Judgement

HIDAYATULLAH, C. J.: The five appellants are District Magistrate of Nadia and his four assistants who have been found guilty of contempt of the High Court of Calcutta and the Sessions Court of Nadia and sentenced to fines with imprisonment in default of payment. They now appeal by special leave granted by this Court. The facts are long and need a full narration.

2. One Birendra Kumar Sarkar, Sub-Agent of Phosphate Co., Ltd. Krishnagar District Nadia, was prosecuted for contravention of the Fertiliser Control Order read with Section 7 (1) of the Essential Commodities Act and on his own plea was convicted and sentenced to Rs. 20 fine or simple imprisonment for 10 days. We are not concerned with his conviction. The fertiliser seized during investigation was sold by order of the Court and the sale proceeds held in deposit. On the conviction of Birendra Kumar the amount in deposit (Rs. 4215) was directed on March 11, 1963 to be returned to him. The same day the Phosphate Co. Ltd., applied to take out the amount and the Magistrate reversed the earlier order and directed that the amount be paid to the Company. Birendra Kumar appealed to the Sessions Judge, Nadia under Section 520 of the Code of Criminal Procedure. This appeal succeeded and on December 23, 1963, the Sessions Judge directed the magistrate to deliver the amount to Sarkar upon his furnishing security and executing a bond to the satisfaction of the District Magistrate, Nadia. On January 3, 1964 Sarkar produced a certified copy of this order and asked to be allowed to take out the amount and furnished a bond. The bond was found in order by N. C. Mookerjee Magistrate 1st Class, who recommended its acceptance. It was then accepted by A. Sen, Additional District Magistrate, Nadia. On January 11, 1964 the accountant attached to the Court of N. C. Mookerjee reported and the latter directed issuance of a pay under. Sarkar received the pay order the same day and deposited it with his bankers (State Bank of India) on January 13, 1964.

2. On January 8, 1964 the Company expressed to the Sessions Court, its intention of moving an application for revision in the High Court at Calcutta against the order of December 23, 1963 and asked for stay. Stay was not immediately granted but notice was issued to Sarkar to show cause on January 16, 1964. Later a stay order was also sent, On January 13, 1964 the High Court issued a rule and also directed stay of operation of the Sessions Judge s order of December 23, 1968.

3. It will be seen from the above narration that the actual payment of money was made under the orders of the Sessions Judge passed on December 23, 1963 as far as back as January 11, 1964. The High Court has considered the question o the contempt of the Sessions Judge s order from the angle of the kind of bond which was accepted, and the Officers who accepted it. We shall come to it later. We shall now trace the progress of the orders which were passed by the Sessions Judge and the High Court in proceedings subsequent to January 1964. For this purpose it is sufficient to extract the summary of the events made by the High Court itself;

". . . . . . . . The stay order dated 14th of January, 1964 was communicated by the Sessions Judge by his Memo No. 170 and it was received by the District Magistrate s Office on 16th of January, 1964. On 20th January, 1964 Memo No. 443 Jm, containing the direction to carry out the order of the Sessions Judge dated 23rd December,1963 was drafted by Pulak Kumar De and it was signed by another Magistrate Shri Jyotirmoy Ghose. On 22nd January, 1964 on which date the Rule issued by this Court in Criminal Revision No. 60 of 1964 was also received in the District Magistrate s Office. It was sent to the trial Magistrate s Court with Memo. No. 549 Jm. only on 29th January, 1964 and was received in the trial Magistrate s Court on 30th January, 1964. In the meantime Sessions Judge s Memo No. 170 that had been received in the District Magistrate s Office on