Kerala High Court
The Project Manager vs K.O.Poulose on 2 June, 2014
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY, THE 20TH DAY OF OCTOBER 2014/28TH ASWINA, 1936
Con.APP(C).No. 9 of 2014 (S) IN Con.Case(C).454/2014
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AGAINST THE JUDGMENT IN Con.Case(C) 454/2014 DATED 02-06-2014
...............
APPELLANT/PETTIIONER/RESPONDENT NO.6 :
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THE PROJECT MANAGER
CENTRAL SLIVER PLANT (CSP) KUTTOOR P.O.
TRICHUR DISTRICT, PIN: 680 013.
BY ADV. SRI.K.KESAVAN KUTTY,SC,KVIC
RESPONDENTS/PETITIONERS 1 TO 3 :
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1. K.O.POULOSE, S/O.OUSEPH,
AGED NOT KNOWN, "KALLOOKARAN HOUSE",
CHEROOR P.O., THRISSUR - 680 008.
2. JOHNY, S/O.ANTONY, AGED NOT KNOWN,
"CHITTILAPPILLY HOUSE", KUTTOOR P.O.
THRISSUR - 680 013.
3. K.R.ANILKUMAR, S/O. NOT KNOWN,
AGED NOT KNOWN, KARIYANKATTIL HOUSE,
KUTTOOR P.O., THRISSUR - 680 013.
R1 TO R3 BY ADV. SRI.KOSHY GEORGE
SMT.LATHA PRABHAKARAN
SRI.K.M.JAMALUDHEEN
THIS CONTEMPT APPEALS (CIVIL) HAVING COME UP FOR ADMISSION ON
20-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
C.R.
ASHOK BHUSHAN, Ag.C.J. & A.M. SHAFFIQUE, J.
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Contempt Appeal No. 9 OF 2014
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Dated this the 20th day of October, 2014
JUDGMENT
Ashok Bhushan, Ag.C.J. Heard learned counsel for the appellant. This Contempt Appeal has been filed against the judgment dated 02.06.2014 in Contempt Case (C) No.454 of 2014 by which the learned Single Judge has closed the contempt proceedings observing that no case has arisen for initiating contempt of court proceedings.
2. The Contempt Appeal has been filed by the appellant under Section 19 of the Contempt of Courts Act, 1971 as well as Section 5 of the Kerala High Court Act, 1958. An objection has been raised by learned counsel appearing for the respondent that this Contempt Appeal is not maintainable. Before we proceed to examine the issue and answer, it is necessary to note the nature of the order passed by the learned Single Judge in Contempt Case.
3. The contempt appeal was filed by the petitioner alleging non-compliance of the judgment dated 06.12.2013 in CAC No. 9 of 2014 -:2:- W.P.(C) No.37321 of 2010 filed by a Union and two workers. The Writ Petition was disposed of in terms of the out of court settlement. In the contempt proceedings it is alleged that the terms of settlement are not strictly or completely complied with. Learned Singe Judge did not proceed with the contempt proceedings and contempt proceedings was closed.
4. We have to consider Section 19 of the Contempt of Courts Act first, which provides as follows:
"19.Appeals.- (1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt--
(a) where the order or decision is that of a Single Judge, to a Bench of not less than two Judges of the Court;
(b) where the order or decision is that of a Bench, to the Supreme Court:
provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union Territory, such appeal shall lie to the Supreme Court.
(2) Pending any appeal, the Appellate Court may order that --
(a) the execution of the punishment or order appealed against be suspended;
(b) if the appellant is in confinement, he be released on bail; and
(c) the appeal be heard notwithstanding that the appellant CAC No. 9 of 2014 -:3:- has not purged his contempt.
(3) Where any person aggrieved by any order against which an appeal may be filed satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by sub-section (2).
(4) An appeal under sub-section (1) shall be filed --
(a) in the case of an appeal to a Bench of the High Court, within thirty days;
(b) in the case of an appeal to the Supreme Court, within sixty days from the date of the order appealed against."
5. The ambit and scope of Section 9 of the Contempt of Courts Act has come for consideration before the Apex Court as well as different High Courts from time to time. The first judgment which need to be noted is the three judge Bench judgment of the Apex Court reported in Baradakanta Mishra v. Mr.Justice Gatikrushna Misra, Chief Justice of the Orissa High Court [(1975) 3 SCC 535]. In the said case the applicant moved before the Full Bench of High Court for initiating proceedings of contempt against the Chief Justice and other judges in their personal capacity. The Full Bench of the High Court vide its order dated 13.02.1973 held that no contempt of court is committed by the Chief Justice and other judges. Against CAC No. 9 of 2014 -:4:- the High Court judgment an appeal was filed by the applicant under Section 19 of the Contempt of Court before the Apex Court. A preliminary objection was raised before the Apex Court by the Additional Solicitor General that the appeal is not maintainable. It was contended that no appeal will lie under Section 19(1) against refusal of the High Court to initiate proceedings of contempt. The Apex Court in the said case has laid down in paragraphs 7 and 8 as follows:
"7. Before we examine the language of Section 19 sub- section (1) in order to arrive at its true interpretation, we may first look at Sections 15, 17 and 20. Sub-section (1) of Section 15 provides that in a case of criminal contempt other than contempt in the face of the Court, the Supreme Court or the High Court may take action on its own motion or on a motion made by the Advocate-General or any other person with the consent in writing of the Advocate-General and sub-section (2) of that section says that in case of criminal contempt of any subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate-General or in relation to Union Territories, by such law officer as the Central Government may specify in this behalf. Section 17 lays down the procedure to be followed by the Court when it decides to take action and initiates a proceeding for contempt under Section 15. Sub-section (1) of that section provides that notice of CAC No. 9 of 2014 -:5:- every proceeding under Section 15 shall be served personally on the person charged and according to sub-section (2), such notice shall be accompanied, in case of a proceeding commenced on a motion, by a copy of the motion as also copies of the affidavits, if any, on which such motion is founded, and in case of a proceeding commenced on a reference by a subordinate court, by a copy of the reference. Section 20 prescribes a period of limitation by saying that no court shall initiate any proceeding 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. It will be seen from these provisions that the scheme adopted by the legislature is that the Court may initiate a proceeding for contempt suo motu or on a motion made by the Advocate-General or any other person with the consent in writing of the Advocate-General or on a reference made by a subordinate court. Where the Court initiates a proceeding for contempt suo motu, it assumes jurisdiction to punish for contempt and takes the first step in exercise of it. But what happens when a motion is made by the Advocate-General or any other person with the consent in writing of the Advocate- General or a reference is made by a subordinate court. Does the Court enter upon the jurisdiction to punish for contempt and act in exercise of it when it considers such motion or reference for the purpose of deciding whether it should initiate a proceeding for contempt? We do not think so. The motion or reference is only for the purpose of drawing the attention of the Court to the contempt alleged to have been committed and it is for the Court, on a consideration of such motion or reference, to decide, in exercise of its discretion, whether or not to initiate a proceeding for CAC No. 9 of 2014 -:6:- contempt. The Court may decline to take cognizance and to initiate a proceeding for contempt either because in its opinion no contempt prima facie appears to have been committed or because, even if there is prima facie contempt, it is not a fit case in which action should be taken against the alleged contemner. The exercise of contempt jurisdiction being a matter entirely between the Court and the alleged contemner, the Court, though moved by motion or reference, may in its discretion, decline to exercise its jurisdiction for contempt. 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. Where the Court rejects a motion or a reference and declines to initiate a proceeding for contempt, it refuses to assume or exercise jurisdiction to punish for contempt and such a decision cannot be regarded as a decision in the exercise of its jurisdiction to punish for contempt. Such a decision would not. therefore, fall within the opening words of Section 19 sub-section (1) and no appeal would lie against it as of right under that provision. This of course does not mean that there is no remedy available where the High Court on an erroneous view of the law or unreasonably and perversely refuses to take action for contempt on a motion or a reference. Though no appeal lies under Section 19 sub-section (1) as of right against such order or decision of the High Court, the Advocate-General or any other person who has with the consent CAC No. 9 of 2014 -:7:- in writing of the Advocate-General moved the High Court can always come to this Court by a petition for special leave to appeal and the power of this Court to interfere with such order or decision in the exercise of its extraordinary jurisdiction under Article 136 is unfettered. This Court can always in suitable cases set right any order or decision of the High Court refusing to take action for contempt against the alleged contemner, if the larger interests of administration of justice so require.
8. It is, therefore, clear that the order made by the Full Bench of the Orissa High Court in the present case rejecting the motion made by the appellant and refusing to initiate a proceeding for contempt against the Chief Justice and other Judges was not appealable under Section 19 sub-section (1). We may point out that in the present case it is unnecessary to consider whether an appeal under Section 19 sub-section (1) is confined only to a case whether the High Court after initiating a proceeding for contempt finds the alleged contemner guilty and punishes him for contempt as contended by the learned Additional Solicitor-General or it extends also to a case where after initiating a proceeding for contempt, the High Court finds that the alleged contemner is not guilty of contempt and exonerates him, or even if he is found guilty of contempt, declines to punish him. A question may well arise whether in the latter case the Advocate-General or any other person who has, with the consent in writing of the Advocate-General, moved the High Court can appeal as of right against the order or decision of the High Court. That question does not arise in the present case and we need not, therefore, express any opinion upon it, though we may point out that in England a right of appeal is given to a CAC No. 9 of 2014 -:8:- disappointed applicant under Section 13, sub-sections (1) and (2) of the Administration of Justice Act, 1960."
6. A two judge Bench of the Apex Court in Purushotam Dass Goel v. Hon'ble Mr.Justice B.S. Dhillon and others [(1978) 2 SCC 370] had occasion to consider an appeal under Section 19 filed against the order of the High Court directing issue of notice to the appellant to show cause why he should not be proceeded against for committing contempt of High Court. A preliminary objection was raised which was upheld by the Apex Court. In paragraph 3 of the judgment the Apex Court had observed that it is neither possible nor advisable to make an exhaustive list of the type of orders which may be appealable to the Supreme Court under Section 19. Following was laid down in paragraph 3:
"3. In our opinion, the preliminary objection raised on behalf of the respondents is well-founded and must be accepted as correct. Section 19(1) says :
"An appeal shall lie as of right from any order or decision of the High Court in the exercise of its jurisdiction to punish for contempt--
(a) where the order or decision is that of a Single CAC No. 9 of 2014 -:9:- Judge, to a Bench of not less than two Judges of the Court;
(b) where the order or decision is that of a Bench, to the Supreme Court :
Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court."
It would appear from a plain reading of the section that an appeal shall lie to this Court as a matter of right from any order or decision of a Bench of the High Court if the order has been made in the exercise of its jurisdiction to punish for contempt. No appeal can lie as a matter of right from any kind of order made by the High Court in the proceeding for contempt. The proceeding is initiated under Section 17 by issuance of a notice. Thereafter, there may be many interlocutory orders passed in the said proceeding by the High Court. It could not be the intention of the legislature to provide for an appeal to this Court as a matter of right from each and every such order made by the High Court. The order or the decision must be such that it decides some bone of contention raised before the High Court affecting the right of the party aggrieved. Mere initiation of a proceeding for contempt by the issuance of the notice on the prima facie view that the case is a fit one for drawing up the proceeding, does not decide any question. This Court, for the first time, cannot be asked in such an appeal to decide whether the person proceeded against has committed contempt of the High Court or not. The matter has to be decided either finally or, may be, even at an earlier stage an order is made, which does decide a contention raised by the alleged contemner asking the High Court to drop the proceeding. It is neither possible, nor advisable, to make an exhaustive list of the type of orders which may be appealable to this Court under CAC No. 9 of 2014 -:10:- Section 19. A final order, surely, will be appealable. Our attention was drawn by Mr. Mohan Behari Lal, to Section 20 of the Act which provides :
"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."
He submitted that initiation of the proceeding by the High Court will be without jurisdiction if it is in violation of Section 20. It may be so. If the alleged contemner in response to the notice appears before the High Court and asks it to drop the proceeding on the ground of its being barred under Section 20 of the Act but the High Court holds that the proceeding is not barred, it may well be that an appeal would lie to this Court under Section 19 from such an order although the proceeding has remained pending in the High Court. We are not called upon to express our final opinion in regard to such an order, but we merely mention this type of order by way of an example to show that even orders made at some intermediate stage in the proceeding may be appealable under Section 19. In our considered judgment, an order merely initiating the proceeding without anything further, does not decide anything against the alleged contemner and cannot be appealed against as a matter of right under Section 19. In a given case special leave may be granted under Article 136 of the Constitution from an order initiating the proceeding. But that is entirely a different matter. What we are deciding in this case is that the present appeal filed under Section 19(1) of the Act does not lie and is incompetent."
CAC No. 9 of 2014 -:11:-
7. Then coming to the three judge Bench judgment of the Apex Court reported in D.N.Taneja v. Bhajan Lal [(1988) 3 SCC 26] the appeal was filed under Section 19(1) of the Contempt of Courts Act against an order dismissing the application for contempt filed by the appellant against Sri.Bhajan Lal. A preliminary objection was raised by the respondent that the appeal is not maintainable. The Apex Court, accepting the preliminary objection, held that dismissal of contempt application by High Court does not amount to "exercise of its jurisdiction for contempt" within the meaning of Section 19(1) and hence appeal would not lie. Following was laid down in paragraphs 8, 10, 11 and 12:
"8. The right of appeal will be available under sub-section (1) of Section 19 only against any decision or order of a High Court passed in the exercise of its jurisdiction to punish for contempt. In this connection, it is pertinent to refer to the provision of Article 215 of the Constitution which provides that every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Article 215 confers on the High Court the power to punish for contempt of itself. In other words, the High Court derives its jurisdiction to punish for contempt from Article 215 of the CAC No. 9 of 2014 -:12:- Constitution. As has been noticed earlier, an appeal will lie under Section 19(1) of the Act only when the High Court makes an order or decision in exercise of its jurisdiction to punish for contempt. It is submitted on behalf of the respondent and, in our opinion rightly, that the High Court exercises its jurisdiction or power as conferred on it by Article 215 of the Constitution when it imposes a punishment for contempt. When the High Court does not impose any punishment on the alleged contemnor, the High Court does not exercise its jurisdiction or power to punish for contempt. The jurisdiction of the High Court is to punish. When no punishment is imposed by the High Court, it is difficult to say that the High Court has exercised its jurisdiction or power as conferred on it by Article 215 of the Constitution.
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10. There can be no doubt that whenever a court, tribunal or authority is vested with a jurisdiction to decide a matter, such jurisdiction can be exercised in deciding the matter in favour or against a person. For example, a civil court is conferred with the jurisdiction to decide a suit; the civil court will have undoubtedly the jurisdiction to decree the suit or dismiss the same. But when a court is conferred with the power or jurisdiction to act in a particular manner, the exercise of jurisdiction or the power will involve the acting in that particular manner and in no other. Article 215 confers jurisdiction or power on the High Court to punish for contempt. The High Court can exercise its jurisdiction only by punishing for contempt. It is true that in considering a question whether the alleged contemnor is guilty of contempt or not, the court hears the parties and considers the materials produced before it and, if necessary, examines witnesses and, CAC No. 9 of 2014 -:13:- thereafter, passes an order either acquitting or punishing him for contempt. When the High Court acquits the contemnor, the High Court does not exercise its jurisdiction for contempt, for such exercise will mean that the High Court should act in a particular manner, that is to say, by imposing punishment for contempt. So long as no punishment is imposed by the High Court, the High Court cannot be said to be exercising its jurisdiction or power to punish for contempt under Article 215 of the Constitution.
11. It does not, however, mean that when the High Court erroneously acquits a contemnor guilty of criminal contempt, the petitioner who is interested in maintaining the dignity of the court will be without any remedy. Even though no appeal is maintainable under Section 19(1) of the Act, the petitioner in such a case can move this Court under Article 136 of the Constitution. Therefore, the contention, as advanced on behalf of the appellant, that there would be no remedy against the erroneous or perverse decision of the High Court in not exercising its jurisdiction to punish for contempt, is not correct. But, in such a case there would be no right of appeal under Section 19(1), as there is no exercise of jurisdiction or power by the High Court to punish for contempt. The view which we take finds support from a decision of this Court in Baradakanta Mishra v. Justice Gatikrushna Mishra.
12. Right of appeal is a creature of the statute and the question whether there is a right of appeal or not will have to be considered on an interpretation of the provision of the statute and not on the ground of propriety or any other consideration. In this connection, it may be noticed that there was no right of appeal under the Contempt of Courts Act, 1952. It is for the first CAC No. 9 of 2014 -:14:- time that under Section 19(1) of the Act, a right of appeal has been provided for. A contempt is a matter between the court and the alleged contemnor. Any person who moves the machinery of the court for contempt only brings to the notice of the court certain facts constituting contempt of court. After furnishing such information he may still assist the court, but it must always be borne in mind that in a contempt proceeding there are only two parties, namely, the court and the contemnor It may be one of the reasons which weighed with the legislature in not conferring any right of appeal on the petitioner for contempt. The aggrieved party under Section 19(1) can only be the contemnor who has been punished for contempt of court."
8. A Division Bench of Allahabad High Court, reported in Kishan Swarup and another v. R.P. Pandhi and another [1988 ALL.L.J. 398], has held that appeal under Section 19 can be availed only when contemnor has been held guilty for committing contempt. But in the case where the contemnor has been held not guilty or on account of some reasons the application has been dismissed in that event it cannot be said that the rights of the informant or the appellants have been affected and they can prefer an appeal as of right as none of their right is affected or jeopardised.
CAC No. 9 of 2014 -:15:-
9. Following D.N.Taneja's case (supra), the two judge Bench of Apex Court in State of Maharashtra v. Mahboob S. Allibhoy and another [(1996) 4 SCC 411] has again held that appeal is not maintainable against an order dropping or refusing to initiate contempt proceeding. In paragraphs 4 and 5 it was held as under:
"4. It is well known that contempt proceeding is not a dispute between two parties, the proceeding is primarily between the court and the person who is alleged to have committed the contempt of court. The person who informs the court or brings to the notice of the court that anyone has committed contempt of such court is not in the position of a prosecutor, he is simply assisting the court so that the dignity and the majesty of the court is maintained and upheld. It is for the court, which initiates the proceeding to decide whether the person against whom such proceeding has been initiated should be punished or discharged taking into consideration the facts and circumstances of the particular case. This Court in the case of Baradakanta Mishra v. Justice Gatikrushna Misra, C.J. of the Orissa H.C., said: (SCC p. 542, para 7) "... Where the court rejects a motion or a reference and declines to initiate a proceeding for contempt, it refuses to assume or exercise jurisdiction to punish for contempt and such a decision cannot be regarded as a decision in the exercise of its jurisdiction to punish for contempt. Such a decision would not, CAC No. 9 of 2014 -:16:- therefore, fall within the opening words of Section 19, sub- section (1) and no appeal would lie against it as of right under that provision."
Again in the case of D.N. Taneja v. Bhajan Lal it was said:
(SCC pp. 29-30, para 8) "The right of appeal will be available under sub-section (1) of Section 19 only against any decision or order of a High Court passed in the exercise of its jurisdiction to punish for contempt. In this connection, it is pertinent to refer to the provision of Article 215 of the Constitution which provides that every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Article 215 confers on the High Court the power to punish for contempt of itself. In other words, the High Court derives its jurisdiction to punish for contempt from Article 215 of the Constitution. As has been noticed earlier, an appeal will lie under Section 19(1) of the Act only when the High Court makes an order or decision in exercise of its jurisdiction to punish for contempt. It is submitted on behalf of the respondent and, in our opinion rightly, that the High Court exercises its jurisdiction or power as conferred on it by Article 215 of the Constitution when it imposes a punishment for contempt. When the High Court does not impose any punishment on the alleged contemnor, the High Court does not exercise its jurisdiction or power to punish for contempt. The jurisdiction of the High Court is to punish. When no punishment is imposed by the High Court, it is difficult to say that the High Court has exercised its jurisdiction or power as conferred on it by Article 215 of the Constitution."
No appeal is maintainable against an order dropping proceeding for contempt or refusing to initiate a proceeding for contempt is apparent not only from sub-section (1) of Section 19 but also from sub-section (2) of Section 19 which provides that pending any appeal the appellate court may order that--
(a) the execution of the punishment or the order appealed against be suspended;
CAC No. 9 of 2014 -:17:-
(b) if the appellant is in confinement, he be released on bail; and
(c) the appeal be heard notwithstanding that the appellant has not purged his contempt.
Sub-section (2) of Section 19 indicates that the reliefs provided under clauses (a) to (c) can be claimed at the instance of the person who has been proceeded against for contempt of court.
5. But even if no appeal is maintainable on behalf of the person at whose instance a proceeding for contempt had been initiated and later dropped or whose petition for initiating contempt proceedings has been dismissed, he is not without any remedy. In appropriate cases he can invoke the jurisdiction of this Court under Article 136 of the Constitution and this Court on being satisfied that it was a fit case where proceeding for contempt should have been initiated, can set aside the order passed by the High Court. In suitable cases, this Court has to exercise its jurisdiction under Article 136 of the Constitution in the larger interest of the administration of justice."
10. One more judgment of the Apex Court is also to be noticed which is reported in Midnapore Peoples' Co-op. Bank Ltd. and others v. Chunilal Nanda and others [(2006) 5 SCC 399]. The Apex Court in the said case has considered its earlier judgments and held that appeal under Section 19 is CAC No. 9 of 2014 -:18:- maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, i.e. an order imposing punishment for contempt. A specific issue was framed after noticing the earlier decision of the Apex Court. Following was laid down in paragraph 11:
"11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarised thus:
I. An appeal under Section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.
II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution.
III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties. IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of "jurisdiction to punish for contempt" and, therefore, not appealable under Section 19 of the CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which CAC No. 9 of 2014 -:19:- event the appeal under Section 19 of the Act, can also encompass the incidental or inextricably connected directions.
V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases).
The first point is answered accordingly."
11. A Division Bench of Andra Pradesh High Court in T.Vasantha Lakshmi v. Y Ravindra Naik, Principal, A.P.S.W.R. School and another [1992(2) An.W.R.1], following the D.N.Taneja's (supra) case has held that the appeal under Section 19 is not maintainable against an order of the High Court dismissing the contempt application.
12. Learned counsel for the appellant has placed reliance on a Division Bench judgment of Himachal Pradesh High Court reported in L.D.Khanna and others v. M/s.Chohan Huhtamaki (India) Pvt. Ltd., Chambaghat and others [1977 Cri.L.J. 1530]. In the above case the respondents have filed an CAC No. 9 of 2014 -:20:- application in the High Court for initiation of contempt against the appellant. The High Court directed for issue of notice to the appellant. The appellant submitted an application for discharge of the notice. The High Court vide its order dated 06.08.1976 declined to discharge notice and against that order, an appeal under Section 19 of the Contempt of Courts Act was filed before a Division Bench. The Division Bench held in the above case that the appeal under Section 19(1) lies against an order or decision of High Court in disposing/concluding the contempt proceedings and not against an order declining to discharge notice. In paragraphs 7 and 11 following was laid down:
"7. That the appeal under S.19 is contemplated only against an order or decision of the High Court made in disposing of a contempt proceeding is apparent from the intrinsic evidence provided by S.19 itself. There is the statement in sub-s. (1) that the order or decision from which an appeal lies is an order or decision of the High Court made in the exercise of its jurisdiction to punish for contempt. As is well known, the jurisdiction of a Court can be contemplated in comprehensive terms, ranging over the entire proceeding before it, from the entertaining of the proceeding to its final conclusion. The successive stages through which jurisdiction is exercised are ex-emplified in the four Cls. (a) CAC No. 9 of 2014 -:21:- to (d) of sub-s. (1) of S.14 of the Act. Section 14 reads:
"14(1). When it is alleged, or appears to the Supreme Court or the High Court upon its own view, that a person has been guilty of contempt committed in its presence or hearing, the Court may cause such person to be detained in custody, and, at any time before the rising of the Court, on the same day, or as early as possible thereafter, shall -
(a) cause him to be informed in writing of the contempt with which he is charged;
(b) afford him an opportunity to make his defence to the charge;
(c) after taking such evidence as may be necessary or as may be offered by such person and after hearing him, proceed, either forthwith or after adjournment, to determine the matter of the charge; and
(d) make such order for the punishment or discharge of such person as may be just."
The concluding stage is the stage contemplated by Cl.(d), where the Court exercises the jurisdiction to make an order for the punishment or discharge of the person accused of contempt. In our opinion, it is to that stage of the exercise of jurisdiction that sub-s. (1) of S.19 refers. It speaks of the High Court exercising "its jurisdiction to punish for contempt". The jurisdiction to punish for contempt is specifically referred to in S.12 of the Act, which lays down the limits within which such jurisdiction will be exercised. Section 12 declares that a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both, and that no Court CAC No. 9 of 2014 -:22:- can impose a sentence in excess of such punishment. The jurisdiction to punish may alternatively be exercised, in the case of a civil contempt, by directing that the person found guilty be detained in a civil prison for such period not exceeding six months as the Court may think fit. The jurisdiction to punish for contempt may also be exercised in the case of a company. Section 12 details the various orders or decisions which the High Court may make in the exercise of its jurisdiction to punish for contempt. The more comprehensive jurisdiction, relating to the entire range of the proceeding, is indicated in provisions such as S.11, which declares that a High Court shall have jurisdiction, "to enquire into or try a contempt". Another provision is S.18, which declares that every case of criminal contempt under S.15 "shall be heard and determined" by a Bench of not less than two Judges. Had Parliament intended that S.19 should provide an appeal from any order or decision of the High Court made at any stage during a contempt proceeding, one would have expected S.19 to read:
"19. An appeal shall lie as of right from any order or decision of a High Court in the exercise of its jurisdiction to enquire into or try (or "to hear and determine") a contempt.
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11. Upon the aforesaid considerations, we are of opinion that an appeal lies under sub-s.(1) of S.19 against an order or decision of a High Court concluding the contempt proceeding, and not against an order declining to discharge the notice issued by the Court to the alleged contemner in a contempt proceeding." CAC No. 9 of 2014 -:23:-
In so far as the facts of the present case are concerned, the contempt application filed by the applicant was rejected by the learned Single Judge.
13. The three judge Bench of Supreme Court in Baradakanta Mishra's case(supra) has laid down that it is only when the Court decides to take action and initiate proceedings in exercise of its jurisdiction to punish for contempt and where a Court rejects a motion and declines to initiate proceedings for contempt or to exercise its jurisdiction to punish for contempt, such decision cannot be termed as a decision to punish for contempt. The facts of the present case are fully covered by the ratio of the above judgment. The three judge Bench judgment in D.N.Taneja's (supra) case also applies with full force in the present case. In the said case also contempt application was rejected against which an appeal was filed under Section 19. The Apex Court gave more restricted applicability to Section 19 while laying down that High Court can exercise its jurisdiction to punish for contempt only when an order punishing for contempt is passed. The reliance placed on the Division Bench judgment of Himachal CAC No. 9 of 2014 -:24:- Pradesh High Court also does not help the applicant in the present case. In the said case the High Court has refused to entertain an appeal against an order directing to discharge the notice and the appeal filed against it was held as not maintainable. A Division Bench in the said judgment has expressed an opinion that an appeal lie under Section 19(1) only against an order or decision of the High Court concluding the contempt proceedings. It is relevant to note that Justice R.S.Pathak (CJ) as he then was a member of the Division Bench of Himachal Pradesh High Court who subsequently delivered the judgment in D.N. Taneja's case(supra) interpreting Section 19. In view of the judgment of the Apex Court in D.N. Taneja's case, the Division Bench judgment of Himachal Pradesh High Court cannot be relied on by the applicant.
14. Now coming to Section 5 of the Kerala High Court Act 1958, Section 5 provides as follows:
"5. Appeal from judgment or order of Single Judge.-- An appeal shall lie to a Bench of two Judges from --
(i) a judgment or order of a Single Judge in the exercise of original jurisdiction; or CAC No. 9 of 2014 -:25:-
(ii) a judgment of a Single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by Subordinate Court."
15. Section 5 of the Kerala High Court Act, 1958 was considered by a Division Bench of this Court reported in Rasheed v. Saji Basheer [2005(2) KLT 106]. In the said case appeal was filed by the applicant against an order discharging the contemnor. Reliance was placed on Section 5 of the 1958 Act. Repelling the submission of the applicant regarding maintainability of the appeal under Section 5, following was laid down in paragraph 2 of the judgment:
"2. By bare reading it is no doubt sounds that appeal is maintainable against any judgment or order of a Single Judge in the exercise of original jurisdiction under S.5(i). But that is a general provision. Question is whether the contempt proceedings which are also filed on original side come within the ambit of the above provision. But, Contempt of Courts Act, 1971 is a self- contained Act providing appeal provision under S.19 thereof and in view of the said special provision, S.5 of the Kerala High Court Act is not applicable. Further under S.19 of the Contempt of Courts Act, appeal is maintainable only against the orders committing the contemnor for contempt and not against the order of discharge. The only remedy in case of discharge of contemnor is to invoke Art.136 of the Constitution by filing an appeal before CAC No. 9 of 2014 -:26:- the Supreme Court. The judgment of the Supreme Court in D.N.Taneja v. Bhajan Lal (1988) 3 SCC 26, is an authority for the above proposition."
Following the aforesaid Division Bench judgment, we are also of the view that the present appeal cannot be held to be maintainable under Section 5 of the Kerala High Court Act.
16. In view of the forgoing discussions we conclude that appeal under Section 19 filed by the applicant against the order of learned Single Judge refusing to initiate contempt proceedings is not maintainable. Hence the appeal is dismissed as not maintainable.
Ashok Bhushan, Acting Chief Justice.
A.M. Shaffique, Judge.
ttb