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PETITIONER: PUSHPABEN & ANR.

       Vs.

RESPONDENT: NARANDAS V. BADIANI & ANR.

DATE OF JUDGMENT29/03/1979

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KOSHAL, A.D.

CITATION:  1979 AIR 1536            1979 SCR  (3) 636  1979 SCC  (2) 394

ACT:      Contempt of  Courts Act-Section 12(3)-Scope of-Sentence of imprisonment-When should be awarded in civil contempt.

HEADNOTE:      Respondent No.  1 filed  a complaint  under s.  420 IPC against the  appellants alleging  that a  loan taken by them from him  had not  been  repaid.  While  the  complaint  was pending before  a Magistrate  the  parties  entered  into  a compromise under which the appellants undertook to repay the loan before  a stipulated  date. The  Magistrate accordingly allowed the parties to compound the case.      When  the  appellants  failed  to  repay  the  loan  in accordance with  the undertaking given before the Magistrate the respondent  moved  the  High  Court  for  taking  action against the  appellants for  contempt of  court. On the view that the  appellants had committed a willful disobedience of the undertaking the High Court held that they were guilty of civil contempt  and sentenced  them to  one  month’s  simple imprisonment.      Allowing the appeal in part, ^      HELD:  1.   The  appellants   had   committed   willful disobedience of  the court  of the  Magistrate by committing serious breach  of the  undertaking given to it on the basis of which  alone they had been acquitted. The High Court was, therefore, right  in holding that the appellants were guilty of civil  contempt under  s. 2(b)  of the Contempt of Courts Act. [638 A]      2. Having  regard to  the circumstances of the case the present case  falls within the first part of s. 12(3) of the Act and a sentence of fine alone should have been awarded by the High  Court. By  enacting the  section  the  legislature intended that  a sentence of fine alone should be imposed in normal circumstances.  Special power  is, however, conferred on the  court to  pass a  sentence  of  imprisonment  if  it thought that  ends of justice so required. Therefore, before a court  passed a  sentence of  imprisonment  it  must  give special reasons for passing such a sentence. [638 G]      In the  present case  there are  no special reasons why the appellants should be sent to jail

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JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 43 of 1975.      From the  Judgment and  Order  dated  9-1-1973  of  the Bombay High Court in Criminal Application No. 681/72.      V. S.  Desai, P.  H. Parekh, C. B. Singh, M. Mudgol, B. L. Verma and J.C. Rajani, for the Appellants. 637      M. N. Shroff for the Respondents.      The Judgment of the Court was delivered by      FAZAL ALI,  J.-This is  an appeal  under S.  19 of  the Contempt of  Courts Act (hereinafter called the Act) against an  order  of  the  High  Court  of  Bombay  convicting  the appellants for  a Civil  Contempt and sentencing them to one month’s simple imprisonment. The facts of the case have been fully detailed by the High Court and it is not necessary for us to  repeat the  same all  over  again.  It  appears  that Respondent No.  1 had  given a  loan of  Rs. 50,000/- to the appellants on certain conditions. Somehow or other, the loan could not  be paid  by the  appellants as  a result of which Respondent No.  1 filed  a complaint  under  S.  420  I.P.C. against the  appellants. While  the  complaint  was  pending before the Court of the Magistrate, the parties entered into a  compromise   on  22-7-1971  under  which  the  appellants undertook to  pay the  loan  of  Rs.  50,000/-  with  simple interest  @  12%  per  annum  on  or  before  21-7-1972.  An application was  filed before  the Court  for  allowing  the parties to  compound the  case and  acquit the  accused. The Court  after  hearing  the  parties,  passed  the  following order:-           "The accused  given an  undertaking to  the  court      that he  shall repay  the sum  of Rs.  50,000/- to  the      complainant on  or before  21-7-1972 with  interest  as      mentioned on the reverse. In view of the undertaking, I      permit the compromise and acquit the accused".      It is  obvious, therefore, that the Court permitted the parties to compound the case only because of the undertaking given by the appellants.      Thereafter,  it   appears,  that  the  undertaking  was violated and  the  amount  of  loan  was  not  paid  to  the Respondent No.  1 at  all. The  respondent, therefore, moved the High  Court for  taking action  for  contempt  of  Court against the  appellants as  a result  of which  the  present proceedings were  taken against them. The High Court came to the conclusion  that the  appellants had  committed a wilful disobedience of the undertaking given to the Court and were, therefore, guilty of civil contempt as defined in S. 2(b) of the Act. Hence, this appeal before us.      Mr. V.  S. Desai appearing in support of the appeal has raised two  short points  before us.  He has  submitted that there is  no doubt  that the  appellants  had  violated  the undertaking but  in the circumstances it cannot be said that the appellants  had committed  a wilful  disobedience of the orders of  the Court.  So far as this point is concerned, we fully agree  with the  High Court. In the circumstances, the appellants undoubtedly  committed wilful disobedience of the order of the court 638 by committing  a serious  breach of the undertaking given to the Court  on the  basis of  which alone, the appellants had been acquitted.  For these reasons, the first contention put forward by Mr. Desai, is overruled.      It is,  then, contended  that under  S. 12(3), normally

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the sentence  that should  be given  to an  offender who  is found  guilty   of  civil   contempt,  is   fine   and   not imprisonment, which  should be given only where the Court is satisfied that  ends of  justice require  the imposition  of such a  sentence. In our opinion, this contention of learned counsel for the appellants is well-founded and must prevail. Sub-section 3 of S. 12 reads thus :-           "Notwithstanding  anything   contained   in   this      section, where  a person  is found  guilty of  a  civil      contempt, the  Court, if  it considers that a fine will      not meet  the ends  of justice  and that  a sentence of      imprisonment is  necessary shall, instead of sentencing      him to  simple imprisonment, direct that he be detained      in a  civil prison  for such  period not  exceeding six      months as it may think fit".      A close  and careful  interpretation of  the  extracted section leaves  no  room  for  doubt  that  the  Legislature intended that  a sentence of fine alone should be imposed in normal circumstances.  The statute, however, confers special power on  the Court to pass a sentence of imprisonment if it think that  ends of  justice so require. Thus before a Court passes the  extreme sentence  of imprisonment,  it must give special reasons  after a proper application of its mind that a  sentence  of  imprisonment  alone  is  called  for  in  a particular situation  Thus, the  sentence of imprisonment is an exception while sentence of fine is the rule.      Having regard  to the  peculiar facts and circumstances of this  case, we  do not  find any  special reason  why the appellants should  be sent  to jail  by sentencing  them  to imprisonment.  Furthermore,   respondent  No.  1  before  us despite service,  has not  appeared to  support the sentence given  by   the  High   Court.  Having   regard   to   these circumstances, therefore,  we are satisfied that the present case, squarely  falls in  the first  part of  S. 12(3) and a sentence of  fine alone  should have  been given by the High Court. We,  therefore, allow this appeal to this extent that the sentence of imprisonment passed by the High Court is set aside and instead the appellants are sentenced to pay a fine of Rs.  1000/- each.  In case  of default,  15  days  simple imprisonment. Four weeks time to pay the fine. P.B.R.                               Appeal allowed in part. 639