1. Heard Mrs. Manju Sree Robinson appellant in person and Sri Chaudhary Shatrughan, learned Additional Chief Standing Counsel, representing the respondent-contemner.
2. The appellant, while pressing the present appeal, preferred under the Rules of the Court ( Chapter-VIII Rule-5 of the High Court Rules), submits that the respondent-contemner had violated the judgment and order dated 3.10.2013, passed by the Division Bench of this Court in Writ Petition No. 8678 (M/B) of 2013. She submits that without providing reasonable opportunity of hearing and calling a report from the Prrosecuting Officer, the contemner has granted bail to the accused in utter disregard to the Division Bench judgment of this Court dated 3.10.2013 in Writ Petition No. 8678 (M/B) of 2012. She further submits that while entertaining the present appeal, the Division Bench of this Court, had recorded a finding that prima-facie case is made out to proceed against the contemner. Since the respondent-contemner did not call for a report from the Prosecuting Officer, for which specific specific direction was given by this Court (Supra). She further submits that the bail granted to the accused by the respondent is not sustainable, since while granting bail, some relevant issues have not been dealt with by the presiding officer. She further submits that in no way, bail could have been granted by the respondent-contemner while deciding the bail application preferred by the accused.
3. It appears that being aggrieved by the order of bail granted by the respondent-contemner, the appellant preferred a contempt petition before the contempt judge of this Court, who by the impugned order dated 3.3.2014, recorded a finding that no interference is called for under the contempt jurisdiction, since no case is made out against the respondent-contemner, who had passed a detailed order, after hearing the parties, while granting bail. It is submitted that the contempt judge had not exercised its jurisdiction properly while rejecting the contempt petition at the initial stage. The appellant relied upon the Apex Court judgment decided on 9.12.2013 in Civil Appeal No. 10660 of 2010 Rajeshwar Singh Vs. Subrata Roy Sahara and others. She further relied upon another Apex Court judgment , report in (2006)5 S.C.C., 399, Midnapore Peoples' Cooperative Bank Ltd. and others Vs. Chunilal Nanda and others. The case of Midnapore (Supra) has been referred by the learned Addl. Chief Standing Counsel while defending the judicial officer. She had further laid great stress upon the order passed by the Division Bench of this Court dated 7.3.2014, in the present proceedings, whereby a prima-facie finding has been recorded while issuing notice to the respondent-contemner.
4. On the other hand, learned Addl. Chief Standing Counsel Shri Chaudhary Shatrughan, while defending the case of the respondent-judicial officer, who has granted bail, has advanced his arguments on two folds; firstly, that the present appeal under the Rules of the Court is not maintainable and; secondly, even on merit, no case is made out to proceed under the contempt jurisdiction. Learned counsel submits that the respondent-judicial officer has granted bail in due compliance of the earlier judgment of this Court and there is no violation, in any manner, what so ever, by the respondent-judicial officer while deciding the bail application.
Learned Addl. Chief Standing Counsel relied upon several cases which are as Under:-
(1) 1995 (4)SCC ,411 State of Maharashtra Vs. Mahboob S. Allibhey.
(2) 2000 (4) S.C.C 400 R.N. Dev Vs. Bhjaggabati Pramanik.
(3) 2000 (4) S.C.C. 610 V.M. Manohar Prasad Vs. N. Ratnam Raju and another.
(4) 1997 (2) ARC 263, Shev Charan Vs. Nawal and another.
(5) 1998 (3) UPLBEC ,2333 A.P. Verma Vs. U.P. Laboratory Technicians Association.
(6) 2004(3) AWC ,2414 Smt. Subhawati Devi Vs. R.K. Singh and another.
(7) 2006 (5)SCC ,399 Midnapore People's Cooperative Bank Ltd. Vs. Chunni Lal Nanda.
(8) 2007 (1) AWC ,1045 Hemendra Swaroop Bhatnagar Vs. P.S. Gosain.
(9) 1992 Crl. J.L. 1251 State Vs. Baldev Raj.
(10) 1996 (6) SCC 291 J.S. Parihar Vs. Ganpat Duggar and other.
(11) 2002 (5) SCC ,352 Jhareshwar Prasad Paul and another Vs. Taraknath Ganguly and others.
(12) 2005 (6) SCC 98 Director of Education Uttranchal and others vs. Ved Prakash Joshi and others.
5. The facts borne out from the record is that the appellant gpt married to one Sushil Joshuwa Robinson under the Special Marriage Act in the year 2000. It appears that the matrimonial life of the appellant and the accused had not proceeded in good taste and ultimately, appellant lodged a first information report being case Crime No. 170 of 2012 under Sections 498-A,323,504,506 and 494 I.P.C. P.S. Aliganj, District Lucknow. Against the F.I.R., applicant- Sushil Joshuwa Robinson preferred Writ Petition No. 8678 (M/B) of 2012. The writ petition was decided by the Division Bench of this Court by judgment and order dated dated 3.10.2013. The judgment, in its totality, is reproduced below:-
"Heard learned counsel for the petitioner and learned Additional Government Advocate as well as learned counsel for complainant.
This writ petition has been filed for quashing of an FIR in case crime No. 170 of 2012, under sections 498A, 323, 504, 506, 494 IPC., Police Station Aliganj,District Lucknow.
The writ court is not competent to go into question of facts and on the allegations, it cannot be said that no prima facie case is disclosed. Hence, no ground exists for quashing the FIR or staying the arrest of the petitioner.
However, in the circumstances of the case, it is provided that if the petitioner moves an application for surrender before the court concerned within three weeks from today, the Magistrate concerned shall fix a date about two weeks thereafter for the appearance of the petitioner and in the meantime release the petitioner on interim bail on such terms and conditions as the court concerned considers fit and proper till the date fixed for the disposal of the regular bail. The court concerned shall also direct the Public Prosecutor to seek instructions from the investigating officer by the date fixed and also give an opportunity of hearing to the informant and thereafter decide the regular bail application of the petitioner in accordance with the observations of the Full Bench of this Court in Amrawati and another versus State of UP, 2004 (57) ALR 290, affirmed by the Supreme Court in Lal Kamlendra Pratap Singh versus State of UP,2009 (2) Crime 4 (SC) and reiterated by the Division Bench of this Court in Sheoraj Singh alias Chuttan Vs. State of UP and others, 2009 (65) ACC 781. If further instructions are needed or if adjournment of the case on the date fixed for hearing becomes unavoidable, the Court may fix another date, and may also extend the earlier order granting interim bail, if it deems fit, provided that the adjournment of hearing of the regular bail on one or more dates should not exceed a total period of one month.
It will also be in the discretion of the Sessions/Special Judge concerned to consider granting interim bail pending consideration of the regular bail on similar terms as mentioned herein above when and if the petitioner applies for bail before him.
For a period of three weeks from today or till the petitioner appears/surrenders before the court below and applies for bail, whichever is earlier, the petitioner shall not be arrested in the aforementioned case crime.
It is made clear that if the petitioner fails to appear before the court concerned for the purpose of applying for bail within the time allowed, no further extension will be given.
In case the petitioner fails to appear before the court concerned on the dates fixed or he fails to cooperate with the investigating officer during interrogation, it will be open to the Public Prosecutor to move an application for cancelling the order of interim/final bail and the Court concerned may pass an appropriate order on merits.
With the aforesaid observations, this petition is disposed of".
6. The husband of the appellant pressed the bail application alongwith the certified copy of the judgment and order dated 3.10.2013 before the respondent-judicial officer. The case was fixed for 22.10.2013 . On 22.10.2013, the respondent-contemner had provided opportunity of hearing to the parties and recorded the proceedings in the order sheet which is reproduced as Under:-
"22&10&2013 okn la[;k [email protected]] ljdkj cuke lq'khy jkWfcUlu] eq0v0la0 [email protected]] vUrxZr /kkjk 498&, ,oa 494 Hkk0na0la0 Fkkuk vyhxat] tuin y[kum esa vfHk;qDr lq'khy jkWfcUlu dh vksj ls vUrfje tekur izkFkZuk i= ek0 mPp U;k;ky; ds funsZ'k ds vkyksd es fn;k x;k gSA eSus ek0 mPp U;k;ky; ds dsl%& fel0 cSap ua0& [email protected] esa ikfjr vkns'k fnukafdr 22-2-2013 esa fn;s x;s funsZ'kksa dk lEekuiwoZd voyksdu fd;k ,oa vfHk;qDr ds fo}ku vf/koDrk dks lquk rFkk izi=ksa dk voyksdu fd;kA vfHk;qDr vkReleZi.k ds i'pkr U;kf;d vfHkj{kk esa gSA fo}ku lgk;d vfHk;kstu vf/kdkjh }kjk vijk/k dks xEHkhj crkrs gq, tekur dk fojks/k fd;k x;k gSA ek0 mPp U;k;ky; ds funsZ'k ds vuqikyu esa vfHk;qDr lq'khy jkWfcUlu dk vUrfje tekur izkFkZuk i= Lohdkj djrs gq, mls fuEu 'krksZ ds v/khu 13 fnu ds fy, vUrfje tekur ij fjgk fd;k tkrk gSA 1 vfHk;qDr vfxze fu;r frfFk 02&11&2013 dks U;k;ky; esa mifLFkr jgsxkA 2 lgk;d vfHk;kstu vf/kdkjh foospd ls bl lEcU/k esa funsZ'k izkIr djuk lqfuf'pr djsaA 3 foospd oknh eqdnek dks bl lEcU/k esa lwfpr djuk lqfuf'pr djsaA mijksDr 'krksZ ds v/khu vfHk;qDr lq'khy tks'ok jkWfcUlu }kjk eq0&20][email protected]&] :0 dh nks fo'oluh; tekursa ,oa blh /kujkf'k dk futh ca/k&i= nkf[ky djus ij 11 fnu dh vof/k ds fy, vUrfje tekur ij fjgk fd;k tkrk gSA vfxze fu;r frfFk ij jsxqyj tekur izkFkZuk i= ij lquokbZ gsrq vfHk;qDr ,oa oknh eqdnek mifLFkr gksA vkns'k dh ,d izfr lgk;d vfHk;kstu vf/kdkjh dks miyC/k djkbZ tk,A ¼fpjdqekfjRo½ U;kf;d eftLV~sV d{k la0& 35] y[kum^^ A plain reading of the order dated 22.10.2013 reveals that on the aforesaid date, the Assistant Prosecuting Officer was directed to receive instructions from the Investigating Officer and the investigating officer was required inform the appellant with regard to the pending bail application.
7. Again the case was fixed for 2.11.2013 before the respondent- Judicial Officer. On 2.11.2013, Assistant Prosecuting Officer informed the Court that he has not received necessary instructions from the investigating officer, hence, the proceeding was deferred for 2.11.2013. The order dated 2.11.2013, as recorded by the respondent- Judicial Officer is reproduced as Under:-
"02&11&2013 i=koyh is'k gqbZA i=koyh jsxqyj tekur izkFkZuk i= ckcr okn la0& [email protected]] ljdkj cuke lq'khy jkWfcUlu] eq0v0la0 [email protected]] vUrxZr /kkjk& 498, ,oa 494 Hkk0na0la0 Fkkuk vyhxat] tuin y[kum ds fuLrkj.k gsrq fu;r gSA jsxqyj tekur izkFkZuk i= ds fojks/k esa okfnuh eqdnek eatwJh dh rjQ ls izkFkZuki= O;fDrxr :i ls mifLFkr gksdj nkf[ky fd;k x;kA ftlij lgk;d vfHk;kstu vf/kdkjh }kjk ;g fjiksVZ vafdr dh x;h fd okfnuh eqdnek us O;fDrxr :i ls U;k;ky; ds lEeq[k tekur izkFkZuk i= fojks/k gsrq fn;k gSA lgk;d vfHk;kstu vf/kdkjh }kjk ;g Hkh voxr djk;k x;k fd ek0 mPp U;k;ky; ds vkns'k ds vuqikyu esa U;k;ky; }kjk ikfjr vkns'k fnukafdr& 22-10-13 ds fuLrkj.k esa foospd ls tekur izkFkZuk i= ds lUnHkZ esa fooj.k vHkh izkIr ugha gks ldk gS ,slh fLFkfr esa lgk;d vfHk;kstu vf/kdkjh us jsxqyj tekur izkFkZuk i= dh lquokbZ gsrq le; dh ekWx djrs gq, vU; frfFk tekur izkFkZuk i= ds fuLrkj.k gsrq eqdjZj fd;s tkus dh ;kpuk dh gSA vfHk;qDr dh vksj ls vUrfje tekur dks c lquk ,oa voyksdu fd;kA pwafd lgk;d vfHk;kstu vf/kdkjh }kjk jsxqyj tekur izkFkZuk i= ds fuLrkj.k gsrq lEcfU/kr foospd ls fooj.k izkIr u dj ikus dk mYys[k fd;k x;k gS] ,slh fLFkfr esa jsxqyj tekur izkFkZuk i= ds fuLrkj.k gsrq lEcfU/kr foospd ls fooj.k izkIr djuk lqfuf'pr djsaA bl izdkj mijksDr ifjfLFkfr;ksa esa vfHk;qDr dh vUrfje tekur fnukad&06-11-2013 rd c ¼fpjdqekfjRo½ U;kf;d eftLV~sV d{k la0& 35] y[kum^^
8. On the date fixed i.e. on 6.11.2013 again respondent- Judicial officer was informed by the Assistant Prosecuting Officer that the necessary instructions could not be received from the investigating officer , hence, it is not possible to consider and decide the regular bail application. Appropriate direction was issued to Assistant Prosecuting Officer to receive required information from the investigating officer. Order dated 6.11.2013 is reproduced below:-
"06&11&2013 i=koyh is'k gqbZA i=koyh jsxqyj tekur izkFkZuk i= ckcr okn la0& [email protected]] ljdkj cuke lq'khy jkWfcUlu] eq0v0la0& [email protected]] vUrxZr /kkjk& 498, ,oa 494 Hkk0na0la0 Fkkuk vyhxat] tuin y[kum ds fuLrkj.k gsrq fu;r gSA lgk;d vfHk;kstu vf/kdkjh }kjk voxr djk;k x;k fd ek0 mPp U;k;ky; ds vkns'k ds vuqikyu esa U;k;ky; }kjk ikfjr vkns'k fnukafdr& 22-10-13 ds fuLrkj.k esa foospd ls tekur izkFkZuk i= ds lUnHkZ esa fooj.k vHkh izkIr ugha gks ldk gSA ,slh fLFkfr esa lgk;d vfHk;kstu vf/kdkjh us jsxqyj tekur izkFkZuk i= dh lquokbZ gsrq le; dh ekWx djrs gq, vU; frfFk tekur izkFkZuk i= ds fuLrkj.k gsrq eqdjZj fd;s tkus dh ;kpuk dh gSA vfHk;qDr dh vksj ls vUrfje tekur dks c lquk ,oa voyksdu fd;kA pawfd lgk;d vfHk;kstu vf/kdkjh }kjk jsxqyj tekur izkFkZuk i= ds fuLrkj.k gsrq lEcfU/kr foospd ls fooj.k izkIr u dj ikus dk mYys[k fd;k gS] ,slh fLFkfr esa jsxqyj tekur izkFkZuk i= ij lquokbZ vkt lEHko ugha gSA lgk;d vfHk;kstu vf/kdkjh dks funsZf'kr fd;k tkrk gS fd os jsxqyj tekur izkFkZuk i= ds fuLrkj.k gsrq lEcfU/kr foospd ls fooj.k izkIr djuk lqfuf'pr djsaA bl izdkj mijksDr ifjfLFkfr;ksa esa vfHk;qDr dh vUrfje tekur fnuakd& 12-11-13 rd c fu;r frfFk dks i{kdkj tekur izkFkZuk i= dh lquokbZ ds le; O;fDrxr :i ls mifLFkr gksA iz0 U;kf;d eftLV~sV d{k la0& 35] y[kum^^
9. Ultimately, on 12.11.2013, the case was heard by the respondent-judicial officer with regard to grant of bail in the aforesaid crime. From the perusal of the order dated 12.11.2013, it appears that the respondent judicial officer has granted opportunity of hearing to the learned counsel for the accused as well as the appellant and the Assistant Prosecuting Officer. For convenience, we reproduce the entire order dated 12.11.2013, in its totality, as Under:-
"fnukad 12-11-13 i=koyh is'k gqbZA iqdkj djkbZ x;hA i=koyh vfHk;qDr lq'khy jkWfcUlu dh vksj ls jsxqyj tekur izkFkZuk i= ds fuLrkj.k gsrq fu;r gSA vfHk;qDr vkReleiZ.k dj U;kf;d vfHkj{kk eas gSaA vfHk;qDr lq'khy tks'kqvk jkWfcUlu ds tekur izkFkZuk i= ds fojks/k esa izkFkZuk i= okfnuh eqdnek eatwJh dh vksj ls Hkh nkf[ky gS vr% eSus tekur izkFkZuk i= ij vfHk;qDr ds fo}ku vf/koDrk ,oa tekur izkFkZuk i= ds fojks/k esa okfnuh eqdnek eatwJh jkWfcUlu ,oa lgk;d vfHk;kstu vf/kdkjh dks lqukA lq'khy jkWfcUlu dh vksj ls jsxqyj tekur izkFkZuk i= eq0v0la0& [email protected] vUrxZr /kkjk& 498,] 494 Hkk0na0la0 nkf[ky fd;k x;k gSA okfnuh eqdnek }kjk jsxqyj tekur izkFkZuk i= dk fojks/k bl vk/kkj ij fd;k x;k gS fd vfHk;qDr ,CldkUM dj ldrk gS D;ksafd og orZeku le; esa ubZ fnYyh esa fuokl dj jgk gSA okfnuh eqdnek lkmFk bf.M;u gS tks fd gSnjkckn] vkU/kz izns'k dh jgus okyh gSA okfnuh eqdnek vius lkl "olqj ds ?kj ,y&FkMZ] lsDVj&Mh] vyhxat] y[kum esa vius nks ukckfyx cPps tks fd vfHk;qDr ls gS] ds lkFk fuokl dj jgh gSaA vfHk;qDr }kjk xokgksa dks izHkkfor fd;k tk ldrk gS rFkk L=h /ku ftldh dher 6 yk[k :i;s gS vfHk;qDr }kjk okfnuh dks ns; gSA vfHk;qDr us nwljk fookg dj fy;k gS ftlls vfHk;qDr ds 3 lky dk iq= gS rFkk vfHk;qDr ,oa okfnuh eqdnek ds e/; fefM;s'ku vlQy gks pqdk gSA lgk;d vfHk;kstu vf/kdkjh us Hkh tekur izkFkZuk i= dk fojks/k djrs gq, ;g rdZ izLrqr fd;k fd vfHk;qDr lq'khy jkWfcUlu us nwljk fookg dj fy;k gS rFkk nwljs fookg ls vfHk;qDr ds ,d iq= gSA ;g nwljk fookg vfHk;qDr }kjk okfnuh eqdnek ds fo:) ,di{kh; rykd dh fMdzh ds iwoZ fd;k x;k gSA bl izdkj vfHk;qDr }kjk okfnuh eqdnek dks izrkMuk dkfjr dh xbZ gSA okfnuh eqdnek us O;fDrxr :i ls ;g rdZ izLrqr fd;k fd vfHk;qDr us okfnuh dks fcuk crk;s ,d i{kh; :i ls rykd nwljk fookg djus ds iwoZ dj fy;k gS rFkk vfHk;qDr ds nwljs fookg ls mldk ,d 3 lky dk iq= gSA mijksDr ,d i{kh; fu.kZ; ds fo:) okfnuh }kjk fjdky izkFkZuk i= nkf[ky fd;k x;k tks fopkjk/khu gSA vfHk;qDr ds fo}ku vf/koDrk }kjk okfnuh eqdnek ,oa lgk;d vfHk;kstu vf/kdkjh }kjk izLrqr rdksZ ds [k.Mu esa nkSjku cgl ;g rdZ izLrqr fd;k x;k fd okfnuh eqdnek ,oa vfHk;qDr dk fookg 12 tuojh lu~ 2000 esa gqvk Fkk okfnuh eqdnek orZeku le; esa vius lkl 'olqj ds lkFk vius nks csVs tks fd vfHk;qDr ls gSa ds lkFk fuokl dj jgh gSAA pqafd vfHk;qDr blkbZ /keZ dk gS rFkk okfnuh eqdnek lkmFk bf.M;u fgUnw efgyk gS bl izdkj nksuks ds chp esa izse fookg Lis'ky eSfjt ,DV 1954 ds rgr lEiUu gqvk FkkA bl izdkj i{kdkjksa ds chp ngst dh ekWx dk dkbZ iz'u gh ugh mBrk gSA bl izdkj vfHk;qDr ds fo}ku vf/koDrk }kjk tekur izkFkZuk i= Lohdkj fd;s tkus dh ;kpuk dh xbZ gSA eSus tekur izkFkZuk i= ij mHk; i{k dks lquk rFkk i=koyh dk voyksdu fd;kA i{kdkjksa ds e/; ;g rF; vfookfnr gS fd i{kdkjksa dk fookg 12 tuojh] 2000 dks Lis'ky eSfjt ,DV 1954 ds rgr lEiUu gqvk FkkA okfnuh eqdnek }kjk vfHk;qDr lq'khy jkWfcUlu ds fo:} izFke lwpuk fjiksVZ lu~ 2012 esa vUrxZr /kkjk& 498,] 494] 323] 504] 506 Hkk0na0la0 eq[; :i ls ;g vfHk;ksx yxkrs gq, ntZ djk;h x;h Fkh fd 'kknh ds nwljs fnu ls gh vfHk;qDr okfnuh eqdnek ls ekjihV ,oa yMkbZ >xMk djus yxk utk;t rjhds ls iSlksa dh ekx dh okfnuh eqdnek ds firk ,oa HkkbZ ls 4 yk[k :i;s dh ekWx dhA okfnuh eqdnek ds /keZ ifjorZu ls budkj djus ij okfnuh eqdnek dks lu~ 2006 esa xeZ dYNqy ls tykus dh dksf'k'k dh vkSj okfnuh eqdnek dks 'kkjhfjd o ekufld :i ls izrkfMr djrk jgkA vfHk;qDr ds fo}ku vf/koDrk }kjk bldk [k.Mu djrs gq, ;g rdZ izzLrqr fd;k x;k fd pwafd i{kdkjksa ds chp fookg Lis'ky eSfjt ,DV 1954 ds rgr gqvk gS vr% ngst dh ekWx dk dksbZ iz'u gh ugh mBrk rFkk okfnuh eqdnek lu~ 2006 ls ysdj 2011 rd gSnjkckn esa jgh gS vkSj blds ckn og ;w0,l0,0 pyh xbZ tgWk og 2012 rd jghA voyksdu ls fofnr gS fd okfnuh eqdnek }kjk izFke lwpuk fjiksVZ vUrxZr /kkjk& 498,] 494] 323] 504] 506 Hkk0na0la0 ntZ djkbZ xbZ gSA okn foospuk foospd }kjk vkjksi i= /kkjk& 498, ,oa rRi'pkr 494 nkf[ky fd;k x;kA vfHk;qDr dks ek0 mPp U;k;ky; ds vkns'k ds vuqikyu esa U;k;ky; }kjk vUrfje tekur iznku dh xbZ FkhA vfHk;qDr ds fo:) okfnuh eqdnek dks ekjus ihVus o dYNqy ls tykus dk vkjksi yxk;k x;k gS ijUrq mlds lEcU/k esa dksbZ Hkh fpfdRlh; izek.k i= i=koyh ij ugha gS ftlls ;g lkfcr gks lds fd vfHk;qDr }kjk dkbZ 'kkjhfjd {kfr okfnuh eqdnek dks dkfjr dh xbZA vfHk;qDr iwoZ ls vUrfje tekur ij jgk gSA vfHk;qDr }kjk vUrfje tekur dk dksbZ nq:i;ksx Hkh ugha fd;k x;k gSA blds vfrfjDr tks Hkh lk{; i{kdkjksa }kjk bl Lrj ij nkf[ky fd;k x;k gS og nkSjku fopkj.k lk{; dk fo"k; gSA blds vfrfjDr /kkjk 498, Hkk0na0la0 ds vfrfjDr /kkjk& 494 Hkk0na0la0 tekurh; izd`fr dh gSA mijksDr ifjfLFkfr;ksa esa tekur izkFkZuk i= Lohdkj fd;s tkus ;ksX; gSA vkns'k vfHk;qDr lq'khy tks'kqok jkWfcUlu dk tekur izkFkZuk i= eq0v0la0& [email protected]] vUrxZr /kkjk& 498,] 494 Hkk0na0la0 Lohdkj fd;k tkrk gSA vfHk;qDr }kjk eq0&20]000 :0 dk O;fDrxr cU/ki= ,oa blh /kujkf'k ds nks izfrHkw nkf[ky djus ij vfHk;qDr mijksDr dks tekur ij fjgk fd;k tk,A ¼fpjdqekfjRo½ U;kf;d eftLV~sV d{k la0& 35] y[kum^^
10. Being aggrieved with the aforesaid order with regard to grant of bail, the appellant had preferred a contempt petition under Section 12 of the Contempt of Courts Act read with Article 215 of the Constitution of India. Learned contempt Judge, by the impugned order dated 3.3.2014 has dismissed the contempt petition on the ground that the respondent- judicial officer has granted bail by passing a reasoned order, and no case of contempt is made out.
Feeling aggrieved by the aforesaid order, the instant appeal has been preferred.
11. Regarding maintainability of the present appeal two folds arguments have been advanced by the appellant, firstly, that in view of the judgment of Midnapore case (Supra) as well as the Apex Court judgment in the case of Rajeshwar Singh ( Supra), appeal is maintainable. In the case of Rajeshwar Singh , their Lordship of Hon'ble Supreme Court has held that being the Court of record, under Article 129, the Supreme Court is not bound by the statutory provision and may proceed against the contemner on justifiable ground, being court of record. The provisions as contained under Article 129 of the Constitution of India, is parimateria to Article215 which deals with the power of High Court being Court of record. There appears to be no dispute regarding power of High Court and Supreme Court being Court of record. Both may exercise jurisdiction under respective provisions of the Constitution of India while dealing with the contempt matter. There appears no dispute of fact or of law on this count. The question remains whether present special appeal is maintainable under the Rules of the Court.
12. Learned Addl. Chief Standing Counsel while relying upon the case of State of Maharashtra Vs. Mahboob S. Allibhoy and another, (1996)4 S.C.C. 411, has invited attention to the relevant portion to substantiate his argument that in the event of discharge of an accused in a contempt proceedings, appeal shall not be maintainable under the provisions of the Contempt of Courts Act, 1971. For convenience, para Nos. 4 & 5 of the aforesaid judgment is reproduced below:-
"4. It is well known that contempt proceeding is not a dispute between two parties, the proceeding is primarily between the court and the person who is alleged to have committed the contempt of court. The person who informs the court or brings to the notice of the court that anyone has committed the contempt of such court is not in the position of a prosecutor, he is simply assisting the court so that the dignity and the majesty of the court is maintained and upheld. It is for the court, which initiates the proceeding to decide whether the person against whom such proceeding has been initiated should be punished or discharged taking into consideration the facts and circumstances of the particular case. This Court in the case of Baradakanta Mishra v. Mr. Justice Gatikrushna Misra C.J. of the Orissa H.C., AIR 1974 SC 2255 - 1975(1) SCR 524 said: ...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, subsection (l) and no appeal would lie against it as of right under that provision.
Again in the case of D.N. Taneja V. Bhaian Lal, (1988) 3 SCC 26 it was said:
"The right of appeal will be available under sub-section (1) of Section 19 only against any decision or order of a High Court passed in the exercise of its jurisdiction to punish for contempt. In this connection, it is pertinent to refer to the provision of Article 215 of the Constitution which provides that every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Article 215 confers on the high Court the power to punish for contempt of itself. In other words, the High Court derives its jurisdiction to punish for contempt from Article 215 of the Constitution. As has been noticed earlier, as appeal will lie under Section 19(1) of the Act only when the High Court makes an order or decision in exercise of its jurisdiction to punish for contempt. It s submitted on behalf of the respondent and, in our opinion rightly, that the High Court exercises 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 contemnor, the High Court does not exercise its jurisdiction or power to punish for contempt. The jurisdiction cf the High Court is to punish. When no punishment is imposed by the High Court, it is difficult to say that the High Court has exercised its jurisdiction or power as conferred on it by Article 215 of the Constitution."
No appeal is maintainable against an order dropping proceeding for contempt or refusing to initiate a proceeding for contempt is apparent not only from sub section (1) of Section 19 but also from sub-section (2) of Section 19 which provides that pending any appeal the appellate Court may order that
(a) the execution of the punishment or the 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.
Sub-section (2) of Section 19 indicates that the reliefs provided under clauses (a) to (c) can be claimed at the instance of the person who has been proceeded against for contempt of court.
5. But even if no appeal is maintainable on behalf of the person at whose instance a proceeding for contempt had been initiated and later dropped or whose petition for initiating contempt proceedings has been dismissed, is not without any remedy. In appropriate cases be can invoke the jurisdiction of this Court under Article 136 of the Constitution and this Court on being satisfied that it was a fit case where proceeding for contempt should have been initiated, can set aside the order passed by the High Court. In suitable cases, this Court has to exercise its jurisdiction under Article 136 of the Constitution in the larger interest of the administration of Justice".
13. The aforesaid proposition has been reiterated by Hon'ble Supreme Court in other judgments relied upon by the Additional Chief Standing Counsel Sri Chaudhary that in case of discharge in a proceedings under the Contempt of Courts Act, appeal shall not be maintainable under Section 19 of the Contempt of Court Act. However, their Lordship of Hon'ble Supreme Court have summarised the law in the case of Mindapore (Supra). The relevant portion of the aforesaid judgment is reproduced below:-
"11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarized thus :
I. An appeal under section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.
II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution. III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties.
IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of 'jurisdiction to punish for contempt' and therefore, not appealable under section 19 of CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under section 19 of the Act, can also encompass the incidental or inextricably connected directions.
V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases)".
Much emphasis has been given to Clause-V of the judgment of Mindapore (Supra) by the appellant while pressing the appeal and arguing with regard to very maintainability of the present special appeal under the Rules of the Court.
14. Learned Addl. Chief Standing Counsel invited attention of this Court on the Division Bench judgment of this Court in the case of Hemendra Swaroop Bhatnagar Vs P.S. Gosain, 2007 (1)AWC ,1045. In the case of P.S. Gosain (Supra). The Division Bench has considered the question with regard to the maintainability of the Special appeal in similar factual scenario and held that in the event of discharge of contemner in the contempt proceedings, Hon'ble Supreme Court held in the case of Mindapore (Supra) deals with a situation whether some order is passed on merit but in case the contemner is discharged by the contempt judge, appeal shall not be maintainable. For convenience, Para Nos. 11 and 13 of the aforesaid judgment, relied upon by the learned Addl. Chief Standing Counsel is reproduced as Under:-
"11. The learned contempt Judge while discharging the contempt notice has not issued any direction or passed any order. The submission of the appellant's counsel that learned Judge has decided an issue on merit also cannot be accepted. The learned contempt Judge has only taken into consideration the earlier judgments of this Court contempt of which was alleged. The learned contempt Judge after taking into consideration all facts and circumstances observed that from the facts there does not appear to be any wilful or deliberate disobedience committed either by the Collector or by the Special Land Acquisition Officer. The order of contempt Judge discharging contempt notice cannot be said to be a judgment issuing any direction or deciding any issue on merits. The present is a case which cannot held to be covered in principles enumerated in Paragraph 11 (V) of the Apex Court's judgment. Another judgment relied by the counsel for the appellant is V.M. Manohar's case (supra). In the said judgment the contempt Judge issued direction directing Government to sanction the post in A.P Scheduled Castes Finance Corporation of East Godavari District so that the petitioners can be absorbed on permanent posts. The aforesaid fact has been noticed in paragraph-4 of the judgment. In view of above facts the Apex Court took the view that appeal was maintainable. Paragraph 4 and 8 of the Judgment is quoted as below:
4. Aggrieved by the rejection of the request for regularisation in pursuance of the order passed by the High Court on 17.8.1998, the employees moved contempt petition. The learned Judge while dealing with the contempt matter at one place observed that the petitioners should be deemed to have been working against the clear vacancy but at the same time it is also directed thereafter, "the respondents, particularly the Government is directed to sanction the post in A.P. Scheduled Castes Finance Corporation of East Godavari district so that the petitioners can be absorbed on permanent posts...." The contempt petition was ultimately closed with a direction to the respondents to comply with the order passed on the date.
8. The learned Counsel for the employees in some of the appeals, submit that the Division Bench has held that no appeal would lie against the order of the Contempt Judge since no one was punished for contempt. We find the argument to be fallacious. If a direction is given by a court without jurisdiction, against such orders an appeal would lie to a court normally exercising the appellate jurisdiction. Secondly, this ground loses importance in view of the fact that in some of the matters the authorities and the State have filed appeals directly against the order passed by the learned Judge disposing of contempt matter, directing the authorities and the State Government to sanction the posts. No such direction could be given in contempt proceedings.
In view of foregoing discussions we are of the view that this special appeal is not maintainable under Chapter VIII Rule 5 of the Rules of the Court and is dismissed accordingly."
The aforesaid proposition of law has been reiterated by the other Division Bench of this Court in the judgments relied upon by the Additional Chief Standing Counsel.
15. In the case of P.S. Gosain and other reported case relied upon by Sri Chaudhary, learned Additional Chief Standing Cousnel (supra), Chapter-VIII Rule 5 of the Allahabad High Court Rules has been interpreted. For convenience, Chapter-VIII of Allahabad High Court Rules is reproduced as under:-
"5. Special appeal :- An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction [or in the exercise of the jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award--(a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge."
Different Coordinate Benches while interpreting Chapter-VIII Rule 5 of the Allahabad High Court Rules with regard to intra court appeals held that after discharge in contempt petition, special appeal shall not be maintainable. In the case of Midnapore (supra), the subject matter of dispute does not seem to interpretation of Allahabad High Court Rules dealing with the right conferred to file intra court appeal (special appeals). Accordingly, judgment delivered by Coordinate Benches (supra) seems to lay down binding precedent where the Apex Court judgment in the case of Midnapore has been taken into account.
16. The judgment of Coordinate Bench laying down the law with regard to maintainability of special appeal in a matter where the contemner is discharged by the Hon'ble contempt Judge is binding being a Coordinate Bench and on account of binding precedent of earlier Coordinate Bench judgment, and it is not open to take a different view. We are in full agreement with the earlier Division Bench of this Court ( Supra), referred by the learned Additional Chief Standing Counsel that in case contempt petition is dismissed and contemner is discharged, without recording any finding on merit, then special appeal shall not be maintainable.
17. Although we are of the view that the present Special Appeal is not maintainable but keeping the fact that the appellant appeared in person and at the time of entertaining the special appeal, the Division bench noted with regard to existence of prima-facie case to summon the respondent-contemner to appear in person, it shall be appropriate and shall be in the ends of justice that on merit also, the factual matrix of the case should be discussed with regard to the alleged contempt committed by the respondent-judicial officer.
18. While submitting the reply and giving response in pursuance to the notice received, the contemner has given a brief sketch as to how she has proceeded while considering the bail application. We have referred to the various orders passed by the respondent (supra) on different dates while deciding the bail application. A perusal of the aforesaid orders on record does not even remotely suggest an attempt on the part of the respondent- judicial officer to defy the order passed by the Division Bench (supra) of this Court. She has proceeded strictly in compliance of the earlier judgment of this Court while deciding the bail application. Even she has taken abundant precaution while passing the order on different dates giving direction to Assistant Prosecuting Officer to inform the investigating officer and received required information from him and apprise the Court. While granting the bail, she has also granted reasonable opportunity to the appellant to appear before her as well as learned counsel for the accused and Assistant Prosecuting Officer.
19. Nothing is on the record to show that the appellant has objected to the Presiding Officer with regard to the manner in which she has proceeded in compliance of the earlier judgment of this Court. The appellant has not invited attention of this Court to any material, which may reveal that she had filed any objection with regard to manner or procedure adopted by the respondent- presiding officer that she has violated the Division Bench judgment of this Court, while proceeded with the bail application.
20. For all fairness, being literate person, it is expected that appellant should have inform the respondent-judicial officer as to in what manner she has not proceeded in terms of the earlier judgment of this Court ( Supra).
21. The observations made by the Division Bench while passing the summoning order dated 7.3.2004 seems to have been passed in ignorance of the different orders passed by the respondent- judicial officer (Supra), during the course of proceeding while entertaining the bail application. It appears that the attention of the Division Bench of this Court was not invited by the appellant on 7.3.2014 to the order dated 22.10.2013, 2.11.2013 and 6.11.2013, which on the face of the record, shows that respondent-judicial officer has discharged her obligation fairly and honestly while proceeding with the case in terms of the judgment and order dated 3.10.2013.
22. Ordinarily it is expected from the litigant as well as their lawyers to raise objection at the first instance with regard to procedural irregularity if any during the course of hearing. It is not fair on the part of litigant or was fair on the part of appellant to keep the issue within his or her own chest without inviting attention of the court for the purpose of filing appeal or contempt petition. The purpose of open court and trial is to apprise the court with regard to procedural irregularity if any and also to invite the attention of the court towards statutory provisions and the law on the subject. It shall be failure of system in case lawyers or litigants appearing before the court do not invite its attention towards any procedural irregularity during the course of hearing. For all fairness, it is expected from lawyers as well as litigant to inform the court at first instance with regard to procedural irregularity or any other illegality if any.
Moreover, unless there is deliberate and intentional disobedience of order of court by a person including judicial officers no case shall made out to prosecute for committing contempt of own court or a court of higher forum. Nothing has been brought on record by the appellant to substantiate that there was any deliberate and intentional attempt on the part of respondents presiding officers to violate the judgment of this court. Respondent seems to had proceeded bonafidely strictly in accordance to judgment of this court (supra) while deciding the bail application. Hence, in any case even prima-face there appears to be no room of doubt that in any manner respondent judicial officer had committed contempt of this court.
23. In our view, the present special appeal seems to be not maintainable and on merits also, no case is made out to proceed against the respondent-judicial officer under the contempt jurisdiction. Needless to say that the option is open to the appellant to move an application for cancellation of bail or approach appropriate forum in case she is aggrieved with the grant of bail by the respondent-judicial officer.
Subject to the aforesaid findings, instant appeal is hereby dismissed.
Order Date :- 1.5.2014 n.u.