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CASE NO.: Appeal (civil) 1632  of  1990

PETITIONER: OM PRAKASH JAISWAL

       Vs.

RESPONDENT: D.K.  MITTAL & ANR.

DATE OF JUDGMENT:       22/02/2000

BENCH: R.C.Lahoti, K.T.Thomas

JUDGMENT:

---------------

R.C.  Lahoti, J.

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

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     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.

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     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:-

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     "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

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     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

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     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

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     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

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     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

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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

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     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

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     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

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for

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

     the High Court.