Karnataka High Court
Shaik Mohiddin vs Section Officer, Karnataka ... on 25 August, 1994
Equivalent citations: 1995(1)ALT(CRI)438, 1994CRILJ3689, ILR1994KAR2513, 1994(4)KARLJ147
ORDER
1. In these three contempt petitions under sections 10, 11, and 12 of the Contempt of Courts Act, 1971 (the Act for short), the complainants have sought to initiate contempt proceedings against the respondents/accused and to punish them in accordance with law of disobedience of the orders made by the subordinate Courts.
2. Brief facts of the case necessary for the disposal of the these cases are as follows :-
The complainant in C.C.C. No. 605 of 1994 filed a suit in O.S. No. 92 of 1993 on the file of the Munsiff, Chintamani, for a declaration that the notice in No. FA-KIP-652-53 dated 28-1-1993 issued by the respondent herein was illegal and for permanent injunction restraining him from disconnecting the electricity to installation No. KIP 19 of Chinnasandra village belonging to the complainant. After the notice was served, on the undertaking given by the respondent, the Court by its order dated 25-2-1993 directed not to disconnect power to the said installation of the complainant. To circumvent the aforesaid undertaking, it is alleged, the respondent issued another notice dated 21-12-1993 which was the subject matter of W.P. No. 1181 of 1994 filed by the complainant and this Court by its order (Annexure-C) dated 21-1-1994 directed not to disconnect the power to the complainant's installation while directing to treat the notice as show cause notice and to consider his objections thereon. The complaint of the complainant in this case is that despite the direction issued not only by the trial Court but also by this Court, the respondent-accused disconnected the electricity supply to the installation of the complainant. Hence this complaint.
The case of the complainant in C.C.C. No. 713 of 1994 is that he is a tenant under accused No. 1 in respect of house No. 34, 7th Cross, 2nd Main, Dinnur, R. T. Nagar, Bangalore, on a monthly rental of Rs. 2,000/-, that as the landlord-accused No. 1 started harassing the complainant to vacate the premises, the latter had to file a suit in O.S. No. 2212 of 1994 on the file of the City Judge (CCH. 13), Bangalore, wherein he obtained an ad-interim order of temporary injunction on 20-4-1994 restraining respondents-accused 1 to 3 from interfering with his peaceful possession and enjoyment of the suit premises. Despite the injunction was issued against the respondents, it is alleged, they have been interfering with the complainant's peaceful possession and enjoyment of the premises in question. Hence, he has filed this complaint to initiate contempt proceedings against them for disobedience of the order of the Court below.
Coming to the facts in C.C.C. 734 of 1994, the complainant here is a factory engaged in the manufacture of pharmaceutical formulations and life saving drugs. Accused 1 is a Trade Union registered under the Trade Union Act, 1926 and other accused are its members working in the complainant's factory. The last settlement entered into between the employees of the factory and the management was on 29-7-1990. Thereafter, the accused-Union gave a charter of demands which are pending discussion. On 6-9-1993 the Union had issued a notice threatening to go on strike and subsequently the accused resorted to force, violence and prevention of movement of goods, personnel, raw material and medicines to and from the factory. Therefore, the complainant filed a suit in O.S. No. 434 of 1993 on the file of the Additional Second Munsiff, Bangalore. Even though the complainant tried to settle the issue amincably, no settlement could be arrived at. The accused resorted to demonstrations, slogan shouting, intimidation of staff members etc. Hence, I.A. No. I was filed by the complainant seeking an order of temporary injunction. Since the strike pursuant to the strike notice dated 23-9-1993 did not materialise, the accused gave an undertaking before the learned Munsiff that since the strike had been called off, the Union and its members would not prevent movement of vehicles carrying raw materials required by the factory and also personnel attending the factory to work. Subsequently, the negotiations between the workers and the management held but no amicable agreement could be arrived at. Therefore, the matter was referred to the Assistant Labour Commissioner, Bangalore, and during the pendency of the reconciliation proceedings, the accused resorted to physical force and obstruction of the management staff and the executives to attend the factory and subjected them to intimidation and humiliation, despite the undertaking. Hence the complainant pressed I.A. No. I for temporary injunction and thereupon the Court granted interim injunction by its order dated 8-4-1994 as per Annexure-A as follows :-
"I.A. No. I is allowed in part granting temporary injunction restraining the defendant and its workmen from preventing movement of personnel, vehicles, medicines, raw materials, semi finished and finished products from out of the factory premises or obstructing movement of vehicles, persons into the factory premises and from holding out threats to intimidating, gheroaing or wrongfully confining office employees and from insulting, intimidating, annoying and/or defaming in any manner the officers and employees of the factory and I.A. No. I in respect of the remaining prayers prayed in I.A. No. I is dismissed. It is also made clear that the temporary injunction granted does not enable the plaintiff to remove machineries, tools, fixtures, moulds and other materials found in the plaintiff's factory used for manufacturing drugs."
Since the accused ignoring the undertaking given by them as above and the interim order of unjunction, persisted in their acts of violence resulting in the obstruction in the smooth running of the factory, the complainant has filed this complaint to take action against them in accordance with law for disobedience of the Court order.
3. We have heard the learned counsel on both sides.
4. The submission in general made on behalf of the complainants in these cases is that regard being had to the provisions of Section 10 of the Act, this Court may take cognizance of the contempts complained of and initiate proceedings against the accused-respondents to punish them in accordance with law. On the other hand, the general defence taken on behalf of the respondents-accused in these cases is that the jurisdiction of this Court under section 10 of the Act need not be exercised to take cognizance of the contempts complained of i.e., for disobedience of the orders of the Courts below, inasmuch as there are necessary provisions made available in the Code of Civil Procedure itself under Order 39, Rule 2A thereof to punish the persons found guilty of such disobedience or breach.
5. A Division Bench of this Court in Rudraiah v. State of Karnataka, , considering the question similar to the one involved in these cases, took the view in favour of the accused, holding as follows in paragraphs-5 thereof at Page 182 :
"In cases of disobedience or breach of injunction order issued temporarily during the pendency of a suit, either under R. 1 or 2 of Order 39, C.P.C., it is inexpediant to invoke and exercise contempt jurisdiction. In such cases, action is contemplated by the very court which issues the injunction order under R. 2A of Order 39 CPC. It contemplates the forfeiture of property as also putting of the person who commits breach into Civil prison for a period not exceeding three months. The provision thereunder is obviously based on the principle of contempt of Court. That being so, the general provisions made under the Contempt of Courts Act cannot be invoked by the decree holder for forcing the party to obey the injunction order.
It is a well settled principle of law that when there is special law and general law, the provisions of the special law prevail over the general law and when special procedure and special provision is contained in the C.P.C. itself under Order 39, Rule 2A for taking action for the disobedience of an order of injunction, the general law of contempt of Court cannot be invoked."
To say as above, the Court relied upon the decisions reported in (1) , (2) , (3) and (4) .
6. We respectfully agree with the ultimate view taken by this Court in Rudraiah's case but for the following additional reasoning of ours. In America there is a larger classification made in regard to jurisdiction of civil contempt and criminal contempt. But in India the view of the matter was mostly on the lines of the English law. According to it, contempts have been classified into two categories which might broadly be designated civil and criminal contempts - the former comprising those cases where the power of the Court is invoked and exercised to enforce obedience to order of Courts, and the latter where the act of the contemner is calculated to interfere with the justice including libels or insults to Judges and publications prejudicing the fair conduct of proceedings in Court. In regard to "civil" contempts, the courts have held that appeals lie from an order passed in such cases, (please see in re Swaminathan, AIR 1955 Mad (sic).
7. The procedure and practice that has been found in vogue in India go to show that prior to the passing of the Contempt of Courts Act, 1971, there was no statutory procedure prescribed for proceedings for contempt of courts. The High Courts could adopt any procedure subject to its fairness and affording reasonable opportunity for defence. The two previous Acts of 1926 and of 1952 recognised that power of the High Courts. The procedure followed by the High Courts was deemed established by law within the meaning of Article 21 of the Constitution. There were also Letters Patent which gave guidance in the matter of procedure and which constituted law, (please see State v. Mr. P., .
8. By a perusal of the scheme of the Act, it is clear that the power of a High Court to institute proceedings for contempt and punish where necessary is a special jurisdiction which is inherent in all Courts of Record. The Code of Criminal Procedure, as already mentioned, does not apply in matters of contempt triable by a High Court. It can deal with contempt summarily and adopt its own procedure, and all that is required is that the procedure is fair, and that the contemner is made aware of the charge against him and is given a fair and reasonable opportunity to defend himself, please see AIR 1954 SC 186 : 1954 Cri LJ 460.
9. The Calcutta High Court has taken the view in re : P. C. Sen, that Section 1(2) of the Criminal Procedure Code expressly excludes special jurisdiction from its scope. The High Court in such cases can deal with the matter summarily and adopt its own procedure. On the question whether an alleged contemner was a person accused of an offence, it was held by a Full Bench of the Allahabad High Court in State v. Padma Kant Malviya, that the alleged contemner was not a person accused of an offence and hence was not entitled to the protection of Article 20(3) of the Constitution. Therefore, what the procedural law in the matter of contempt of courts as established by practice, required was the substantial compliance of the rule relating to notice, and not any technical form of it. If the facts stated in the notice were in substance sufficient to apprise the contemner of the charge that he had to meet that in law was considered as a valid notice. There was no hard and fast rule as to the time within which contempt matters had to be brought to the notice of the Court, (please see .
10. Regard being had to the provisions of Sections 14, 15, 17 and 18 of the Act, whether the High Courts may adopt their own procedure is a question still open. Therefore, the Act itself makes it clear in Section 21 thereof that its provisions shall be in addition to, and not in derogation of, the provisions of any other law relating to contempt. Since the procedures which had been followed by the High Courts have the constitutional sanction by recognition thereof and also have been held to be procedures established by law within the meaning of Article 21 of the the Constitution, they cannot be affected by the provisions of the Act, (Please see .
11. In view of the foregoing, we will have to consider whether the view taken by the Division Bench of this Court in Rudraiah's case supra that the Civil Procedure Code being a special law prevails over the general law, viz., Contempt of Courts Act, is correct and if so, how far ?
12. Salmond, the author of jurisprudence dealing with the substantive law and the law of procedure in Chapter-15 of his book, 12th Edition, 1966, stated as follows regarding distinction between substantive law and the law of procedure :-
"What, then, is the true nature of distinction ? The law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions - jus quod ad actiones pertinet - using the term action in a wide sense to include all legal proceedings, civil or criminal. All the residue is substantive law, and relates, not to the process of litigation, but to its purposes and subject-matter. Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated."
Further the author says :
"A glance at the actual contents of the law of procedure will enable us to judge of the accuracy of this explanation. Whether I have a right to recover certain property is a question of substantive law, for the determination and the protection of such rights are among the ends of the administration of justice; but in what courts and within what time I must institute proceedings are questions of procedural law, for they relate merely to the modes in which the courts fulfil their functions. What facts constitute a wrong is determined by the substantive law; what facts constitute proof of a wrong is a question of procedure. For the first relates to the subject-matter of litigation, the second to the process merely ......."
We may as well refer to another observation of the learned author dealing with the distinction between substantive law and the law of procedure with regard to offences. He says :
"Whether an offence is punishable by fine or by imprisonment is a question of substantive law, for the existence and measure of criminal liability are matters pertaining to the end and purpose of the administration of justice. But whether an offence is punishable summarily or only on indictment is a question of procedure. Finally, it may be observed that, whereas the abolition of capital punishment would be an alteration of the substantive law, the abolition of imprisonment for debt was merely an alteration in the law of procedure. For punishment is one of the ends of administration of justice, while imprisonment for debt was merely an instrument for enforcing payment."
13. To repeat, the Contempt of Courts Act aims to take action against the contemner to punish him and not to enforce payment or any order sought to be disputed. In that view of the matter, when there is enough remedy available under R. 2A of Order 39 C.P.C., we fail to understand why this Court should exercise the jurisdiction under Section 10 of the Act.
14. Going back on the theme with which we are concerned, the view taken by the Division Bench of this Court in Rudraiah's case that the procedural law being a special law prevails over the general law (Contempt of Courts Act), cannot be said to be correct law, for, as we have distinguished in the above paragraphs substantive law from the procedural law, the Civil Procedure Code provides procedure for seeking remedy to enforce the right available to a citizen arising out of substantive law and therefore the question of it being construed as a special law to hold that it prevails over the general law causes some difficulty. Therefore, though we toe the line of thinking of the Division Bench on the conclusion of the Main matter, we do not contribute to the view taken by it to reach such a conclusion.
15. In addition to the above reasoning that we have assigned to reach a conclusion against the complainants here, we may also conveniently refer to the scheme of the Rules framed under the Act by the High Court exercising its powers conferred under Article 215 of the Constitution of India, read with Section 23 of the Act.
16. Rule 5 of the Rules deals with contents of petition. It reads :
"5. Contents of petition : (1) The petition shall set out the following particulars :-
(a) to (d) ................
(iv) In the case of 'Contempt of Subordinate Court, 'the complainant shall state whether the alleged contempt is not an offence punishable under the Indian Penal Code.
(v) In the case of criminal contempt of the High Court other than a contempt referred to in Section 14 of the Act, the complainant shall state whether he has obtained the consent of the Advocate General and if so, produce the same.
Nothing shall preclude the High Court from taking action suo motu on the basis of the information disclosed."
xxx xxx xxx xxx In none of these cases, the complainants have stated that the contempt alleged is not an offence punishable under the Indian Penal Code, and that consent of the Advocate General has been obtained before filing the contempt petitions.
17. No doubt, sub-rule (v) of Rule 5 further provides that nothing shall preclude the High Court from taking action suo motu on the basis of the information disclosed. But regard being had to the scheme of the Rules, it is clear that taking cognizance of the offence of contempt alleged in the complaints is not mechanical but on the application of mind by the two Judges constituting the Division Bench. It is only on being satisfied that a prima facie case has been made out to issue notice to the respondents to punish them in accordance with law that the process will begin.
18. Be that as it may, the procedure to be followed in the contempt of Courts proceedings is summary in nature as provided for in Rule 13 of the High Court of Karnataka (Contempt of Court Proceedings) Rules, 1981, which says :
"13. Procedure for Trial : Except as otherwise provided in the Act and these Rules, the procedure prescribed for summary trials under Chapter XXI of the Code shall as far as practicable be followed in the trial of cases for contempt."
19. The Supreme Court had the occasion to deal with the question of exercising the summary jurisdiction by way of contempt in Perspective Publications (P) Ltd. v. The State of Maharashtra, of the judgment therein, the Court referring to the scope of the summary jurisdiction of this Court laid down as follows at Page 229; of AIR :-
"There can be no manner of doubt that in this country the principles which should govern cases of the present kind are now fully settled by the previous decisions of this Court. We may restate the result of the discussion of the above cases on this head of contempt which is by no means exhaustive.
(1) ...........
(2) The summary jurisdiction by way of contempt must be exercised with great care and caution and only when its exercise is necessary for the proper administration of law and justice."
(3) ...........
The Statement of law contained in the decision in the aforesaid case makes it clear that the summary jurisdiction by way of contempt must be exercised with great care and caution and only when its exercise is necessary for the proper administration of law and justice and not otherwise. On the other hand, the trial of cases by the Courts, whose orders are alleged to have been disobeyed, in exercise of the powers conferred on them by Rule 8A of Order 39 C.P.C., is not summary in nature, but such Courts can go in detail into the allegations of disobedience of the orders made by them, after giving a reasonable opportunity of being heard to the persons sought to be punished for disobedience, to find out the correctness or otherwise of the allegations in the complaints and pass appropriate orders thereon. Therefore, this is an another aspect why we should hold that we need not exercise powers of this Court under section 10 of the Act to interfere with these complaints.
20. To conclude, we are clearly of the opinion that so far as the complaint of disobedience of the orders of the Courts below and remedial measures sought for by invoking Section 10 of the Act are concerned, it is not necessary for this Court to take congnizace of the complaints of this kind, inasmuch as the very Court itself whose orders are alleged to have been disobeyed, being competent to make use of the machinery available at its disposal under Rule 2A of O 39 C.P.C., can pass appropriate orders giving reliefs to the aggrieved in accordance with law. It is only when the citizen fails to avail himself of that remedy or when it becomes impossible for him to get the remedy at the hands of the Court passing the order alleged to have been disobeyed, he may think of approaching this Court under Section 10 of the Act and not otherwise.
21. For the above reasons, we drop these proceedings. However, it is open to the complainants to seek for appropriate reliefs before the Courts for disobedience of whose orders, these complaints are filed. Order accordingly.
22. Order accordingly.