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PETITIONER: B. K. KAR

       Vs.

RESPONDENT: THE CHIEF JUSTICE AND HIS COMPANIONJUDGES OF THEHIGH COURT O

DATE OF JUDGMENT: 14/03/1961

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. SUBBARAO, K. DAYAL, RAGHUBAR

CITATION:  1961 AIR 1367            1962 SCR  (1) 319  CITATOR INFO :  R          1988 SC1208  (40)

ACT: Contempt  of Court--order of Superior Court--Not  duly  com- municated  to  subordinate court--Subordinate  court  acting contrary        to        order--If        guilty         of contempt--Practice--Conviction   for   contempt   by    High Court--Whether Chief Justice and Judges of High Court should be made Parties in appeal.

HEADNOTE: Under an order passed by the appellant, a Magistrate, one  G was put in possession of some property on October 14,  1955. in  revision  the order was set aside by the High  Court  on August  27,  1957,  and the opposite  party  S  applied,  on November.  20,  1957,  to the appellant  for  redelivery  of possession.  G applied to the High Court for a review of its previous order and on November 25, 1957, the application was admitted and an interim stay was granted of the  proceedings before the appellant.  On November 26, 1957, an  application bearing  an  illegible  signature and not  Supported  by  an affidavit was filed before the appellant indicating that the High Court had stayed the proceedings.  A telegram addressed to  a pleader, not the Counsel for G, was filed  along  with the  application.   The  appellant refused to  act  on  this application and telegram and on November 27, 1957, he passed an order allowing the application of S for restitution.   On November 28, 1957, a copy of the order of the High Court was received and thereupon the writ for redelivery of possession was not issued.  The High Court convicted the appellant  for contempt  of court for passing the order for restitution  on November 27, when the High Court had stayed the proceedings. The  appellant appealed to the Supreme Court  and  impleaded the   Chief  justice  and  judges  of  the  High  Court   as respondents. 320 Held,  that  the  appellant was not guilty  of  cortempt  of court.  Before a subordinate court can be held to be  guilt, of  contempt  of  court it must be stablished  that  it  had knowledge  of the order of the High Court and  intentionally disobeyed it.  The  knowledge must be obtained from a source

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which was either  authorised or otherwise authentic.  In the present  case  the  appellant was  entitled  to  ignore  the application as well as the telegram. In  a  contempt matter the Chief justice and judges  of  the High Court should not be made parties and the title of  such a   proceeding  should  be  "In  re.........   the   alleged contemnor".

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 58  of 1959. Appeal  by special leave from the judgment and  order  dated November  7,  1958,  of the orissa High  Court  in  Original Criminal Misc.  Case No. 8 of 1958. A.V.  Viswanatha Sastri, H. B. Khanna and T. M. Sea,  for the appellant. H. N.     Sanual, Additional Solicitor-General of India,  B. M. Patnaik, ;S.  N. Andley, J. B. Dadachanji and Ramewar Nath, for respondent No. 1. 1961.  March 14.  The Judgment of the Court was delivered by MUDHOLKAR, J.-In this appeal by special leave, the appellant who  has been found guilty of contempt of court by the  High Court  of  Orissa is challenging his  conviction.   To  this appeal,  as  well as to criminal appeal 2 of 1960  in  which another person is challenging his conviction for contempt of court  by  the same High Court, the Chief  Justice  and  the Judges  of  the  High Court have  been  made  parties.   The learned  Additional  Solicitor  General who has  put  in  an appearance for a limited purpose has raised a point that  in such  matters it is not at all necessary to make  the  Chief Justice and the Judges of the High Court parties.  He points out that in England in all contempt matters the usual  title of the proceeding is "in re........................ (so  and so)",  that  is  the person who  is  proceeded  against  for contempt.  The same practice, according to him, is  followed in  appeals.   We must, however, point out that  in  appeals preferred to 321 the Privy Council from convictions for contempt by the  High Courts in India as well as in appeals before this Court, the Chief  Justice  and the Judges of the High  Court  concerned have  been made respondents.  In Ambard v.  Attorney-General for  Trinidad& Tobago (1) we find that the Attorney  General was made a party to the appeal.  The question raised by  the learned  Additional Solicitor General is of some  importance and we think it desirable to decide it. In every suit or appeal persons who claim relief or  against whom relief has been given or persons who have or who  claim the  right  to be heard must undoubtedly  be  made  parties. That is because they have an interest in the decision or the result of that case.  But where Judges of a High Court try a person  for  contempt and convict him they merely  decide  a matter and cannot be said to be interested in any way in the ultimate  result  in  the  sense  in  which  a  litigant  is interested.   The  decision of Judges given  in  a  contempt matter is like any other decision of those Judges, that  is, in  matters  which  come  up before them  by  way  of  suit, petition,  appeal  or  reference.  Since this  is  the  real position we think that there is no warrant for the  practice which  is  in vogue in India today, and which  has  been  in vogue  for over a century, of, making the Chief Justice  and Judges  parties to an appeal against the decision of a  High Court  in  a contempt matter. We may point out  that  it  is

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neither necessary nor appropriate to make the Chief  Justice and the Judges of a High Court parties to a legal proceeding unless  some relief is claimed against them.  In a  contempt matter  there  is  no Question of  a  relief  being  claimed against the Chief Justice and the Judges of the High  Court. The present practice should, therefore, be discontinued  and instead, as in England, the title of such proceedings should be "in re............ (the alleged contemner)". Now  we address ourselves to the merits of this  case.   The appellant  was a Sub-Divisional Magistrate at  Dhenkanal  in the year 1957.  In a criminal matter (1)(1936) A.C. 322. 41 322 before him a Magistrate III class, Dhenkanal passed an order under   s.   522,  Criminal  Procedure  Code   putting   the complainant,  one  Golam  Mohammed  in  possession  of  some property.  The order was actually executed Pion October  14, 1955.   It  was also confirmed by  the  Additional  District Magistrate  in  appeal.  It was, however, set aside  by  the High  Court  in revision on August 27, 1957.   The  opposite party,  one  Sarif  Beg, thereupon made  an  application  on November  20,1957  before the appellant  for  redelivery  of possession.  This application was opposed by Golam Mohammed. It  was  heard by the appellant on November  21,  1957,  and order  was reserved till November 23, 1957.  Apparently  the order  was  not  ready and so the matter  was  adjourned  to November 27, 1957.  That day the application was allowed and compliance was directed by December 2, 1957. While  these proceedings were going on, an  application  was made  by the complainant to the High Court apparently for  a review  of its previous order.  By order dated November  25, 1957 this application was admitted by P. V. Balakrishna  Rao J. He also granted an interim stay of the proceedings in the case before the Sub-Divisional Magistrate, Dhenkanal but did not direct that the said order should be communicated to the Sub-Divisional Magistrate by telegram.  On November 26, 1957 an  application bearing an illegible signature was  made  to the Magistrate in which, amongst other things, it was stated "that the petition being not maintainable the opposite party has once more moved the Hon’ble High Court in the matter and it  has  been  ordered that further  proceedings  should  be stayed until the disposal of the opposite party’s revision". Evidently,  by "opposite party" the applicant meant  himself and  by "revision" he meant the review application  made  by him.   Along with this application the complainant  filed  a telegram   addressed  to  Mr.  Neelakanth  Misra,   Pleader, Dhenkanal saying "Golam Mohammad’s case further  proceedings stayed,  Ram".  It does not appear from the order  sheet  of the  Magistrate  that  in the  proceedings  before  him  Mr. Neelakanth  Misra represented the complainant.  However,  we will assume that he did so.  Even then, there 323 is  nothing  to indicate as to who "Ram" is.   There  is  no suggestion  that  he was the Advocate  who  represented  the complainant  before the High Court in the proceeding  before it.   It would appear that on November 7 25, 1957  the  Sub- Divisional   Magistrate  was  out  of,,  headquarters   and, therefore, the second officer directed that the  application be  placed  before  the  Sub-Divisional  Magistrate  on  his return.   The  Sub-Divisional Magistrate refused to  act  on this telegram but made the following endorsement on November 27,   1957  on  what  is  said  to  be   the   complainant’s application: "No action can be taken on telegram, File."

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He  then  proceeded to deliver his/ order  on  the  opposite party’s application for restitution.  A copy of the order of the  High  Court was received at Dhenkanal on  November  28, 1957.  On that day the Sub-Divisional Magistrate was  absent and the second officer made the following entry in the order sheet:               "Seen.   A.D.M’s D.S. No. 326 dated  28-11-57.               In  Cr.  Misc.  Case No.  90/57  Hon’ble  High               Court  has stayed further  proceedings.   Stay               further  proceedings.   Put up  before  S.D.M.               Inform parties." Consequent  oil this endorsement no writ for re-delivery  of possesion was issued and thus the status quo was maintained. Upon perusal of the records on August 18, 1957 in connection with the application for review made by the complainant  the High Court ordered the issue of a notice to the appellant on August 25, 1958 to show cause why he should not be committed for  contempt.   The  appellant  in  a  lengthily  statement explained all the facts and also stated that he had not  the slightest  intention to disobey or go beyond the orders  and directions  of the High Court and that he passed  the  order dated   November   27,  1957   because   the   complainant’s application  for stay was not accompanied by  an  affidavit; nor  was  it signed by the complainant or  his  lawyer.   He further  stated  that  he  should not  be  held  liable  for contempt because he had "no intention to prejudice or affect the course of justice in the disposal of the matter  pending before the High 324 Court" and added that he acted in good faith in discharge of his  official  duties.   Finally he  stated  that  if  after considering  his explanation the Court found him  guilty  of disobeying  its order he expressed his regret  and  tendered his apology for what he had done.  This apology was regarded as merely a conditional apology and was not accepted.  After an  elaborate consideration of the case law on the  question of  disobedience of orders by subordinate courts,  the  High Court found the Sub-bivisional Magistrate guilty of contempt and  sentenced  him to pay a fine of Rs. 100.  By  the  same order  the  High  Court  dismissed  the  review  application preferred before it by the complainant. Before a subordinate court can be found guilty of disobeying the  order of the superior court and thus to have  committed contempt  of  court,  it  is  necessary  to  show  that  the disobedience   was  intentional.   There  is  no  room   for inferring an intention to disobey an order unless the person charged  had knowledge of the order.  If what a  subordinate court  has  done  is in utter ignorance of  an  order  of  a superior  court, it would clearly not amount to  intentional disobedience of that court’s order and would, therefore, not amount to a contempt of court at all.  There may perhaps  be a  case  where  an  order  disobeyed  could  be   reasonably construed in two ways and the subordinate court construed it in  one  of  those ways but in a  way  different  from  that intended  by the superior court.  Surely, it cannot be  said that disobedience of the order by the subordinate court  was contempt  of  the superior court.  There may possibly  be  a case where disobedience is accidental.  If that is so, there would  be  no contempt.  What is,  therefore,  necessary  to establish  in  a case of this kind is that  the  subordinate court  knew of the order of the High Court and that  knowing the order it disobeyed it.  The knowledge must, however,  be obtained  from  a  source  which  is  either  authorised  or otherwise authentic.  In the case before us it is not  clear as  to  who  the person who  signed  the  application  dated

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November  27, 1957 was because the signature  is  illegible. It was not countersigned by a pleader nor is there  anything to show that it was presented 325 in court by a pleader authorised to appear on behalf of  the complainant.   Furthermore,  it was not  accompanied  by  an affidavit.   Therefore, there could be no guarantee for  the truth  of the facts stated there- The in. No doubt,  it  was accompanied  by a telegram and even though it was  addressed to  a  pleader  there is nothing to  indicate  that  he  was authorised to appear for the complainant.  Further it is not possible  to say as to the capacity of the sender.  Had  the telegram  been received from the court or from  an  advocate appearing on behalf of the complainant before the High Court and  addressed  either  to  the court  or  pleader  for  the complainant  different considerations would have arisen  and it  may  have  been  possible to  take  the  view  that  the information contained therein had the stamp of authenticity. Of  course, we do not want to lay it down here as  law  that every  telegram purporting to be signed by an advocate or  a pleader is per se guarantee of the truth of the facts stated therein  and also of the fact that it was actually  sent  by the  person  whose name it bears.  In order  to  assure  the Court about these matters an affidavit from the party  would be necessary.  Upon the materials before us we are satisfied that  the Sub-Divisional Magistrate was entitled  to  ignore the  telegram  as well as the application.   We,  therefore, hold that his refusal to act on the telegram did not  amount to  contempt  of court.  We may add that the  fact  that  on receiving  a  copy  of the High Court’s  order  through  the Additional   District  Magistrate  not  only  were   further proceedings  stayed but a writ to redeliver  possession  was not permitted to issue.  This would show clearly that  there was  no intention on the part either of  the  Sub-Divisional Magistrate or the second officer to disobey the order of the High  Court.   The  conviction  as  also  the  fine  of  the appellant is erroneous and accordingly set aside.                                         Appeal allowed. 326