Rajaram Waman Masurkar vs Lokmanya Shikshan Prasarak Mandal

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2007 Supreme(Bom) 995

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SWATANTER KUMAR,C.J.,& S.C.DHARMADHIKARI, J.
Rajaram Waman Masurkar — Petitioner
Vs
Lokmanya Shikshan Prasarak Mandal — Respondents
Civil Application No.126 of 2006 in Contempt Petition No.229 of 2006 C.A No.174 of 2006 in C.P No 313 of 2005
C.A No.175 of 2006 in C.P No 130 of 2005
C.A No.4 of 2007 in C.P No 11 of 2007
C.A No.15 of 2007 in C.P No 142 of 2004
Mr. G/M/ Savagave for applicant
C.A No.33 of 2007 in C.P No 435 of 2006
Mr. A.H. Palekar AGP present
C.A No.34 of 2007 in C.P No 279 of 2004
C.A No.37 of 2007 in C.P No 405 of 2006
C.A No.41 of 2007 in C.P No 31of 2004
C.A No.43 of 2007 in C.P No 179 of 2005
Decided on : 19.7.2007

Advocates appeared:
Mr S.M. Kelkar for applicant
Mr. K.R. Nair for respondents
Mr.Gauri Jadhav for applicant
Mr Haridas for respondent no.1
Mr. A.H.Palekar for respondent Nos. 2 to 4
Ms Ashalata Chavan for applicant
Mr.K.K.Singhavi with A.J. Bhor for respondents
Mr Nalawade for applicant
Mr. A.S.Rao for respondent Nos.1 to 3
Mr.A.H Palekar for respondent no.4
Mr Uday Warunjikar for intervener.
Mr.Prateek Seksaria, Bidushi Hardique and Saira Subha Gosh
for applicants
Mr. Vishal Thakkar for respondent nos. 1 to 8
Mr Sandip Pathak for applicants
Mr. R.G.Ketkar for respondent no.2
Mr.V.S.Deokar for applicants
Mr. R.G.Ketkar for respondent no. 3
Mr.C.K. Thomas for applicants
Mr. M.S.Lagu for applicants
Ms Gauri Godse for respondent no.5
Mr S.P. Thorat for respondent No.4

Headnote:Contempt of Courts Act, 1971 - Section 2(c)-Constitution of India, Article 215-Can a Court restore a petition of contempt after dismissal-Reference case, Court exercising contempt jurisdiction has power to dismiss for default simpliciter and equally has power to restore it.-The jurisdiction of the Court in contempt matters is again very wide. However, such jurisdiction would be exercised in terms of the procedure that the Court may specify or evolve. Such evolved process has to be in conformity with the principles of natural justice and basic rule of law, unless specific rules have been framed in accordance with the Contempt of Courts Act. A contemnor has a right to be heard. The concept which has emerged by consistent view of the Courts over a long period is that the contempt petition should be disposed of first and thereafter proceedings, out of which contempt arises should be dealt with.
       Equally settled is the principle that the Court may evolve and adopt a procedure for initiation and decision of the contempt petition, whether civil or criminal. Such a procedure may be summary procedure, not strictly controlled by the laws of Criminal Procedure Code and/or for that matter Civil Procedure Code. The procedure adopted should be in consonance with the basic rule of law and principles of natural justice and essentially should not offend or be in contradiction to any specific rules framed by the Legislature.
       The powers of the High Court to punish is de hors the rules pertaining to contempt proceedings and is always available to Court, despite under what provisions the contempt proceedings were initiated. Any order passed upon proper application of mind on merits of the case resulting in dropping of the proceedings against the contemnor or dismissing the contempt petition would be an order determining the merits of the case and as such may attract the principle of double jeopardy in respect of re-initiation of contempt proceedings, but where the Court has passed an order of simpliciter dismissal for default, in that event such a bar would not be attracted. Restoration of a contempt petition, which was dismissed in default, would be squarely covered, in the absence of any specific power, under the inherent powers of the Court. Consistently a view has been taken that the inherent powers of the Court are complimentary to its powers which are vested by a specific provision and inherent powers cannot be exercised in conflict with the expressly provided provisions.
       It may also be noticed that the contempted of Court is not stricto senso a cause or matter between the parties inter se but a matter between the Court and the contemnor, and as such the same cannot be at the discretion or benefit of the parties. Even in relation to matters of punishment, discretion is vested in Court alone, keeping in mind the gravity of the offence of contempt. It can safely be stated that the parties may be able to initiate contempt proceedings in accordance with law but would have no legal right to withdraw or compromise such proceedings. It would always be in the exclusive domain of the Court.
       Contempt of Courts Act, 1971 - Section 2(c)-Constitution of India, Articles 215 and 20-Double Jeopardy under Section 20 of Constitution-Reference-As against contempt proceeding-Dropping-Restoration of contempt petition, Court exercising competent jurisdiction has power to dismiss for default simpliciter and equally has power to restore it.-The contempt proceedings under the Contempt of Courts Act are not proceedings which are controlled by the provisions of the Criminal Procedure Code. As already noticed the High Court being a Court of record has the power to summarily punish for contempt of Court and the provisions of Section 15 of the Act is a procedural section. The plea of double jeopardy derived from Article 20 of the Constitution of India provides that a person cannot be punished for the second time for the same offence, for which he has already been acquitted. It is a settled principle of law that proceedings under the Contempt of Courts Act do not attract the doctrine of double jeopardy merely on the ground that the person was also tried for the same offence before a Court of competent jurisdiction and was even punished. The proceedings under the Contempt of Courts Act are sui generis and have peculiar features which are not found in the criminal proceedings. In other words, the concept of powers, procedure, consequence and purpose, for which the jurisdiction is exercised by a Court under criminal jurisprudence, has markable distinction from the contempt jurisdiction. Such a jurisdiction is pervasive in its scope but has a limited object of maintaining the majesty of justice including enforcement of Courts’ orders.
       The consistent view of the Supreme Court and various High Courts, which is amply clear, is that the Court can evolve its own procedure, not opposed to any prescribed law under the Contempt of Courts Act or the principles of natural justice. This discretion is vested in the Court for doing justice. Equally true that the contempt proceedings do not attract the principles of double jeopardy. The contempt jurisdiction being a special jurisdiction, vests wide powers in Court to adopt a procedure, which it deems fit, in the facts and circumstances of the case and wherever necessary to conclude the contempt proceedings by adopting summary procedure. The provisions of the Code of Criminal Procedure and Contempt of Courts Act neither overlap nor are in conflict with each other. They operate in different fields and jurisdiction. To trace out commonality by an interpretative process, in these two jurisdictions, is an approach not quite in consonance with the scheme of the respective legislations.
       It is necessary to evolve and fallow a procedure, which not only is in conformity with the basic rule of law but also meets the ends of justice. Unlike the provisions of Criminal Procedure Code, which describe a procedure for punishing a codified offence under the Indian Penal Code, the Contempt of Courts Act leaves it much to the discretion of the Court to find out and form an opinion, in consonance with the settled canons of law as to whether the complaint/committed act constitutes a contempt. The Court in its discretion has to determine whether it is a civil or criminal contempt, is it a wilful disobedience of orders of the Court, interference with the administration of justice so as to undermine the dignity and majesty of the judicial process. Once the legislation has left so much to the discretion of the Court, it is necessary that the concept of inherent powers would be applied to the contempt jurisdiction in its wide magnitude. It would sub-serve the purpose and object of constitutional mandate under Article 215 or even under the provisions of the Contempt of Courts Act.

JUDGMENT (Per Swatanter Kumar,C.J.):

Undisputedly contempt is a matter primarily between the court and the contemnor. Contempt proceedings under the Contempt of Courts Act, 1971, can be initiated against the contemnor through any of the specified modes with and/or without consent of the specified authorities, depending upon the facts and circumstances of each case. The contempt jurisdiction vested in the court by development of law as well as under statutory provisions, has very wide and pervasive magnitude and scope. It is now well settled that independently, apart from the Contempt of Courts Act, or other statutory laws relating to the contempt, the Supreme Court and High Courts in terms of Article 215 of the Constitution, have also inherent powers to punish for contempt. In the case of R.L.Kapur vs State of Madras, 1972(1) SCC 651, the Supreme Court has pointed out that such inherent powers or jurisdiction was not derived from the statutory law relating to the contempt. The purpose of the contempt jurisdiction is primarily to ensure enforcement of orders of the court and to maintain the dignity of the judicial administrative system. The court may have to evolve its own procedure to be adopted by it for initiating or dealing with the contempt proceedings and punishing the contemnor. In the case of Dr. L.P.Mishra vs State of UP, AIR 1998 SC 337 the Supreme Court held that the powers and jurisdiction vested in the High Court has to be exercised in accordance with the procedure prescribed by law. The view then was expanded to say that the courts can evolve its own procedure, of course not contrary to the rules or principles of natural justice. The rule of law is the foundational feature of our Constitution of India and right to obtain judicial redress is the feature of this basic structure. It is through the court that the rule of law reveals its meaningful content. Protection of administrative justice was thus considered to be imperative for the civilised functioning of free and egalitarian social order. The law of contempt secures public respect and confidence. In the interest of judiciary, court can initiate proper process and conduct it in the administration of justice. The acts and conduct primarily actus reus, which are likely to destroy or impair such respect and confidence, need to be dealt with sternly in accordance with the percept of correct procedure. Tangled in the complexity of the procedural law and while examining the divergent views in relation to this procedural law of contempt, the learned Single Judge of this Court vide his order dated 24.1.2007 referred the matters to the larger Bench (Division Bench). The order of reference reads as under:

“The question that arises in this application is: whether this Court has power to recall its own order and restore the main contempt petition, which was dismissed for non-appearance of the petitioner and his advocate.

2.? According to the counsel for respondent Nos.1 to 3, it is not open to this court to recall the order dismissing the contempt petition for default or non-appearance, though. To buttress this submission, reliance is placed on three decisions of the single Judge of this Court reported in Panjabrao Sadashiorao Wankhede v. Rajeev Agrawal, 2004 (2) Mh.L.J. 1047; Damodar Sadashiv Agre v. K.K.Prasad & ors., 2006 (2) Mh.L.J. 256; and Priti Karmarkar vs S.S.Bharasme & ors., 2006 (2) Mh.L.J. 524. On the other hand, counsel for the applicant has relied on another decision to which I was party in the case of Zynab Hydari v. State of Maharashtra & ors., 2004 (3) Mh.L.J. 275 to contend to the contrary.

3.? In the present case, the order in question is simpliciter dismissing contempt petition for non-appearance of the petitioner and his advocate.

4.? In the case of Panjabrao (supra), however, the contempt petition was not only dismissed for non-appearance, but the Court went on to drop the contempt proceedings as noted in the order dated 6th February 2003, reproduced in

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