knew that it was intended to               be enforced, or if he consented to the  order,               or  if he was present in Court when the  order               -Was pronounced, or *hen the motion was  made,               although   he  left  before  the   order   was               pronounced." We  need not consider whether it makes any differnce in  law if the order has been drawn up.  We will for the purpose  of this  case assume that it does not make any difference.   It is  also clear that in such matters those who assert that  a

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person  had  knowledge  of the order must  prove  this  fact beyond  all  reasonable doubt.  If there is any  doubt,  the benefit  ought  to  be  given to  the  person  charged  with contempt  of  court.   If a person bona fide  comes  to  the conclusion on the material placed before him that the source of information is not authentic he cannot be held guilty  of contempt of court for disobeying the order. The  question then arises whether the Sarpanch and the  Pan- chas had knowledge of the existence of the order of the High Court  dated  December 20, 1963.  The only  material  before them was the application dated December 25, 1963, which  was not  supported  by any affidavit sworn to  before  a  person authorised to (1) [1962] Supp. 3 S.C.R. 127,138. 121 administer oaths.  Further, the application did not  contain the .date of the order; even a copy of the telegram was  not attached  to the application; and the application  seems  to have  been  made  after the proceedings  on  that  date  had commenced  and evidence taken.  We are unable to  appreciate how  on this material the bona fides of the Panchas  can  be doubted if they refused to accept the mere statement of  the party  that  the High Court had  stayed  proceedings  before them.  It seems to us that the High Court did not appreciate that  the  so-called affidavit which was  filed  before  the Panchas was in fact not an affidavit at all. it had not been sworn  to before any person authorised to administer  oaths. It  was no part of the duty of the Panchas to  enquire  from the  S.D.M. about the filing of the application before  him. At  any  rate,  he has apparently no  jurisdiction  to  stay proceedings  before the Nyaya Panchayats when no  Proceeding is  pending  before him.  It is true that in  certain  cases proceedings  can be adjourned to enable the parties to  file better  proof, but a judicial officer is not bound to do  so and,  if  he bona fide does not in  his  discretion  adjourn proceedings,  it  cannot  be  said  that  he  has  committed contempt  of  court.   It must also be borne  in  mind  that Panchas  are  not well-versed in law and procedure  and  the records maintained by them should not be judged in the  same manner  as that of ordinary courts.  With respect, the  High Court  should not have drawn an adverse inference  from  the fact that the reasons for not accepting the prayer for  stay were  not recorded.  Contempt of court is a  serious  matter and  a  High  Court should be chary of  finding  a  judicial officer  guilty  of  contempt of court  for  disobeying  its orders  unless  there  is unimpeachable  evidence  that  the judicial  officer  had knowledge of the order  of  the  High Court.   In our opinion, there is no such evidence  in  this case. The  learned counsel for the State contends that  we  should not reappreciate the facts, but, with respects, it seems  to us that the High Court, while dealing with the evidence, has not  kept  in mind the principles which  we  have  mentioned above. In the result we allow the appeal and set aside the judgment and order of the High Court. R.K.P.S.      Appeal allowed. Sup.C.I.--68--9 122