9911796707
TMI Blog1988 (6) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... de by a learned Single Judge of this Court in an application filed by the Additional Collector of Central Excise and Customs, Shillong in C.O. No. 9996 (W) of 1987 (M/s. G.T.C. Industries Ltd. Anr. v. The Principal Collector, Central Excise Customs, Eastern Region and Collector of Central Excise Customs, Shillong Ors.) and the application for appropriate orders filed therein. We have got to consider the submissions as made on behalf of the parties appearing, to the import and effect of the said Rules and that is the reason why we have incorporated the earlier process in which the said Rules were framed and formulated. 3. M/s. G.T.C. Industries Ltd. and Golden Investment (Silckim) Pvt. Ltd. (hereinafter referred to as the said Companies), of which the appellants herein, have claimed to be the officers and stationed in various parts of India, on or about 18th Nov. 1987, the said Companies filed and moved an ex parte writ application, which was numbered as C.O. No. 9996 (W) of 1987, challenging therein amongst others, the validity of the summons issued under Section 14 of the Central Excises Salt Act, 1944 (hereinafter referred to as the said 1944 Act), by the Additional Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not give any effect to the summons in question or any other summons that may be issued with regard to the said Companies. It should be noted that the summonses in question, were issued to Sarbashree P.P. Khaitan, P.K. Chatterjee and T.K. Krishnamurthy. It would appear that on 16th December 1987, the learned Advocate appearing for the Respondents before him, the learned Trial Judge stated that in case the said Companies or their officers were required to be present before the Respondent authorities, they shall issue notices to that effect fixing a date, which shall not be earlier than 10 days from the date of issue of such notice and in that view of the matters, the learned Trial Judge passed no order on the concerned application for contempt and thus, disposed of the same. 6. It would appear that on 17th December 1987, summons were issued in terms of the order dated 10th December 1987, to Sarbashree Sanjay Dalmia and P.P. Bhandari for their appearance before the Additional Collector, Shillong on 18th and 19th January 1988 and similar summonses were issued to Shri M.C. Jain for his appearance before the said Additional Collector on 12th and 13th January 1988. On such, an order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s. G.T.C. Industries Ltd., and Sri Sanjay Dalmia before the Hon'ble Delhi High Court, was dismissed on 1988. By the said proceeding, the petitioners in that case also challenged the summonses dated 15th and 18th April as issued from the office of the Directorate of Anti-Evasion (Central Excise) New Delhi and it was positively stated by Shri Sanjay Dalmia before that Court that he would positively appear before the concerned Central Excise authorities on 21st April 1988. It has been alleged that instead of appearing before the said authorities in terms of such undertaking as mentioned above, a Medical Certificate was produced from one "Jain Medical Centre" (Nursing Home) praying for five days time and consequently a fresh summons was issued directing the said Shri Dalmia to appear on 26th April 1988, before the concerned authorities at New Delhi. 9. It would also appear that again a writ petition being No. 625 of 1988 was moved before the Hon'ble High Court at Gauhati on behalf of the said G.T.C. Industries Ltd. and Golden Investment (Sikkim) Pvt. Ltd., against the summons dated 15th April 1988, which incidentally was the subject-matter of challenge before the Hon'ble Delhi H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs concerned till 15th June 1988. It would appear that the Additional Collector concerned by a telegram was pleased not to grant the extension as prayed for and requested the learned Advocate concerned to advise his clients to appear on the date as scheduled by this Court, failing which he was also informed that legal action would be initiated. On such, on or about 31st May, 1988, an application for contempt was filed by the Additional Collector of Customs Central Excise against Shri Sanjay Dalmia and nine other officers of the G.T.C. Industries Ltd., and the writ petitioners also filed an application for withdrawing their petition in C.O. No. 9996 (W) of 1987, before the learned Trial Judge and it has been stated that both the said applications were directed by the said learned Trial Judge to appear in the list on 1st June 1988. This order of 31st May, 1988, is not available in the records of the proceedings or the order-sheet of the C.O. No. 9996 (W) of 1987. But Mr. Sen appearing for the Appellants now wanted to establish on a reference to other records and documents that really such order was passed. 12. However, on 1st June, 1988, the concerned C.O. proceedings appeared in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larly he was of the view that false statements were made on affidavits and facts were distorted, directed that the Respondents Union of India and their officers should be compensated with costs appropriately and as such, directed an exemplary costs assessed at Rs. 10,000/- to be paid by the petitioner before to the Respondents within two weeks and in default, he further directed that the Respondents before him would be at liberty to apply for sanction for prosecution against the deponent concerned. He of course, made it clear that if costs in terms of His order is paid there would not any sanction for such prosecution as indicated above. 15. The contemner opposite parties not having appeared before the learned Trial Judge, on 29th June 1988, the learned Trial Judge passed an order to the following effect :- The alleged contemner-opp. Parties No. 1 to 6 and 10 have not appeared today pursuant to the order passed by this Court on 1st June, 1988. Mr. B.N. Sen, learned Counsel appearing on behalf of the said contemner opp-parties, informs this Court that an appeal has been preferred by the said opp-parties contemners in connection with their application for exemption of personal ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 88 and was filed by the appellants, against whom the order in respect of the concerned contempt proceedings, the particulars whereof we have indicated earlier, was issued and by the present application, they have claimed that the application for contempt filed by the Additional Collector of Central Excise Customs, Shillong be dismissed and the interim order dated 1st June, 1988, as passed by the learned Trial Judge, be vacated. Alternatively, a stay of operation of the said order was prayed for and it was further prayed that personal appearances of the alleged contemner petitioners, which was fixed on 29th June 1988, before the learned Trial Judge, be dispensed with. 17. Mr. Sen placed the writ petition which was filed before the learned Trial Judge for determination in this Court and it was his specific submissions that on the basis of the averments as made therein, the contempt Rule, in which the purported contemner opposite parties have been asked to show-cause, should not have been entertained and in any event, before the issue of a Rule for contempt, such steps in the matter of asking the alleged contemner opposite parties to show cause by the learned Trial Judge, was impr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged or the contempt application was directed and that being the position, under Article 21 of the Constitution of India, which deals with protection of life and personal liberty of a subject, that application should not have been considered or looked into, same by the same or the orders as asked for therein, the personal liberty of the contemners have been sought to be interfered with, the more so when, the said Article requires that no person shall be deprived of his life or personal liberty except according to procedure established by law. 17A. To establish the above submissions, Mr. Sen referred to the case of A.K. Gopalan v. State of Madras, AIR 1950 SC 27, which was a case under the Preventive Detention Act, 1950 and where it has been observed amongst others, that Article 19 gives list of individual liberties, which Articles 20-22 primarily deal with penal or other laws and to be more precise B.K. Mukherjee, J. has observed as under :- 18. Article 19 of the Constitution of India gives a list of individual liberties and prescribes in the various clauses the restraints that may be placed upon them by law, so that they may not conflict with public welfare or general mora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion "personal liberty" has been used in the restricted sense in which Blackstone used it in his commentaries. Article 19 protects some of the important attributes of personal liberty as independent rights and the expression "personal liberty" has been used in Article 21 as a compendious terms including within its meaning all the varieties of rights which go to make up the personal liberties of men. It should also be noted that Kenia C.J. has further indicated that the deprivation (total loss) of personal liberty, which is sought to be protected by the expression "personal liberty" in Article 21, is quite different from restriction (which is only a partial control) of the right to move freely (which is relatively a minor right of a citizen) as safeguarded by Article 19(1) (d). Deprivation of personal liberty has not the same meaning as restriction of free movement in the territory of India. Therefore, Article 19(5) cannot apply to a substantive law depriving a citizen of personal liberty. The contention, that the word 'deprivation' includes within its scope 'restriction' when interpreting Article 21, is not acceptable and it has the observations of Patanjali J. that the constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r may be the generally accepted connotation of the expression "personal liberty", it is used in Article 21 in a sense which excludes the freedoms dealt with in Article 19. Thus personal liberty in the context of Part III of the Constitution is something distinct from the freedom to move freely throughout the territory of India and it has been observed by B.K. Mukherjee, J. that in ordinary language 'personal liberty' means liberty relating to or concerning the person or body of the individual and 'personal liberty' in this sense is the antithesis of physical restrain or coercion. 'Personal liberty' means a personal right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification. This negative right of not being subjected to any form of physical restraint or coercion constitutes the essence of personal liberty and not mere freedom to move to any part of the Indian territory. In the Indian Constitution the expression 'personal liberty' has been deliberately used to restrict it to freedom from physical restraint of a person by incarceration or otherwise and the findings of the majority were that "procedure establish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the State-made laws and since the contemner opposite parties were not parties to the concerned order, they should have been served first in terms of the observations in the case of Trafatullah Mondal Ors. v. S.N. Maitra Ors. AIR 1952 Calcutta 919, where amongst others, the Bench determinations of this Court has observed while dealing with Section 2 of the Contempt of Courts Act, 1926 or for the requirements in a proceeding for contempt, that it is always essential even in India that an individual or an officer who is not a party to the proceeding resulting in the order alleged to have been disobeyed but who is sought to be proceeded against in contempt, must be served with a copy of the order or judgment to be enforced. It is proper course to insert the names of the individuals or the officers in the Rule Nisi and to serve it on his specifying the nature of the contempt with which the individual or officer served is charged. Before a proceeding for contempt can succeed, it is of paramount importance to establish first, the service of the order of the Court said to have been disobeyed upon the person alleged to have committed contempt thereof, secondly, the precise act of cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order issuing a Rule Nisi with certain specific directions to do some acts was more than issuance of contempt rule and it affected the right of the parties and appeal was maintainable inasmuch as it was an order passed in the exercise of jurisdiction to punish for contempt. In that case the argument on behalf of the respondents was that the order was an inter-locutory one and hence the appeal was maintainable. On those facts it has been observed that there is no provisions in Section 19 of the said Act from preferring an appeal against an interlocutory order. Section 19(1) very clearly states that an appeal was lie as of right from any order or decision of the High Court in the exercise of its jurisdiction to punish for contempt and on such facts it has also been observed that it must be said that the order as passed in the case was in exercise of the jurisdiction to punish for contempt and not in the exercise of any other jurisdiction. It has also been recorded that the order certainly affected the rights and contentions of the parties and the same had really great relevance to question, if in fact, there was violation of the order of the Court by the respondents. Apart from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e only thereby denying at least one right of appeal to the appellant was violative of Articles 14 and 21 of the Constitution and whether such directions were at all valid or legal and (2) if such directions were not at all valid or legal in view of the order dated 17th of April 1984 referred to hereinbefore, is this appeal sustainable or the grounds therein justiciable in these proceedings. In other words, are the said directions in a proceeding inter-parties binding even if has in law of violative of Articles 14 and 21 of the Constitution and as such are immune from correction by this court even though they cause prejudice and do injury? These are the basic questions which this Court must answer in this appeal and the contention that was canvassed before Supreme Court was that save as provided in subsection (1) of Section 9 of the Criminal Procedure Code (1898) shall so far as they are not inconsistent with the Act apply to the proceedings before the Special Judge and for purposes of the said Provisions the Court of the Special Judge shall be deemed to be a Court of Sessions trying cases without the aid of assessors and the person conducting the prosecution before a Special Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that the appellant has a right to be tried in accordance with law and no procedure which will deny the equal protection of law can be invented and any order passed by this Court which will virtue of Article 13(2) of the Constitution. He referred as to the previous order of this Court directing the transfer of cases to the High Court and submitted that it was a nullity because of the consequences of the wrong directions of this Court. The enormity of the consequences warranted this Court's order being treated as a nullity and the directions as contained denied the appellant before the Supreme Court the remedy by appeal as of right. It was pointed out that the said erroneous or mistaken direction should be corrected at the earliest opportunity. In fact, specific references were made by Mr Sen in support of his contentions on the facts of this case which would be referred to hereinafter to paragraphs 38, 40 to 43, 46, 49 to 52 and 57 of the determinations as reported in AIR 1988 S.C. 1531. In fact, the majority view on the basis of the above citation and reference as made by Mr. Sen, was that Section 7(1) of the Criminal Law Amendment Act, 1952 creates a condition which is sine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the deprivation of the fundamental rights of a citizen or any legal right of the petitioner. The Supreme Court therefore recalled the directions contained in the order in question. The basic fundamentals of the administration of justice are simple. No man should suffer because of the mistake of the Court. No man should suffer a wrong by technical procedure or irregularities. Rules of procedures are the hand-maids of justice and not the mistress of the justice. Ex debito justice, the Court must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied. 26. On a reference to Rule 19 of the said Rules which postulates that the Court may issue Rule Nisi or summarily reject the petition or make such other orders thereupon as though fit. 27. The Rule Nisi shall be drawn up, as far as may be in the model form in Form No. 1 Appendix-1. Mr. Sen claimed and contended that on the meaning or on construction of the words "such order", the order as issued by the learned single judges was improper, irregular and violative of Article 21 of the Constitution of India and such submissions were also sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition presented by a party or parties aggrieved or (b) by the High Court on its own motion; or (c) on a reference made to the High Court by the Subordinate Courts as in the case of Criminal Contempt. (2) Proceedings in connection with a Criminal Contempt may be initiated: - (a) on a motion of the High Court in respect of a contempt committed upon its own view under Section 14 of the Act; or (b) on its own motion by the High Court under Section 15(1) of the Act; or (c) on a motion founded on a petition presented by the Advocate General under Section 15(1) (a) of the Act; or (d) on a motion founded on a petition presented by any other person with the consent in writing of the Advocate General under Section 15(1) (b) of the Act; or (e) on a reference made to the High Court by the Subordinate Courts under Section 15(2) of the Act, containing the following particulars : - (a) a brief statement of the case : (b) the particulars of the contumacious acts; (c) Name, address and other particulars of the Respondents along with the copies of the papers relating to contumacious acts. 30. It was Mr. Roy Chowdhury's further submissions that under those Rules or the rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and exercised on following the due formalities. It was submitted by him that on application being filed the High Court under its Rules has thus a summary power to dismiss or reject the application, apart from the power to adopt its own procedure and according to Mr. Roy Chowdhury such power to punish as indicated earlier, has been implied power to direct appearance for which in this case the learned judge has done. He further pointed out that such directions would not mean that the learned Judge has already formed his opinion adverse to the contemners and would have punished them. It was also pointed out by him that above was the admitted power of the High Court and the use of exercise of such power or the extent of the same is not under challenge and since there has been no formation of mind by the learned Judge while against the contemners so there could not be any question of involvement of fundamental rights. Such submissions as claimed by Mr. Roy Chowdhury to be immemorial in the facts of this case and at the present state of affairs. While on the question of High Court's implied power as indicated in terms of the Supreme Court as mentioned hereinbefore, Mr. Roy Chowdhury als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate steps in a case of the present nature. In fact, he stated that as such the High Court may direct the presence of the contemners or even may pass orders to secure such persons and without such and necessary power, according to Mr. Roy Chowdhury the Court would not be in a position to vindicate its right. 34. While on the question of immemorial usage, Mr. Roy Chowdhury referred to observations of the Supreme Court in the case of R.L. Kapoor v. State of Tamil Nadu, AIR 1972 SC 858. In fact, he referred to the observations of the Supreme Court to the effect that the jurisdiction conferred on the High Court under Article 215 to punish for contempt of itself is a special one, nor arising or derived from the Contempt of Courts Act, 1952 and therefore, not within the purview of the Penal Code. Such a position is also clear from the provisions of the Contempt of Courts Act. The effect of Section 5 of that Act is only to widen the scope of the existing jurisdiction of a special kind and not conferring a new jurisdiction. So far as contempt of the High Court itself is concerned, as distinguished from that of a Court subordinate to it, the Constitution vests these rights in every High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the inferior Court of Record as is maintained in English Law, because in India it is only the High Court which are recognised as Courts of Record; but the Courts subordinate to the High Court in India have been vested with the power to punish for contempt committed in presence of the Court provided for under Sections 480 to 487 of the Code of Criminal Procedure so that a distinction sought to be made between the superior and inferior Courts in English Law and the absence of such a distinction in Indian Law, and the further fact that subordinate Courts in India have not been considered as Courts of Record does not make any substantial difference, as the powers possessed by the inferior Courts of Records in England with regard to punishing for contempt committed in presence of the Court are exercised by the Indian Courts by virtue of the statutory powers conferred upon them. Therefore, there is no substantial difference between the procedure in this country and that prevailing in England and it may, however be pointed out that the power of committing to prison exercised by the Judges in England extends to an indefinite duration unlike the Indian Contempt of Courts Act which has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of Section 1, Evidence Act, they are outside the scope of Section 1 and have always been treated as such. Contempt proceedings are usually decided on the basis of affidavits and it is not illegal to find a person guilty on the strength of affidavits alone. On such findings it has also been observed that it is therefore not true to say that contempt must be proved in the manner laid down in the Evidence Act; the Court undoubtedly has to be satisfied that contempt has been committed, but as competent adopt its own procedure for deriving satisfaction. It stands to reason that when the law does not prescribe manner in which contempt should be brought to the notice of the Court, and when it has not even defined what contempt is there cannot be any law as to the onus of proof, or the method of proof, in contempt proceedings, and that in cases of Criminal contempt, the facts can be proved by affidavit and also observed that since the Evidence Act expressly does not apply to affidavit proving a fact by an affidavit is not barred; if a fact is allowed to be proved by an affidavit, it can be proved by an affidavit notwithstanding the provisions of the Evidence Act and also indicating that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Ors; AIR 1960 Patna 430 and he made specific reference to the observations that in view of Article 19(2), the Law of Contempt as embodied in the Contempt of Courts Act, 1926, according to which the punishment is limited, is not hit by Article 19(l)(a). It has also been indicated that there, is no inconsistency of any kind between the Contempt of Courts Act and Article 13, inasmuch as Article 19(2) forms part of Part III of the Constitution itself. In that case, it has also been indicated that the express "procedure established by law" in Article 21 contemplates a procedure which was followed by the various High Courts prior to the passing of the Indian Constitution and includes summary procedure based on fairness and justice without the trammels of technicality and there is nothing invalid in the practice and procedure followed in matters of contempt on account of Article 21 of the Constitution. 36. On the basis of the above determinations, Mr. Roy Chowdhury claimed and contended further that there was no basis or justification on the submissions of Mr. Sen, on the freedom of movement of his clients, since such freedom of movement should also be subject to restriction and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll on 29th June, 1988, an order which has been indicated earlier was passed. But no appeal has been taken against the order dated 29th June, 1988. It is true that on 21st June, 1988, an application for dismissal of the concerned Contempt proceeding was filed before the learned Trial Judge and alternatively, there was a prayer for dispensation of the appearance of the appellants. We have also quoted earlier the order dated 29th June, 1988 and therefrom it would appear that on 21st June, 1988, no order was in fact, passed by the learned Trial Judge and the terms of the order dated 29th June, 1988 without any doubt proved and establishes that by the same, the learned Trial Judge, disposed of and dealt with the application dated 21st June, 1988. 38. Above being the position, Mr. Roy Chowdhury claimed that the appeal, so far the order dated 21st June, 1988 was concerned, was not maintainable and after hearing the parties and considering their submissions, we feel that such exceptions as were taken by Mr. Roy Chowdhury, were of substance. Regarding the other order dated 1st June, 1988, Mr. Roy Chowdhury claimed that the appeals as taken against the same, was also not maintainable, as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d right of the appellants have been violated or infringed and as such also, the appeal was not maintainable. 39. While on his submissions that the appeal is not maintainable, reference was made by Mr. Roy Chowdhury to the case of Baradakanta Mishra v. Mr. Justice Gatikurshna Mishra, C.J. of the Orissa High Court, AIR 1974 SC 2255, where it has been observed that an order of High Court rejecting motion made by a Judicial Officer and refusing to initiate a proceeding for Contempt against Chief Justice and other Judges, is not appealable under Section 19(1) of the said Act, apart from observing that the exercise of Contempt jurisdiction being a matter entirely between the Court and the alleged contemner, the Court, though moved by motion or reference may in its discretion, decline to exercise its jurisdiction for contempt. It is only when the Court decides to take action and initiates a proceeding for contempt that it assumes jurisdiction to punish for contempt. The exercise of the jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt, whether suo motu or on a motion or a reference. That is why the terminus a quo for the period of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding for contempt by the issuance of the notice under Sec. 17 on the prima facie view that the case is a fit one for drawing up the proceeding, does not decide any question. Hence an order merely initiating the proceeding without anything further, does not decide anything against the alleged contemner and cannot be appealed against as a matter of right under Section 19. In a given case special leave may be granted under Article 136 of the Constitution from an order initiating the proceeding. But unless and until there is some order or decision of the High Court adjudicating upon any matter raised before it by the parties, affecting their right, the mere order issuing the notice is not appealable. Such being the position in law, it was further contended by Mr. Roy Chowdhury that against an order issuing only a show cause notice and without adjudicating the Us in any manner and form, as in this case, no appeal would lie. In the case of Baradakanta Mishra v. Orissa High Court, AIR 1976 SC 1206, to which reference was also made by Mr. Roy Chowdhury in support of his submissions on the maintainability of his appeal, it has been observed that an interlocutory order under Section 19 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not be aforded. While on his submissions as indicated earlier, Mr. Roy Chowdhury finally made a reference to the case of D.N. Taneja v. Bhajan Lal, (1988) S.C.C. 26, where it has been observed that an appeal will lie under Section 19(1) of the Act only when the High Court make an order or decision in exercise of its jurisdiction to punish for contempt. The High Court exercise its jurisdiction or power as conferred on it by Article 215 of the Constitution when it imposes a punishment for contempt. When the High Court does not impose any punishment on the alleged contemner, it does not exercise its jurisdiction or power to punish for contempt under Article 215 and the jurisdiction to punish for contempt does not include the jurisdiction to dispose of the case by acquitting him. When the High Court acquits the contemner, it does not exercise its jurisdiction for contempt, for such exercise will mean that it should not act in a particular manner, i.e. by imposing punishment for contempt. Though whenever a Court, Tribunal or Authority is vested with a jurisdiction to decide a matter, against a person, but when a Court is conferred with the power or jurisdiction to act in a particul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the effect, that the section fixed the limit to only three types of motion. It excludes any private citizen from setting such criminal contempt in motion, unless he makes motion with the consent in writing of the Advocate General; or at worst lays the information before the Court itself praying the Court to take action in its own motion. The object appears to exclude vindictiveness, malice or a desire to harass on the part of a private citizen and the marginal notes, however cannot be referred to for the purpose of construing a section. They can at best be taken into consideration if the words used in a section are uncertain or ambiguous, apart from holding that the Constitution vests the Supreme Court and every High Court with the powers to punish for contempt of itself. The impugned section does not abrogate or cut down this power; and indeed, fully preserves and upholds it. The section confers power on a High Court to punish for Contempt of a Subordinate Court and that would amount to conferring more power rather than taking away the power conferred by Article 215 and also indicated that it cannot be said that the section amounts to an encroachment upon the ancillary powers of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exceeding six months as it may think fit. (4) Where the person found guilty of Contempt of Court in respect of any undertaking given to a Court is a company every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced with the leave of the Court, by the detention in Civil prison of each such person: Provided that nothing contained in this sub-section shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission. (5) Notwithstanding anything contained in sub-section (4), where the Contempt of Court referred to therein has been committed with the consent or connivance of, or is attributable to any neglect on the part of any Director, Manager, Secretary or other officer of the company, such Director, Manager, Secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced with the leave of the Court, by the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors., 1988 (1) SCALE 728. In that case Shri P. Shiv Shankar, who at the relevant time was the Hon'ble Minister for Law, Justice and Company Affairs delivered a speech before a meeting of the Bar Council of Hyderabad on 28th November, 1987, Shri P.N. Duda, who is an advocate practising in the Supreme Court, has drawn attention to that speech. According to him, by that speech respondent No. 1, Shri P. Shiv Shankar has made statements against the Supreme Court which are derogatory to the dignity of the Court, attributing this Court with partiality towards economically affluent sections of the people and has used language which is extremely intemperate, undignified, and unbecoming of a person of his statute and position. It was stated that Shri P. Shiv Shankar, formerly held the office of a Judge of the High Court before he resigned and took to politics. The relevant portion of the speech will appear from the report. The applicant Shri P.N. Duda brought the newspaper version of the said speech to the notice. He further stated that the said speech contains slander which was cast on the Court, both in respect of the Judges and its working. It was alleged that Shri P. Shiv Shankar has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther stated that he has high regard for the Hon'ble Court. He further stated that the contempt petition is not maintainable in law without the consent of the Attorney-General or the Solicitor General and it was liable to be dismissed. In the meantime an application has been filed by Shri R.N. Trivedi, who is an Advocate of 25 years' standing at the Bar, in which he has claimed the right to be impleaded as a party. He has stated in the petition that the learned Attorney-General and the Solicitor General should not have been made parties to the contempt petition and the alleged non-exercise of jurisdiction by the Attorney-General and the Solicitor General did not constitute contempt within the meaning of Section 2(c) of the Act. The remedy, if any, in respect of the alleged non-exercise of jurisdiction and power would lie some where else. It would appear that their Lordships of the Supreme Court, before deciding the question, whether the application was maintainable without the consent of the Attorney-General or the Solicitor General, as contained on behalf of the Respondent and the question whether they should be made parties to the contempt application and whether their action or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 320 though that decision related to an appeal from and order of conviction for Contempt by the High Court). This Lordships of the Supreme Court, while dismissing the petition, have also found that the observations of the Delhi High Court to the effect that "the office is to take note that in future if any information is lodged even in the form; of a petition inviting this Court to take action u/s. 15 of the Contempt of Courts Act or Article 215 of the Constitution, where the informant is not one of the persons named in Section 15 of the said Act, it should not be styled as a petition and should not be placed before the judicial side. Such a petition should be placed before the Chief Justice for orders in Chambers and the Chief Justice may decide either by himself or in consultation with the other judges of the Court whether to take any cognizance of the information. The office to direct to strike off the information as "Criminal Original No. 51 of 1973" and to file it as made in the case of Anil Kumar Gupta v. Subba Rao, I.L.R. 1974 Delhi 1, to be appropriate and proper and in fact such directions have set out the proper procedure in a case of the concerned nature and maybe adopte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irect appearance of the contemners, as in this case. It should be noted that such power of the High Court as indicated above, has not been challenged in this proceedings. 49. Under or in terms of its power to punish, the High Court, in our view, can direct the presence of contemners, apart from directing security for their presence and we feel that without such power, the High Court would not be in a position to vindicate its rights in a proceeding under the said Act or the Rules as framed thereunder. The said power, no doubt should be deemed to be of immemorial usage and should be implied under the said Rules as framed under the provisions as indicated earlier. "The power to punish" would also include "to hear and determine" an offence and such being the position, the implied condition, in our view should be that the contemners, who were in the position of accuseds, should first be cited by summons, and be given an opportunity of defence and agreeing with Mr. Roy Chowdhury, we feel that when contemners have been given such opportunities to show cause, they could have, after having their appearances entered, ask for exemption and such power would necessarily be included or given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... feel, would not also be violative of Article 19 of the Constitution of India, as, such directions would be nothing but to be a reasonable restrictions under Article 19(2) of the Constitution of India and furthermore when, the Court exercises such power, that would be in accordance with the procedure established by law. While on the question of the above or the procedure established by law, the observations in the case of Sheoraj v. A.P. Batra Anr. (supra) can also be looked into and appropirately applied. While on the question of procedure established by law, as involved in or under Article 21 of the Constitution of India, the case of State of Bombay v. Mr. "P" (supra), may also be looked into and applied in this case. We feel that the determinations in the case of A.K. Gopalan v. State of Madras (supra), Tarafatulla Mondal Ors. v. S. N. Maitra Ors. (supra) and Shri Nitta Gopal Jew v. Angur Bala Mullick (supra) cannot be applied in the facts of this case and at this stage. The observations in those cases and those in the cases of Nipendra Narayan v. Beda Bala Debi (supra) and Ranjit Chatterjee and Anr. v. Rambadan Chowbey (supra), if at all, can be considered by the learned T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was or has been no such order or decision in this case on the basis of the order dated 1st June, 1988, from which an appeal can lie under the provisions as mentioned hereinbefore. Since the said order dated 1st June, 1988 has not decided or determined any lis finally or on merits, we are also of the firm view and that too, on application of the provisions of Section 19 of the said Act, that the appeal as taken out against the concerned order would not be maintainable, the more so when, by the terms as contained in the said order dated 1st June, 1988, none of the rights or any vested right of the appellants have been violated, infringed or interfered with, furthermore when, under Rule 19 of the said Rules, the learned Trial Judge at all material times had or still has the power to pass such order as in this case and more particularly when, by the same, he has not decided any of the rights or vested right of the appellants, which can be termed or meant to violate and infringe such rights of the appellants. While on the question of maintainability of the appeal from the order as mentioned earlier, the determinations in Baradakanta Mishra v. Mr. Justice Gatikursbna Mishra etc. (s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial Judge was not just fied in passing the same, more particularly when, there is no doubt that the High Court has the right, authority and competence to make or pass such order as it deems fit, in view of the specific provisions of Rule 19 of the said Rules and the more so when, there is ample evidence before us that the concerned order dated 1st June, 1988, was made duly and in conformity with the procedure as established by Law. The said Rule 19, in our view clothes the High Court with the distinct powers as mentioned earlier and in taking recourse to such power, we are of the view, that the learned Trial Judge has not done any wrong, for which any interference as asked for, is necessary. There cannot also be any doubt that Form 1 of Appendix I, to which copious references were made by the parties cannot curtail the power of the High Court, least to speak of its inherent power as indicated earlier and we further feel and that too on a reference to the case of Life Insurance Corporation of India v. Escorts Ltd. Ors. (supra), that in question and that too in the facts, circumstances and reasons of the case as mentioned earlier, it was the due obligation of the contemners appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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