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PETITIONER: DEBABRATA BANDOPADHYAY

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL & ANR.

DATE OF JUDGMENT: 02/07/1968

BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. (CJ) RAMASWAMI, V. VAIDYIALINGAM, C.A.

CITATION:  1969 AIR  189            1969 SCR  (1) 304  CITATOR INFO :  F          1976 SC 859  (20,24,33)  R          1991 SC2176  (13)

ACT: Contempt  of Court-Sessions Judge directing in appeal  under s.  520 Cr.  P.C. that money in deposit in court be paid  to accused  on his executing bond to satisfaction  of  District Magistrate-Bond executed in form of indemnity bond in favour of   State   Government-Accepted  by   Additional   District Magistrate-Acceptance  of  bond  in such form  and  by  such authority whether constituted contempt of court of  Sessions Judge.  Delay in transmission of orders of superior  courts- When constitutes contempt.

HEADNOTE: S who was Sub-Agent of a Phospate company was convicted  for a contravention of the Fertiliser Control Order read with s. 7(1)  of  the  Essential Commodities  Act.   The  fertiliser seized  during  investigation was sold by the order  of  the Court  and  the sale proceeds held in  deposit.   The  trial Magistrate  ordered  the fertiliser to be  returned  to  the company  but S filed an appeal under s. 520 of the  Code  of Criminal  Procedure  and on December 23, 1963  the  Sessions Judge  directed  the Magistrate to deliver the amount  to  S upon  his  furnishing security and executing a bond  to  the satisfaction of the District Magistrate.  On January 3, 1964 S  produced a certified copy of this order and asked  to  be allowed  to take out the amount and furnished a  bond.   The Magistrate  recommended  its  acceptance  and  it  was  then accepted by the Additional District Magistrate.  On  January 11,  1964  the  Magistrate directed the issuance  of  a  pay order.  S received it on the same day and deposited it  with his bankers on January 13. The Company meanwhile had filed a revision  petition  before  the High  Court  and  asked  the Sessions  Judge to stay his order of December 3, 1963.   The Sessions  Judge passed an order of stay on January 14.  1964 which  was received in the District Magistrate’s  office  on January  16, 1964.  Even after the receipt of that order  in the  District Magistrate’s office a -communication was  sent to  the trial magistrate on 20th January,1964 directing  him to  carry out the Sessions Judge’s order dated December  23,

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1963.   The High Court charged the District  Magistrate  and other appellants for contempt and held that contempt of  the Court of the Sessions Judge had been committed because : (a) The  Magistrate  accepted S’s bond which was not  in  proper form and thus failed to carry out the Sessions Judge’s order of  December  23,  1963; (b) The bond was  accepted  by  the Additional  District Magistrate whereas the  Sessions  Judge had  ordered that the bond should be to the satisfaction  of the   District  Magistrate;  (c)  The  District   Magistrate directed  that  the Sessions Judge’s order of  December  23, 1963 be carried out although the Sessions Judge’s stay order had been received in his office before that.  The High Court held  that there had been gross delay in  the  communication and  execution of the orders of the superior courts  by  the District Magistrate and the subordinates and that there  was a well-knit conspiracy to pay the amount in deposit to S  in defiance  of  the orders of the  superior  courts.   Against their  conviction by the High Court the appellants  came  to this Court. HELD  :  (i) There is nothing in s. 517  Criminal  Procedure Code which excluded the use of an indemnity bond such as was executed in the case.  The Sessions Judge did not order that the bond should be taken in 305 the name of any particular court.  A bond in the name of the Government  of West Bengal substantially complied  with  the order of the Sessions Judge as it could be enforced  against S without any trouble [308 F-G] (ii) In  holding  that the District Magistrate  alone  could accept  the  bond the High Court ignored the powers  of  the Additional  District Magistrate under the Code  of  Criminal Procedure.  The practice of courts in Bengal is also against the  proposition because such bonds are  usually  considered for acceptance by the Additional District Magistrate [308 G- H] (iii)     The  High Court went wrong in holding  that  there was  a  conspiracy  by  the  officials  concerned.   For   a conspiracy  to be hatched there must be some  foundation  of gain or purpose.  The conspirators would at least know  that there was nothing to be gained by delaying the orders  since the  money  was  already paid out.   The  stay  orders  were ineffective  since there was nothing to stay.  There was  no doubt  some delay but it could be dealt with in  other  ways than punishment for an imaginary contempt of court.  L309 G- H,[310 A] In  the  circumstances of the case the High Court  was  also wrong  in taking into account against the  appellants  their failure to make an apology.[1310 B] A  question whether there is contempt of court or not  is  a serious  one.  The court is both the accuser as well as  the judge  of the accusation.  It behaves the court to act  with as  great circumspection as possible making  all  allowances for  errors  of  judgment  and  difficulties  arising   from inveterate  practices in courts and tribunals.  It  is  only when  a clear case of contumacious conduct  not  explainable otherwise, arises, that the condemner must be punished  [310 F] [The Court, however, cautioned all concerned that orders  of stay,  bail, injunctions received from superior courts  must receive close and prompt attention and unnecessary delay  in dispatching  or dealing with them may well  furnish  grounds for an inference that it was due to a natural disinclination to  deal with the matter born of indifference and  sometimes even of contumaciousness. [311 A-B]

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JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 55  of 1965. Appeal  by special leave from the judgment and  order  dated June  16, 1964 of the Calcutta High Court in Criminal  Misc. Case No. 28 of 1964. Debobrata  Mukherjee and P. K. Chakravarty, for  the  appel- lants. D. N.  Mukherjee for P. K. Bose, for respondent No. 1. Niren  De, Solicitor-General, B. Sen and G.  S.  Chatterjee, for the intervener. Hidayatullah,  C.J. The five appellants are District  Magis- trate  of Nadia and his four assistants who have been  found guilty  of  contempt of the High Court of Calcutta  and  the Sessions  Court  of  Nadia  and  sentenced  to  fines   with imprisonment  in  default of payment.  They  now  appeal  by special leave granted by this Court.. The facts are long and need a full narration. 306 One  Birendra Kumar Sarkar, Sub-Agent of Phosphate Co.  Ltd. Krishnagar, District Nadia, was prosecuted for contravention of  the Fertiliser Control Order, read with s. 7(1)  of  the Essential Commodities Act and on his own plea was  convicted and  sentenced to Rs. 20 fine or simple imprisonment for  10 days.   We  are  not concerned  with  his  conviction.   The fertiliser seized during investigation was sold by order  of the  Court  and the sale proceeds held in deposit.   On  the conviction  of  Birendra Kumar the amount  in  deposit  (Rs. 4,215) was directed on March 11, 1963 to be returned to him. The same day the Phosphate Co. Ltd. applied to take out  the amount  and  the Magistrate reversed the earlier  order  and directed  that the amount be paid to the Company.   Birendra Kumar appealed to the Sessions Judge, Nadia under s. 520  of the  Code of Criminal Procedure.  This appeal succeeded  and on  December  23,  1963, the  Sessions  Judge  directed  the Magistrate  to  deliver  the  amount  to  Sarkar  upon   his furnishing security and executing a bond to the satisfaction of  the  District  Magistrate, Nadia.  On  January  3,  1964 Sarkar produced a certified copy of this order and asked  to be allowed to take out the amount and furnished a bond.  The bond was found in order by N. C. Mookherjee, Magistrate  1st Class, who recommended its acceptance.  It was then accepted by  A.  Sen,  Additional  District  Magistrate,  Nadia.   On January 11, 1964 the accountant attached to the Court of  N. C. Mookerjee reported and the latter directed issuance of  a pay  order.  Sarkar received the pay order the same day  and deposited  it  with  his bankers (State Bank  of  India)  on January 13, 1964. On  January  8, 1964 the Company expressed to  the  Sessions Court,  its intention of moving an application for  revision in the High Court at Calcutta against the order of  December 23,  1963  and  asked for stay.  Stay  was  not  immediately granted.but  notice F was issued to Sarkar to show cause  on January  16,  1964.  Later a stay order was also  sent.   On January  13,  1964  the High Court issued a  rule  and  also directed stay of operation of the Sessions Judge’s order  of December 23, 1963. It will be seen from the above facts that the actual payment of  money  was made under the orders of the  Sessions  Judge passed on December 23, 1963 as far back as January 11, 1964. The  High Court has considered the question of the  contempt of the Sessions Judge’s order from the angle of the kind  of bond  which was accepted, and the Officers who accepted  it.

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We shall come to it later.  We shall now trace the  progress of  the orders which were passed by the Sessions  Judge  and the  High Court in proceedings subsequent to  January  1964. For this purpose it is sufficient to extract the summary  of the events made by the High Court itself: 307               "  The stay order dated 14th of January,  1964               was communicated by. the Sessions Judge by his               Memo.   No.  170 and it was  received  by  the               District   Magistrates  Office  on   16th   of               January, 1964.  On 20th January, 1964 Memo No.               443 Jm. containing the direction to carry  out               the  order  of the Sessions Judge  dated  23rd               December,  1963 was drafted by Pulak Kumar  De               and  it was signed by another Magistrate  Shri               Jyotirmoy  Ghose.   On 22nd January,  1964  on               which  date the Rule issued by this  Court  in               Criminal  Revision  No. 60 of  1964  was  also               received in the District Magistrate’s  Office.               It  was sent to the trial  Magistrate’s  Court               with  Memo  No. 549 Jm. only on  29th  January               1964   and   was   received   in   the   trial               Magistrate’s Court on 30th January, 1964.   In               the  meantime  Sessions Judge’s Memo  No.  170               that   had  been  received  in  the   District               Magistrate’s  Office on 16th of  January  1964                             was also dispatched to the trial  Magi strate’s               Court  on 29th of January, 1964 by Memo.   No.               554  Jm. and the trial Magistrate received  it               on 30th January, 1964.  Sessions Judge’s Memo.               No.  108  dated 11th January, 1964  which  was               received  in the District Magistrate’s  Office               on 15th January, 1964 and is said to have  be-               en dispatched to the trial Magistrate’s  Court               on 22nd January, 1964 with Memo.  No. 443  Jm.               is  said  to have been received by  the  Bench               Clerks  of  the  trying  Magistrate  on   25th               January, 1964 and put up before the Magistrate               only on 1st February, 1964."               On  the above facts the High Court framed  the               following questions:-               "(1) Has there been disobedience of the  order               of the Sessions Judge, Nadia that money should               be given to Birendra Kumar Sarkar on a Bond to               the  satisfaction of the District  Magistrate,               Nadia ?               (2)   Was  the Bond upon which pay  order  for               the  money  had  been  made  a  document  that               complies with the order for the Sessions Judge               of Nadia dated 23rd December, 1963 ?               (3)   Was  Memo.   No.  443  Jm.  dated   20th               January, 1964 directing to carry out  Sessions               Judge’s order dated 23rd December, 1963  after               the  order of stay made by the Sessions  Judge               on  14th  January, 1964 was  received  in  the               District  Magistrate’s office on 16th  January               1964 by Memo.  No. 108 dated 11th January 1964               an intentional violation of the stay order?               The  first  two  questions  were  treated   as               interconnected  and dealt with together.   The               High Court found fault with the bond               308               and  also  opined  that  none  else  save  the               District  Magistrate  could accept  the  bond.

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             With all respect, the High Court erred on both               the aspects.  The bond is reproduced below’:                                   "BOND               A bond is made this day by Sri Birendra  Kumar               Sarkar  son of late Bilash Chandra  Sarkar  of               Chand Sarkar, Krishnagar, Dt.  Nadia is hereby               agreed  and  received Rs. 4,125  (Rupees  four               thousand  one  hundred and  twenty-five  only)               which  has  been  deposited in  the  court  in               connection with G.R. Case No. 338 of 1961  and               the  said  amount  has  been  ordered  by  the               Sessions  Judge  of Nadia  in  case  (Criminal               Appeal  No.  75  of 1963),  1  Birendra  Kumar               Sarkar  s/o  late Bilash Chandra  Sarkar  bind               myself and my heirs, executors, administrators               and representatives to refund the entire money               if  disputes arises to the Government of  West               Bengal or its successors.               I   bind   myself,   my   heirs,    executors,               administrators  and representatives firmly  by               this bond signed in my own hand dated this the               3rd day of January, 1964.               Sd/- Birendra Kumar Sarkar, 3-1-64               Signature  of  the  executant  Signed  in   my               presence and identified.  Rajendranath Biswas,               Muktear.               Krishnagar, 3-1-64" Now it is admitted that there is no prescribed form of  bond applicable to the case.  The form had to be devised for  the purpose.  The bond which was taken in an ordinary  indemnify bond.   There  is nothing in the words of s.  517,  Criminal Procedure Code, which excluded the use of an indemnity bond. The  Sessions  Judge did not order that the bond  should  be taken  in the name of any particular court.  A bond  in  the name of the Government of West Bengal substantially (if  not wholly)  complied with the order of the Sessions Judge.   It could  be enforced against Sarkar without any trouble.   The further  point  that  the District  Magistrate  alone  could accept  the  bond  ignores  the  powers  of  the  Additional District  Magistrate under the Code of  Criminal  Procedure. The  practice  of  courts  in Bengal  is  also  against  the proposition  because such bonds are usually  considered  for acceptance  by  Additional District Magistrates.   The  High Court  apparently thinks that the District Magistrate was  a persona  designate for the purpose.  We are unable  to  read such  an inference in the order of the Sessions Judge  which ran: 309               "The learned Magistrate be directed to deliver               the sale proceeds which are now deposit  (sic)               in  Court  to  the accused  on  the  accused’s               furnishing, bond of the amount covered by  the               sale  proceeds  to  the  satisfaction  of  the               District Magistrate, Nadia." In our judgment the High Court could not base any action  on such  material.  It may be pointed out that the  High  Court did not throw into the balance the acceptance of the bond by the  Additional District Magistrate holding that  there  was room  for an error there but took serious note of  the  fact that  the bond was not in the proper form.  We do not  agree with the High Court. This brings us to the last question.  The fact here is  that the orders took some time before reaching their destination. While we do not condone such delays, we think that the  High Court  was  taking  too strict a view of  the  matter.   Two

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things seems to have played a prominent part in the  drawing of the inference against the concerned officers.  The  first is that there was an intentional disobedience of the orders. This the High Court visualised in the following terms:               "That by itself bespeaks of a well  throughout               (sic) scheme to achieve an end and that end is               the  cherished goal to make over the money  to               Birendra  Kumar Sarkar by violating  the  stay               order   of  the  Sessions  Judge  dated   14th               January,  1964.  For carrying out that  scheme               the  file in which the order sheet started  on               3rd January, 1964, was started separately  and               to  seclude the features in that file  it  was               withheld from this Court when return was  made               to  the Rule in Criminal Revision case No.  60               of 1964 until it was thought useful for making               a  defence  in this Contempt Rule.   No  other               view  of the matter could be suggested by  the               three  learned  Advocates appearing  for  the,               several  parties or the learned  Advocate  for               the  State, Mr. Fanindra Mohan Sanyal, and  no               other view is possible. Now it seems quite impossible to subscribe to this  opinion. For a conspiracy to be hatched there must be some foundation of  gain  or  purpose.   The  conspirators  (if  they   knew anything)  would at least know that there was nothing to  be gained  by delaying the orders since the money  was  already paid out.  Once that had happened some fresh order would  be necessary to demand back the amount from Sarkar or the  bond would  be enforced.  The stay orders were ineffective  since there was nothing to stay.  To think that the officers  (one and  all)  were actuated by a motive to frustrate  the  stay orders is to imagine a state of affairs for which there  was no   warrant  at  all.   There  was  thus  no  question   of undermining the authority of the Court of Sessions Judge’ or 310 of  bringing the ’administration of justice in the  District of Nadia to ridicule’.  Nor can it be said that there was  a deliberate interference with or obstruction to due course of justice.   There  was  no doubt some delay but  that  was  a different matter and could be dealt with in other ways  than punishment for an ;Imaginary contempt of court. The  second point which the High Court unfortunately  placed at  the very forefront was failure to offer an  apology  and noted with great show of emotion that none was offered.   Of course, an apology must be offered and that too clearly  and at the earliest opportunity.  A person who offers a  belated apology  runs the risk that it may not be accepted for  such an apology hardly shows the contrition which is the  essence of  the purging of a contempt.  However, a man may have  the courage of his convictions and may stake his all on  proving that  he is not in contempt and may take the risk.   In  the present  case the appellants ran the gauntlet of  such  risk and may be said to have fairly succeeded. The  High  Court was extremely hard upon the  appellants  in this  case.   Details collected from the files of  the  case having no bearing upon the question of contempt were  freely used.   They carry no convincement.  There are  observations which  in  their  tone  do show  that  the  matter  was  not approached  in  that  cool manner in which  the  High  Court considers contempt of itself or of courts subordinate to it. This is a matter of regret to this Court. A  question whether there is contempt of court or not  is  a serious  one.  The court is both the accuser as well as  the judge  of the accusation.  It behaves the court to act  with

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as  great circumspection as possible making  all  allowances for  errors  of  judgment  and  difficulties  arising   from inveterate  practices in courts and tribunals.  It  is  only when  a clear case of contumacious conduct  not  explainable otherwise,  arises that the condemner must be punished.   It must be realised that our system of courts often results  in delay  of one kind or another.  The remedy for it is  reform and punishment departmentally.  Punishment under the law  of Contempt  is called for when the lapse is deliberate and  in disregard  of one’s duty and in defiance of  authority.   To take  action  in  an  unclear case is to  make  the  law  of contempt  do  duty  for  other measures and  is  not  to  be encouraged. In this case, no doubt there was some avoidable delay but as pointed  out  above  it  was the result  of  our  system  of transmission  of orders of superior courts which  must  pass through  several  hands  and not the product  of  design  or defiance of the superior courts.  In these circumstances, it cannot  be said that there was contempt of the authority  of the  High  Court or of the Sessions Judge  and  the  several appellants could not be convicted or punished.  In 311 this  view of the matter we set aside their convictions  and order  refund  of  their fines.  We,  however,  caution  all concerned  that orders of stay, bail,  injunctions  received from superior courts must receive close and prompt attention and  unnecessary delay in dispatching or dealing  with  them may well furnish grounds for an inference that it was due to a  natural  disinclination to deal with the matter  born  of indifference and sometimes even of contumaciousness. G.C.                              Appeal allowed. 312