Karnataka High Court
Sayed Sarwar Basha Makandar vs Sri.Tousif Ahamed on 18 April, 2023
Author: R.Devdas
Bench: R.Devdas
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CCC No. 100073 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18th DAY OF APRIL, 2023
PRESENT
THE HON'BLE MR JUSTICE R.DEVDAS
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CIVIL CONTEMPT PETITION NO. 100073 OF 2019 (-)
BETWEEN:
SAYED SARWAR BASHA MAKANDAR,
AGE ABOUT 32 YEARS, OCC: MUTHAWALLI (SAJJA
NASHEEN), HAZARAT PEER SAYED DARGAH (SUNNI),
HANAGAL TALUK, DIST. HAVERI
...COMPLAINANT/PETITIONER
(SRI. V.M.BANAKAR, ASPP FOR COMPLAINANT)
AND:
VINAYAKA 1. SRI. TOUSIF AHAMED, AGE 32 YEARS,
BV OCC: DISTRICT WAKF OFFICER, DISTRICT WAKF
Digitally signed by OFFICER, DISTRICT WAKF ADVISORY COMMITTEE,
VINAYAKA B V
Location: High Court of DIST. HAVERI.
Karnataka, Dharwad
Date: 2023.04.21 11:20:09
+0530
2. SRI. FAROOQ AHMED MOHAMMAD GOUSE AKKIVALLI,
AGE 45 YEARS, OCC: THE PRESIDENT, MANAGING
COMMITTEE, PEER SYED DARGHA (SUNNI), TQ. HANGAL,
DIST. HAVERI.
...RESPONDENTS/ACCUSED
(SRI. D.L.LADKHAN, ADVOCATE FOR A1;
SRI. VISHWANATH HEGDE, ADVOCATE FOR A2)
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CCC No. 100073 of 2019
THIS CCC IS FILED UNDER SECTIONS 11 AND 12 OF THE
CONTEMPT OF COURTS ACT, 1971, R/W. ARTICLE 215 OF
CONSTITUTION OF INDIA,1950, PRAYING TO SECURE THE
PRESENCE OF THE ACCUSED PERSONS, INITIATE CONTEMPT
PROCEEDINGS AND PUNISH THEM FOR HAVING COMMITTED
CONTEMPT OF THE ORDER DATED 21.01.2019 AND 13.03.2019
PASSED BY THE LEARNED SINGLE JUDGE IN W.P.NO.102614/2019,
PRODUCED AT ANNEXURES-A & B.
THIS CONTEMPT PETITION, COMING ON FOR FINAL HEARING,
THIS DAY, RAJESH RAI K., J. MADE THE FOLLOWING:
ORDER
The complainant has filed the present contempt petition to take action against the accused under the provisions of Sections 11 and 12 of the contempt of Courts Act, 1971 read with Article 215 of Constitution of India, for willful disobedience of the interim order passed in Writ Petition No.102614/2019 dated 24.01.2019 wherein, the learned single Judge of this Court while issuing notice to respondent No.7 passed the order "the petitioners shall be permitted to perform religious duties and as per the customs and usages of the basis of rules of -3- CCC No. 100073 of 2019 succession of Peer Sayed Dargha (Sunni) Dargha of Hanagal taluk" and the said writ petition was disposed on 13.03.2019. A writ of mandamus was issued to the respondent Nos.2 and 6 i.e. accused Nos.1 and 2 to implement the order dated 13.11.2018 made by the Administrator of the Karnataka State Wakf Board, Bengaluru, at Annexure-D, forthwith, subject to result of challenge pending before the Wakf Tribunal, keeping in view of the Urus and rituals.
2. The grievance of the complainant is that, in spite of the interim order and final order passed by this Court and knowing fully well that, this Court permitted the complainant to perform the religious duties as per the customs, usage and rituals of the said Dargha (Sunni Dargha) of Hanagal taluk, the accused persons, came to the Dargha on 24.03.2019 and threatened the complainant and his family members to vacate the Dargha and willfully caused obstruction to performance of the rituals by the complainant. Further, with the help of -4- CCC No. 100073 of 2019 accused No.1, accused No.2 performed the Urus of Dargha which was scheduled on 25.03.2019 to 28.03.2019. Further, the accused No.2 along with the members of the committee by forming an unlawful assembly of more than 40-70 persons objected the performance of the Urus rituals and also assaulted the complainant and the Khadims of the Dargha on 26.03.2019 and caused grievance injuries to several persons. According to the complainant, the accused No.2 at the instance of accused No.1 along with others have converted the Dargha into a Warfield by willfully violating interim order and the final order passed by this Court. As far as the alleged incident of assault is concerned the Hanagal Police registered a case in Crime No.69/2019 for the offence punishable under Sections 143, 147, 148, 323, 324, 307, 504, 506 read with Section 149 of IPC, against accused Nos.2 and others. As such, the accused have violated the interim order and final order of this Court.
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3. In response to the notice issued by this Court, the accused Nos.1 and 2 have appeared through their respective counsel and filed written statement contending that, the present contempt proceedings initiated against the accused is not maintainable either on facts or on law, as they have not committed any such act which amounts to the willful disobedience of the interim order or the final order passed by this Court. It is further contended that, insofar as the interim order is concerned, it is only a qualifying order, the said order permits the complainant to perform the rituals provided under Rules of succession under Mohammadan Law permits it. Hereditary right to Mutavalli is recognized under the Mohammadan Law, if custom provides it. The complainant has not pleaded any customary right. Thus the complainant cannot claim that the interim order is not implemented or violated. It is further contended that, the accused No.1 is working as Work Inspector at Haveri since July 2017. He was given Incharge duty of Haveri District Wakf Officer till 23.02.2019, till the regular Officer resumed charge. -6- CCC No. 100073 of 2019 During this period he has not acted contrary to the interest of the Wakf Board and notified Wakf Institution. It is further alleged in the written statement that, this Court has passed interim order on 21.01.2019, the same has been implemented as was directed. There is a problem between the complainant and local members of the muslim community and thereby law and order problem was created by both sides. As such, criminal cases have been filed by both the sides in Crime No.69/2019 and 70/2019 before the Hanagal Police Station. The accused No.1 has only discharged his official duty by respecting the order of this Court and superior officers of the Board. It is further contended that, the complainant has filed the contempt petition out of vengeance though the order passed by this Court dated 21.01.2019 in W.P.No.102614/2019 has been implemented in letter and spirit. The photographs and C.D. produced along with the contempt petition are not within the knowledge of the accused and accordingly denied as false. They respect and obey the orders passed by this Court and at no point of -7- CCC No. 100073 of 2019 time, they had an intention to violate/disobey the interim order and final order passed by this Court. Therefore, the contempt proceedings initiated by the complainant is only with an intention to harass the accused and absolutely there is no truth in the allegation made by the complainant and therefore, they sought to dismiss the contempt petition.
4. However, this Hon'ble Court after hearing the accused before framing of the charges, passed a detail order dated 26.09.2019 and came to the conclusion that the objections which are filed by accused Nos.1 and 2 would not come to their aid in contending that there is no disobedience of the order passed by the learned single Judge causing of commotion, obstructing the right of the complainant to perform the rituals itself is an act of showing disobedience to the order of the Court. Accordingly, this Court framed charges against the accused persons for the offence punishable under Section 12 of the Contempt Act, 1971, by the order dated -8- CCC No. 100073 of 2019 25.03.2021. However, both the accused pleaded not guilty and claimed to be tried. Accordingly, the trial proceedings were conducted by this Court.
5. In order to prove the charges leveled against the accused, the complainant himself examined as P.W.1 and on his behalf two more witnesses have also been examined as P.W.2 and P.W.3 and in total got marked 15 documents as Ex.P.1 to Ex.P.15 and 03 material objects were marked as M.O.1 to M.O.3. After completion of the trial, the statement of the accused persons recorded under Section 313 of Cr.P.C. Though the accused have denied the incriminating evidence adduced against them, they have not chosen to examine any witness on their behalf nor produced any documents.
6. We have heard the arguments of the learned Additional State Public Prosecutor for the complainant and learned counsels Sri. D.L.Ladkhan for accused No.1 and Sri. Vishwanath Hegde, Advocate for accused No.2. -9- CCC No. 100073 of 2019
7. The learned State Public Prosecutor, vehemently contended on behalf of the complainant by reiterating the averments made in the contempt petition, in spite of the interim order dated 24.01.2019 and final order dated 13.03.2019 passed in W.P.No.102614/2019 by the single Judge of this Court, wherein, in terms of the interim order, the petitioners/complainant shall be permitted to perform the religious duties as per the custom and usage on the basis of the rules of succession of Peer Sayed Durgha of Hanagal taluk and in the final order dated 13.03.2019 this Court issued the writ of mandamus to the respondent Nos.2 and 6 i.e. accused No.1 & 2 to implement the order dated 30.11.2018 made by the Administrator of the Karnataka State Wakf Board, Bengaluru at Annexure-D, forthwith, subject to the result of the challenge pending before the Wakf Tribunal, keeping in view of the eminent Urus ritual, accused No.1 and 2, knowing fully well about the said order, on 24.03.2019 threatened the complainant and his family members to vacate the Dargha and willfully objected to
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CCC No. 100073 of 2019perform rituals by the complainant and with the help of accused No.1, the accused No.2 and others have performed the Urus of Dargha which was scheduled from 25.03.2019 to 28.03.2019.
8. The accused No.2 being the President along with the other members of the committee caused unlawful assembly of more than 40-70 persons, objected to the performance of the Urus rituals and also assaulted the complainant and Khadims of the Dargha on 26.03.2019 and caused grievous injuries to several persons. The said act of the accused clearly demonstrates that they have willfully and deliberately disobeyed the orders passed by this Court and committed a grave contempt. He would further contend that, to substantiate the illegal act of accused, P.W.1 to 3, the witnesses examined before this Court on behalf of the complainant clearly deposed to that effect. P.W.1 being the complainant deposed before this Court about the acts committed by the accused on 23.03.2019 and 24.03.2019, that the accused Nos.1 and 2
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CCC No. 100073 of 2019accompanied by others manhandled the complainant and his family members when they were performing the rituals of the Dargha. To that effect he produced six photographs. The same are marked as Ex.P.3A to Ex.P.3E and also MO1 to MO3 the CDs i.e. the videograph of the incident.
9. Further, he deposed that, the accused No.1 was hand in glow with the accused No.2 and performed the Urus and Flag hosting, though there is a clear order by this Court to permit the performance of rituals by the complainant. The learned SPP further relied to the evidence of P.W.2 who is the resident of Hanagal, and the distant relative of the complainant, the said witness also categorically deposed before this Court that after passing the interim and final orders by the Court, the accused Nos.1 and 2 forcibly displaced the complainant on 24.03.2019 at about 6.00 p.m. and performed the Urus and Flag hosting. P.W.3 is a witness who is running a computer center at Bankapur for past 10 years and he is
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CCC No. 100073 of 2019the person who converted the video clipping from the mobile into a compact disc and made three C.Ds. as per M.O.1 to M.O.3. and he has also issued a certificate in that regard under the provisions of Section 65-B of the Indian Evidence Act. The learned SPP would further contend that, though accused Nos.1 and 2 cross examined these three witnesses, nothing worthwhile has been elicited in their cross-examination, as such, there is no reason to disbelieve the evidence of P.W.1 to P.W.3.
10. Further, P.W.1 is the injured and the P.W.2 is the eyewitness to the incident, their version proved beyond reasonable doubt that the accused have committed the act of gross contempt. Moreover, the learned SPP relies on the documents produced by the complainant as per Ex.P.1 to Ex.P.15, wherein, Ex.P.5 is the FIR in Crime No.69/2019 dated 26.03.2019 clearly depicts the involvement of accused No.2 and he has been arrayed as accused No.2 in the FIR for the alleged offence punishable under Section 143, 147, 148, 323, 324, 307,
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CCC No. 100073 of 2019504, 506 read with Section 149 of IPC. As such, the involvement of the accused in the alleged incident on 26.03.2019 is proved beyond reasonable doubt. Moreover, the Ex.P.13 is a letter issued by the accused No.2 to accused No.1 to perform the rituals of the Dargha on 17.03.2019 at about 8.30 p.m., after passing of the interim and final order by this Court in W.P.No.102614/2019. Further Ex.P.14 once again a letter issued by accused No.1 to the Circle Inspector of Police, Hanagal to provide security for their program scheduled on 17.03.2019 in the Dargha under the supervision of accused No.1. Hence, Ex.P.13 and P.14 clearly reveals that, the accused Nos.1 and 2 have conducted the rituals of the Dargha after the final order passed by this Court in the writ petition. Hence, the learned SPP submits that, by perusal of the documents more particularly Ex.P.5, Ex.P.13 and Ex.P.14 coupled with the evidence of P.W.1 to P.W.3, the complainant proved the case beyond reasonable doubt against the accused, as such, he prays
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CCC No. 100073 of 2019to convict the accused under Section 12 of the Contempt of Courts Act.
11. Per contra, learned counsel for the accused Nos.1 and 2 reiterating the averments made in their respective statement of objections would contend that, after the interim order and the final order was passed in the writ petition No.102614/2019, the accused have not performed any rituals of the Dargha and that they have not violated either the interim order or the final order passed by this Court. Accordingly, learned counsel for the accused No.1 would contend that, accused No.1 was working as Work Inspector of Haveri since July 2017 and he was placed Incharge of Haveri District Wakf Officer, till 23.02.2019. During that period he has not acted contrary to the interest of District Wakf Office and notified Wakf Institution. Accordingly, the learned counsel submits that, the law and order problem was created by both the sides on 23.03.2019, as such criminal cases have been filed by both the sides in Crime No.69/2019 and 70/2019 before
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CCC No. 100073 of 2019the Hanagal Police. The learned counsel by relying on Ex.P.15 marked by the complainant in the evidence tried to point out that, in Ex.P.15, the accused No.1 also signed and it is very clearly mentioned that, with true spirit to keep up the orders passed by this Court, he has requested that, "the undersigned shall perform the Urus and Sandal functions as mentioned above uninterruptedly in the interest of justice". The said note was submitted by the complainant to the accused No.1. As such, he being the District Wakf Officer, he is no way concerned to the alleged incident and at no point of time, he performed the rituals of the Dargha. Moreover, according to the learned counsel, the accused No.1 was not at all present on the alleged date of incident and he was not the District Wakf Officer and he was Incharge Officer and he performed the duty as per the direction of his higher officers. Hence, according to the learned counsel there is no reason to disobey the order passed by this Court. He would further contend that, the evidence of P.W.1 to P.W.3 cannot be relied for the reason that, P.W.1 being the complainant
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CCC No. 100073 of 2019and P.W.2 and 3 are the relative and friend of the complainant, respectively. As such, they are interested witnesses and their version cannot be relied to prove the guilt of the accused. Accordingly, learned counsel for the accused No.1 prays to drop the contempt proceedings.
12. Learned counsel for the accused No.2 would contend that, the accused No.2 was neither present in the Dargha on 26.03.2019 nor committed any illegal act by disobeying the order passed by this Court in the writ petition. According to the learned counsel for the accused No.2 being the President of the Managing Committee, Peer Sayed Dargha, is totally a law abiding citizen and for the wellbeing of the Dargha he made his best efforts to settle the dispute between the complainant and the other members of the Dargha. The documents and evidence adduced against the accused No.2 are totally concocted for the purpose of filing this false contempt petition and the evidence of the witnesses cannot be relied for the reason that, they are the most interested witness. He
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CCC No. 100073 of 2019would further contend that, even otherwise, by perusal of the cross-examination of P.W.1 and P.W.2 there are contradictions and omissions in their version and as such, their version cannot be believed to prove the charges leveled against the accused. The basic ingredients to prove the case against the accused in a contempt case, the complainant has to prove his case beyond reasonable doubt. By perusal of this case, the complainant totally failed to prove the case beyond reasonable doubt against the accused, as such, as per the settled position of law by the Hon'ble Apex Court, when two views are possible, the Court has to take the lenient view which favors the accused and accordingly, he prays to drop the contempt.
13. In view of the rival contentions urged by the learned counsels for the parties, the only point that would arise for our consideration is :
"Whether the complainant has made out a case to take action against the accused for willful violation of interim order dated 21.01.2019 and the final order dated 13.03.2019 passed in the writ petition, as
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contemplated under the provisions of Section 2B read with Section 12 of Contempt of Courts Act, in the facts and circumstances of the present case?"
14. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the evidence and entire material on record carefully.
15. On careful perusal of the interim order dated 21.01.2019 and final order dated 13.03.2019 passed by the learned Single Judge of this Court, there is a clear direction to accused Nos.1 and 2 to implement the interim order dated 21.01.2019 and the final order dated 13.03.2019. Nevertheless, on careful perusal of the evidence of witnesses examined before this Court, P.W.1 the complainant has categorically deposed before this Court that despite of serving the order dated 13.11.2018 to the Wakf Officer he failed to file the compliance report, reminders to that effect also proved futile. Accused No.1 issued a letter dated 04.01.2019 stating that, the subject order cannot be implemented since the Wakf Minister
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CCC No. 100073 of 2019telephonically informed not to implement it. Thereby, the complainant filed the writ petition No.102614/2019 and obtained interim order dated 21.01.2019, whereby, he was permitted to perform religious duties, as per the customs and usage on the basis of rules of succession of Dargha, as per Ex.P1. Despite that, order, nothing worth while has happened from the side of the accused No.1 and therefore, he requested for intervention of the Superintendent of Police. Despite of the instructions by the said police, accused No.1 did not abide the interim order of this Court. Later this Court allowed the said writ petition vide order dated 13.03.2019 as per Ex.P2. On 17.03.2019. Again the Urus festival was to be performed accompanied by "Flag Hosting Ceremony". Despite of that, the accused No.2 by knowing fully well of the interim order and the final order passed by this Court, gave a representation to the accused No.1 the Wakf Officer, requesting to perform the said Urus and flag hosting at the hands of the accused No.1. On the same day, accused No.1 submitted a letter to the CPI for the purpose of Urus
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CCC No. 100073 of 2019and flag hosting. According to P.W.1, himself and all other members of Dargha intimated the Court order to the accused No.1 on that day and informed him that, violation of the Court order would amount to gross contempt. Despite of that, the accused No.1, hand in gloves with the accused No.2, performed the Urus and flag hosting.
16. Further on 23.03.2019, accused No.1 obtained an order at the hands of the Deputy Commissioner to the effect that, the ritual should be performed by the accused No.1 only and based on that order, accused No.1 accompanied by accused No.2 started harassing the complainant and his family members. The complainant and his family members brought to the notice of the Deputy Commissioner, about the orders of this Court and the Deputy Commissioner passed an order to that effect by rescinding the order that was issued to accused No.1 and directed that the Urus rituals shall be carried on in accordance with the High Court Orders. The order of the Deputy Commissioner was communicated to the
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CCC No. 100073 of 2019Superintendent of Police, CPI and the Tahasildar at Hangal. Further, the complainant had affixed the order of the Deputy Commissioner dated 23.03.2019 and the Orders of this Court to the conspicuous part of the building. Despite of that, accused Nos.1 and 2 accompanied by others came during night of 23.03.2019 and on 24.03.2019 barged into the property and manhandled the complainant and his family members when they were performing the rituals. Later the complainant lodged the complaint against accused No.2 and others and a FIR came to be registered in Crime No.69/2019 against accused Nos.1, 2 and others for the offence punishable under Section 143, 147, 148, 323, 224, 307, 504, 506 read with Section 149 of IPC. P.W.1 in his evidence has also produced the photographs and MO1 to MO3. The photographs captured the incidents happened on 23.03.2019, 24.03.2019 and 25.03.2019. The CDs are marked in the nature of electronic documents and a certification under Section 65B(4) of the Evidence Act, is
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CCC No. 100073 of 2019also produced by P.W.3 the person who videograped the incidents and made into three CDs.
17. Though the counsel for accused No.1 and 2 cross-examined P.W.1 at length, nothing has been elicited from him during the course of cross-examination to disprove his version. Nevertheless, accused Nos.1 and 2 have not denied the incidents happened on 23.03.2019, 24.03.2019 and 25.03.2019 at Dargha and also their presence during that time. According to accused No.1, the incident said to have happened due to the law and order problem created by both the sides i.e. complainant side and accused side at the instance of the complainant and accused No.2. As such, Criminal cases have been filed from both sides in Crime No.69/2018 and Crime No.160/2018. Moreover, it is the suggestion of the accused No.1 to P.W.1 that, in view of the Election Code of Conduct, the Deputy Commissioner has directed the then Wakf Officer to supervise the performance of Urus and related rituals, as such, the accused No.1 was not
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CCC No. 100073 of 2019responsible for the untoward incident. But those suggestions were stoutly denied by P.W.1. According to the learned counsel for the accused, accused No.1 had gone to the Dargha premises in order to implement the order of the Board and the order of the Court. But P.W.1 has categorically denied those suggestions. Hence, in our considered opinion, the accused Nos.1 and 2 failed to disprove the evidence of P.W.1 in the cross-examination.
18. P.W.2 is an eyewitness to the alleged incident. Though he is distant relative of P.W.1, he categorically deposed that, on the date of the alleged incident he was very much present in the Durgha and on 25.03.2019 the Urus procession was taken out at 9.00 p.m. and returned at midnight at 2.00 a.m. of 26.03.2019. At that time, accused No.2 along with other persons attacked the complainant and his family members. In the said attack, the complainant and his family members were injured. According to the said witness accused No.1 was also very much present and he came along with accused No.2 to the
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CCC No. 100073 of 2019Durgha. Knowing fully well about the order passed by this Court in the writ petition, both the accused Nos.1 and 2 have willfully disobeyed the order. Though learned counsel for the accused Nos.1 and 2 cross-examined this witnesses at length, nothing worthwhile has been elicited in the cross-examination to disprove his version, that the accused Nos.1 and 2 have not committed the act of contempt. As per the evidence of P.W.2 who is an eyewitness to the incident clearly proves the presence of accused Nos.1 and 2 and the performance of the rituals in Durgha in spite of order of this Court. P.W.3 who is running a Computer Center and according to him, during March 2019, he converted the photograph/videograph from the mobile into a compact disk and made three C.Ds. He identified those three CDs and he also produced the certificate to that effect under Section 65B of the Indian Evidence Act. Though the learned counsel for the accused Nos.1 and 2 put the suggestion during cross examination of the witness that, he has not verified the contents of the mobile which he copied into CDs were also edited or not,
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CCC No. 100073 of 2019but those suggestion were clearly denied by P.W.3. Hence, by perusal of the evidence of P.W.1 to P.W.3, all these three witnesses categorically deposed about the act of accused Nos.1 and 2 on the relevant dates i.e. 23.03.2019, 24.03.2019 and 25.03.2019. Further, it is not in dispute that, the accused were aware about the orders passed by this Court in the writ petition No.102614/2019, since the Superintendent of Police has also issued reminder to accused Nos.1 and 2 not to conduct the Urus function since the order passed by this Court. Hence, on careful perusal of the evidence of these witnesses, in our considered opinion the complainant proved his case beyond reasonable doubt.
19. We are aware that while dealing with a civil contempt, the Contempt of Courts Act, 1971 explains a civil contempt to mean a willful disobedience of a decision of the Court. Therefore, what is relevant is the 'wilful' disobedience. Knowledge acquires substantial importance qua a contempt order. It is a deliberate, conscious and
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CCC No. 100073 of 2019intentional act. Hence a proof beyond reasonable doubt is required since the proceedings are quasi-criminal in nature.
20. Though, it is the specific case of the accused person that, in the present case they have not violated the interim order passed by this Court, but by careful perusal of the evidence of P.W.1 to P.W.3 coupled with Ex.P.5, Ex.P.13 and Ex.P.14 it clearly depicts that the accused are involved in the affairs of the Durgha and thereby violated the interim order and final order passed by this Court.
21. The accused-contemnors have failed to adduce any evidence on their behalf in order to prove their defence. Except by throwing some suggestions to P.W.1 to P.W.3, in their cross-examination, the accused persons neither produced any documents nor adduced any evidence before this Court. In such circumstances, this Court is bound to draw an adverse inference against the accused since the complainant proved his case beyond all reasonable doubt. From the over all consideration of the
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CCC No. 100073 of 2019every documentary evidence on record and in the light of series of events, we hold that, the accused-contemnor has disregarded and violated the interim order and the final order passed by this Court in W.P.No.102614/2019 dated 13.03.2019.
22. Now the question is whether for disobedience of the orders passed by this Court, the accused-contemnors are liable for punishment ?
23. The provisions of the Contempt of Courts Act, 1971 have been invoked. Section 2(b) defines Civil Contempt which reads as under:
"2. Definitions.-In this Act, unless the context otherwise requires,-
(a) x x x
(b) "civil contempt" means
willful disobedience to any
judgment, decree, direction, order, writ or
other process of a court or wilful breach of an undertaking given to a court"
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CCC No. 100073 of 2019
24. Reading of the said clause makes it clear that the following conditions must be satisfied to convict any person for civil contempt:
(1) There must be a judgment, decree, direction, order or other process of Court (or an undertaking given to the Court);
(2) There must be disobedience to a judgment, decree, direction, order or other process of Court (or an undertaking given to the Court); (3) Such disobedience of a judgment, decree, direction, order or other process of Court (or an undertaking given to the Court) must be willful.
25. Section 12 provides for punishment of Contempt of Courts and the said proviso reads as under:
"12. Punishment for contempt of court.-
(1) Save as otherwise expressly provided in this Act or in any other law, 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:
Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court.
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Explanation.--An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.
(2) Notwithstanding anything contained in any other law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it.
(3) 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.
(4) Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of each such person:
Provided that nothing contained in this sub-section shall render any such person liable to such punishment if he proves that
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the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission.
(5) Notwithstanding anything contained in sub-section (4), where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer.
Explanation.--For the purpose of sub-
sections (4) and (5),--
(a) "company" means any body corporate and includes a firm or other association of individuals; and
(b) "director", in relation to a firm, means a partner in the firm."
26. The statute confers a special power upon the court to pass a sentence of imprisonment, or fine for the guilt of committing civil contempt. Even the punishment
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CCC No. 100073 of 2019awarded may be remitted on apology being made to the satisfaction of the Court.
27. The Apex Court in the case of Kapildeo Saha vs. State of Bihar reported in (1999) 7 SCC 569 held that for holding a person to have committed contempt, it must be shown that there was willful disobedience of the judgment or the order of the Court. The Apex Court held that the power to punish for the contempt is intended to maintain the effective legal system.
28. In the case of hand, the accused-contemnor has clearly and willfully breached the interim order and final order passed by Single Judge of this Court and the evidence on record proved beyond reasonable doubt that the accused have committed gross contempt, as there was willful disobedience on the part of the accused of the interim order and final order of this Court. Hence, the accused are liable to be convicted for their acts under the provisions of Section 12 of the Contempt of Courts Act.
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29. The Apex Court in the case of Patel Rajnikant Dhulabhai and another vs. Patel Chandrakant Dhulabhai & others (Contempt Petition (Civil) Nos.12-13/2006) placing the reliance of the judgment of Anil Ratan Sarkar and others vs. Hirak Ghosh and others held at paragraph No.53 as under:
"53. In Anil Ratan Sarkar & Ors. v. Hirak Ghosh & Ors., (2002) 4 SCC 21, this Court held that the Contempt of Courts Act has been introduced in the statute-book for securing confidence of people in the administration of justice. If an order passed by a competent Court is clear and unambiguous and not capable of more than one interpretation, disobedience or breach of such order would amount to contempt of Court. There can be no laxity in such a situation because otherwise the Court orders would become the subject of mockery. Misunderstanding or own understanding of the Court's order would not be a permissible defence. It was observed that power to punish a person for contempt is undoubtedly a powerful weapon in the hands of Judiciary but that by itself operates as a string of caution and cannot be used unless the Court is satisfied beyond doubt that the person has deliberately and intentionally violated the order of the Court. The power under the Act must be exercised with utmost care and caution and sparingly in the larger interest of the society and for
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proper administration of justice delivery system. Mere disobedience of an order is not enough to hold a person guilty of civil contempt. The element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act."
30. From the above decision, it is clear that punishing a person for contempt of Court is indeed drastic step and normally such action should not be taken. However, at the same time, it is not only a power vested in the Court, but a duty of the Court to uphold and maintain the dignity of the Courts and Majesty of the law which may call for such extreme steps, for proper administration of justice. Nevertheless, to ensure the due compliance with the orders passed by the Courts, it is required to take strict view under the Act and it should not hesitate in wielding the potent weapon of contempt. Otherwise, we would in fact be virtually issuing a 'licence' to neglect the Court Orders and commit contempt of Court with impunity.
31. For the reasons stated supra, the point framed for consideration is answered in the affirmative holding
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CCC No. 100073 of 2019that the complainant has made out a case to punish the accused for the Contempt of Court under Article 215 of the Constitution of India read with Sections 11 and 12 of the Contempt of Courts Act.
32. In view of the above, we pass the following:
ORDER
(i) The civil contempt petition is hereby allowed;
(ii) The accused-contemnor is hereby convicted for the contempt of Court, punishable under the provisions of Section 12(1) of the Contempt of Courts Act.
Sd/-
JUDGE Sd/-
JUDGE SVH List No.: 1 Sl No.: 29
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CCC No. 100073 of 2019IN THE HIGH COURT OF KARNATAKA AT DHARWAD [SAYED SARWAR BASHA MAKANDAR VS. SRI. TOUSIF AHAMED AND ANOTHER] RDJ & RRJ:
20.04.2023 ORDER ON SENTENCE
1. Learned counsels for the accused Nos.1 and 2/contemnors have filed two affidavits of the accused persons and sought for an unconditional apology stating that, the act of committing contempt by the accused/contemnor was neither intentional nor deliberate and the same is committed due to the lack of legal knowledge. It is further stated that, the accused/contemnors are law abiding citizens and at no point of time, they had an intention to disregard the Court orders. Hence, prays for the lenient view of this Court to accept their unconditional apology and not to impose any punishment. The accused/contemnors also undertakes to respect the Court orders by its letter and spirit in future.
Learned counsels submit that, if they are sentenced to
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CCC No. 100073 of 2019undergo imprisonment, then the stigma will remain. Hence, the learned counsels pray for indulgence of this Court to grant one more opportunity to them as a reformative measure.
2. The learned State Public Prosecutor would contend that the accused No.1 being the Government Servant colluded with the accused No.2 knowing fully that the same would be in disobedience of the interim order and final order passed by this Court and thereby committed gross contempt. As such, this Court has to deal with the accused with iron hands by imposing maximum sentence. He relied the Judgment of the Hon'ble Apex Court in L.D.Jaikwal Vs. State of U.P. [(1984) 3 SCC 405], wherein the Hon'ble Apex Court held that, mere apology cannot be accepted after committing gross contempt with impunity. Apology shall not be paper apology and expression of sorrow should come from the heart and not from the pen. Fot it is one thing to 'say' sorry-it is another to 'feel' sorry.
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3. To counter the said submissions, learned counsels for the accused relied on a Judgment of the Hon'ble Apex Court reported in AIR 1955 SCR (1) 757 in the case of Shareef and another Vs. The Hon'ble Judges of the High Court of Nagapur and others.
4. Keeping in view the provisions of Sections 12 and 13 of the Contempt of Courts Act, we are of the opinion that the Court has power of contempt and that lethal power too accompanies with greater responsibility. Contempt is a weapon like "Brahmastra" to be used sparingly to remain effective. At the same time, a Judge has to guard the dignity of the Court and take action in contempt and in case of necessity to impose appropriate exemplary punishment too. Our view is fortified by the Judgment of the co-ordinate Bench of this Court in C.C.No.1671/2018 (Civil) [Shivaprasad Navada Vs. Leonard Fernandes and others] disposed of on 09.02.2023.
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5. In view of the above principle and taking into consideration both oral and documentary evidence on record and the peculiar facts and circumstances of the present case, we are of the opinion that, as per the proviso to Section 12(1) of Contempt of Courts Act, to meet the ends of justice, we proceed to pass the following:
ORDER The Affidavit filed by the accused/contemnor is accepted and in order to secure the ends of justice we sentence the accused Nos.1 and 2 to undergo detention till raising of this Court by administering a warning to the accused/contemnors, not to indulge in any such acts of disobedience of the Court order, in future.
Sd/-
JUDGE Sd/-
JUDGE Svh/-