Calcutta High Court
Md. Kasem Ali Mondal And Etc. Etc. vs Ajoy Rande And Ors. Etc. on 17 August, 1999
Equivalent citations: 2000CRILJ358
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, Ag. C.J. 1. The question as to whether an order passed by a Ld. Judge of High Court in exercise of his jurisdiction under Article 215 of the Constitution of India read with Section 19 of the Contempt of Courts, Act, 1971 (hereinafter referred to as the said Act), issuing direction either by modifying its own order or by issuing directions which could not be issued even in the writ application is appealable, is the question involved herein. 2. The High Court as a Court of Record, has power to punish a Contemner for contempt of its own Court, Article 215 of the Constitution of India provides for such power. This power is.not derived from any statute. It's jurisdiction is clearly derived from its being a Court of Record. Article 215 only corroborates this status of the High Court. Even without Article 215, the High Court would have the jurisdiction to punish for its contempt. This power of the High Court to punish for contempt of itself cannot be taken away by parliamentary legislation, except by way of constitutional amendment. 3. However, the legislature is competent to lay down the procedure in respect of contempt application and/or matters arising thereunder. Items 77 and 78 of List of Schedule I of the Constitution empowers the Parliament to enact laws on constitution, jurisdiction and powers of the High Court. 4. The Contempt of Courts Act, therefore, so far the High Court is concerned, merely regulates the procedure irrespective of its power to deal with the contempt matters. The said Act was enacted to define the limits and powers of certain Courts in punishing under Contempt of Courts Act and to regulate the procedure in relation thereto. 5. The provision of the Contempt of Courts Act are required to be involved for enforcing the power of the High Court to punish a contemnor for contempt of its own Court or of a subordinate Court. As noticed hereinbefore, prior to enactment of the Contempt of Courts Act there did not exist any comprehensive legislation in this regard. Prior to the said legislation a committee was constituted known as "Sanyal Committee" and it while dealing with the questions posed before it as regard the provision of Contempt of Courts Act, vis-a-vis, power of appeal under Article 215 of the Constitution of India submitted a detailed report. In its report it was stated inter alia: It may also be mentioned that the English concept of Court of record does not preclude the possibility of the decision in contempt matters of a Court of record being considered and reversed, if the appellate Court so thinks fit, in appeal. The theory that a Court of record is the final judge of what amounts to contempt of itself runs counter to the principle underlying the English law of contempt as expounded in Almon's case, viz., that the power of committing for contempt was the emanation of the Royal authority, for any contempt of the Court would be a contempt of the Sovereign. Logically, if superior Court is the final arbiter of what amounts to contempt of itself, that would mean that the Sovereign himself is precluded from determining what amounts to contempt of himself. Looking at the matter from the point of view of the position as it obtains in India, the theory would mean that there might be as many systems of law of contempt in the country as there are High Courts plus one, for the Supreme Court is also a Court of record. It might also mean that the provisions of Article 141 of the Constitution which provides that the law laid down by the Supreme Court shall be binding on all the Courts within the territory of India would be subject to an exception in relation to the law of contempt. It might further mean that the present practice of the Supreme court of entertaining appeals in contempt cases under Article 136, for example, by special leave, is erroneous. These are conclusions which would be rather startling. We are, therefore, inclined to assert that the theory that the superior Courts are the final arbiters for determining what amounts to contempt is really the result of legislative reluctance born perhaps of wisdom as stated in some cases to define contempt or regulate the law of contempt. Thus it is clear that judged by any test, it is constitutionally permissible for Parliament to legislate in relation to the substantive law of contempt qua the Supreme Court and then High Court (Emphasis supplied). 6. In the said Act, High Court was included and the Courts of the Judicial Commissioner which had been excluded from the purview of the 1926 Act. The High Court including the Court of a Judicial Commissioner was conferred jurisdiction to inquire into and try a contempt of itself or any Court subordinate to it, irrespective of whether the Contempt was alleged to have been committed within or outside the local limits of its jurisdiction and irrespective of whether the person alleged to be guilty of the contempt was within or outside such limits. The Sanyal Committee noticed that although in the said act there was no provision for appeal, the Privy Council had asserted its jurisdiction to entertain appeals against the orders passed by the High Courts in exercise of its contempt jurisdiction. In the said report it was stated, inter alia,; The 1952 Act is sound as far as it goes. While its provisions may be retained, its scope requires to be widened considerably. The Policy of the legislature has so far been to leave the formulation of the law of contempt to the Courts. The only safeguards provided in the law are that the power to punish for contempt (subject to the limited exception as to contempt in the face of the Court for which provision is made in the Indian Penal Code) is vested in the superior Courts and limits are set to the punishment which may be awarded by the Courts. Before the Constitution came into force there was no statutory provision for appeals from decisions of High Courts in contempt cases though the Privy Council after some initial reluctance finally asserted its jurisdiction to hear appeals in contempt cases. The High Courts and the Supreme Court have interpreted the provisions as to appeals contained in the Constitution as sufficiently wide to permit appeals in such cases from High Courts to the Supreme Court. 7. 2 of the said Act provides for an interpretation clause, Civil Contempt and Criminal Contempt have defined Sections 2(b) and 2(o) which are as follows: Section 2(b) -- Civil Contempt: means wilful disobedience to any Judgment, Decree, Direction, Order, Writ or other process of a Court or wilful breach of an undertaking given to a Court. Section 2(o) -- Criminal Contempt: means the publication (whether by words, spoken or written, or by signs, or by visible representations or otherwise) of any matter or the doing of any other act whatsoever which-- i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or ii) prejudices, or Interferes or tends to interfere with, the due course of any judicial proceeding; or iii) interferes, or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. 8. In Sukhdev Singh v. Teja Singh, the Chief Justice reported in AIR 1954 SC 186: 1954 Cri LJ 460, the Apex Court held that no Act of the legislature could take away that jurisdiction and confer it afresh by virtue of its own authority. 9. In Pritam Pal v. High Court of Madhya Pradesh , the said principle has been followed. Article 215 of the Contempt of Courts Act has vested the power upon the High Courts and thus, the power dealing with cases of contempt cannot be taken away. The legislature might regulate the exercise of the power by prescribing rules for such purpose. Section 11 confers power on the High Court to enquire into or try a contempt of itself or of any Court subordinate to it, whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction, and whether the person alleged to be guilty of contempt is within or outside such limits. 10. Section 12, on the other hand, provides for punishment for contempt of Court. 11. It is beyond any cavil of doubt that while exercising its power of contempt, apart from following the procedure laid down under the rules framed by the respective High Courts it can evolve its own procedure. See Mrs. V.G. Peterson v. O.V. Forbes . In this context it is relevant to note that Section 12 is prefaced by the words "save as otherwise expressly provided in this Act or in any other law." (underlining is ours for emphasis). 12. The question as to whether an appeal shall lie in terms of Section 19 of the Act, only when a punishment is imposed, will have to be considered upon taking into consideration the aforementioned provision. We may take note of the fact that an appeal under Section 19 lies as a matter of right. 13. Such an appeal, therefore, has to be entertained as a matter of course. Not only that, in terms of Sub-section (3) of the said (s), a provision exists that even without filing a memo of appeal, if a person aggrieved by an order satisfies the Court that he intends to prefer an appeal the Appellate Court may in exercise of its power or any of the powers conferred in terms of Sub-section (2) of Section 19 not only has the power to suspend the execution of the punishment but also the order appealed against. Such an appeal may also be heard notwithstanding that the appellant has not purged his contempt. 14. It is, therefore, clear that Section 19 of the Act if read in its entirety clearly envisages that an appeal lies not only from an order imposing substantive punishment but also an order which has been passed in exercise of its contempt jurisdiction. Evidently, such orders can only be passed upon making an enquiry in terms of Section 11 of the Act as to whether the alleged contemnor has wilfully or deliberately violated the order of the Court. Once a finding is arrived at, the Court either may, keeping in view in exigency of the situation, award substantive punishment or may issue such direction as the circumstance of the case demands. It would, therefore, not be correct to contend that under the provision of the Act the High Court can pass only an order punishing the contemnor. The Court in its direction may exercise its jurisdiction under the said Act by issuing a direction, inter alia, for implementation of its orders or issuing other direction, which according to the alleged contemnor may be detrimental to his interest. Such a power is also inherent in the Court. 15. Furthermore, as indicated hereinbefore, Section 12 of the Act, does not limit the power of punishment of awarding a sentence of prison only. It can issue a direction. In any event, Section 12 saves the power of the Court which can be exercised under any other law for the time being in force. Such a power may be found in Section 151 of the Code of Civil Procedure as also Order 39 Rule 2A thereof as well as under different provisions of the Code of Criminal Procedure apart from its Constitutional power under Article 215 of the Constitution of India. It is now a trite law that the Court in exercise of its power under Section 151 of the Code of Civil Procedure while finding the alleged contemnor guilty of wilful disobedience of its order may pass an order of mandatory injunction or direct that the parties be brought back to the same position as if the order of injunction has not been violated. Such an order can be passed only upon holding that the alleged contemnor is guilty of deliberate or wilful violation of its order. Such an order can be passed in lieu of or in addition to an order of punishment. 16. Section 19 of the said Act provides for an appeal which would lie as of right from any order or decision of High Court in the exercise of the jurisdiction to punish for contempt, inter alia, where the order of decision is that of a Single Judge, to a Bench of not less than two Judges of that Court. 17. In a case where no order of punishment had been passed within the meaning of Section 12 of the Act although the Court had exercised its jurisdiction to punish for contempt within the meaning of Section 11 of the Act, in terms of the provision of the Contempt of Courts Act, the High Court is entitled to issue any order or direction in the exercise of its contempt jurisdiction which is not specified under Section 12 of the Act. 18. It is well settled that a right of appeal which is originally vested in a suitor cannot be taken away by subsequent legislation. We may in this connection, refer to a decision of the Apex Court in State of Rajasthan v. Mohan Singh reported in 1995 Suppl (2) SCC 153, wherein Supreme Court has held that once the order has become final, no modification can be made in that order in exercise of the powers of contempt jurisdiction by the Court and if a party wants any kind of modification, for that a miscellaneous application has to be filed in the main petition. However, the Court in the contempt jurisdiction, has a right to enforce the order passed by it in exercise of the writ jurisdiction and the Supreme Court directed the respondent to implement the order within the stipulated time. The same view has been taken by the Supreme Court in Balram Singh Bhikam Chand . 19. In another decision in R.L. Kapur v. State of Tamil Nadu the Supreme Court has held that the High Court, as a Court of Record, being clothed with a special jurisdiction, has all incidental and necessary powers to effectuate the same. Consequently, it has the power to order satisfaction of "the order passed by it earlier in favour of the party." 20. In Ajit Kumar Bandopadhyay v. Chowdhury reported in 1995 Cri LJ 3449 (Cal) one of us (Satya Brata Sinha, J.) has held that the jurisdiction of the Court Article 215 of the Constitution or under the provisions of the Contempt of Courts Act is very limited. This Court can pass an order punishing the contemner only in the event it comes to a finding that the order of the Court has wilfully and deliberately been violated. The dicta in said decision, however, has to be considered in the light of the subsequent decision of Supreme Court in State of Maharashtra v. Mahboob S. Allibhoy . 21. In Arun Kumar Gupta v. Jyoti Prassanna Das Thakur reported in (1996) 2 Cal LJ 89, a Full Bench of this Court has also held that such appeals are maintainable under Section 19 of the Contempt of Courts Act. 22. In Hooghly District Central Co-operative Bank Ltd. v. Anoj Kumar Roy reported in (1996) 2 Cal LJ 459 : 1997 Cri LJ 864 one of us (S.B. Sinha, J.) upon taking into consideration various decisions including the decisions in Ashoke Kumar Rai v. Ashoke Arora reported in (1992) 96 Cal 278 and Ashis Chakraborty v. Hindusthan Lever Sramik Karmachari Congress reported in (1992) 96 Cal WN 673 and relying upon the Judgments in First Barada Kanta Mishra's Case and Second Barada Kanta Mishra's Case respectively, held that in a situation where order had been passed adverse to the interest of the contemner, an appeal would be maintainable. In the said case it was held that where a judgment has been passed by a Court which is beyond its jurisdiction, the contemner cannot be deprived of its right of appeal. 23. In Kundan Ram v. Darshan reported in 1997 Cri LJ 473, a division bench of Himachal Pradesh High Court, upon which strong reliance has been placed by the Ld. Counsel for the respondent, did not consider these aspects of the matter. In any event, the factual situation obtaining therein was different as the alleged contemner was not held guilty of commission of any contempt of the Court. 24. In Re. Bramblevale Ltd. reported in (1970) 1 CD 128 Lord Denning observed as follows: A contempt of Court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time honoured phrase, it must be proved beyond reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence. Take this very case. Mr. Hamilton told a lie when he said that the books were damaged and lost in the car accident on October 25, 1967. That lie does not prove that Mr. Hamilton kept those books for a further year and still had them in his possession from November 28 to December 5, 1968. He may have told the lie for another purpose-to cancel the fact that he destroyed the books himself shortly after the car accident. That would be a criminal offence, but not the one with which he is charged. On this charge, the Court has to see whether there is sufficient evidence that Mr. Hamilton did have these books in the week of November 28 to December 5 of 1968. On his own confession, he had them on October 25, 1967; but there is nothing more. That confession leaves two possibilities; either that he had them on that date in November, 1968 and wrongfully refused to deliver them; or alternatively that he got rid of them before that time so that he could not deliver them. Those two possibilities are equally likely. It is not possible to say which of them is correct. The Court cannot be satisfied beyond reasonable doubt that he still had the books in November, 1968. That would be conjecture rather than inference -- surmise rather than proof. Where there are two equally consistent possibilities open to the Court, it is not right to hold that the offence is proved beyond reasonable doubt. 25. In Purushotam Dass v. Hon'ble Mr. Justice B. S. Dhillon , the Apex Court, upon consideration of the phraseology used in Section 19(1) of the Contempt of Court Act, held that although the appeal shall lie to the Supreme Court as a matter of right where the final order has been passed and not where merely rule has been used or a notice to show cause has been issued. It was held: Mr. Lal placed reliance on the observations of this Court in Baradakanta Mishra v. Justice Gatikrushna Mishra . What has been decided therein is this; that on a reference made by the Advocate-General if the Court declines to take cognizance and to initiate proceeding for contempt, the order is not an order initiating contempt proceeding. Surely, it is not appealable under Section 19. But there are no observations by this Court, nor on the facts of that case there can be any, to show that an appeal would lie to this Court from an order of the High Court merely initiating the proceeding by issuance of a notice. We may repeat that it may be a different matter if the order does decide some disputes raised before it by the con-temner asking it to drop the proceeding on one ground or the other. But unless and until there is some order or decision of the High Court adjudication upon any matter raised before it by the parties, affecting their rights the mere order issuing the notice is not applicable. (Underlining is mine for emphasis) 26. In such a case there cannot be any doubt that any such person aggrieved by such order may prefer an appeal. 27. In the aforesaid backdrop the decision of the Supreme Court referred in State of Maharashtra v. Mahboob S. Allibhoy has to be construed. 28. In Mahboob S. Allibhoy (1996 Cri LJ 2879) (supra) the Apex Court held:-- On a plain reading of Section 19, provides that an appeal shall lie as of right from any order or decision of the High Court in exercise of its jurisdiction to punish for contempt. In other words, if the High Court passes an order in exercise of its jurisdiction to punish any person for contempt of Court, then only an appeal shall be maintainable under Sub-section (1) of the Section 19 of the Act. As Sub-section (1) of Section 19 provides that an appeal shall lie as of right from any order, an impression is created that an appeal has been provided under the said sub-section against any order passed by the High Court while exercising the jurisdiction of contempt proceedings. The words 'any order' has to be read with the expression 'decision' used in the said sub-section which the High Court passes in exercise of its jurisdiction to punish for contempt. "Any order" is not independent of the expression 'decision'. They have been put in an alternative form saying order or decision. In either case, it must be in the nature of punishment for contempt. If the expression 'any order' is read independently of the 'decision' then an appeal shall lie under Sub-section (1) of Section 19 even against any interlocutory order passed in a proceeding for contempt by the High Court which shall lead to a ridiculous result. 29. It is true that some of the High Courts viz., in Ch. Vasudeva Sharma v. Executive Officer T.T.D. Tirupati reported in 1997 Cri LJ 3429, in Kundan Ram v. Darshan reported 1997 Cri LJ 473 and Major S. Veeraswamy v. Management of Andhra Special and Cultural Association reported in 1997 (4) Serv LR 440 (Mad) have held that no appeal is maintainable unless the contemner has been punished. But with greatest respect to the Ld. Judges, we are of the opinion that such an extreme view is not comprehended. Some of the said decisions have also been rendered in different fact situation. 30. In Allahabad High Court, in Vid Prakash Kapoor v. Kamla Prasad Rai reported in 1997 AIHC 3836, held that no appeal lies both under the Contempt of Courts Act as also Clause 15 of Letters Patent. For the self same reason we, with respect, do not agree with the said view. 31. In Ch. Vasudeva Sharma (1997 Cri LJ 3429) (supra) the High Court refused to punish for contempt and thus as it did not exercise its jurisdiction and as such the order was held to be not applicable in terms of Section 19 of the Act. 32. In Major S. Veeraswamy (1997 (4) Serv LR 440) (supra) the contempt application was dismissed and an appeal against the said order was filed by the petitioner therein. In that situation the Apex Court held that the appeal is not maintainable observing: However, learned Counsel for the Appellant placed reliance on the decision of the Full Bench of this Court in Vidya Charan Sukla v. Tamil Nadu Olympic Association (1991) 2 Mad LW 295 : 1991 Cri LJ 2722. That was a case in which a certain order was passed and since that order was alleged to have been violated, a contempt application was filed. A sub-application was filed therein under Section 151 of the Code of Civil Procedure, in which the impugned order therein was passed. The Contempt Appeal No. 5 of 1990 preferred against that order was later converted into L.P.A. No. 123 of 1990 and the matter was referred to a Full Bench. It is, therefore, clear that in that case the Letters Patent Appeal was preferred against the order passed in the sub-application filed in the Contempt Application and not against the order, dismissing the contempt application. 33. Thus, in that case also it was held that in certain circumstances Appeal under Clause 15 would be maintainable. 34. In Vid Prakash Kapoor v. Kamala Prasad Rat reported in 1997 AIHC 3836, the appellant was held guilty of Contempt of Court Act, but without imposing punishment, liberty had been given to the alleged contemner to comply with the order of the Court. 35. Despite the said finding the Ld. Judge considered the merit of the matter and held that even on merit no case had been made out for interference with the order. In that case also the points which have been considered by us had not been considered by the Ld. Judge. We must also remind ourselves that Clause 15 of the Letters Patent has the force of a statute and provides for intra Court appeal to a Division Bench against any order or Judgment passed by a Ld. Single Judge. Thus if an order is passed which would be a 'Judgment' within the meaning of Clause 15, in certain circumstances an appeal may be maintainable in terms thereof. In any event, if it is held that a direction issued or an order passed although does not come within the purview of Section 12 of the Act, such an order can also be passed by the Court in exercise of its jurisdiction under any other act or its inherent power. It is now a trite law that an appeal under Clause 15 of the Act would be maintainable if the same is not barred either expressly or necessary implication by any statute made by the Parliament. Thus, although an order may not come to the purview of Section 12 of the Act, but if these by a 'Judgment' have been rendered would be entitled to prefer an appeal in terms of Clause 15 of the Letters Patent of this Court. 36. In Ashoke Kumar Rai v. Ashoke Arora reported in (1992) 96 Cal WN 278, the Division Bench of this Court, inter alia, held: Now, if the scope of appeal under Section 19 is restricted only to punishment imposed under Section 12 and to nothing else, then a person who in a given case might have been refused bail under Sub-section (4) of the Section 14 would have no right to appeal against such refusal of bail pending the determination of charge of contempt. The consequence and effect of detention in custody pending determination of charge of committing contempt in the face of the Court is virtually the same as the punishment itself and may be even more onerous than a punishment by way of fine alone. To deprive the alleged contemner of the right of appeal even where bail is refused or a bond of excessive sum of money, in a hypothetical case, is demanded for his release on bail will, in our opinion, defeat to a large extent the very purpose of making provision for appeal to give relief in appropriate cases. It is needless to mention that detention in custody under Section 14 pending determination of the charge is not a punishment envisaged under Section 12, because such detention is made under Section 14 and not under Section 12 and also because the pre-requisite of a punishment is the judicial determination of guilt on hearing whereas detention in custody pending determination of charge is a stage anterior to such judicial determination of the charge. There is therefore no scope for argument that detention in custody pending determination of charge is also a form of punishment under Section 12 and is therefore appealable under Section 19. If, it is appealable as indeed it is, it is so not because it is a punishment which it cannot be, but because it is the consequence of an order (of detention) passed in exercise of the jurisdiction to punish. An order of attachment of property of the contemner passed under Section 17 where the Court is satisfied that a person charged under Section 15 is likely to abscond or to keep out of the way to avoid service of notice, is also not an order of punishment within the meaning of Section 12, but is fraught with severe consequence. To hold that Section 19 is attracted only where any punishment in terms of Section 12 is imposed is to deprive appeal against an order of attachment under Section 17. 37. It was further observed, inter alia: "In Baradakanta v. Orissa High Court , it has been observed that only those orders or decisions in which some point is decided or finding is given in the exercise of jurisdiction by the High Court to punish for contempt are appealable under Section 19, but the order under consideration in the said case was not such an order or decision. It being an interlocutory order pertaining purely to the procedure of the Court and all that the order in question said was that all the points arising in the case, including the one of maintainability of the proceeding would be heard together. So this decision of the Supreme Court like its earlier decision in (supra) does not say that except punishment no other order or decision is appealable under Section 19 of the Contempt Act, 1971. On the other hand, it formulates the proposition that only those orders or decisions in which some point is decided or finding is given in the exercise of jurisdiction by the High Court to punish for contempt are appealable. The distinction between the two Baradakanta cases, it may be noticed, is that in the former one, namely, the one , the appeal was preferred against an order refusing to initiate contempt proceeding while in the later case, namely, the case , the appeal was preferred against an order passed subsequent to the initiation of the contempt proceeding. In the former case the appeal was held not maintainable on the ground that the exercise of jurisdiction to punish for contempt commences with the initiation of the contempt proceeding and not earlier and in the later case an order which-was passed after the initiation of the contempt proceeding but in which no point was decided or finding was given in the exercise of such jurisdiction was found not appealable, the impugned order in that case being an interlocutory order pertaining purely to the procedure of the Court." 38. The Division Bench came to the conclusion that a final order will surely be an appealable one. The Division Bench also distinguished the decision in D.N. Taneja v. Bhajan Lal reported in (1988) 3 SCC 26, inter alia, holding: 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 exercise 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 contemner, 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. 39. Punishment in our opinion is not confined only to detention of a person or imposition of fine. A direction to do a particular thing in a particular way would come within the purview of the said terminology. A statute has to be read reasonably. Effort must be made to give effect to every word employed therein. In any event curtailment of a right of appeal cannot be presumed. 40. In Ashis Chakraborty v. Hindustan Lever Sramik Karmachari Congress reported in (1992) 96 Cal 673, it was held: We are, however, not oblivious of the fact that Section 19(1) does not merely speak of an appeal lying only against punishment for contempt but uses the expression that an appeal lies from an order or decision passed in exercise of the jurisdiction to punish for contempt. As regards the meaning of the expression "any order or decision". We understand a variety of orders and decisions that may be passed by a Court in exercise of its jurisdiction to punish for contempt. Our own High Court in (1981) 2 Cal HN97, Ranjit Chatterjee v. Rambadan Choubey held that if the order or decision prejudicially affects a party, he has indeed a right of appeal. If no other order of punishment was to have been appealable there would have been no necessity of using the words "any order or decision" in the expression "the execution of punishment or order appeal against" as used in Section 19(2)(a) of the Act. If the scope of appeal under Section 19 if restricted only to punishment imposed under Section 12 and nothing beyond then a person who is ex facie found guilty of contempt under Section 14 and is detained in custody pending the hearing on the charge of contempt and is refused bail would have no right of appeal against such refusal of bail pending the decision on the charge of contempt which will amount to deprive the alleged contemner of the right of appeal in such circumstances, if in the case of such an exigency where he is directed to be released on a particular bond which is found to be much excessive his right is to be defeated to a large extent and the very purpose of making provision for appeal to give relief in appropriate cases will be lost. We are of the clear view that while the contemner is detained in custody under Section 14 pending determination of the charge there is no punishment imposed on him as yet under Section 12. The contention of Mr. Mukherjee is that the detention in such circumstances would also be a form of punishment under Section 12, is really untenable. The legislature in its wisdom does not use surplus words but obviously uses such words which would advance its object and would remove the mischief of ambiguity. We have exhaustively dealt with all the contingencies in this regard over appealability or otherwise of an order or decision in Ashoke- Kumar Rai v. Ashoke Arora F.M.A.T. No. 2146 of 1991 decided by us on 17-12-91 (reported in 1992 (96) Cal WN 278) to hold that even though it was stated in D.N. Taneja v. Bhajanlal (1988) 3 SCC 26 that unless a punishment is imposed no appeal lies against it, at best, relates to a case of criminal contempt and nothing beyond and if any order or decision is arrived at deciding any bone of contention or any issue in the controversy an appeal lies. 41. In Jaydev Shrichand Danani v. State of Gujarat the Apex Court has held that the sentencing by mere probability would be hazardous. 42. We have dealt at some considerable length, as above, as to the right to file appeal under Section 19 of the Contempt of Courts Act, 1971 because in the nature of directions issued, which are subject-matter of the appeals before us, one of the main questions for consideration is whether the instant appeals are maintainable. It is for the selfsame reason that we have heard the matters analogously. 43. Let us now, keeping in view the legal position as above, deal with individual appeals. MAT No. 2442 of 1998 with MAT No. 2607 of 1998 44. The instant appeals are preferred against an order dated 19-6-1998 and 25-6-1998 passed by a learned single Judge of this Court in C.R. No. 3095(W) of 1990. 45. The appellants herein are not parties to the said writ petition being C.R. No. 3095(W) of 1990. The writ petitioners had filed the said writ petition in respect of a vast extent of land of about 274.36 acres in Mouza Tentulia Abad, P.S. Haroa, About 15 writ applications were filed being C.R. Nos. 3095(W) of 1990 to C.R. No. 3109(W) of 1990. In this bunch of writ applications the learned Judge issued various interim directions on several dates. One such order being dated 23rd March, 1998 whereby Rule Nisi was issued and till disposal of the said Rule the State and its agents were restrained from initiating any proceeding for determination of the holding of the writ petitioners and also passing any order of vesting and from creating any disturbance in the possession of the petitioners over the land in question. 46. Alleging contemptuous disregard of the said order on the part of the respondent authorities, the writ petitioners filed application for Contempt of Court against the respondent authorities. The learned trial Judge by orders dated 19th June, 1998 and 25th June, 1998 directed inter alia for police posting at the cost of the writ petitioners in and around the tank fisheries to prevent trespassers or from causing any disturbance in respect of the possession of the petitioners. 47. The learned trial Judge by his order dated 25-6-98 directed as under:-- Be that as it may, I make it clear that in view of my order dated 23rd March, 1990, the writ petitioners' possession in the disputed tank fisheries are to be protected by the alleged contemnors at any cost and in the manner as aforesaid. The alleged contemnor Nos. 2 and 3 are directed to see that this order is fully carried out by them and if necessary they themselves would make regular patrolling for the said purpose. 48. Again on the complaint of the writ petitioners that despite the said order dated 19-6-98 the alleged contemnors Nos. 2 and 3 have not complied with the same, the learned Judge passed the following orders:-- Considering the respective contentions of the learned advocates, I only say that the alleged contemner Nos. 2 and 3 would cause the greatest blunder of their lives if they intend to show any disrespect to the Court's orders and if really they have violated and/ or not acted in terms of the Court's order dated 19-6-98 in any manner whatsoever. May God help them: I, however, make it clear that police pickets to be posted as per the said order of the Court dated 19-6-98 would be at the cost of the petitioners. The respondents Nos. 2 and 3 after posting police pickets as stated above, should assess the cost as per law and inform the same to the petitioners who would pay the same within three days thereafter against proper receipts. 49. By a further order dated 17-7-98, the Court issued further interim directions for police pickets as under:-- Considering the facts and circumstances of the case I direct that let there be police pickets posted to see that no disturbance takes place in or around the disputed tank fisheries, and also no untoward incident happens, at the cost of the petitioners. The petitioners, first of all, would apply for such police pickets before the present S.P. 24-Paraganas (N), Mr. Kuldeep Singh and would also specify the number of police personnel required for the purpose as above and after receiving such application, the police authorities shall specify the cost within a period of 48 hours from the date of receipt of such application and should deploy the police pickets within a period of 72 hours from the date of deposit of such cost in the District/Treasury. Apart from this, the S.D.P.O. and the O.C. concerned are also directed to give regular mobile patrolling to see that no untoward incident takes place in or around the disputed tank fisheries. 50. It must be stated here that the appellants herein are not the respondents or alleged contemnors but according to them, they are persons aggrieved by the said orders more particularly the orders dated 19-6-98 and 25-6-98, in that their right of enjoyment and possession over the land in question has been seriously jeopardised and by subsequent orders dated 17-7-98 and 27-7-98 whereby police protection has been afforded to the writ petitioners seriously affecting the rights of the appellants. 51. From the narration of facts as above, it will be seen that the learned trial Court has directed implementation of its orders. The appellants are neither parties to the writ application nor any orders or directions have been passed in relation to the appellants. It cannot be denied, that the submissions of the appellants that by the aforesaid directions certain rights of the appellants are affected with respect to their alleged enjoyment over the land in question. The said orders in the writ petition were passed behind the back of the appellants and they are not parties to the writ application. The appellants, in our view, are not remediless. They are aware of the orders passed by the Court and if any rights which they claimed are prejudicially affected, it is for them to seek appropriate reliefs by impleading themselves in the writ application and seek modification, variation or revocation of the interim orders. There cannot, however, be any doubt that by reason of the impugned order, the right of the appellants are not affected and, thus, for protecting their rights they can take recourse to such remedies as are available to them in law. 52. The appellants may also if so advised make appropriate applications to implead themselves to the writ applicants and seek modification/revocation of the orders dated 23-3-1998. We accordingly find no merit in the appeals and the same are dismissed with liberty to the appellants as aforestated. F.M.A.T. No. 2566 of 1996 53. The instant appeal is directed against an order dated 19-7-96 inC.O. No. 19023(W) of 1992 and CO. No. 18823(W) of 1992 by a learned single Judge. 54. The said writ applications being CO. No. 19023(W) of 1992 and CO. No. 18823 (W) of 1992 were disposed of by a common order dated 3-9-1993. By the said order, the Director of School Education was directed to consider the claim of the writ petitioners' institution for initial recommendation of the Junior High School. The Director of School Education was required to consider the report submitted by the District Inspector of Schools, S. E. Dakshin Dinajpur and to dispose of the claim of the petitioner within a time -- frame and if it is otherwise viable recommend to the appropriate authority, i.e. West Bengal Board of Secondary Education who should process the matter and consider the claim of the writ petitioners and members of the public within 30th December, 1993. The West Bengal Board of Secondary Education rejected the claim of the writ petitioners for recognition of the school. Alleging violation of the order passed in the writ petition, applications were filed for initiating contempt proceedings. The Principal Secretary, School Education Department, Govt. of West Bengal, was summoned to Court and he submitted a report dated 17-7-96, relevant portion of which has been extracted in the order under appeal dated 19-7-96 and is extracted hereunder:-- That though the school did not fulfil a number of basic conditions for getting first recognition and though the Director of School Education did not recommend for giving recognition to the school in his order dated 22-12-93, I, in consideration of the fact that the school located in predominantly scheduled caste/scheduled tribe area as also keeping in view that the Inspecting Officer recommend for consideration of recognition of the school, I recommend the case of Trimohini Chandradeep Girls' Junior High School, Dakshin Dinajpur in the concluding paragraph of my observation dated 5-7-95 to the West Bengal Board of Secondary Education for the consideration of recognition. The learned Judge by his impugned order considered the same to be a reasonable assessment and recommendation for recognition of the school in question and thereupon passed the following under:-- I direct the Board of Secondary Education, to reconsider the claim of the petitioner for recognition of the school on the basis of the recommendation of the Principal Secretary, School Education, Govt. of West Bengal. The earlier decision of the Board of Secondary Education dated 22nd August, 1995 is hereby set aside. I direct the competent authority, West Bengal Board of Secondary Education, to accord recognition of the school in terms of the recommendation of the Principal Secretary, School Education Deptt, Govt. of West Bengal. 55. Being aggrieved against the said direction, appellants have preferred the instant appeal. A bare perusal of the direction extracted (supra) in the order under Appeal would show that the directions are in the mandatory form directing the statutory authority to accord recognition of the school in question. Whether such a direction can be issued by the Court is concluded by a judgment of the Supreme Court in the State of West Bengal v. Nuruddin Mallick , wherein at paragraph 28, it was, inter alia, held (Para 28 of AIR):-- It is not in dispute in this case that after the management sent its letter dated 6-8-1992 for the approval of its 21 staff, viz., both teaching and non-teaching staff, both the District Inspector of Schools and the Secretary of the Board sought for certain information through their letters dated 21-9-1992. Instead of sending any reply, the management filed the writ petition in the High Court, leading to passing of the impugned orders. Thus, till this date the appellant-authorities have not yet exercised their discretion. Submission for the respondents was that this Court itself should examine and decide the question in issue based on the material on record to set at rest the long standing issue. We have no hesitation to decline such a suggestion. The Courts can either direct the statutory authorities, where it is not exercising its discretion, by mandamus to exercise its discretion, or when exercised, to see whether it has been validly exercised. It would be inappropriate for the Court to substitute itself not the statutory authorities to decide the matter. 56. As to the maintainability of the appeal against the said order being not one whereby any punishment or fine has been imposed. We are of the view that although the said order does not come within the purview of Section 12 of the Act, a direction having been issued by reason of the impugned order the same would be an appealable order. Furthermore, the impugned order shall be a judgment affecting the rights of the parties. The person aggrieved, appellant in the instant case, for the reasons already stated (supra) and also entitled to prefer an appeal in terms of Clause (15) of the Letters Patent of this Court. We accordingly hold that the instant appeal is maintainable and reject the contention of the respondents to the contra. In the light of the Judgment of the Supreme Court in Nuruddin Mallick's case stated (supra), we are of the view that the order under appeal cannot be sustained and if the writ petitioners were aggrieved by the order of rejection passed by the West Bengal Board, their remedy was by way of seeking judicial review of the said order by filing writ application and not invoking the contempt jurisdiction. Reference in this connection may also be made to J.S. Parihar v. Ganpat Duggar . Accordingly, the appeal is allowed and the order dated 19-7-96 be and is hereby set aside. F. M. A. T. No. 1623 of 1999 with F. M. A. No. 346 of 1993 57. The instant appeals are directed against an order dated 20-9-1991 passed'by a learned single Judge in Civil Order No. 3947(W) of 1990. 58. The respondents basing upon an agreement dated 1st October, 1990 claimed that they were inducted as monthly tenant in respect of the ground floor space measuring about 3650 square feet at premises No. 131A, Rash Behari Avenue, Calcutta under Sunbeam Trading Co. Pvt. Ltd. being pro forma respondent in the contempt application filed under Article 215 of the Constitution of India. The respondents instituted a Suit being Title Suit No. 545 of 1990 in the Court of learned Munsif, 2nd Court at Alipore praying, inter alia, for a declaration that the plaintiffs are tenants in respect of the plaint scheduled property and are entitled to enjoy the same without hindrance or interruption by the defendants and for permanent injunction restraining the defendants from in any way interfering with the possession of the plaintiffs. 59. On the application being moved before the learned 2nd Munsif at Alipore, in view of the caveat filed by the appellants herein being respondent Nos. 1 and 2 in the said injunction application, the learned Judge did not pass any order. 60. Aggrieved against the same the petitioners moved an application under Article 227 of the Constitution of India being C. O. No. 3947 of 1990 praying inter alia, for an order of injunction and ad interim injunction. A learned single Judge of this Court disposed of the said Civil Rule by an order dated 24th December, 1990 directing the learned Munsif at Alipore to dispose of the said injunction application by 15th January, 1991 and directed the parties to maintain status quo in respect of the possession of the parties in the said premises till the disposal of the said injunction application. 61. Brief facts of the controversy between the parties need to be noticed. 62. The property in question is the ground floor premises which admittedly belongs to the appellants herein -- alleged contemners who was hereinafter referred to "as Duttas". By an agreement between the Duttas and Sunbeam Trading Co. Pvt. Ltd. (hereinafter referred to as "the Sunbeam"), the latter agreed to develop the property by raising a new construction after dismantling the existing building. Sunbeam was further authorised to let out different parts of the building reserving a specific space for the Duttas. The respondents herein -- plaintiffs in the suit referred to (supra) B. D. B. S. Associates Ltd. (for short BDBS) claiming that they had been inducted by Sunbeam with approval of Duttas on 1-10-1990. 63. The contention of Duttas is that BDBS (plaintiffs) were never in possession of the ground floor of the premises in question as claimed by them. That Duttas were all along in possession of the premises in question and Sunbeam had neither authority nor right to sub-let the said property as claimed. The premises in question is car parking space for the occupiers' tenants of the premises as per the Municipal sanctioned plan. 64. Alleging the violation of the order dated 24-12-90 passed by the learned single Judge in C. O. No. 3947(W) of 1990 directing the parties to maintain status quo an application for punishing the appellants for Contempt of Court was filed. That application was disposed of by an order dated 20-9-91. 65. The learned Judge by his order under appeal dated 20th September, 1991 arrived at the finding that "from the materials on record it can safely be said that the petitioner was in possession of the disputed premises." Learned Judge also recorded that there is no controversy that the appellants alleged contemners were in possession of the disputed premises on 8-2-91 and this fact proves that the alleged contemners entered into the possession of the disputed premises on 8-2-91 in violation of the High Court's order. In that view of the matter following directions were issued by the learned single Judge ; The alleged contemners must purge out the contempt, it is admitted by all the parties to the proceeding that Sunbeam has initiated an action for specific performance of contract against the Duttas. It is also admitted that in a Misc. Appeal pending in the High Court two Receivers have been appointed. In the said Suit or Misc. Appeal, the petitioner is no party. Since the Receivers are in possession of the property, the petitioner is granted leave to move the Court for a leave to the Receivers to deliver possession of the disputed premises to the petitioner. No further action against the alleged contemners is necessary in this proceedings. 66. Thus, in this case there is a clear finding to the effect that the appellants have committed contempt of the Court, where upon only the impugned directions have been issued. 67. Aggrieved against the said order the appellants have preferred the instant appeal being F. M. A. T. No. 3102 of 1991, F. M. A. No. 346 of 1993. 68. It must also be stated here that Sunbeam filed a suit for specific performance of the agreement dated 21-3-86 and 25-9-86 beingTitle SuitNo. 9of 1991 on the file of the 2nd Munsif, Alipore. The application filed by Sunbeam for an ad interim injunction in the said Title Suit No. 9 of 1991 was rejected by an order dated 5th February, 1991 (alleged dispossession as found by the learned Judge in the order under Appeal is on 8-2-1991). 69. An appeal F.M. A. No. 417 of 1992 (F. M. A. T. No. 640 of 1991) was filed by Sunbeam aggrieved against the order dated 5-2-1991 in T. S. No. 9 of 1991 and by an order dated 20th March, 1991 the High Court appointed Joint Receivers with direction to take possession of the suit premises and to hold the same till disposal of the appeal or until further orders of Court. In compliance with the said orders, the Joint Receivers took possession of the disputed property on 27-4-1991. 70. The said appeal being F. M. A. No. 417 of 1992 was disposed of by the Division Bench comprising of His Lordship Justice V. K. Gupta and Justice P.K. Sen who were pleased to remand the matter back to the Assistant District Judge for consideration of the injunction application and directed that the order should be passed by May 7, 1999 and that Joint Receivers would continue until such date. 71. By an order dated 6-5-99, the learned 10th Civil Judge, Senior Division, disposed of the matter rejecting the prayer of the plaintiff Sunbeam Trading Company Pvt. Ltd., for the injunction prayed for. 72. Aggrieved against the said order Sunbeam Trading Company has filed the appeal being F. M. A. T. No. 1623 of 1999. 73. A perusal of the order dated 6-5-99, would show that the plaintiffs have neither established the prima facie case nor the balance of convenience and the learned 10th Civil Judge, Senior Division, was of the view that the defendants have not created tenancy of the ground floor in favour of the plaintiff and that there is no documents of sub-tenancy or transaction of rent between the tenant and sub-tenant and that M/s. B. D. B. S. also do not appear to have taken any particular step to keep its possession or to show its manner of possession. 74. On behalf of the appellants, it was contended that the factum of possession would be established by the order of status quo on 24-12-90 passed by the High Court in the revisional application, which has noticed above, was passed ex parte. With regard to the ground floor, it was submitted that on a proper construction of the agreement dated 21-3-86 and agreement dated 25-9-86, appellant and its nominee would automatically become tenant after completion of construction of the building. This contention is sought to be controverted by the respondents by submitting that as per sanctioned plan, the ground floor premises is meant for car parking space and the question of tenancy thereof does not arise. The respondents had never delivered possession of the ground floor to the appellants and the question of the appellants becoming automatically tenant does not arise. It was further submitted on behalf of the respondents that the appellants have submitted revised plan for construction of show room and the office on the ground floor and the same has not been sanctioned by the Municipal Corporation. Attempts by the appellants to occupy the ground floor forcibly was resisted by the residents and the local people. 75. It is thus apparent from the rival contentions that in so far as the ground floor is concerned, the revised plan submitted by the plaintiff has not yet been approved by the C. M. C. and that as per the existing sanctioned plan, the ground floor premises are meant to be used for parking space. There is any amount of dispute with respect to the payment of the sum of Rs. 12,50,000/- with respect to proportionate share in the vacant land, appellants claimed adjustment with respect to the said amount. The revised Municipal plan though said to have been signed by the defendants/respondents, the same have not been approved as yet and are said to be lying with the Municipal authorities pending consideration. The user of the ground floor, until the revised Municipal plan is duly sanctioned and permission is granted for change of user, the same prima facie cannot be utilised for any purpose, other than its sanctioned user vis., parking space. Prima facie, therefore, we are inclined to accept the contention of the respondent-defendants and uphold the order of the learned 10th Civil Judge, Senior Division, rejecting the application for injunction. However, the rights of the parties until the adjudication of the disputes in the suit, have to be preserved so that neither party is prejudicially affected during the pendency of the suit. 76. Appeal being F. M. A. T. No. 1623 of 1999 and the stay application are accordingly disposed of with a direction that neither party to the said proceedings (Title Suit No. 9 of 1991) shall alter the nature of the suit property nor shall the suit scheduled property be used or utilised for any purpose other than the parking space/puja functions for the residents of the building in question. 77. F. M. A. T. No. 1623 of 1999 and the applications are accordingly disposed of with directions as above. 78. Now reverting to the appeal F. M. A. No. 346 of 1993 and the order passed by the learned Judge in exercise of the contempt jurisdiction dated 20-9-91 relevant portion of which has been extracted supra, it would be noted that after holding the appellants herein guilty of contempt, directions have been issued with a view to permitting the petitioners to "purge out" the contempt. It cannot be denied that the said order is one which earns within the purview of Section 12 of the Act holding the alleged contemners guilty of violation of the orders of Court and has been passed by Court in exercise of its contempt jurisdiction. 79. For the reasons already stated supra, we hold that the appeal is maintainable against the said order dated 20-9-91 under Section 19 of the Act being one having been passed in exercise of the contempt jurisdiction. 80. With respect to the directions issued by the learned Judge in the order under appeal, it was submitted by the learned counsel for the respondents that the Court in exercise of its contempt jurisdiction is entitled to enforce compliance with its directions and that the directions issued are in exercise of that jurisdiction and do not warrant interference. 81. There can be no dispute with the proposition that the Court in exercise of its contempt jurisdiction is entitled to enforce its orders and an enquiry can also be held with respect to the violation alleged with a view to ascertaining whether there has been such violation or wilful and deliberate violation of the order of Court. 82. The question, however, was whether the order of status quo was violated wilfully and deliberately. The learned Judge while disposing of C. O. No. 3947(W) of 1990 by orders dated 24-12-90 as noted above, left the question as to whether B. D. B. S. was in possession and whether a prima facie case was made out by them for grant of injunction and also whether the balance of convenience lay in their favour to be decided in the injunction application. The Court had not arrived at any finding on these issues nor as to the factum of the person in possession on that date. 83. In the order under appeal, however, the learned single Judge as noted supra, came to the conclusion that the respondent was in possession of the disputed premises and that there was no controversy that the alleged contemners were in possession on 8-2-91 and thereby concluded that the alleged contemners entered into possession on 8-2-91 in violation of the Court's order. 84. In our view, the said conclusion is based on surmises and conjectures. The respondents-petitioner in the contempt proceeding were denied the injunction prayed for by an order dated 5-2-91 by the Court below and even in the appeal F. M. A. No. 417 of 1992 filed by Sunbeam against the order dated 5-2-91 rejecting their application for injunction wherein the Joint Receivers BDBS in the contempt proceeding was not a party to the said appeal which emanated from an interlocutory order passed in the suit filed by M/s. Sunbeam Trading Co. through whom the petitioner therein B. D. B. S. was claiming possession, itself had been denied the ad interim injunction as prayed for. There was, therefore, no occasion or any valid reason to direct the appellants herein to purge out the contempt. As already noticed the injunction application filed by M/s. Sanbeam Trading Co. has been rejected by the Court below and which has been upheld by us with the appeal F. M. A. No. 346 of 1993 and set aside the order dated 20-9-1991. M.H.S. Ansari, J.
85. I agree.