Calcutta High Court
Sukumar Mukhopadhyay vs T.D. Karamchandani on 3 October, 1994
Equivalent citations: 1995CRILJ1610
JUDGMENT K.C. Agrawal, C.J.
1. As directed by the judgment dated 3-10-94 we are recording our reasons for the decisions taken.
2. This appeal under Section 19 of the Contempt of Courts Act has been preferred by Sukumar Mukhopadhyay against the judgment of a learned single Judge dated 12thJuly, 1989 convicting him for Contempt committed by not supplying the copies of the documents to the respondent T.D. Karamchandani.
3. Briefly stated the facts are that T.D. Karamchandani (since deceased) was the Superintendent of Customs (Preventive) at the material time. He moved a writ petition in the Calcutta High Court challenging initiation of the departmental proceedings against him on 6th August, 1984. This Court directed the Excise and Customs Department to give inspection/supply copies of the documents demanded by the respondent (hereinafter referred to as the deceased).
The relevant portion of the order dated 6th August, 1984 is quoted below :
"The respondent shall be at liberty to proceed with the impugned enquiry dated 11th May 1984 and dated 21st July 1984 after supplying the documents asked for by the petitioner. Respondents shall be at liberty to conclude the enquiry but no final order will be passed without the leave of this Court."
4. Copy of the order of the High Court was not personally served on the appellant Sukumar Mukhopadhyay. He came to learn the gist of the order of the High Court on 18-8-1984 from two office notes which were placed before him. The first note was of Assistant Collector (Vigilance) dated August 8, 1984 and the second note was of the then Deputy Collector dated 16-8-1984. The contents of the first note was as follows :
"An extract to G.O.I's instruction No. 3 below the Rule 16 of the CCS (CCA) Rules placed opposite may kindly be seen. Though it is not incumbent on the part of the Deptt. to permit the accused officer to inspect the documents, on request, however, he may be given the permission to inspect the relevant records. I understand that the Court has also directed the Deptt. to allow him to inspect the document. Extension of time as prayed may also be considered."
5. The second note was that of S. S. Jha, Deputy Collector (Personnel & Establishment) whereby permission of Collector was sought for perferring an appeal against the judgment of a learned single Judge dated 6-8-1984.
6. On two notes being placed, the appellant passed the following order :
"I gave permission to allow inspection and/or comply with the Court's order."
7. The appellant thereafter went to Delhi in connection with his official duty. On return from Delhi he enquired from the Deputy Collector on 22-8-1984 as to whether T.D. Karamchandani has been allowed inspection of all the documents. The appellant was intimated that Karamchandani was verbally requested to take inspection but he did not do so on account of non-availability of particular document being serial No. 5 of his letter dated 28th July 1984. .
8. The statement of the appellant that he had no knowledge of the stay order on the day it was passed is supported by the affidavit of Shri V. K. Singh, Appraiser-in-Charge of Vigilance Section. He stated in para 3 of his affidavit that:
"On or about August 20, 1984 at about 3.00 p.m. Sri Jha called me in his office. On that day Sri Sukumar Mukhopadhyay, Collector was not in the office and he had gone out of Calcutta in connection with the official work."
The appellant filed his own affidavit on 21-12-1984 and stated that:
"I was told by the Deputy Collector (Personnel and Establishment) that the applicant has been requested verbally to take inspection but he was interested on written, communication about nonavailability of a particular document being serial No. 5 of his letter being Annexure 'H' to this writ petition...................
As he never made any grievance, I bona fide and reasonably presumed that he had been given inspection/supply of the copies of the documents by the Vigilance Section."
The counsel for the deceased respondent T. D. Karamchandani served a letter on 20 8-1984 making a demand for inspection of the records. The relevant portion of his letter is stated below:
"In spite of the aforesaid order, you have refused to comply with the same and have not so far given to my client inspection and/or copies of the documents referred to above."
9. Despite the copies of the documents having been given to the deceased, of course, not within time before 28th August, 1984, as was initially directed, the learned Judge held Sukumar Mukhopadhyay to be guilty deliberately and having intentionally committed breach of the Court's order. The learned Judge found that disobedience was wilful. The documents were not supplied despite knowledge and notice of the stay order dated 6th August, 1984. On this finding, the learned Judge convicted the appellant by the judgment dated 12th July 1989. The relevant operative portion of the order is reproduced below.
"I hold the first contemner guilty of the contempt for not complying with the order passed by this Court on 6th August, 1984 intentionally within. the time specified by the order. He is convicted accordingly. Having regard to the facts and circumstances of this case, he is detained in the court until the rising of the court. He shall also pay a fine of Rs. 1700/-."
Against the said judgment, the present appeal "has been filed.
10. The learned counsel for the appellant raised many points in support of the appeal and stated that the finding of the learned single Judge that the appellant was guilty of having disobeyed the order dated 6th August, 1984 by not supplying the copies of the documents demanded was wrong.
11. We have examined all the papers and the affidavits exchanged between the parties and are of the view that the substantial demand of the appellant was for inspection of the records. The inspection is indicative of the fact that non-supply of copies of documents was made a subterfuge or a pretext in support of the contempt application by the deceased. The principal and substantial demand was inspection and that was admittedly allowed within time. Consequently, non-supply of copies of documents could not be a ground for holding the appellant to have deliberately disobeyed the order dated 6th August, 1984. In case the appellant intended to disobey the order he would have not even permitted inspection. By inspection the appellant could copy out the documents. It has not been the complaint of the deceased that no document demanded by him has not been furnished for inspection. Inspection was required by him in connection with disciplinary proceedings and that having been permitted by placing the entire file before him, the learned judge was wrong in holding the appellant to be guilty of deliberate disobedience. The documents however confidential before hand lost all confidentiality once it had been inspected by the deceased.
12. The finding of the learned judge therefore that the appellant deliberately disobeyed the order is erroneous.
13. Although we have held that the appellant did not disobey the order of the High court dated 6-8-84, we wish to lay as a law that no Court including the Court of Contempt is entitled to take frivolities and trivialities into account while finding fault with the conduct of the person against whom Contempt proceeding is taken. Law settled is, trivialities is to be ignored.
14. Mr. Subrata Roy Chowdhury was right in his contention that that Courts do not take notice of triviality and in the instant case as copies had been supplied within few days before the expiry of the period allowed, the Court should not have held the appellant guilty of having committed contempt. Trivial means trifling, inconsiderable. No one should, generally, be as in this could be convicted for trifling and trivial matters. The Court's orders had substantially and literally complied with. The learned Judge could not have found the appellant guilty of disobedience. The order passed appears to us to be outside the precinct of contempt jurisdiction.
15. It was rightly contended by the counsel for the appellant that the law has armed the High Court with the power and imposed on it the duty of preventing brevi manu and by summary proceedings any attempt to interfere with the administration of justice but not on any exaggerated notion of the dignity of the Court.
"The power to punish for contempt has been vested in the Judges not for their personal protection only, but for that of the public, whose interest it is that decency and decorum should be preserved in Courts of Justice."
16. Oswald in his book Contempt of court at page 9 summarises the law in the following words "These powers are given to the Judges to keep the course of justice free; powers of great importance to society, for by the exercise of them law and order prevail; those who are interested in wrong are shown that the law is irresistible. It is this obstruction which is called in law contempt, and it has nothing to do with the personal feelings of the. Judge, and no Judge would allow his personal feelings to have any weight in the matter. According to my experience, the personal feelings of the Judges have never had the slightest influence in the exercise of those powers entrusted to them for the purpose of supporting the dignity of their important office."
17. For what we have said above, we are pained to hold and record our irresistible conclusion that the procedures adopted was unjust and biased.
18. The counsel for the appellant stated that as the order stated to have been disobeyed by the appellant was mandatory in nature it was incumbent to serve the order on the appellant and as that was not done the contempt proceedings ought to have been dismissed. Even if it was true that the counsel for the Department was present at the time when the order had been made the obedience of a mandatory order could be required by an officer if he would flout the compliance of the same despite service. The decisions relied on are elaborated in Tarafatullah v. S. N. Maitra AIR 1952 Calcutta 919 :(1953 Cri LJ 136) under (b) "When an injunction is granted against a corporation, which afterwards does or permits an act in breach of the injunction, there is a wilful disobedience of the order and it will be no answer for the corporation to say that the act was done or the omission allowed to occur unintentionally, or through carelessness, or through dereliction of duty on the part of servants of the corporation. The same principle, would apply in the case of a Government, or a State, but before an individual officer of the Government can be held to be liable, it must be established that he was the person in charge of the subject-matter to which the injunction or order, alleged to have been disobeyed, related and unless that is established, no case against an individual officer can succeed."
and Naba Kumar Saha v. S. Banerjee AIR 1953 Cal 96 : (1953 Cri LJ 306):
"Contempt of court is either (1) Criminal contempt consisting of words or acts obstructing, or tending to obstruct, the administration of justice, or (2) contempt in procedure, consisting of disobedience to the judgments, orders, or the process of the Court, and involving a private injury.
But disobedience, if it is to be punishable as a contempt, must be wilful. Disobedience cannot be held to be wilful until the order is served. Hence the judgment or order must be shown to have been served on the party personally, except in the following cases (1) prohibitive orders, the drawing up of which is not completed; (2) orders embodying an undertaking to do an act by a named day; (3) orders to answer interrogatories or discovery or inspection of documents; (4) where an order for substituted service has been made; (5) where the respondent has evaded service of the order."
19. Another argument of the appellant's counsel which appealed to us to be correct was that where an order of which breach is complained of is ambiguous and is capable of two meanings, being not precise, no proceedings for contempt can be made on the alleged violation of that order - Keshav Gaman v. Bai Rukhaiyabibi and Anr., AIR 1958 Bombay 474.
20. We are of the view that in this case the appellant having complied with the order by granting inspection of the records within time stipulated by the order dated 6th August, 1984 did not commit any contempt. We also find substance in the submission that as the copies had been subsequently supplied the finding of the learned judge holding that the appellant deliberately committed contempt by not giving them to the respondent is sustainable and on that ground also no case against the appellant that he intervened in the conduct of the judicial proceedings is made out.
21. While exercising the powers conferred by the contempt of Courts Act, the Court should not be at cross purposes with the contemner and punish him although there was no deliberate disobedience. Attempt of the court should be to find out whether there was deliberate disobedience or intervention. If an order is passed against the department by impleading the senior most officer as a party it would be incorrect to hold everybody responsible from the position of the senior most officer of the department to the officer of the lowest rank. It is possible that the senior most officer or any other officer subordinate to him did not come to know of the order of the High Court and that they did not have any intention not to obey the same. The mistake or disobedience is on the part of somebody else and that somebody else should be held responsible.
22. Where there are several departments and cases are dealt with by the officers differently in different departments, to hold that all the officers should be responsible for contempt and would be liable to be punished could be travesty of justice. This is not the intention and the purpose of the Contempt of Courts Act.
23. The counsel for the appellant urged that for as many as 13 days the appellant had been cross-examined by the learned judge during the course of which 230 questions had been put and criticised the manner in which the case proceeded and in our view rightly, one can infer that the intervention was unjustified. No one can doubt that the learned judge in intervening as he had, was guided by the best motives to find out the truth but considering the questions put one is led to the conclusion that the procedure adopted by the learned judge was far from doing justice. It was a harassment.
24. Another point which we wish to note here is that the learned judge delivered the judgment holding the appellant guilty of disobedience after 4 years. Withholding judgment for such a long time when nothing much was to be done shakes the confidence of the public in the system.
25. The appeal succeeds and is allowed.
Mukul Gopal Mukherji, JJ.
26. I agree.