JUDGMENT S. Rafat Alam and Sudhir Agarwal, JJ.
1. This special appeal is preferred against the judgment and order of the Hon'ble Single Judge dated 28.10.2005 dismissing contempt petition No. 3194 of 2004 filed by the appellant.
2. Learned Counsel for the appellant submitted that the contempt petition of the appellant has wrongly been rejected by the Hon'ble Single Judge on the ground that the earlier contempt petition having already been dismissed finding that no case for contempt is made out, since no specific direction has been issued by the writ court, second contempt petition without any change in the circumstances, in respect to the same order of the Court, is liable to be rejected.
3. However, the Court prima facie found that the appeal under Chapter VIII Rule 5 of the Rules of the Court itself is not maintainable. Shri Yogesh Kumar Saxena, learned Counsel for the appellant placed reliance on a Division Bench judgment of this Court in the case of A.P. Verma, Principal Secretary, Medical Health and Family Welfare, U.P. Lucknow and Ors. v. U.P. Laboratory Technicians Association, Lucknow and Ors. 1998 (3) UPLBEC 2333 and submit that the special appeal under Chapter VIII Rule 5 would be maintainable.
4. We have considered the submissions but do not find any force. This court in A.P. Verma (supra) held that in respect of orders passed by the Hon'ble Single Judge dismissing the contempt petition, no appeal under Chapter VIII Rule 5 of the Rules of the Court would be maintainable. However, if the contempt court issues certain further directions to the parties, such directions would amount to orders issued by the Hon'ble Single Judge other than those covered under the Contempt of Courts Act and to that extent, special appeal under Chapter VIII Rule 5 of the Rules of the Court may be maintainable, since that would be regarding the merit of the claim made in the writ petition. The relevant observation contained in para 8 of the aforesaid judgment is reproduced as under:
Under the impugned order, learned Single Judge has recorded a clear finding that the directions issued in the writ petition had not been complied with but he did not want to punish the appellants at this stage. He has issued a further direction to the appellants to comply with the order passed in the writ petition in its letter and spirit. In view of what we have held above, this appeal is maintainable under Section 19 of the Act against the finding regarding non-compliance of the order which amounts to a 'civil contempt' within the meaning of Section 2(a) of the Act. The appeal will also be maintainable under Chapter VIII, Rule 5 of the Rules of the Court against the directions issued in the impugned order which are regarding the merit of the claim made by the respondents in the writ petition.
5. In the present case, the appellant filed contempt petition No. 414 of 2005 and the Hon'ble Single Judge, after hearing parties, found that the writ court has not issued any specific direction, which is alleged to have been disobeyed by the respondents and, therefore, no contempt is made out. Accordingly, contempt petition was rejected. Again, contempt petition No. 3194 of 2005 was filed alleging non-compliance of the same order of the writ court without any additional facts and circumstances and the Hon'ble Single Judge has rejected contempt petition vide order under appeal. In such circumstances, the order impugned in the appeal does not show that the Hon'ble Single Judge has issued any direction regarding merit of the claim of the appellant in the writ petition and, therefore, the special appeal under Chapter VIII Rule 5 of the Rules of the Court would not be maintainable.
6. The Contempt of Court's Act, 1971 (in short 'Act of 1971') is a self-contained code with respect to the procedure to be followed by the Court in the matter of Contempt. Section 19 of the Act provides of filing appeal against any order or decision of the High Court in exercise of its jurisdiction and punish for contempt. Section 19 of the Act reads as under:
Appeals - (1) An appeals shall lie as of right from any order to decision of High Court in the exercise of its jurisdiction to punish for contempt-
(a) Where the order or decision is that of a single judge, to a Bench of not less than two Judges of the Court.
(b) Where the order or decision is that of a Bench, to the Supreme Court.
Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court.
(2) Pending any appeal. The appellate court may order that-
(a) The execution of the punishment or order appealed against be suspended
(b) If the appellant is in confinement, he be released on bail, and
(c) The appeal be heard notwithstanding that the appellant has not purged his contempt.
(3) Where any person aggrieved by any order against which an appeal may be filed satisfied the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by Sub-section (2).
(4) An appeal under Sub-section (1) shall be filed-
(a) In the case of an appeal to a Bench of the High Court, within thirty days.
(b) In the case of an appeal to the Supreme Court, within sixty days, from the date of the order appealed against.
7. A careful reading of the aforesaid provision clearly indicates that an appeal would lie only against such decision or order of the High Court whereby punishment for contempt is imposed, Any order or decision, mentioned in the Section, is qualified by providing of punishment for contempt in the provision. In a contempt matter when the Court having heard the parties finds that no case for initiation of contempt proceeding is made out, in that event, no right flows to the petitioner on whose application the proceeding was initiated, of further appeal under Section 19 of the Act against the decision of the Hon'ble Single Judge of this Court dropping the proceeding. Section 19 of the Act does not give a right of appeal to the person, who has brought the motion for initiating contempt proceeding against the order/judgment holding that no contempt is made out. Right of appeal is creature of the statute and unless such right is given in the statute, a person feeling aggrieved by such decision or order has no right to appeal. Our view that no appeal would lie under Section 19 of the Act against the order of the Hon'ble Single Judge of the High Court declining to initiate proceeding for contempt, is supported by judgment of Hon'ble Apex Court in the case of Baradakanta Mishra v. Mr. Justice Gatikrushna Misra, C.J. of the Orissa H.C. wherein it has been held as under: -
It is only when the Court decides to take action and initiates a proceeding for contempt that it assumes jurisdiction to punish for contempt. Where the Court rejects a motion or a reference and declines to initiate a proceeding for contempt, it refuses to assume or exercise jurisdiction to punish for contempt and such a decision cannot be regarded as a decision in the exercise of its jurisdiction to punish for contempt. Such a decision would not, therefore, fall within the opening words of Section 19(1) and no appeal would lie against it, as of right under that provision.
8. However, in a matter where the right of appeal has not been conferred by the legislature under the Act of 1971, can a special appeal under Chapter VIII Rule 5 of the Rules of the Court would be maintainable is a moot question to be considered in this appeal. In our view, this question is no more res integra since this issue has already been dealt with by a Division Bench of this Court in Sheo Charan v. Nawal and Ors. 1997 (3) AWC 1909 wherein this Court held as under:
The Contempt of Courts Act was enacted "to define and limit the powers of certain courts in punishing contempt of courts and to regulate their procedure in relation thereto - "The Supreme Court in Pritam Pal v. High Court of Madhya Pradesh, Jabalpur , has held that after the enforcement of the Act, the procedure laid down therein will govern the contempt proceedings before the High Court. The relevant extract of said decision is reproduced below:
Prior to the Contempt of Courts Act, 1971, it was held that the High Court has inherent power to deal with a contempt of itself summarily and to adopt its own procedure, provided that it gives a fair and reasonable opportunity to the contemnor to defend himself. But the procedure has now been prescribed by Section 15 of the Act in exercise of the powers conferred by Entry 14, List III of the Seventh Schedule of the Constitution. Though, the contempt jurisdiction of the Supreme Court and the High Court can be regulated by legislation by appropriate Legislature under Entry 77 of List I and Entry 14 of List III in exercise of which the Parliament has enacted the Act, 1971, the contempt jurisdiction of the Supreme Court and the High Court is given a constitutional foundation by declaring to be 'Courts of Record' under Articles 129 and 215 of the Constitution and, therefore, the inherent power of the Supreme Court and the High Court cannot be taken away by any legislation short of constitutional amendment.
The Act has defined 'contempt', laid down procedure and has placed limitation on the powers of the courts. By Section 19, the Act has created a right of appeal from an order or decision of the court imposing punishment for contempt. There is no provision for appeal under the Act against the decision discharging the notice of contempt and/or dismissing the contempt petition. When statute provides for appeal and also lays down the orders/decisions against which such an appeal can be filed, the Legislature's intention is that appeal against all other orders is barred. As Section 19 has provided for appeal against an order or decision imposing punishment for contempt, the right to file an appeal against all other orders has been taken away by the statute. The result is that the appeal against a decision, rejecting the contempt petition is not maintainable under Rule 5 of Chapter VIII also.
9. A similar issue came up for consideration before a Division Bench of Madras High Court in Shantha V. Pai v. Vasanth Builders 1991 Cr.L.J. 3026 with respect to the maintainability of the appeal under Clause 15 of the letters patent. The Division Bench held that an order, which is not appealable under Section 19 of the Contempt Act, cannot be appealed under Clause 15 of the letters patent. The Court observed as under:
...we hold that a Letters Patent Appeal under Clause 15 would not lie against any order passed in exercise of the contempt jurisdiction by the High Court where the trial judge refuses to take cognizance of an application seeking to punish the opposite party for contempt of Court or where it rejects the application after being satisfied that its order had not been flouted and was of the opinion that no vindication of its order was called for by committing the alleged contemnor for contempt of Court.
10. In A.P. Verma (supra) also the Division Bench of this Court agreeing with the view taken in the aforesaid case has held that under Chapter VIII Rule 5 such an appeal is not maintainable and in para 6 this Court has observed as under:
...We are in respectful agreement with the view taken in the aforesaid decisions that no appeal is maintainable under Chapter VIII, Rule 5 of this Rules of the Court against any order passed in proceedings under Contempt of Courts Act as it is a self contained Code and it also provides for a remedy of appeal under Section 19 though only against specific type of orders or decisions.
11. In the present case also since the Hon'ble Single Judge has refused to entertain contempt petition, the appeal under Chapter VIII Rule 5 of the Rules of the Court, is not maintainable and the contention of the learned Counsel for the appellant, therefore, is rejected.
12. In view of the above discussion, the special appeal is dismissed as not maintainable. However, there shall be no order as to costs.