Karnataka High Court
Ladies Corner, Bangalore vs State Of Karnataka And Anr. on 15 April, 1987
Equivalent citations: ILR1987KAR1710, 1987(1)KARLJ402
JUDGMENT K.A. Swami, J.
1. In this contempt of Court case, the accused No. 2 is one Sri K. S. Ullasa son of K. M. Somappa, Circle Inspector of Police, Yeshwanthpur Sub-Division, Bangalore-22 (hereinafter called the accused). State of Karnataka is arrayed in the contempt petition as Accused 1. No offence of contempt is alleged against the State of Karnataka.
The allegations on which the complaint of contempt was brought, briefly stated, are : that the complainant claimed to be tenant or sub-tenant in occupation of a shop in Bangalore of which the Central Muslim Association was the landlord. The complainant brought a suit in O.S. No. 3214/1982 in the City Civil Court, Bangalore, against the said landlord and sought and obtained an order of temporary injunction dt/- 4-11-1982 against the complainant's dispossession from the shop. Despite this order which was duly both to the landlord and the accused the latter in contemptuous disregard of that order, proceeded on 6-11-1982 to lock and seal the shop thereby nullifying the court's order but passed an order of his own dt/- 9-11-1982 by which he virtually granted a counter-injunction in favour of the landlord and order that complainant shall not enter upon the shop.
To complete the narration, it would be necessary to notice that the landlord had claimed to have resorted to extra-judicial resumption of possession with the help of some police of the same police station on 30-10-1982. There were some protests against the acts of the police and the Accused had issued notices to the parties to appear before him. It was then that the complainant filed the suit and obtained the possessory remedy of an order of injunction. But the accused instead of taking his hands-off the matter when once a judicial order, inter partes had supervened, persisted in his own proceedings, sealed the shop and passed an order dt/- 9-11-1982 granting virtually an injunction against the complainant. The judicial order became ineffective. The accused, thought that the complainant had obtained the order of injunction suppressing truth and directed prosecution of the complainant, even before his case was examined by the Civil Court.
The learned Government Advocate who originally entered appearance for the 2nd accused frankly stated that the conduct of the 2nd accused-police officer could not be defended. However, as the second-accused wanted to defend his action and sought - and was granted - leave to engage another counsel of his choice. That is how Sri M. R. Janardhana, learned counsel entered appearance for the accused. Sri S. V. Jagannath, learned Government Advocate who appeared for the Government which had also been impleaded in the proceedings, submitted that the Government does not defend the action of the accused. However, as the accused sought to justify his action and desired to defend himself, the matter had to be tried and decided on the merits.
The Charges framed under Section 12 of the Contempt of Courts Act, 1971, (hereinafter referred to as the 'Act') were :
"Charge-i : On 6-11-1982 interfered with and obstructed the due course of judicial proceedings in O.S. No. 3214 of 1982 (M/s. Ladies Corner v. Muslimi Association, Bangalore and another), pending on the file of the 9th Additional City Civil Judge at Bangalore, in that, in spite of the order dt/- 4-11-1982 made by that court granting the possessory remedy of temporary injunction in favour of the complainant-plaintiff in respect of the premises concerned in that suit, you, in spite of that injunction order having been brought to your notice, acted in aid of the interests of the defendant in that suit and denied the complainant-plaintiff, by threats and by physical force, the benefit of that order of temporary injunction by locking up the suit premises, putting your seal on the locks and taking away the keys and in warning the complainant-plaintiff not to enter upon the suit premises; and that Charge-ii : You lowered the authority of the court of the 9th Additional City Civil Judge, Bangalore, and interfered with the administration of justice by your order No. YSD/CC/1271/1982 dt/- 9-11-1982 in which you permitted yourself to sit in judgment over and criticise the order of temporary injunction dt/- 4-11-1982 made by that Court in O.S. No. 3214 of 1982 and in commenting on the conduct of the parties thereto."
2. The accused pleaded not guilty. He was tried. In support of the charges, four witnesses - P.Ws. 1 to 4 are examined and the documents are produced by the complainant.
The accused led defence evidence and examined four witnesses - D.Ws. 1 to 4 - and produced one document. In addition to this, the complainant and the accused have produced certain documents along with the complaint and the objections respectively. One of them is the order dt/- 9-11-1982 bearing No. YSD/CC/1271/82 passed by the accused. This order is the basis for the second charge.
3. We have heard Sri K. G. Raghavan, learned counsel for the complaint and Sri M. R. Janardhana, learned counsel for the accused. We have been taken through the allegations of the complaint and the defence of the accused as reflected from the complaint and the objection and the evidence on record.
4. Charge No. i : According to this charge, on 6-11-82, the accused interfered with and obstructed the due course of judicial proceedings in O.S. No. 3214 of 1982 filed by the complainant against the "Central Muslim Association of Karnataka", Muslim Hall, Arcot Srenivasachar Street, Bangalore City and one J. Javed Ahmed of Yeshwanthpur, pending on the file of the IX Additional City Civil Judge, Bangalore. The substance of the charge is this : That in spite of the fact that the order of temporary injunction passed by the aforesaid court on 4-11-1982 in favour of the complainant in respect of the premises concerned in the suit, was brought to the notice of the accused, (i) he acted in aid of the defendants therein and denied the benefit of the order of temporary injunction to the complainant by (a) threats, (b) physical force (c) putting his seal on the locks of the premises : (d) taking away the keys; and (e) further warning the complainant who was the plaintiff in the suit, not to enter upon the suit premises.
5. The case of the complainant is that since 1970, he has been in possession of the shop No. 26 (re-numbered as No. 27/19) forming part of the Sheriff-Building, I Main, Market Road, Yeshwanthpur; that he has been running the business in the premises under the name and style 'Ladies Corner'; that the possession of the suit premises was obtained by him through Sri J. Javed Ahmed; that he was obtained the certificate under the Shops and Commercial Establishments Act, 1961; and he is a sales tax assessee and that the rent is being paid to the owner Sri J. Javed Ahmed regularly and up-to-date by means of cheques; that the accused issued notice in the purported exercise of power under Section 149 of the Cr.P.C. on the basis of the complaints alleged to have been made by the Central Muslim Association in respect of the aforesaid premises; that no decree for possession is obtained by the Central Muslim Association is respect of the aforesaid premises against the complainant; that there were attempts to dispossess the complainant unlawfully, therefore, suit - O.S. 3214/82 was filed by him on 4-11-82 in the Court of the IX Additional City Civil Judge, Bangalore City, for a permanent injunction restraining the defendants therein (Central Muslim Association and Sri J. Javed Ahmed), either directly or indirectly by their servants, agents and others in interfering with the peaceful possession and enjoyment of the suit schedule premises by the complainant, that in that suit, an order of temporary injunction was passed on 4-11-1982 restraining defendants therein from interfering with the possession of the complainants over suit schedule premises; that this order of temporary injunction passed by the IX Additional City Civil Judge, Bangalore City was brought to the notice of the accused through the letter of the complainant's counsel; that in spite of that the accused, on 6-11-1982, went to the suit premises super-imposed his own locks, put a seal on the locks and took away the keys with him; that in spite of the request made by the complainant to deliver the keys as there was an order of temporary injunction passed by the IX Additional City Civil Judge, Bangalore, the accused refused to deliver the keys unless there was an order of the Court directing delivery of the keys to the complainant; that thus the accused knowingly acted contrary to and in violation of the order of temporary injunction and brought the business of the complainant to a standstill; that the accused intimidated the son of the complainant by keeping him in the police station for nearly 4 to 5 hours. Thus the accused had committed the acts of criminal contempt.
6. The accused has filed two statement of objections - one on 11-1-1983 along with nine documents marked as Annexures-A to H and J, and again on 17-2-1983, the accused has produced four more documents marked as Annexures-K to N. Originally before the order dt/- 9-11-1982 was brought to the notice of the court, it was made to appear that the acts of the accused were the result of a bona fide impression that the premises concerned in the suit and the premises locked by the accused were different. At that stage, on 16-12-1982 an order was made directing the accused to furnish particulars in this behalf. But the matter took an altogether different dimension after the order dt/- 9-11-1982 which indicated that the ignorance as to the identity of the premises covered by the injunction pleaded by the accused was not true.
The accused has also filed another statement of objections on the 18th November, 1983. The second objection is filed pursuant to the notice issued to the accused in compliance with the order dated 21-10-1983 to show cause as to why the observations made in his order dt/- 9-11-1982 bearing No. YSD/CC/1271/82 more specifically in paragraphs 9 and 10 of that order should not be held to amount to Contempt of Court of the IX Additional City Civil Judge, Bangalore City, before whom the Suit - O.S. 3214/82 is pending.
7. The case of the accused as revealed from his statement of objections dt/- 11-1-1983 is that he acted bona fide with the sole object of preventing any possible occurrence of cognizable or any offence; which was imminent at that time; that he has greatest regard for the authority and dignity of the Court; that the complaint is mala fide and is directed to harass the accused, who did not oblige the complainant; that he came to know the dispute between the complainant and the Central Muslim Association only on 2-11-1982 on the basis of the complaint of the Central Muslim Association dt/- 30-10-1982 addressed to the Sub-Inspector of Police, Yeshwanthpur, stating that one M. A. Jabbar had surrendered the premises in question (shop No. 27/19) on or about 22-8-1982 to the Central Muslim Association and that it had directed its supervisor to take delivery of possession and requested the police to give protection in case some trespassers were likely to intervene; that at that time the police was concerned only to prevent occurrences of any untoward incident happening in the locality; that the accused in order to prevent any such occurrence issued notice to M. A. Jabbar, Central Muslim Association and Ravi of Yeshwantpur as per Ex. P-2 on 2-11-1982, that there was a tense situation in the area in which the accused thought it appropriate to interpose under Section 149, Cr.P.C. and S. 65(d) of the Karnataka Police Act; that Ravi did not send any reply to that notice but he received notice from Sri. S. Shivasamy, Advocate, on behalf of Ravi as per Ex. P-3 stating that the City Civil Judge has granted an order of temporary injunction and as such not to interfere with the possession of Smt. Sarasamma - wife of the complainant - of the suit premises and to await further orders from the City Civil Court, that Central Muslim Association appeared through its representative and represented that it was already in possession of the premises No. 27/19 and requested for protection against high-handed action of the unauthorised persons; that the Central Muslim Association produced the panchanama dt/- 30th October, 1982 in support of its possession; that at that time the accused believed that there was no direction to the police by the City Civil Court to act one way or the other; that it was not the case of the wife of the complainant that the accused should forthwith drop the proceedings in view of the proceeding pending before the City Civil Court or that the accused was entering into the realm of the jurisdiction of the Civil Court; that the accused did not have the order of injunction; that between 2-11-1982 and 6-11-1982 the suit premises remain closed and nothing particular transpired in the interval; that on 6-11-1982 one person by name Ravi wanted to forcefully open the lock which the subordinate of the accused had sealed and he was brought to the police station, interrogated and was immediately let off with a warning not to meddle with the status quo; that the lock was sealed with the sole object of creating an impression of the presence of the police near the suit shop with a view to preventing offences without posting any constable; that the complainant took retaliatory attitude and sent a notice dt/- 7-11-1982 (Ex. P-5) which was received on the same date along with a copy of the order of temporary injunction (Ex. P-1) passed by the City Civil Court; that the complainant's wife and son started pestering the accused to put them in possession of the premises No. 27/19 having regard to an order of temporary injunction passed by the Civil Court; that on checking, he found that the premises mentioned in the order of temporary injunction was different; that under these circumstances, the accused passed the order dt/- 9-11-1982; that the accused did not intend to question the authority of the court; that it was not possible for him to dispossess one party and give possession to the complainant in the absence of a direction from the Court; that the assertion of the complainant that the old number of the premises was 26, was not based on any verifiable material; that the premises never had any such old number that the order of temporary injunction did not mention the premises number as 27/19; that the premises No. 26 mentioned in the injunction order reportedly owned by one T. S. Satyanarayana; and premises No. 27/19 situated several metres away from premises No. 26; that therefore, he came to the conclusion that the order of temporary injunction did not pertain to premises No. 27/19; that the accused had no axe to grind either way; that the tenor of the letter dt/- 4-11-1982 (Ex. P-3) written on behalf of the complainant to the accused, was that the accused should await further orders from the Civil Court and that what the accused did was to continue the status quo until something was heard from the Civil Court; that in the absence of any rule or direction, and when there was a prohibitory order of the Court, without any direction to the police, the accused acted in a bona fide manner to prevent the occurrence of offence by invoking the power under S. 149 of the Cr.P.C. and S. 65(d) of the Karnataka Police Act.
8. In his second statement of objections dt/- 11-11-1983, the accused has further contended that the order dt/- 9-11-1982 passed by him cannot be taken or viewed as amounting to contempt of court inasmuch as he never intended to challenge the authority of the court; that paras 9 and 10 of the order dt/- 9-11-1982 being part of the statutory proceedings, which he had bona fide commenced prior to the institution of the suit; that the accused found that the City Civil Court in its order of temporary injunction had not given any direction or mandate to the police to put the complainant (plaintiff in the suit) in possession of any premises much less by removing the Central Muslim Association from its possession of the premises No. 27/19; that the injunction order occurred to him as a prohibitive order of forbearance and not the one to act positively and implement it through the process of the police; that the accused applied his mind only to a limited question which seem to him material at that point of time; that it is now realised by the accused that the proper wording of the order of injunction would have been to recover the possession from the Central Muslim Association, as in the absence of such a mandate, the police would have over-stepped; that for want of enough skill on his part, the expressions employed in paras 9 and 10 of his order do not appear to be appropriate; that all that he meant was that the police could not construe the order of temporary injunction as a mandate to oblige the plaintiff; that enforcement of order of temporary injunction by the police arises only in the following circumstances;
(i) The injunction order should contain a mandatory order or direction requiring the police to do or omit to do certain act or acts;
(ii) The injunction order should be capable of disclosing the commission of a cognisable offence and causing the police to take cognizance under Section 154, Cr.P.C.;
(iii) The injunction order should come within the meaning of summons of warrant for service or execution by the police as per S. 65(a) of the Karnataka Police Act;
(iv) The injunction order issued by the Court should be referred to the competent authority (Commissioner of Police under Section 2(4)(a) of Karnataka Police Act) and the competent authority should get that injunction order implemented as per S. 65(a) of the K. P. Act; and
(v) The injunction order should come within the meaning of being implemented as a statutory duty of police as per S. 65(h) of the Karnataka Police Act;
that none of the above circumstances were present in the instant case, therefore, there was nothing left to be done by the police; that the accused at that point of time was acting upon two obvious fact-situation viz., firstly that the injunction order related only to premises No. 26 and not to premises No. 27/19 which led the accused to think that the plaintiff on the strength of the order of temporary injunction might try to reach premises No. 27/19 thereby resulting in serious threat to the law and order problem; and secondly prior to the passing of the order of injunction, factually the Central Muslim association had the actual physical possession of the premises No. 27/19; that it was in this background, the order dt/- 9-11-1982 was passed; that the accused never intended to do anything which would scandalise or tend to scandalise or lower or tend to lower the authority of the court; that he never dreamt of drawing up of the proceeding which would interfere or tend to interfere or obstruct or tend to obstruct with the course of judicial proceeding and administration of justice in any manner; that the judicial proceedings indeed are related to premises No. 26; that the accused had no mens rea to do anything which would obstruct the course of justice or result in contempt of court; that the fact that the accused himself produced the order went to show that he had no slightest idea of ever making anything in the region of contempt; that having issued the notice earlier, the accused bona fide thought that he would complete the proceeding promptly, therefore, he made the order; that the wording in para 10 of the order dt/- 9-11-1982 to the effect that the police were unable to act as per injunction order is an incorrect expression; that all that the accused meant was that the injunction did not enable the police to put the plaintiff in possession of the premises.
The accused did not realise that this was not a case where he is being found fault with for not acting in aid of the order of the Civil Court inter partes; but in openly acting against it by declaring that the order was unrelated to facts and ordering a counter injunction.
9. Thus the sum and substance of the defence of the accused is that though he was aware of the dispute between the Central Muslim Association and Mr. Ravi regarding the premises claimed to have been occupied by Mr. Ravi which according to Mr. Ravi had been taken from one Mr. J. Javed Ahmed; that the Central Muslim Association had no order of the Civil Court for taking possession of the premises; that the complainant had filed the suit against the Central Muslim Association and J. Javed Ahmed and had obtained an order of temporary injunction in respect of premises bearing old No. 26; that according to the Central Muslim Association, one M. A. Jabbar was the tenant of the premises bearing shop No. 27/19 which he surrendered; that on coming to know the injunction order, he went to the shop and put lock to the premises and took keys and refused to hand over the same until the court directed him to deliver the keys; that he detained the son of Ravi and released him after warning him; that the order dt/- 9-11-1982 did not amount to any criminal contempt though the wordings contained in paras 9 and 10 of the order were not appropriate; that there was no mens rea on his part to commit an offence of criminal contempt.
10. Having regard to the evidence on record, it is not possible to accept the plea of the accused that the order of injunction did not relate to the premises locked and sealed by the accused, merely on the ground that the number of the premises mentioned in the order of temporary injunction does not tally with the one referred to in the order dt/- 9-11-1982 bearing No. YSD/CC/1271/82 and the panchanama dt/- 30-10-1982 (Ex. D-1) and that there was a discrepancy in the boundaries. This is not a case which has to be decided on the basis of the aforesaid discrepancies. This is a case in which neither the Central Muslim Association nor the accused was having any doubt about the premises in respect of which dispute between the Central Muslim Association and Mr. Ravi was going on, and with a view to protecting the latter's possession, the wife of Mr. Ravi had filed the suit - O.S. No. 3214/82 - against the Central Muslim Association in the City Civil court and had obtained an order of temporary injunction on 4-11-1982 from the IX Additional City Civil Judge, Bangalore City. The premises concerned in the suit is the one situated in Shariff Building, I Main Market Road, Yeshwanthpur. Shariff Building belongs to Central Muslim Association and it is in this building, even according to the accused, premises No. 27/19 is situated. It is not the case of the Central Muslim Association or that of the accused that Ravi is the tenant of more than one premises in Shariff Building belonging to Central Muslim Association. The accused was fully aware of all these facts when he issued notice dt/- 2-11-1982 as per Ex. P-2 to Mr. Ravi and locked and sealed the premises on 4-11-1982 as otherwise, there was no need to issue notice to Mr. Ravi. The following statement contained in the order dt/- 9-11-1982 places the matter beyond any doubt that the accused knowing full well that the injunction order related to the premises in question, which according to the accused, shop No. 27/19 and not No. 26, is the one concerned in the suit and is the subject-matter in dispute between the Central Muslim Association and Mr. Ravi :
"Whereas, the Circle Inspector of Police Yeshwanthpur came to know through the statements of the above three persons that shop No. 27/19 had been let out for rent to one M. A. Jabbar long back and he was enjoying the same and about 10 years ago, M. A. Jabbar was said to have let out the said shop to one Ravi by receiving a sum of Rs. 10,000/- from him as a sub-tenant and M. A. Jabbar died on 10-7-1977. After the death of M. A. Jabbar, his son Sri M. A. Siddiq Ahmed addressed a letter to the President of the Central Muslim Association on 22-8-82 stating the shop No. 27/19 was held by his father and it was handed over to one Ravi during the year 1976 and he has been the actual payer of rent and the shop has been kept closed for two years as Ravi has gone to Dubai for business purpose and Siddiq Ahmed has suggested to accept Rs. 10,000/- from Ravi as donation and to transfer the shop to him, and he surrendered the shop to the President of Central Muslim Association.
As the shop was surrendered by Siddiq Ahmed son of late tenant viz. M. A. Jabbar, the General Secretary of the Central Muslim Association instructed the supervisor and report compliance and accordingly the supervisor took possession of the shop as explained above."
The aforesaid statement probabilises the grievance of the complainant that the accused colluded with the Central Muslim Association to dispossess the complainant. Not only this, the accused even went to the extent of directing the P.S.I. Yeshwanthpur Police Station to examine issue of prosecution of the complainant under Sections 174, 177 and 193, I.P.C. for what the complainant had stated in the proceedings before the court. The accused, no doubt, knew that the premises concerned in the suit and in the proceeding before him was one and the same. This is clear from para 13 of the order dt/- 9-11-1982 which is as follows :
"13. Further, Sri Ravi or his wife or his children, agent or servants are hereby warned that in case they meddle with the shop No. 27/19 already in occupation of Central Muslim Association they would be dealt with under Section 107 of Cr.P.C. and S. 55 of the Karnataka Police Act, and they are hereby advised to seek redress in the civil suit already field by them."
11. The Main defence of the accused is that the injunction order did not related to the shop premises bearing No. 27/19 forming part of Shariff Building but it related to No. 26 and the description of the boundaries of the shop concerned in O.S. No. 3214/82 and the temporary injunction order passed therein did not tally with the boundaries of the shop premises bearing No. 27/19. Therefore there was no violation of the order of temporary injunction committed by him in assisting or supporting the Central Muslim Association to maintain itself in possession of the shop premises by locking up the same, putting the seal on the locks and taking away the keys, and further warning the complainant-plaintiff not to enter upon the shop premises.
The bona fides and validity of this defence, in turn, depends upon the fact whether the accused and the parties to the civil suit had at all any doubt as to the identity of the shop premises which was concerned in the suit and the one concerned in Case No. YSD/CC/1211/1982 initiated by the accused.
The evidence of P.W. 1 who is the son of the proprietor of the business carried on under the name and style of 'Ladies Corner' in shop No. 26, Shariff Building, which is the shop in question, is that the shop No. 26 is renumbered as shop No. 27/19 and it is in this shop that the business under the name and style of 'Ladies Corner' was being carried on by his father since 1965 and in his absence by his mother; that the Central Muslim Association tried to break open the locks; therefore his mother approached the City Civil Court in O.S. No. 3214/82 and obtained an order of temporary injunction on 4-11-1982 as per Ex. P-1 against the Central Muslim Association, and one Sri Javed Ahmed. A copy of the order of temporary injunction was also sent to the accused along with a letter of their counsel. On 6-11-82 when he was in the shop at about 9.30 or 10 a.m., the accused came to the shop accompanied by some police constables and demanded from him to know as to why he had entered the shop premises and he told him that it was his shop and that an injunction order was obtained from the court in respect of it; that in spite of this and in spite of showing the order of injunction, the accused pulled him out of the shop and put a seal on the lock which he affixed to the doors, and took him to the police station. After detaining him for about 3 to 4 hours, he was permitted to leave the police station only when a colleague of Sri Shivaswamy, Advocate came over to the police station and talked to the accused. It is also the evidence of P.W. 1 that in the Shariff Building, there is no other shop in which the business was carried on under the name and style 'Ladies Corner'. In the cross-examination, the evidence of this witness had not been shaken. On the contrary, it has been elicited that the premises bearing No. 26 came to be assigned a new number 27/19 some time ago and he came to know that the number of the shop premises was changed even before Ex. P-2 was served on him. A specific question was also put to him in the cross-examination with reference to the boundaries, relatable to shop No. 27/19 as per the defence of the accused. He answered that he was unable to speak to the boundaries whether a particular boundary was on the east or west or north or south but the boundaries stated by the defence corresponded to the boundaries of shop No. 27/19 which according to him was shop No. 26. Again it has been elicited that Nos. 26 and 27/19 and 26 were successive numbers of the same shop.
12. P.Ws. 2 and 3 are the eye-witnesses to the occurrence of 6th November 1982. P.W. 2 is running a business of providing bathing facilities to the public against payment in the premises close to Shariff Building of Yeshwanthpur. He has been carrying on this business for the last 4 years. He was examined on 27-2-1984. He lives in the same premises. He has been living in the said premises for the last 24 years. Earlier his brother was running a hotel in the same building by name 'Hotel Ashoka'. He has deposed that the shop 'Ladies Corner' is situated just opposite to the bath rooms which he is running. He has further deposed that the business under the name 'Ladies Corner' has been carried on for the last 15 years by N. K. Ravi. P.W. 1 is the son of N. K. Ravi. On 6-11-1982 as usual he was in his premises and somebody told him that some policemen had come to Ravi's shop. Therefore he went to see as to what was happening. He saw the policemen taking away P.W. 1 from his shop and closing down the shop shutters by the police. The material elicited in the cross-examination goes to show the familiarity of P.W. 2 with the Shariff Building which probabilises the say of P.W. 2 that he has been running the bath room facilities in the premises close to the shop 'Ladies Corner'. Thus no such material is elicited in the cross-examination to discard the evidence of this witness. There is no inherent improbability in his evidence. He is not related to the complainant or P.W. 1.
13. P.W. 3 was working at the relevant point of time as a shop assistant in 'New Rajiv Stores' situated in the I Main Road, Yeshwanthpur, Bangalore, forming part of Shariff Building. According to his evidence, the shop 'Ladies Corner' is situated immediately next to the 'New Rajiv Stores'. It is only the common wall that separates 'New Rajiv Stores' from 'Ladies Corner'. On 6-11-1982 he was working in 'New Rajiv Stores'. P.W. 1 opened the shop on that day and about half an hour thereafter the police jeep with the Inspector of Police and some policemen came there. The Police Inspector pulled out Anil Kumar (P.W. 1) from the shop and closed the shutters of the shop and sealed it and took away Anil Kumar in the jeep. In the cross-examination it has also been further elicited that on 30-10-1982, some relations of Ravi had opened the shop in the morning. To both these witness (P.Ws. 2 and 3) it has been suggested that they voluntarily attend the court on two dates to give evidence and no summons were issued to them. Regarding the boundaries of the shop in question, certain information is elicited. Of course the boundaries stated by both these witness do not tally. Merely because the witnesses voluntarily appeared before the court, to give evidence, their evidence cannot be disbelieved on that ground. In fact it is the duty of every citizen who is in the know of things concerning an issues involved in a court of law and who is required to give evidence in the court, to appear before the court and give evidence. Nothing is elicited in the cross-examination of these two witnesses that they were not working in the close vicinity of the shop in question as claimed by them. There is no personal interest of these witnesses involved in these proceedings. They are not related to Ravi, the Proprietor of the shop 'Ladies Corner'.
14. P.W. 4 is the Sub-Inspector of Police who was working during the relevant point of time as Sub-Inspector of Police, Law and Order, Yeshwanthpur Police Station. According to his evidence, the Secretary of the Central Muslim Association, Bangalore, gave a requisition as per the letter dt. /- 30-10-1982 (Ex. P. 7) and he asked the Secretary whether he had the authority of the court to take possession, and in turn the Secretary told him that there was a consent decree obtained in a civil court which entitled him to take possession. No statement of the Secretary was recorded by this witness nor did he ask him to produce a copy of the decree of the Civil Court. He has further deposed that whenever such requests are made to the police, they make the necessary enquiry and if they are satisfied in the matter, they afford police protection to the requisitionists. The proceeding initiated pursuant to Ex. P. 7 was registered as Crl. (Misc.) 587/82. In the cross-examination he has further stated that the premises bearing No. 27/19 was sealed in November 1982 as per the directions of the Circle Inspector of Police and he (witness) was present at the spot when the premises was sealed. The seal was actually affixed under his authority by one of his subordinates. He was acting under the direction of the accused. The seal was put on a lock which had been already fixed to the door. He has further stated thus :
"I knew Mr. Ravi who was concerned with the controversy relating to the shop. At the time the seal was affixed, there was likelihood or breach of peace at the spot."
The evidence of this witness goes to establish that one Mr. Siddique Ahmed s/o M. A. Jabbar surrendered the shop to the Muslim Association as per his letter dt./- 22-8-1982. The shop is situated in Mohd. Shariff Building of Mohammed Shariff Educational Trust. The Association had already directed its supervisor to take delivery of the premises and in this connection, police protection was requisitioned (see Ex. P. 7). The letter dt./- 22-8-1982 referred to in Ex. P. 7 has also been referred to in the order dt./- 9-11-1982 passed by the accused. The relevant portion of it has already been reproduced in the earlier portion of this order, as per that, after the death of M. A. Jabbar, his son M. A. Siddique Ahmed addressed a letter to the President, Central Muslim Association on 22-8-1982 stating that shop No. 27/19 was held by his father and it was handed over to one Ravi during 1976 and that Ravi has been the actual payer of the rent and the shop has been kept closed for two years as Ravi had gone to Dubai for business purpose, and he (Siddique Ahmed) had suggested to the Muslim Association to accept Rs. 10,000/- from Ravi as donation and to treat him as the tenant.
15. Thus it appears clear that at the relevant point of time, the shop in question was in the possession of Mr. Ravi who was carrying on the business in it under the name and style of 'Ladies Corner'. The discrepancy as to the number of the shop whether it is '26' of '27/19' fades into insignificance and does not assume any importance as the parties concerned including the accused were fully aware of the fact that Ravi was concerned with the shop in question to which the order dt./- 9-11-1982 passed by him related. Therefore, the accused was fully aware of the fact even prior to the date of the incident in question, that Ravi was in possession of the shop in question. He had become aware of it from the moment the police protection was sought for obtaining possession of the shop by the Central Muslim Association. In view of this, the efforts made by the defence to place on record the extracts from the "Register of Assessments of the Buildings and Land" from the Corporation of the City of Bangalore relating to shop Nos. 26 and 27 is not of much assistance. In fact shop No. 27 as per Ex. P. 9 does belong to the Central Muslim Association and it is shown as being in possession of a tenant.
16. The oral evidence adduced by the defence is not of much assistance to the accused. D.W. 1 is a police constable. His demeanour in the witness box was unworthy or he being a police constable. It has been noted by us in the course of his deposition thus :
"(This witness brazenly seeks to correct the court on matters which are clearly recorded. He earlier stated. After this answer was recorded and when his counsel asked him who all remained there, he asserted that he had earlier stated. That apart the witness gives a clear picture of a tutored witness. He remembers dates and time of the day, of events that have occurred a couple of years ago and reels off his account without waiting for the counsel to examine him in chief)".
He has further stated in the examination in chief itself that "at the time about 4 politicians came to the spot and raised a protest before the Sub-Inspector that the shop belonged to one Ravi and it was objectionable for the police to permit the shop to be taken over by the Central Muslim Association." Thus even at that time also, it was known to the accused that the shop was in possession of Ravi. In spit of this, the accused tried to help the Central Muslim Association. The only course the accused would have adopted was to direct the parties to seek the relief from the Civil Court and if he were of the opinion that there was every likelihood of breach of peace, he could have taken recourse to S. 107, Cr.P.C. In view of the demeanour of the witness recorded in the course of recording his evidence, we are left with a clear impression that he is a partisan witness and his evidence is not worthy of acceptance.
17. D.W. 2 is the Assistant Revenue Officer, Bangalore City Corporation. He has written a letter dt./- 16-2-1983 to the accused in his capacity as Assistant Revenue Officer, North Zone, Bangalore. He is not able to give the boundaries of the property without referring to assessment register. He has further stated that he does not know the property bearing No. 26 in the Main Road of Yeshwanthpur. He has further claimed his ignorance about the fact that property owned by Central Muslim Association bears No. 26 and the building includes the shop in which the business is carried on under the name and style of 'Ladies Corner'. The evidence of this witness also does not advance the defence of the accused any further nor does it have any adverse effect on the case of the complainant.
18. D.W. 3 is the supervisor of Mohammed Shariff Educational Trust. His evidence is to the effect that shop No. 27/19 is a part of the property bearing No. 27 situated in the Main Road, Yeshwanthpur consisting of shops. He has produced the panchanama dt./- 30-10-1982 which is marked as Ex. D. 1 on which the accused has made an endorsement on 4-11-1982. He has stated that he does not know whether there is a shop in the building belonging to Central Muslim Association in which the business is carried on under the name and style of 'Ladies Corner'. He has further stated that he has not watched that carefully.
19. D.W. 4 is the Hon. General Secretary of Central Muslim Association. According to his evidence, premises No. 27, first Main Road, Yeshwanthpur belongs to Central Muslim Association and premises No. 27/19 is a shop forming part of property No. 27. It was never in the occupation of 'Ladies Corner' or Mr. Ravi. He has further stated in his cross-examination that the Central Muslim Association has filed a suit against Smt. Narasamma w/o Ravi and that suit relates to premises No. 27/19. Ext. P. 10 is the certifies copy of the plaint in that suit. He has further admitted that in respect of premises No. 27/19, one Mr. Jabbar was the tenant and he was paying the rent to Central Muslim Association and the said Association has maintained records to show as to what rent he was paying. He has further deposed that he took possession of the shop on the strength of the compromise decree pursuant to the compromise entered into between the Central Muslim Association on the one hand and the son of Jabbar on the other. Ex. P. 10 is the plaint in O.S. No. 3434 of 1982 filed by the Central Muslim Association against the wife of Mr. Ravi, the Karnataka State Board of Wakf and one Siddique Ahmed. As per the averments made in para-6 of Ext. P. 10, it is clear that Ravi was in possession of the shop premises bearing No. 27/19. The relevant portion of it is as follows :
"Taking advantage of the fact that the plaintiff is an Association, the first defendant has been instigated by the 3rd defendant to make an attempt to enter into forcible occupation of the premises with the object in view, the first defendant tired to create violence near the shop with the help of rowdy elements, the plaintiff gave the complaint to the Circle Inspector of Police, Yeshwanthpur. The commission of a cognizable offence by the 1st defendant and his supporters was imminent. The police therefore intercepted and prevented the commission of cognizable offences by the 1st defendant including their attempt to illegal trespass on the plaint schedule premises. Despite this protection by police, the 1st defendant has been indulging in acts of vandalism, waste or criminal trespass. Unless prevented by an order from this Hon'ble Court, there is every likelihood of plaintiff's lawful possession being vacated leading to unlawful dispossession."
The 1st defendant referred to therein is no other than the wife of Mr. Ravi and the 3rd defendant is no other than Siddique Ahmed who has written the letter dt./- 22-8-1982 in which it was stated that Ravi was in possession of the shop and he was paying the rent. In para 7 of Ex. P. 10 it has been further stated thus :
"In O.S. 3214/82, the 1st defendant has filed a false suit. The description of the premises there does not tally with the premises belonging to and in the occupation of the plaintiff. Under colour of that ex parte order, defendants 1 and 3 want to break open the lock and enter into possession of the plaint schedule premises. Hence this suit."
The suit appears to have been filed on 25-11-1982, i.e., subsequent to the passing of the order dt./- 9-11-1982 by the accused. D.W. 4 though claims that it was Mr. Jabbar who was paying the rent and that he has maintained the records to that effect; but he has not produced any record to show that it was Mr. Jabbar who was paying the rent. Even according to Mr. Jabbar, as per his letter dt./- 22-8-1982 it was Mr. Ravi who was paying the rent and it was he - Mr. Ravi - who was in possession of the shop premises in question.
20. Thus on consideration of the entire evidence on record, it is not possible to accept the defence of the accused that the order of temporary injunction did not relate to the shop in question. The evidence on record including the contents of the order dt./- 9-11-1982 passed by the accused clearly establishes that Ravi was in possession of the shop in question on 30-10-82, 4-11-82 and 6-11-1982. The accused was fully aware of the order of temporary injunction passed by the 9th Additional City Civil Judge, Bangalore, in O.S. No. 3214/82 filed by 'Ladies Corner' against the Central Muslim Association and another. In spite of this, he (accused) physically drove away P.W. 1 (son of Mr. Ravi) from the shop premises on 6-11-1982 and locked the suit premises, put the seal on the lock and took away the key and detained P.W. 1 for about 3 to 4 hours in the police station and released him only on the intervention of the colleague of Sri Shivaswamy, Advocate and further warned him not enter upon the suit premises. In doing so, the accused was not acting bona fide in the discharge of his duties. His action suffered from lack of bona fides inasmuch as being aware of the fact that the parties were litigating in the civil court and Ravi had obtained an order of temporary injunction, it was expected of him as guardian of law and order and protector of persons, properties and honour of ordinary citizens not to interfere with the possession of Ravi in respect of the shop run under the name and style of 'Ladies Corner' and act in aid of the order of temporary injunction and direct the parties to have the dispute settled through the civil court. If the situation, according to him, was so tense, he would have at the most taken recourse to a proceeding under Section 107 Cr.P.C. Though some such complexion to the question was sought to be imparted, there is no reference to any such threat to public order even indicated in the order dt./- 9-11-1982. All that was said that certain local leaders appear to have objected to the action of the police. That was presumably because the police were taking a partisan attitude and interfering with civil disputes. In the circumstances, we are left with no doubt that the accused was not acting bona fide in the discharge of his duties.
In fact, there was no decree obtained by the Central Muslim Association for possession of the premises in question which was admittedly in possession of one M. A. Jabbar. No landlord could resort to extra-judicial methods for recovering possession from a tenant or a sub-tenant except in due course of law. We do not appreciate the need for the accused to have gone elaborately into the legal position in his order to justify how there was a surrender of possession by the tenant when all that the tenant said was that there was a sub-tenant and that the tenant would have no objection to the sub-tenant being recognised and continued. The accused has lent himself to the criticism that he became on with the Central Muslim Association and has acted not only in contravention of law but also against the order of temporary injunction.
Even if it is assumed that the police had earlier helped the Central Muslim Association in taking extra-judicial possession, that position was no longer open to the police to hold on to, once a civil Court has granted the possessory remedy of an injunction inter parties. It is not also a question whether the police should act in aid of the order of injunction and help the party who had the benefit of the order. It was enough if they did not - as they unfortunately permitted themselves to do in this case - subvert that injunction and grant a counter-injunction. This is precisely what what the accused did in this case. The accused interfered with the due course of judicial proceeding and obstructed the administration of justice inasmuch as the action of the accused had the effect of defeating the order of temporary injunction and deprived the complainant the benefit of the order of temporary injunction. That order was binding on the parties not because it is a correct one but because it was made by a competent court. Accused thought - and openly declared - that it was unrelated to facts and was obtained by the complainant on the basis of false averments. Accused therefore, imported his own notions of the facts of the case and the truth of complainant's claim before the court. This, the accused does not realise, is not within his province. Accused has made a mockery of the order of injunction. It is not relevant at all whether the order was a correct one or not.
21. At this stage, it may also be relevant to novice some of the principles laid down by the Supreme Court in the light of which charge No. 1 has to be examined.
In Perspective Publications v. State of Maharashtra, it has been held that the jurisdiction under the Contempt of Court Act is a summary jurisdiction and it must be exercised with great care and caution and only when its' exercise is necessary for the proper administration of law and justice. It is also further held that though truthfulness or factual correctness is a good defence in an action for libel, but in the law of contempt, there are hardly any English or Indian cases in which such defence has been recognised.
In S. Abdul Karim v. M. K. Prakash, it is held that the standard of proof required to establish a charge of criminal contempt is the same as in any other criminal proceedings. It is further held that it is all the more necessary to insist upon the strict proof of such charge and the act or omission complained of is committed by a person under colour of his office as a judicial officer. This decision followed the decision in Debabrata Bandopadhyay v. State of West Bengal, . It is also held that the mens rea is not as essential ingredient of the offence of contempt of court. Similar view is also expressed in R. v. Odhams Press Ltd. (1956) 3 All ER 494.
In Waryam Singh v. Sadhu Singh, it is observed by the Supreme Court that the Police Officers who are expected to act as guardians of law an order so as to protect persons and properties and honour of ordinary citizens cannot be permitted to take law into their own hands and go about threatening even untruthful complainants and their witnesses with the object of stifling prosecutions. It is further held that even if the police comes to the conclusion that the complainant and his witnesses are utterly untruthful, they have no business to threaten them so that the witnesses may not give evidence in Court. It is for the courts to punish perjury which is shown to have been committed.
The conduct of the accused in the instant case, in directing the Sub-Inspector to prosecute the complainant for the averments in his pleadings and affidavit in the suit is a direct interference in the administration of justice and constitutes an offence of contempt of court. It is most unfortunate that the accused-police officer does not realise the gravity of the matter. He shows no contrition.
22. We are therefore of the view that the accused knowing full well that the order of temporary injunction obtained by the plaintiff in O.S. No. 3214/1982 did relate to the premises in question, nevertheless, he, instead of acting in aid of the order of temporary injunction, acted in such a manner so as to deprive the complainant (plaintiff in the suit,) Sub-tenant the benefit of the order of temporary injunction by the several acts committed by him to which we have already adverted. Thus it is held that the charge No. 1 is proved beyond all reasonable doubt.
CHARGE No. 2 :
23. Before recording our finding on his charge, we may recall the settled principles that guide the court in arriving at a proper conclusion.
24. In Re. P. C. Sen, , it is held that the question in all cases of comment on pending proceedings is not whether the publication does interfere but whether it tends to interfere with the due course of justice. The question is not so much of the intention of the contemner as to whether it is calculated to interfere with the administration of justice. In the said decision, the following observations made by the Judicial Committee in Debi Prasad Sharma v. King Emperor AIR 1943 PC 202 at p. 204 were cited with approval :
"..... the test applied by the ...... Board which heard the reference was whether the words complained of were in the circumstances calculated to obstruct or interfere with the course of justice and the due administration of the law."
In Advocate General, Bihar v. M.P. Khair Industries, it is held that it is not either abuse of the process of the court which necessarily amounts to contempt of court but on the other hand, it may be necessary to punish as a contempt, a course of conduct which abuses and makes a mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and affect the interest of the public in the administration of justice. The public have an interest, an abiding and a real interest and a vital stake in the effective and orderly administration of justice because unless justice is so administrated, there is the peril of all rights and liberties perishing. The court has the duty of protecting the interest of the public in the due administration of justice and so it is entrusted with the power to commit for contempt of court not in order to protect the dignity of the court against insult or injury as the expression 'contempt of court' may seem to suggest but to protect and to vindicate the right of public that the administration of justice shall not be prevented, prejudiced, obstructed or interfered with. It is a mode of vindicating the majesty of law in its active manifestation against obstruction and outrage.
In Govind Sahai v. State of U.P. it is held that it is not necessary that action by way of expulsion was taken on the basis of the resolution of AICWC and to enforce discipline in the Congress organisation. It was held that any conduct which interfered with or caused prejudice to the parties litigating during the litigation was undoubtedly contempt of court. Therefore, it was held that the High Court was justified in holding that the appellants therein were guilty of contempt.
In S. Abdul Karim v. M. K. Prakash some portion of the decision has already been referred to with reference to charge No. 1 - it is further observed that the wrong order or even an act of usurpation of jurisdiction committed by a judicial officer in an error of judgment or on a misapprehension of the correct legal position, does not fall within the mischief of criminal contempt. It is also further observed that so long as a judicial officer in the discharge of his official duties acts in good faith and without any motive to defeat, obstruct or interfere with the due course of justice, the court will not, as a rule punish him for criminal contempt.
25. Charge No. 2 is based upon the contents of the order dated 9-11-1982 passed by the accused in the case bearing No. YSD/CC/1271/1982 initiated by him under the purported exercise of his power under Section 149 Cri.P.C. and S. 65(3) of the Karnataka Police Act. In this proceeding, the accused has decided as to who is in possession of the shop in question; how a vacancy in the eye of law had occurred and how the landlord could resume possession extra-judicially with the police help. It is indeed significant that the alleged letter of surrender on the basis of which the police help to take possession was sought itself said that complainant was in possession. Accused by an ingenious logic dismisses that. Some of his observations in the order do show to what extent he is determined to go :
"6. It was lawful for the Central Muslim Association to take possession of the shop with the protection of the police in case they apprehended any danger while taking possession of the shop and it was lawful for the police to give protection to the rightful person in taking possession of the shop as law protects possession and the police are custodian of law and the police gave protection as contemplated under Section 65(h) of the Karnataka Police Act.
7. Presuming that the shop had been let out to Ravi in the year 1976 and Ravi was in possession, the same was not established by Siddiq Ahmed by producing any receipts for having paid the rent by Ravi or by himself on behalf of Ravi. The last receipt that was issued for the receipt of rent of Rs. 25/- was on 25-10-1980 under receipt No. 1022 and the amount had been received by the Supervisor on behalf of M. A. Jabbar. Any person having received such a receipt would have moved the Central Muslim Association that the receipt should have been issued in the name of Ravi as he was the occupant of the shop and it was he who was paying the rent either by himself or through Siddiq Ahmed etc. In the absence of such proof, it could not be said Ravi was in occupation of the shop. Further Ravi is in Dubai and his wife is in a different house in Yeshwanthapur. Further there is no any title to the occupation of the building in favour of Ravi.
8. On considering all those all these aspects it could easily be pointed out that Siddiq Ahmed had exhibited his desire to surrender the shop to Central Muslim Association relinquishing his right for the benefit of Central Muslim Association. But at the same time, he played mischief by mentioning certain aspects of having let out the shop to Ravi for some reason best known to him. Just because that there was some mention of the fact that Ravi had been put in possession of the shop etc. without substantiating the same in records, it could not be accepted that Ravi was in possession of the shop and police could not interfere with the same for restoring the possession. There was no legal obligation on the part of Central Muslim Association to obtain decree of taking possession of a shop surrendered by the tenant as he was entitled to recovery of possession by self-motion and it was lawful on his part to seek protection from the police whenever the Central Muslim Association found that there would be infringement of his right without the protection of the police.
9. The point was whether the police should take cognizance of the injunction order issued by the Honorable Civil Judge against the recovery of possession by the Central Muslim Association. The injunction order was issued on 4-11-1982 after the recovery to possession of the Central Muslim Association and the injunction order was not served on Muslim Association prior to the recovery of possession by the Muslim Association and this injunction order was issued subsequent to the initiation of the proceedings under S. 149, Cr.P.C. and S. 65(d) of Karnataka Police Act in which the police are empowered to present commission of any offence including the cognizable offence by means of acts not prejudicial to the interest of any person in law. The police had instructed all the parties to put forth their case in the above case. But the person who obtained injunction order did not participate as he had known that he had no case for seeking protection from the police.
10. Hence, with due respect to the order of the Hon'ble Court Police were unable to act as per the injunction order and further the respondent 2 Sri Javed Ahmed was unconcerned to the dispute.
11. The plaintiff, in this case, had obtained injunction order without mentioning about the proceedings initiated by the police and further the injunction order pertains to the premises No. 26 and No. 27/19.
12. The plaintiff having failed to participate in the proceeding initiated by the police in spite of service of the statutory notice, has committed offences punishable under Section 174, I.P.C. and for having obtained an ex parte injunction order by suppressing the truth, had committed offences punishable under Sections 177 and 193, I.P.C. and if necessary action will be taken against the plaintiff.
13. Further Sri Ravi or his wife of his children, agent or servants are hereby warned that is case they meddle with the shop No. 27/19 already in occupation of Central Muslim Association they would be dealt with under Section 107 of Cri.P.C. and S. 55 of the Karnataka Police Act, and they are hereby advised to seek redress in the civil suit already filed by them."
26. We are clearly of the view that S. 149 of the Cr.P.C. does not enable the accused to pass an order of the nature in question. Section 149 provides that every police officer may interpose for the purpose of preventing and shall, in the best of his ability, prevent the commission of any cognizable offence. Chapter XI, in which S. 149 occurs, relates to preventive action of the police. A power to prevent the commission of an offence does not include a power to interfere in and decide a civil dispute which is already pending before the competent civil court. It only empowers the police officer to prevent the commission of cognizable offence. It does not enable him to examine the cases and witnesses and record a finding whether a party claiming possession of the shop is in possession of it or whether he is guilty of any other offence. That is not the function of a Police Officer.
Similarly, the section does not empower a Police Officer to pass any order either against the person from whom an offence is apprehended of against the likely-victims of the offence in regard to their civil rights. He can, at best, take only preventive measures to prevent the commission of any cognizable offence.
27. Section 65(d) of the Karnataka Police Act provides that it shall be the duty of every police officer to prevent the commission of offences. The scope of this section cannot at all be placed higher or be construed as wider than that of S. 149, Cr.P.C. What is stated in connection with S. 149, Cr.P.C. equally applies to this section also. Thus the accused has acted without jurisdiction in passing the order dt. 9-11-1982.
28. This is relevant as it will have a bearing on the question as to whether the accused had acted bona fide in exercising the jurisdiction which is not vested in him. The observations made by the accused in the course of the order dt. 9-11-1982 clearly go to show that the accused did not act in good faith. On the contrary be acted with a motive to defeat, obstruct or interfere with the due course of justice. The conduct of the accused has clearly interfered with or caused prejudice to the plaintiff in O.S. No. 3214/1982 and has in addition to depriving him of the benefit of the order of temporary injunction. It has definitely interfered with and obstructed the administration of justice inasmuch as the accused has held that the plaintiff has obtained an order of injunction without mentioning about the proceedings initiated by the police and further the injunction order relates to premises No. 26 and not to premises No. 27/19. The accused has even gone to the extent of directing action to be taken against the plaintiff in O.S. No. 3214/1982 for not appearing before him and for having obtained an order of injunction, of course, according to the accused by suppressing the truth, the accused failed to realise that he was not the judge to decide as to what was stated in the plaint was true or not. The manner in which the defence is taken by the accused with reference to charge No. 2 also discloses the contumacious nature of the accused. He has stated that he could not obey the order of temporary injunction because it did not fulfil the following conditions :
i) The injunction order should contain a mandatory order or direction requiring the police to do or omit to do certain act or acts :
ii) The injunction order should capable of disclosing the commission of a cognisable offence and causing the police to take cognizance under Section 154, Cr.P.C.
iii) The injunction order should come within the meaning of summons or warrant for service or execution by the police as per S. 65(a) of the Karnataka Police Act :
iv) The injunction order issued by the court should be referred to the competent authority (Commissioner of Police under Section 2(4)(a) of the Karnataka Police Act) and the competent authority should get that injunction order implemented as per S. 65(a) of the K. P. Act; and
v) The injunction order should come within the meaning of being implemented as a statutory duty of police as per S. 65(h) of the K. P. Act.
A duty on the part of the Police to enforce a Court order is quite a different matter. Here the accused directly interfered, for the benefit of the opposite party, with a judicial order inter partes. Suffice it to observe that the aforesaid stand of the accused not only exhibits his lack of bona fides and the partisan attitude taken by him to see that the complainant does not have the benefit of the order of injunction. It is no part of the jurisdiction of the accused as police officer to criticize the order of temporary injunction dt. 4-11-1982 made by the IX Additional City Civil Judge, Bangalore, in O.S. 3214/1982.
29. It is contended that there is no publication, therefore, no criminal contempt can be held to have been established. Publication as per the definition of the expression 'Criminal Contempt' may be by words, spoken or written or by sign or by visible representation or otherwise. The order dt. 9-11-1982 is in writing. It is given to the parties and is also sent to another police officer for initiating criminal proceedings against the plaintiff in O.S. No. 3214/1982. Therefore, we hold that there is no substance in this contention. It is accordingly rejected.
30. We are afraid reliance of the accused police officer on S. 149, Cr.P.C. is wholly misconceived S. 149 cannot be placed higher than S. 144, Cr.P.C. Even in the proceedings under Section 144, Cr.P.C. the civil rights or title to property cannot be adjudicated and the proceedings must be in aid of the rights recognised by the courts of law. In Gulam Abbas v. State of U.P. reported in 1982 (1) Kant LJ. Short Notes item No. 33, also the Supreme Court observed thus :
"While the Magistrate under Section 144 cannot adjudicate on civil rights or title to properties or entitlements to rights, if such disputes or entitlements have been adjudicated by Courts of competent jurisdiction, then under Section 144 the Magistrate must have due regard to such established rights, subject to the paramount consideration of maintenance of public peace, and must act in aid of these rights and against those who interfere with the lawful exercise thereof. Even when there has been no adjudication, the power should not be exercised in manner that would give material advantage to one party to the dispute over the other but in a fair manner, ordinarily in defence of legal rights. Legal rights should be regulated and not prohibited altogether for avoiding breach of peace."
In the present case, the accused police officer has attempted in import greater sanctity to the earlier proceedings of the alleged extra-judicial resumption of possession said to have been effected with the police help than to the subsequent judicial order of injunction.
Even when an interim injunction is granted during the pendency of the suit, and the civil court does come to a prima facie conclusion that a party is in possession of the property in respect of which injunction is granted. In such a situation the proceedings under Section 145, Cr.P.C. was held to be inappropriate and if there is an apprehension of breach of peace, the proper course would be to resort to S. 107, Cr.P.C. This is what was held in Hutchegowda v. M. R. Venkatesha Iyengar, (1973) 2 Mys LJ 63, wherein it was observed :
"In Malkappa v. Padmanna (1958) 36 Mys LJ 800 : (1959 Cri LJ 621) it was pointed out that a criminal court should not proceed under S. 145 Cr.P.C. in respect of immovable property which is the subject-matter of civil litigation actually pending in a civil court. By reason of the pendency of the civil litigation the Magistrate should proceed under Section 107 Cr.P.C. to bind over the parties who, it is apprehended may commit an offence or commit breach of peace. This view was taken in Multani v. Shah Abdu Turab Qudari 1962 40 Mys LJ 294 : (1962 (2) Cri LJ 709). In that case it was held that if there was decision of a civil court, the Magistrate was expected to respect and sustain it."
In the present case the accused has resorted to S. 149, Cr.P.C. which merely imposed a duty on a police officer to prevent the commission of the cognisable offence. This duty cannot be converted into a power to interfere with and after the civil rights of parties as recognised by courts of law. The present case in an illustration how far that provision could be abused.
The case of District Magistrate v. Madhava Rao, AIR 1961 Mys 12 : (1961 (1) Cri LJ 111), is to the point. There the District Superintendent Police who had been directed by the District Magistrate to investigate referring to certain decision of the civil court bearing on the possession stated that the decision of the civil court regarding possession of the complainant was based only on records in contrast to what is reveled by the spot inspection report of the revenue officer and further observed that the complainant was utilising the 'usual bias and prejudice against police'. The general tenor of the report was to demonstrate that the order of the civil court was unrelated to reality. On what the police officer gathered to be the possession by his own assessment of the previous history of the case. N. Sreenivasa Rau (Officiating C.J.) speaking for the Bench stated :
"But he did not content himself with stating what he had to say about the part played by the police in the course of the dispute between the parties but chose to comment on judicial orders and in doing so, over stepped the limits as mentioned above. In view of these considerations we must hold that both by the general tenor of the report and in consequence of the particular statements mentioned in the charge, the accused has committed contempt of court."
31. On a careful consideration of the entire material on recorded in the light of the decisions of the Supreme Court on the point, we are clearly of the opinion that there are no bona fides on the part of the accused to enable us to hold that the contempt of court committed by the accused under charge No. 2 is not a mere technical offence. On the other hand, it has great effect on the due administration of justice in which every public has a right. Therefore, it is the duty of the court to vindicate the majesty of law so that the course of justice is not impeded or obstructed. For the reasons stated above, we hold that charge No. 2 is also established beyond reasonable doubt.
32. In the result for the reasons stated above, we hold that both the charges are proved. Accordingly the 2nd accused Sri K. S. Ultra is convicted for the offence of contempt of court i.e., criminal contempt as set out in the two charges which stand proved beyond all reasonable doubt.
33. To hear on sentence.
ORDER REGARDING SENTENCE
34. We have heard Sri M. R. Janardhana, learned counsel for the accused-police officer on the question of sentence. Sri K. G. Raghavan, learned counsel for the complainant, submitted that as the accused has throughout attempted not merely to justify but to sanctify his brazen disregard for judicial orders and has succeeded in subverting them, this case calls for deterrent sentence as the accused has not exhibited any contrition at any time. Having regard to the findings that the accused virtually trifled with a judicial order, a substantive deterrent sentence of imprisonment might be justified.
35. But Sri Janardhana made an impassioned, plea that the accused-officer had a clean record of service and any sentence of imprisonment would be ruinous to his career.
36. We think, we must also take into account that the order dt./- 9-11-1982 passed by the accused which is the basic of the second charge was itself produced by him. Taking all the circumstances into consideration, we think that imposition of a substantive sentence of imprisonment may not be called of and the imposition of a fine of Rs. 1000/- should meet the ends of justice.
37. Accordingly we sentence Sri K.S. Ullasa, accused No. 2 to pay a fine of Rs. 1000/-.
38. So far as the look and the seal put by the accused on the premises are concerned, the complainant may move the civil court before which the suit is pending, to have them removed.
39. As this order is an appealable order, we, at the request of Sri Janardhana, suspend the execution of the punishment for a period of 90 days from today, so as to enable the accused to appeal to the Supreme Court.
40. Order accordingly.