Rajasthan High Court - Jaipur
Central Bank Of India vs Smt. Sarojini Kumari on 14 May, 1998
Equivalent citations: 1999CRILJ2130, 1998(3)WLC288
Author: B.S. Chauhan
Bench: B.S. Chauhan
ORDER B.S. Chauhan, J.
1. The instant contempt petition has been filed by the applicant Central Bank of India against Smt. Sarojani Kumari alleging the wilful defiance of the order dated 5-6-91 passed by this Court in S.B. Civil Writ Petition No. 1954/1991, University of Jodhpur and Ors. v. State of Rajasthan and Ors., wherein the respondent was restrained from deciding any case as a Member of the District Forum, Consumers Protection, Jodhpur District, Jodhpur, unless the meeting was convened by the learned District Judge, Jodhpur.
2. The facts and circumstances giving rise to this case are that the applicant bank had granted term loan and cash credit (hypothecation) facilities to M/s. Quality Condutes Private Limited, Jodhpur (hereinafter referred to as "the firm") and as there had been a dispute regarding repayment of the loan amount and the said firm failed to make payment as per the Schedule of Repayment, litigation started between the parties and in respect of the same, applicant bank was served with a notice from the District Forum, Consumers Protection, Jodhpur (hereinafter called "the Forum"), in a complaint which had been filed by the said firm and the applicant bank was directed to appear before the said Forum, on 22-1-92. A copy of the order dated 5-10-91, passed by the respondent and a copy of the complaint was also served along with the said notice. As per the said order dated 5-10-91, certain directions had been issued to the bank. The grievance of the applicant bank is that the respondent had issued the said direction vide order dated 5-10-91 in wilful defiance of the order passed by this Court on 6-5-91 in S.B. Civil Writ Petition No. 1954/1991 (Jodhpur University v. State of Rajasthan). Hence this contempt petition.
3. Heard Mr. P. K. Bhansali, learned counsel for the applicant. Mr. Rajesh Joshi, counsel for the alleged contemnor and Dr. S. S. Bhandawat, counsel for the State.
4. Mr. Bhansali has submitted that in writ petition filed by the Jodhpur University, this Court had restrained the respondent-contemnor to "decide any case unless the meeting is convened by the District Judge, Jodhpur" and the order dated 5-10-91 had been passed in a meeting not convened by the District Judge and he submitted that in spite of the fact that the present applicant was not a party in the said writ petition it was an order of a general nature and, therefore, the respondent passed the said order dated 5-10-91 in wilful defiance of the order of this Court and hence she has shown gross disrespect to this Court and as such she is guilty of committing the contempt of the Court under the provisions of the Contempt of Court Act, 1971 (hereinafter called "the Act").
5. The relevant point to be determined in this case is whether applicant, who was not a party in a case wherein the order was passed and the respondent-contemnor was restrained to convene the meeting of the Forum, can maintain the contempt petition; and even if it can be done, whether the said order was communicated to the respondent and if so, by whom and on that date, for the reason that unless an order is communicated to the person concerned, it can not become operative (Vide Constitution Bench judgment of the Supreme Court in State of Punjab v. Amar Singh Harika AIR 1966 SC 1313. In Mool Raj v. Murthy Raghunathji Maharaj AIR 1967 SC 1386, the Apex Court held that an Authority cannot be expected to carry-out an order unless it knows of the order and the Court has observed that it is well settled that if a Court proceeds in contravention of the restraint order, the proceedings are nullity. However, if the Authority is restrained from proceeding further, "as soon as the Court had knowledge of the order, it is bound to obey it and if it does not, it acts illegally and all proceedings taken after the knowledge of the order would be a nullity." The Court further observed that, "however, it is necessary that the Authority, which has been restrained from proceeding further, has been informed by one party or the other and the Court has knowledge of it, it must stay its hand if it does not do so, it acts illegally.... But so long as the Court has no knowledge of the stay order, it does not lose the jurisdiction to deal with the proceedings."
6. In Hoshiar Singh and Anr. v. Gurbachan Singh and Ors. AIR 1962 SC 1089 : 1962 (2) Cri LJ 236 which was a case, like instant, it was contended on behalf of the contemnor that as the order of the High Court has not been communicated to him officially, he was not bound to take notice of such an order. The Apex Court negatived the averment and observed as under :-
We are unable to accept this contention as correct The legal proposition has been very succinctly put by Oswald :
'The judgment or order should be 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 for 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....
In order to justify committal for breach of a prohibitive order it is not necessary that the order should have been served upon the party against whom it has been granted, if it be proved that he had notice of the order aliunde, as by telegram, or newspaper, report, or otherwise, and knew that it was intended to be enforced, or if he consented to the order, or if he was present in Court when the order was pronounced, or when the motion was pronounced.... (Oswald's Contempt of Court, 3rd Edition).
7. In Bunna Prasad v. State of U.P. AIR 1968 SC 1348 : 1968 Cri LJ 1514, the Apex Court relied-upon in its earlier judgment in Hoshiar Singh (supra) and observed as under :-
It is also clear that in such matters those who assert that a person had knowledge of the order must prove this fact beyond all reasonable doubt. If there is any doubt, the benefit ought to be given to the person charged with contempt of Court. If a person bona fide comes to the conclusion on the material placed before him that the source of information is not authentic he cannot be held guilty of contempt of Court for disobeying the order.
8. Contempt application lies only when there is a wilful defiance and no inference can be drawn that an Authority has wilfully defied the order unless it is established that the said authority had the knowledge of the order. In the instant case, even if it is presumed that the contempt petition is maintainable at the instance of the petitioner applicant who was not a party in the writ petition wherein the order dated 6-5-91 was passed, the applicant is bound to satisfy the Court that the said order had been communicated to the respondent-contemnor or she had acquired the knowledge of it. Mr. Bhansali has pointed out that the respondent came to know the said order definitely on 7-9-91 as on that day she passed an order contained in Annexure-5 to the additional affidavit to this petition where in the respondent-contemnor has mentioned that the order dated 6-5-91 passed in S.B. Civil Writ Petition No. 1954/ 1991 had been brought to her notice by Mr. B.C. Parekh Advocate; however, she is not bound by it as she had taken advice from the State minister of Food and Civil Supplies, Sri Ram Kishan Meena and the secretary of the Department, and she would continue to hold the proceedings. Mr. Bhansali submitted that the said order makes it abundant clear that she was definitely aware of the order dated 5-6-1991 and has wilfully defied it and as such she is guilty of the contempt of the Court. The applicant has not disclosed as how he obtained/got the copy of the order dated 7-9-1991. In reply, the contemnor has denied it for the reason that the said order dated 7-9-91 had not been filed by the applicant along with the contempt petition and it is a forged and fabricated document and she has submitted that the question of a typed-order did not arise as there was no typewriter in the office, and secondly, there was no necessity to pass such order as there was no question of having consultation with the Hon'ble Minister or the Secretary concerned and even if there had been consultation with the minister or the Secretary on 7-9-91, the order could not have been passed on the same day. Moreover, it was by no means necessary to mention the factum of consultation with the Hon'ble Minister and the said Secretary. However, she has admitted that it bears her signatures. The explanation given for it is that Mr. B. C. Parekh, Advocate was her advocate in case No. 4981, Ram Rakh v. State and Ors., and he had taken her signatures on a large number of blank papers to prepare the reply and he has misused it. Regarding the same, she had made complaints to the competent authorities like Bar Council of India and Bar Council of the State etc.
9. Moreover, a strange phenomenon occurred in this case which is anathema to the judicial proceedings. Three persons filed applications before this Court in a most unusual and unwarranted way. One application was filed by the proprietor of Jodhpur Dyeing and Bleeching, Jodhpur for initiating the contempt proceedings against the respondent for violating the order dated 6-5-91, however, the said application was withdrawn by filing another application on 22-9-95. The second application was filed by Mr.. Pankaj Agrawal for initiating the contempt proceedings against the respondent for alleged violation of the said order dated 6-5-91 stating that he had purchased a magzine "India Today" from some shop and the original order dated 7-9-91, purported to have been passed by the respondent-contemnor, on the basis of which the instant contempt proceedings are pending, was found inside the magazine and the photo copy of the same has been filed before this Court with a prayer that this Court should punish the respondent for committing the contempt. This application was filed on 13-11 -95. However, Mr. Pankaj Agrawal later on disappeared. One more application had been filed by Prakash Textiles and later on it was withdrawn. On record of this case, there are some affidavits filed by the State Government, which are purported to have been filed in reply to the notice issued to them. However, no notice had ever been issued to any person other than the alleged contemnor Smt. Sarojini Kumari and lateron two Advocates, viz., Mr. B.C. Parekh and Mr. Akshaya Parekh were, also, served with the notice for committing the contempt of the Court and in their cases, the proceedings have been stayed by a Division Bench of this Court but the contempt proceedings against the said Advocates are on entirely different footings/grounds and has nothing, to do with the allegations urged against respondent.
10. The respondent had made-out a clear case that she had never been represented by the counsel in S. B. Civil Writ Petition No. 1954/1991, nor the order had been communicated to her by anybody. The said petition had been dismissed as withdrawn vide order dated 24-1-92. She has filed some order-sheets of the Forum dated 11-7-91, 23-7-91, 21-9-91, 10-9-91 etc. wherein the counsel Mr. B.C. Parekh was appearing before her in a large number of cases and, also, in other cases but she stated that Mr. Parekh had never informed her about the said order. She pleaded not guilty, tendered an absolute and unconditional apology and thrown herself to the mercy of the Court and begged for justice as the instant proceedings have been initiated on the basis of a forged document.
11. The Court failed to understand, who was the person who had issued the notices to the State, in response of which the State has filed the reply and who are the persons behind the strange phenomenon of filing applications, having no concern with the case and how it is permissible that any person can come to this Court; file an application for conviction of the respondent and then walk-out from Court without any sense of responsibility. Thus a great mischief has been played with the Court.
12. In the case of Andre Paul Terence Ambard v. Attorney General for Trinidad and Tabago AIR 1936 PC 141, the Privy Council has observed that the proceedings under the Contempt Act are quasi-judicial in nature and orders passed in those proceedings are to be treated as orders passed in criminal cases. In case of Sukhdeo Singh v. Hon'ble the Chief Justice Teja Singh and Hon'ble Justice the Par Pepsu High Court at Patiala AIR 1954 SC 186 : 1954 Cri LJ 460, Supreme Court has taken the same view. A Full Bench of Punjab High Court in the case of Sher Singh v. R.P. Kapoor AIR 1968 Punjab 217 : 1968 Cri LJ 775 has held that the contempt proceedings are by all means, a quasi criminal in nature. The applicant must prove his allegations beyond reasonable doubt and the alleged contemnors are entitled to the benefit of doubt. Some view has been taken by a Division Bench of Madras High Court in B. Yegnanaryaniah AIR 1974 Mad 313, and by Lahore High Court in Homi Rustom G. Pardiawala v. Sub-Inspector Baig and Ors. AIR 1941 Lah. 196. In the case of Sri Baradakanta Misra v. Registrar of High Court AIR 1974 SC 710 : 1974 Cri LJ 631, the Supreme Court has observed as under :-
The court being the guardian of peoples right, it has been held repeatedly that the contempt jurisdiction should be exercised with scrupulous care and only when the case is clear and beyond reasonable doubt.
13. In the case of Devabrata Bandhopadhyay v. State of West Bengal AIR 1969 SC 189 : 1969 Cri LJ 401, the Supreme Court has observed that "to take action in unclear case is to make the law of contempt do duty for other majors and is not to be encouraged." A similar view has been taken in the cases of B.K. Kar v. Hon'ble the Chief Justice and his other Companions of Orissa High Court AIR 1961 SC 1367 : 1961 (2) Cri LJ 438 and Bharat Coking Coal Ltd. v. State of Bihar AIR 1988 SC 127 : 1988 Cri LJ 396. Similar view has been expressed by Allahabad High Court in G.N. Verma v. Har Govind AIR 1975 All 52. In S. Abdul Karim v. M.K. Prakash AIR 1976 SC 859 : 1976 Cri LJ 641, the Hon'ble Apex Court has held that the standard of proof required to establish a charge in contempt proceedings is the same as in any other criminal proceedings. It is all the more necessary to insist upon strict proof of such charged act complained of is committed by a person performing judicial/quasi judicial proceedings. In Jawand Singh Hakum Singh v. Om Prakash AIR 1959 Punjab 632, the Punjab High Court, while dealing with a contempt matter, had observed that guilt of a person of having committed contempt of Court, must rest on reasonable certainty. Suspicion, no matter how strong and speculative, however, suspicions must not form the basis for contempt.
14. It is settled preposition of law that contempt proceedings cannot be permitted to be used as a legal thumb-screw to serve an ulterior purpose. The jurisdiction should not be used for vindicativeness, malice or a desire to harass on the part of a private citizen. In a given case it may not be possible or practicable to prove the guilty intention behind the act or omission. A Court can approach the question only objectively and may presume the intention from-the act done as the doer is presumed to intend the probable consciousness of his act but the Court should not over-sight that civil contempt involves private injury and is punishable only when a degree of misconduct is involved and proved. The defiance should be wilful and intentional as opposed to unintentional, accidental, casual or bona fide conduct. Nothing can be more rediculous in law than punishing a person in absence of an unimpeachable' piece of evidence which may prove beyond reasonable doubt that the contemnor had knowledge of the order and flouted it wilfully. No doubt, the law cannot have any respect for "lazy bosses" or "cheeky evaders". But there should be a full proof case regarding the species of guilt and mere non-compliance of an order has no long mileage where knowledge of the order becomes doubtful and the wilful defiance of the order is sine qua non for conviction under the provisions of the Contempt of Court Act.
15. If the instant case is examined in view of the legal proposition explained above, it is abundantly clear that (i) the respondent was not represented in S. B. Civil Writ Petition No. 1954/ 1991, wherein the order of restrain was passed; (ii) it is nobody's case that she had officially been communicated the said order;
(iii) it is not the case of the applicant that the news restraining her from holding the proceedings had been published in the local newspapers; (iv) the theory of forging the document/order dated 7-9-91 cannot be ruled out for the reason that the said order had not been filed by the applicant along with the contempt petition; and original copy of the said order is not on record; and (v) the applicant has not explained under what circumstances the order had been passed and how the order came to his knowledge and how did he obtain it and filed as Annexure. 5 to the additional-affidavit as it has urged that it is evident from the said order that she was aware of the order dated 6-5-91. Moreover, it does not sound to reason as what was the occasion to pass the said order in writing and for what purpose the said order was written. It can be understood that a person/litigant had filed an application not to hear the matter as she had been restrained and she could have passed the said order. There appears to be no reason to have consultation with the Hon'ble Minister and the Secretary, as mentioned in the order and even if she had consulted, it is beyond imagination that any prudent person would bring this fact on record and if the original copy of this order had been found by Mr. Pankaj Agrawal in 1994 in the magazine "India Today", how the copy was made available to the applicant on 3-11 -92, as the same had been filed alongwith additional affidavit dated 3-11-92 and how its contents came to the knowledge of the applicant in 1991, at the time of filing this petition. The conduct of Mr. Pankaj Agrawal for purchasing the magzine becomes doubtful for the reason that in normal course, nobody gets receipt for purchasing a magazine from a book-stall and that too in a case where the person does not claim any reimbursement from some department. Obtaining the receipt and filing the same as Annexure. D. 1 alongwith his application, makes it doubtful as it runs counter to the normal conduct of an ordinary human-being. Obtaining such receipt creates a doubt regarding the genuineness of the entire episode. The original copy of the said order had not been filed alongwith the application and only a photo copy has been filed. Mr. Pankaj Agrawal has not explained that he did come to know in November, 1995 that an order passed by this Court in some other petition on 5-6-91, which itself had been dismissed as having become infructuous on 24-1-92 and the interim order passed therein has been merged in the final order and losts its sanctity. (Vide Shiv Shanker v. Board of Directors, U.P.R.S.T.C. and Anr. 1996 Suppl (2) SCC 726; Kanoriya Chemicals and Industrial Ltd. v. U.P. State Electricity Board 1977 (5) SCC 772; and Smt. Aqueela v. State of Rajasthan 1998 (1) RLW 497. How could he know that the order was not complied with by the respondent-contemnor in 1991, i.e. about more than four years prior to the date of filing the application, nor it could be argued in contempt jurisdiction that under the law the respondent was not competent to hold proceedings unless the meeting was convened by the learned District Judge as merit of a case cannot be gone into while deciding contempt application. (Vide J.S. Parihar v. Ganpat Duggar AIR 1997 SC 113. Moreover, filing of applications by two other persons, namely, Jodhpur Dying and Bleeching and Prakash Stores, creates doubt in the mind of the Court that there a conspiracy has been hatched to play fraud upon the Court to achieve some ulterior purpose. In such a situation, it becomes the solemn duty of the Court to see that no person muster courage to lower down the authority of the Court and weaken the sense of confidence of people in the administration of justice.
16. In Dhananjaya Sharma v. State of Haryana AIR 1995 SC 1795, the Apex Court has observed as under at page 1806 :-
Thus, any conduct which has the tendency to interfere with the administration of justice or the due course of judicial proceedings, amounts to commission of criminal contempt. The swearing of false affidavit in judicial proceedings not only has caused the obstruction in the due course of judicial proceedings but has, also, the tendency to impede, obstruct and interfere with the administration of justice.... The due process of law cannot be permitted to be slighted nor the majesty of law can be made a mockery by such act or conduct on the part of parties to the litigation.... Any one, who makes attempt to impeach or undermine and obstruct the free flow of unsoiled steam of justice by resorting to file a false affidavit, commits criminal contempt to the Court and renders himself liable to be dealt with in accordance with the Act. Filing of false affidavit or making false statement on oath in Court aims at striking a blow at the rule of law and no Court can ignore such conduct which has tendency to shake public confidence in the judicial institution because the very structure of an ordered life is put at stake. It would be a great public disaster if the foundation of justice is allowed to be poisoned by any one resorting to file a false affidavit or giving a false statement and fabricating the false evidence in a Court of law. The stream of justice is to be kept clean and pure and any one soiling its purity must be dealt with sternly so that the message perculates loud and clear that no-one can be permitted to undertime the dignity of the Court and interfere with due course of judicial proceedings and administration of justice.
17. Similarly, in the case of Chandra Shashi v. Anil Kumar 1995 (1) SC 421 : 1994 AIR SCW 4994, the Apex Court has observed that "the stream of administration of justice has to remain unpolluted so that the purity of courts' atmosphere may give vitality to all the organs of the State. Polluters of judicial environment are, therefore, required to be well taken care of to maintain the sublimiting of courts environment so also to enable it to administer justice fairly and to the satisfaction of all the concerned. No one who takes recourse to fraud deflects the Court of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice." Similar view has been expressed by the Hon'ble Apex Court in Afjal v. State of Haryana AIR 1996 SC 2326 : 1996 Cri LJ 1679.
18. There are special features in the instant case which warrant this Court to direct the investigating agency to find-out as under what circumstances the applications had been filed by the persons having no concern with the case and what was the goal they wanted to achieve by adopting this oblique motive and who was the person who sent the notices purported to have been sent by this Court to the State and in response of which the State has filed a reply. However, as the matter is very old and is pending before this Court for more than six years, it is not desirable to direct the investigation at such a belated stage.
19. Thus, in the totality of the circumstances, I am of the view that the hypothesis put forwarded by the respondent contemnor that the order dated 7-9-91 is a forged document, cannot be ruled out. The applicant miserably failed to prove that the respondent had any knowledge of the order passed by this Court on 5-6-91 and in such a situation she becomes entitled for benefit of doubt and cannot be held guilty of committing the contempt of the Court. Therefore, the contempt proceedings/notice initiated against her are discharged.