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PETITIONER: RIZWAN-UL-HASAN AND ANOTHER

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH.

DATE OF JUDGMENT: 05/02/1953

BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN

CITATION:  1953 AIR  185            1953 SCR  581  CITATOR INFO :  R          1962 SC1172  (28)  R          1970 SC 720  (6)

ACT: Contempt  of  Courts  Act (XII of  1926),  s.  3-Proceedings before Sub-Divisional Magistrate-Application by  respondents to District Magistrate containing allegations against trying Magistrate  and the bona fides of the  pending  proceedings- Transmission of application to Sub-Divisional Magistrate for report-Whether  amounts  to contempt  of  Court-Question  of prejudice.

HEADNOTE: The jurisdiction in contempt of court is not to be invoke  a unless  there is real prejudice which can be regarded  as  a substantial  interference  with the due course  of  justice. The purport of the court’s action is a practical purpose and the  Court  will not exercise its jurisdiction upon  a  mere question of propriety. During the pendency of proceedings against A and B under  s. 145,  Criminal  Procedure  Code,  in the  court  of  a  Sub- Divisional  Magistrate, A and B made an application  to  the District  Magistrate alleging that the proceedings were  not bona fide and 582 containing statements in the nature of a countercharge.  The 2nd  appellant  who  was then officiating  as  the  District Magistrate  sent  this  application  to  the  Sub-Divisional Magistrate  for  report and on receiving a report  from  him that  A  and B should be asked to file  a  formal  complaint before  him, advised them to do so.  A brother of A  sent  a similar petition to the District Magistrate containing  also allegations   against  the  trying  Magistrate.    The   1st appellant,  who was the District Magistrate, forwarded  them to   the  Sub-Divisional  Magistrate  for  report,  and   on receiving  his report passed an order that he saw no  reason to  withdraw  the file from the  Sub-Divisional  Magistrate. The  High Court of Allahabad held that as  the  applications contained allegations which might interfere with the  course of   the  trial  of  the  proceedings  under  s.   145,   in transmitting  the  applications  the  appellants  had  acted without  due circumspection and thought though they  had  no

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intention to influence the Sub-Divisional Magistrate and the appellants were therefore guilty of contempt of court: Held, (i) that in transmitting the applications received  by them  to  the Sub-Divisional Magistrate and  calling  for  a report  the appellants were not in any way interfering  with the  course  of justice but were only doing  their  duty  as superior officers; (ii) it was not possible to hold that any prejudice had been caused by the two applications being sent by the  appellants to  the  Sub,Divisional Magistrate or that  any  action  was necessary  to protect the Sub-Divisional Magistrate who  was hearing  the case and the appellants were not guilty of  any contempt of court. Anantalal  Singha v. Alfred Henry Watson ([1931]  I.L.R.  58 Cal. 884) referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 79  of 1952.   Appeal  by special leave from & Judgment  and  Order dated  16th April, 1951, of the High Court of Judicature  at Allahabad Dayal and Desai JJ.) in Criminal Miscellaneous No. 17 of 1950. K.   S. Krishnaswami Iyengar (H.  B. Asthana, with him) for the appellants. N.   C. Sen for the respondent. 1953.   February 5. The Judgment of the Court was  delivered by MAHAJAN  J.-This  is  an appeal by special  leave  from  the judgment  and  order  dated  the 16th  April,  1951  of  the Allahabad High Court in Criminal Miscellaneous Petition  No. 17  of  1950.  The two appellants are members of  the  Uttar Pradesh Civil Service. 583 In March, 1950, appellant No. 1 (Rizwan-ul-Hasan) was posted as  District  Magistrate,  Jalaun,  and  appellant  No.   2, Mohammad  Munawar,  was posted as a Magistrate in  the  same district, having officiated as District Magistrate for  some time in the early part of March, 1960. On 2nd March, 1,950, one Phundi Singh commenced  proceedings under  section 145 of the Code of Criminal Procedure in  the Court  of  the Sub-Divisional Magistrate of  Jalaun  on  the allegation that Kedarnath and Matadin were about to cut  his standing  crop  by  force and ’that there  was  an  imminent danger  of  a breach of the peace.   The  magistrate  issued notices  to  the  parties  complained  against  and  ordered attachment of the standing crop. On 4th March, 1950, one Shriram, brother of Kedarnath, filed a  counter  application  before  the  court  making  certain allegations against one Thakur Pratap Singh, said to be  the real  person  behind  the proceedings  commenced  by  Phundi Singh.   Kedarnath  and Matadin, the respondents  in  Phundi Singh’s  application, also filed an application  similar  to that  of Shriram before the District Magistrate on the  same date.  This application was accompanied by a  recommendatory letter  written  to  the District Magistrate  by  Lalla  Ram Dwivedi,  Secretary,  District Congress Committee.   It  was received by the second appellant who was then officiating as District  Magistrate  and  was  sent  by  him  to  the  Sub- Divisional Magistrate, Jalaun, in whose court Phundi Singh’s application  was  pending, for report.   The  Sub-Divisional Magistrate  returned it with the remark that a  proper  com- plaint  should be made in his court in the ordinary  way  on the  allegations  made in the  application.   Thereupon  the

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second  appellant returned the application to Kedarnath  and Matadin   and  advised  them  to  move  the   Sub-Divisional Magistrate in as formal and proper manner. On  the  application of Phundi Singh made  before  the  High Court of Allahabad under section 3 of the 584 Contempt of Courts Act, the second appellant was held guilty of   contempt  of  the  Sub-Divisional  Magistrate  on   the following reasoning Shri  Mohammad  Munawar  opposite  party  No.  5   forwarded application  given  by  the opposite parties Nos’  2  and  3 together  with  introductory letter  to  the  Sub-Divisional Magistrate,Jalaun.   We  do  not  think  that  he  had   any intention  to influence the Sub-Divisional  Magistrate  with respect  to  his  action  in the  case  under  section  145, Criminal   Procedure  Code.   But  intention  is   not   ’of importance so far as the question of commission of  contempt is concerned.  He certainly acted without due circumspection and  thought.   It  must have been clear  to  him  that  the application  contained  expression which  affected  the  due considerations  of the points in dispute in  the  proceeding under section 145, Criminal Procedure Code.  He says in  his affidavit and we can accept it that he sent this application to the Sub-Divisional Magistrate just for taking action  for the protection of opposite parties No. 2 and No. 3 and their crop about which an allegation was made that some action was to  be  taken by the other party the  night  following.   He should  in  the circumstances either pass an order  for  the police  himself  which he could have very well done,  or  he could   have   just  conveyed  a  gist  of   the   complaint necessitating  protection of life and property  immediately. His  conduct  in transmitting the allegations  made  by  the opposite  parties  No.  2  and  3  to  the  Sub   Divisional Magistrate,  Jalaun, in whose court the case  under  section 145, Criminal Procedure Code, was pending, did amount to the commission of contempt of that court." - As  regards the first appellant, the facts are that on  22nd March  an application was received by post in the office  of the   District  Magistrate  signed  by  Shriram   containing allegations  against the trying Magistrate.  On 25th  March, 1950, this application was sent by the appellant for  report to   the  Sub-Divisional  Magistrate  with   the   following endorsement 585 S.   D.C. Please look into these allegations and let me have a report." On 4th April, 1950, the Sub Divisional Magistrate submitted  a  report  and the first  appellant  having  been satisfied  that  the allegations were  baseless  passed  the following order:- "  I  do not see any reason to withdraw the case  from  your file." On  the  application of Phundi Singh  mentioned  above  made before  the High Court of Allahabad under section 3  of  the Contempt of Courts Act this appellant along with others  was also   held  guilty  of  contempt  of   the   Sub-Divisional Magistrate’s Court, on the following reasoning :- "Similarly  transmission of the application sent by  Shriram on the 25th March to the Sub-Divisional Magistrate,  Jalaun, amounted  to  commission of contempt of  court  by  opposite party  No.  6. The mere fact that he had to take  action  in view  of  the  allegations against the  magistrate  in  that application would not affect this question.  The application contained,  as  already  stated,  expressions  showing  that Phundi  Singh was a history sheeter and that the case  under section 145, Criminal Procedure Code, was fictitious and was

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instituted  at the instance of Pratap Singh.  He should  not have  transmitted  the entire application.   He  could  have necessary extracts which related to the allegations  against the   magistrate  sent  to  the’  court  concerned  in   the circumstances   when   the  applicants   introduced   matter irrelevant  for  transfer  application.   It  may  also   be mentioned  here that the application could be treated  as  a transfer application though no such request was made in that application.  The application was neither properly presented nor  was it accompanied by an affidavit nor was it  stamped. The  applicant wanted some action for the protection of  his crop from bad characters." Having found both the appellants guilty of contempt of court of  the  Sub-Divisional Magistrate, Jalaun, the  High  Court took no action against them because they happened to  commit contempt of court rather due to their carelessness Find lack of vigilance 586 than  with  any deliberate intention to commit it.   It  was observed  that officers who have to transmit  communications to  courts of justice should be vigilant and careful to  see that nothing is transmitted which can have any effect,  even remotely on, the merits of a case. In  our  judgment,  the proceedings for  contempt  of  court against   the  two  appellants  on  the  facts  stated   are misconceived  and have to be quashed.  Both  the  appellants were  superior officers of the Sub-Divisional Magistrate  at the  time when they sent the applications of  Kedarnath  and Matadin for report.  They were under a duty to supervise his work.   It  is  difficult to see  how  by  transmitting  the applications received by them to him, and asking him for his views  they were in any way interfering with the  course  of justice  and were committing contempt of his  court.   Their action  cannot  be  characterized as having  a  tendency  to interfere with the course of justice.  The applications were transmitted  to the Sub-Divisional Magistrate in  the  usual and  normal course of the official practice and  we  ’cannot subscribe  to the view of the High Court that only  extracts of  these applications should have been sent to him for  his views  and  not the applications as such as  they  contained material  which had a tendency to interfere with the  course of justice. The  second appellant, when he was officiating  as  District Magistrate,  received  the  application  of  Kedarnath   and Matadin  with a letter of recommendation from the  Secretary of  the  Congress Committee.  This application  was  in  the nature  of  a  counter complaint, and  the  appellant  acted properly  in sending it to the magistrate who was seised  of the original application.  He was under no duty to censor it and  to  out it into pieces and then  forward  the  relevant parts only to the magistrate.  The recommendatory letter was an  annexure  to the application and it had to go  with  it. The  conduct of the Secretary of the Congress  Committee  in writing a recommendatory letter about the facts of the  case to the District 587 Magistrate  was undoubtedly a communication for the  purpose of  influencing his decision and was rightly  reprobated  by the High Court.  Such 9, course is calculated, if tolerated, to  divert the course of justice and ought  more  frequently than  it is, to be treated as what it really is’  namely,  a high  contempt  of court.  The Congress Secretary  has  been rightly  held guilty of contempt and punished.  He  has  not come to this Court and we are no longer concerned with  him. But  we are unable to find how the conduct of the  appellant

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in sending the application which, as we have already stated, was  in the nature of counter charge to  the  Sub-Divisional Magistrate  who was seised of the original complaint in  any way  amounted  to  contempt  of  court.   There  are   three different  sorts of contempts known to law in such  matters. One  kind  of  contempt is scandalizing  the  court  itself. There  may  likewise be a contempt of the court  in  abusing parties  who are concerned in causes in that  court.   There may  also  be  a contempt of court  in  prejudicing  mankind against  persons before the cause is heard.  The act of  the appellant   could  not  fall  in  either  of   these   three categories. So  far  as  the first appellant  is  concerned,  under  the provisions of section 528 of the Code of Criminal Procedure, he  had authority to withdraw the case under section 145  of the  Code  pending  in  the  court  of  the   Sub-Divisional Magistrate.   On  the  application of  22nd  March  made  by Kedarnath  and  Matadin containing allegations  against  the Sub-Divisional Magistrate he was entitled to use his  powers under that section if the allegations contained therein were substantiated.  It is usual to send such applications to the court  concerned for its remarks and that is precisely  what he did. and as soon as the remarks were received and he  was satisfied that the allegations were baseless, he declined to withdraw the case.  We have not been able to see how such an action  on the part of the District Magistrate, done in  the normal  and usual course of the discharge of his  duties  as such magistrate, could be held to interfere with the 76 588 course of administration of justice or to create pre-    re- judice   of  any  kind  against  the  complainant   in   the proceedings  under  section  145 of  the  Code  of  Criminal Procedure.  There is nothing in section 528 of the  Criminal Procedure  Code  which  disables a  magistrate  from  taking -action unless he is set in motion by the petition of one of the parties and nothing in the Code prevents any person from bringing  facts  to the notice of  the  District  Magistrate which might suggest to that magistrate that it was advisable to  see whether the magistrate should remain in charge of  a particular case. In  our judgment, therefore, the High Court was in error  in thinking   that  the  two  appellants  acted   without   due circumspection  and thought and were guilty of  contempt  of the court of the Sub-Divisional Magistrate.  We are  further of  the  opinion that it was not possible to hold  on  those facts  that  any prejudice &rose in the case  by  these  two applications  being  sent  by the  appellants  to  the  Sub- Divisional  Magistrate or that any action was necessary  for the protection of the tribunal which was engaged in  hearing the  case  under section 145, Criminal Procedure  Code.   As observed by Rankin C.J. in Anantalal Singha v. Alfred  Henry Watson  (1),  the  jurisdiction in contempt  is  not  to  be invoked unless there is real prejudice which can be regarded as  a,  substantial  interference with  the  due  course  of justice  and  that the purpose of the court’s  action  is  a practical  purpose  and  it  is  reasonably  clear  on   the authorities  that  the court will not  exercise  its  juris- diction upon a mere question of propriety. The  result  is  that we allow the  appeal,  set  aside  the judgment  of the High Court against the two  appellants  and acquit them of the charge under section 3 of the Contempt of Courts Act. Appeal allowed. Agent for the appellant-: S. Subramanian. Agent for the respondent: C. P. Lal,

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(1)  (1931) 58 Cal. 884 at 895. 589