http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

CASE NO.: Appeal (crl.)  603 of 1998

PETITIONER: Dr. Prodip Kumar Biswas

RESPONDENT: Subrata Das & Ors.

DATE OF JUDGMENT: 02/04/2004

BENCH: Y.K. Sabharwal & S.B. Sinha.

JUDGMENT: J U D G M E N T

[With Criminal Appeal No.795 of 1998]

Y.K. Sabharwal, J.

       These two appeals have been filed under Section 19 of The Contempt of  Courts Act, 1971 (for short, ’the Act’).  In one of the appeals, the challenge is to  the impugned judgment and order of the High Court whereby the appellant has  been held guilty of criminal contempt of court and fine of Rs.2,000/- has been  imposed upon him.  The main grievance that has been urged by learned counsel in  support of the appeal is that the High Court before holding the appellant guilty and  imposing fine neither issued any notice nor afforded any opportunity of hearing to  the appellant.  In the second appeal, the challenge is to the impugned order of the  High Court whereby the appellant was directed to be taken into custody forthwith  though later on the same date, he was ordered to be released on bail.  Both the  appeals are offshoot of the same litigation pending in the High Court in respect  whereof we may make a brief reference.         Respondent No.1 filed Writ Application (WP No.20305(W) of 1997) in the  Calcutta High Court, inter alia, praying that the State-respondents be directed to  take appropriate action against the appellant and the institutions run by him and he  be stopped from deceiving public by issue of publications and advertisements in  different newspapers making false claims giving an impression that only his  institution on alternative medicines was recognized by the Department of Health  and Family Welfare, Government of West Bengal and approved by Medical  Council of India as also by the High Court of Calcutta.  It was claimed that by  such false representations, the writ petitioner (respondent No.1 herein) had been  duped; made payment of the requisite fee and took admission in the Medical  College of Alternative Medicines run by the appellant.  In another Writ  Application (WP No.1437/97) filed by one Mr. Bidyut Kumar Guha Roy,  allegations had been made against one Dr. S.K. Agarwal and his institution on  alternative medicines viz. Indian Board of Alternative Medicines and Open  International University for Alternative Medicines.  In the said writ petition  neither the appellant or his institution nor respondent No.1 were parties.         The writ application of Respondent No.1 was disposed of by learned Single  Judge of the High Court in terms of the order passed in Writ Petition No.1437 of  1997.  The order of the learned Single Judge was challenged in appeal (MAT  No.462 of 1998) filed by respondent No.1.  One of the grounds urged in the appeal  was that the subject matter of Writ Petition No.1437 of 1997 was different from  the subject matter of Writ Petition No.20305(W) of 1997 and the learned Single  Judge committed serious illegality in not going into the merits and merely  disposing of the writ petition in terms of the order passed in Writ Petition No.1437  of 1997.  By the impugned judgment, the learned Division Bench held that it was  the duty of the learned Single Judge to disposed of the Writ Petition No.20305(W)  of 1997 on merits.  The Bench further held that instead of remanding the matter,  Writ Petition No.20305(W) of 1997 can be disposed of by restraining the appellant  herein and his institutions from using the name of the court or giving reference to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

any case decided by the Calcutta High Court either in the prospectus or in any  advertisement so that no impression is created in the mind of the public that High  Court has approved the said institutions or recognized those as having authority to  impart knowledge about the system of alternative medicine.           The issue in these appeals is not about the correctness of the judgment of  the High Court in disposing of the appeal and the writ petition of Respondent No.1  in the aforesaid manner.  However, by the same judgment and order, the Division  Bench held the appellant guilty of criminal contempt of court and imposed fine on  him, as earlier noticed.  We are concerned only with the part of the order that deals  with the contempt aspect.         The impugned judgment and order of the High Court shows that during  hearing of the appeal, counsel for the appellant submitted before the Division  Bench that his client in future either in the prospectus or in any advertisement  would not make reference to any case decided by the High Court.  But no sooner  the counsel after making the submission left the court after taking leave of the  court, attention of the court was drawn to a supplementary affidavit that had been  filed by the appellant in the appeal without leave of the court.  It was filed on the  same date when the counsel concluded the argument and left the court, namely,  29th April, 1998.  It was, inter alia, stated in that affidavit that Hon’ble the Chief  Justice along with some other judges of the Calcutta High Court attended the 5th  International Conference of Alternative Medicines held at Park Hotel, Calcutta on  1st December, 1997 along with Dr. S.K. Agarwal, President, Indian Board of  Alternative Medicines who was facing forgery charge for forging the seal and  signature of the learned 5th Assistant District Judge, Alipore.  The newspapers  carrying photographs were annexed to the said affidavit.  The impugned order  further records that on the next date of hearing, i.e., 30th April, 1998 the appellant  was personally present in court and his counsel prayed for time till 5th May, 1998  to file unqualified apology for affirming false statement in the affidavit that had  been earlier filed by the appellant as noticed by the Court on 29th April, 1998.  One  of the false averments in that affidavit that has been noticed by the Division Bench  is about the photograph of Chief Justice of the Calcutta High Court being along  with Dr. S.K. Agarwal.  The impugned order, inter alia, records that the person  standing next to the Chief Justice was not Dr. S.K. Agarwal but was another  Hon’ble Judge of the High Court and the persons not recognizing the Chief Justice  and the said learned Judge may get confused and believe that Dr. S.K. Agarwal  was standing next to the Chief Justice.  The said photograph shows that between  the Chief Justice and Dr. S.K. Agarwal, another learned Judge of the High Court  was standing, though Mr. Ganguly, learned senior counsel appearing for the  appellant, points out that strictly speaking in the photograph, learned Chief Justice  may not be standing along with Dr. S.K. Agarwal as another learned Judge was  standing in between the two, but it is of neither any consequence nor any motive  of the appellant can be attributed on that account.         With reference to the affidavit that was filed by the appellant tendering  unqualified apology, the impugned order holds that the same is not in tune with  the submissions that were made by learned counsel for the appellant on 30th April,  1998.  The impugned order notices that the affidavit declares that it has been filed  in compliance with the direction of the court, though there was no such direction.   The affidavit tendering apology sought to explain how inadvertently the name of  the other Judge who was in between Dr. Agarwal and the Chief Justice was  omitted to be mentioned.  The affidavit further states in the penultimate paragraph  that as per the directions of the court, the appellant gives undertaking to the  Hon’ble Court that he shall not make any newspaper advertisement on behalf of  the institutions stating that those institutions are approved and recognized by  Hon’ble High Court of Calcutta.  These are the circumstances under which the  appellant has been found guilty of criminal contempt of court for creating an  impression in the mind of the public that his institutions have been approved by  the High Court for imparting education for alternative medicine and a fine of  Rs.2,000/- imposed on the appellant failing which he has been directed to undergo  simple imprisonment for seven days.  This judgment and order dated 11th May,  1998 is subject matter of challenge in Criminal Appeal No.603 of 1998.         Respondent No.1 herein in MAT No.462 of 1998 filed another contempt  petition (CPA No.1054 of 1998) on 4th June, 1998 drawing the attention of the  Division Bench to the fact that the appellant was still using the name of the High  Court in the website and as such continued to violate the order of the Court.  That  contempt petition was taken up on 10th July, 1998,  when the learned Division

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

Bench passed the impugned order observing therein that it was satisfied that the  case of gross and deliberate disobedience of the directions of the court had been  made out; and since the allegations of respondent No.1 are supported by strong  and cogent evidence and the contemnor has chosen to violate the directions of the  court when he has already been convicted for his contumacious behaviour and  conduct in course of the proceedings before the court, he shall be taken in custody  of the court and remanded to prison until further orders subject to his right to seek  release on condition of bail, if so advised.  The appellant was directed to be taken  into custody forthwith and remanded to prison.  The Deputy Sheriff of the court  was directed to take him into custody and place him with the Superintendent  Presidency Jail who was directed to accept him for purpose of compliance of the  order of the court.  After passing of the order, on application for grant of bail, the  appellant was directed to be released on bail on execution of personal bond and  surety with undertaking to appear before the Court.  In terms of the said order, he  was released on bail.  This order dated 10th July, 1998 is subject matter of  Criminal Appeal No.795 of 1998.  Incidentally, it may be noted that in this regard,  the submission of Mr. Ganguly is that the appellant had taken steps for deletion of  the offending portion from the website which had been opened before the order  dated 11th May, 1998 and in case the reference to the court was continuing in some  of the websites, it was on account of bona fide inadvertent error.  The main  contention urged in support of the appeal is that the appellant was directed to be  taken into custody without following the procedure envisaged by the Act and the  Rules framed by the High Court under the Act and without affording any  opportunity let alone a reasonable opportunity to the appellant to defend himself.         From the facts aforenoted, it cannot be seriously disputed that the appellant  was not granted reasonable opportunity before passing of the impugned judgment  and order dated 11th May, 1998 or the impugned order dated 10th July, 1998.  It is  clear from the narration of facts that on the Division Bench not being satisfied  about the contents and tenor of the affidavit dated 29th April, 1998, counsel for the  appellant sought an opportunity to file an affidavit tendering apology.  That  affidavit was tendered by the appellant on 5th May, 1998.  It is not in dispute that  after filing of the affidavit dated 5th May, 1998, no hearing took place.  In fact, it  seems that no hearing took place after 30th April, 1998.  At no stage was the  appellant noticed of the contempt.  After the conclusion of submissions of counsel  for the appellant on 29th April, 1998, the court found that without leave of the  court, an affidavit affirmed on the same date had been filed by the appellant.  The  matter was posted on the next day when counsel for the appellant asked for time to  file affidavit of apology which was filed on 5th May, 1998 and the impugned order  passed on 11th May, 1998, without their being hearing after 30th April.  The main  issue before the Court was about the appellant giving out in advertisements and  prospectus that his institution has been approved by the High Court.  The Division  Bench, as above noticed, instead of remanding the writ petition for disposal before  the Single Judge restrained the appellant from using the name of the court by the  same judgment and order dated 11th May, 1998 by which he was held to be guilty  of contempt.  When respondent No.1 again moved the Court, by the impugned  order dated 10th July, 1998, the appellant was taken into custody, then released on  bail and thereafter time was granted to file reply to contempt application.          The procedure to initiate contempt proceedings has been laid down in the  Act.  Section 14 lays down the procedure when the contempt is in the face of the  Supreme Court or a High Court.  The case in hand is not covered by Section 14 of  the Act.  It is not a case of contempt in the face of the Court.  That was also not the  submission urged on behalf of Respondent No.1  In the case of a criminal  contempt, other than a contempt referred to in Section 14 of the Act, the procedure  to take cognizance has been laid down in Section 15 of the Act.  Sub-section (3) of  Section 15, inter alia, provides that every motion or reference made under the  section shall specify the contempt of which the person charged is alleged to be  guilty.  The procedure to be followed after taking cognizance has been provided  for in Section 17 of the Act.  Section 17 provides that notice of every proceeding  under Section 15 shall be served personally on the person charged, unless the court  for reasons to be recorded directs otherwise.  It also sets out the documents which  are required to be accompanied with the notice.  The Calcutta High Court, in  exercise of powers conferred by Section 23 of the Act and Article 215 of the  Constitution of India has made rules to regulate the proceedings for contempt of  itself or of a court subordinate to it under the Act being the Contempt of Courts  Calcutta High Court Rules, 1975.  Rule 19, inter alia, provides that the Court may

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

issue rule nisi.  It further provides that the rule nisi shall be drawn up, as far as  may be, in the model form in Form No.1, Appendix 1.  Rule 20, inter alia,  provides that where a rule is issued by the Court on its own motion under Rule 15,  the rule nisi shall be drawn up, as far as may be, in the model form in Form No.2,  Appendix 1.  Rule 29 provides that the respondent or the contemnor may file an  affidavit showing cause and the petitioner may file a reply thereto within such  time as may be directed by the Court.  The court may, however, in a contempt  proceeding take such evidence as may be considered necessary.  Admittedly, rule  nisi was not drawn up.  In fact, it seems that neither any notice of contempt was  issued to the appellant nor any hearing took place except what has been noticed  hereinbefore.         The contempt of court is a special jurisdiction to be exercised sparingly and  with caution whenever an act adversely affects the administration of justice or  which tends to impede its course or tends to shake public confidence in the judicial  institutions.  This jurisdiction may also be exercised when the act complained of  adversely affects the majesty of law or dignity of the courts.  The purpose of  contempt jurisdiction is to uphold the majesty and dignity of the courts of law.  {See Supreme Court Bar Association v. Union of India & Anr. [(1998) 4 SCC  409]}.         The contempt proceedings should not be initiated lightly.  Since, in the  present case, in the face of the infirmities abovenoticed, the impugned judgment  and order cannot be sustained, one course that can be adopted is to remand the  contempt case for its fresh decision by the High Court, after due observance of the  rules and affording opportunity to the appellant and the other course that can be  adopted is to dispose of  the contempt case as also these appeals on the basis of an  affidavit dated 25th March, 2004 that has been filed by the appellant in this Court.   We are of the view that it would be expedient to adopt the later course which  would meet the ends of justice.  In the affidavit dated 25th March, 2004 the  appellant has undertaken not to mention the name of the High Court in any  advertisement or publicity in connection with his institution in future.  In the light  of this affidavit, on the facts of the present case, we do not think that any useful  purpose will be served in continuing with the contempt proceedings against the  appellant.         In the light of the aforesaid, we set aside the impugned judgment and order  dated 11th May, 1998 and also the impugned order dated 10th July, 1998 and  dispose of the contempt case by accepting the undertaking of the appellant as  contained in his affidavit filed in this Court.         The appeals are disposed of accordingly.