DEllAllRATA BANDOPADHYAY THE STATE ())-' WEST BE!'iGAL & A!"iR. July 2, 1968 1:\1. HIDAYAT!JLLAll, C.J., V. RAMASWAMI AND C. A. VAIDIALINGAM, JJ.] Contrn1pt of Court-Sessions Judge dircctin.£! i11 "ppra/ under s. 520 Cr. P.L'. that n1011cy in dcpo.rit in court be pc.id to <1cc11scd on his execut- ing bond to satisfaction of Dislrict Magistrate-Bone/ ex<'cutcd in for111 of indt•11111ity bond in favour of State Gover111ne111-Acct'ptrd bv Adtli- tional Di\·trict Ma{?isrrare-Acceptance of bond in such fonn and ·hv sur.lz authori1y
whrther com1it111ed co111rmpt of coun of Se.ui011.1• Ji1d~c- Delay iu trans1nissio11 of orders of suprrior cour1s-fVhc11 conltiturrs conte111pt. S \vho \Va.-; Suh-Agent of a Pho:;patc companv ,,·:is convicted for a contravention of the Fcniliscr Control
Order real! v•ith s. 7( 1) of the Essential Commoditie, AC'!. The fertiliser seized during invc,tigation was sold by the ordi:r of th:! Court anJ the sale p·roeecd1; held in deposit. ·rhc trial f\1agistratc ordered the fertiliser to he returned to the comrany hut S filed ~1n appeal und~r c;. 520 of the Code of Crin1inal Procedure and on Deccn1hcr 23. 1963 the
Sc~sions Judj!e directed 1he !Vl<'lgislr;'tte to deliver the amount to S upon hi<i furnishing s·.:curitv and executing a hond to the satisfaction of the District Magistrate. On January 3, 1964
S pro<lucc<l a certific{I copy of thi1; order and a<;kcd hi he allo\vc<l to take out the ~1mount and furnish-:d a hond. The f\1al:!i'tr;itc recomn1endcd its acceptance and it was then accepted bv the Addi!.io11~1l District ~fagisirate. ()n Janu;i'ry 11. 1964 the ~·L1gistratc directed the issuance of a pav order. S received it on the 1;amc day and deposited it \Vith hi1; bankers on January 13.
The Con1panv mcan\vhilc had filed a rcvi~;ion petition before the lligh Court and as.kcd the Sessions Judge to stay hi~ order of J)c;.~n1her 2.3, 1963. l'hc Sessions Judge pas1;cd an vrdcr of st:iy on J~1nuarv 14. 1964 ,,·hich \Vas received in the District ~1agi.<.trale's office on J;.i.nuarv
16. 1964. Even ;1ftcr the n:ccipt of that order in the District \L.1~istratc's office a comn1unication \\las sent to the trial n1agi~tral-: on :!0th J;inu:iry. 1964 directing him to carry out the Sessions Judge's order datc(l Dcccm- hcr 2~. t963.
'fhe High Court charged the District \1;1gi.;,tral·_· and other appellants for contempt and held that contempt· of the. <:our! of the Session" Judge had hcen commilled h:!causc: (a) 'fh~ f\1~1g1.<.tr;1tc accepted S's bond v.·tiich \\·as not in proper forn1 an<l thus failed lo c:i'rrv ou1 the Sessions Judi;e's or<lL·r of J)cccmbcr 23. 1963: (h) ·rhc hn11U wa" acc·.:ri1cd hy the Addition;il l)istrict }.1;1[!i"trate \Vh~rc:~". th~ Sc"sions. Jt~dce h'.1d
ordcT'.!d that the bond should he to the .<.a1Isfact1on of the. D1.s1nct !\1:1g1~ trate; (c) The District J\1;1gis1ratc directed that thL· s~'"l~n:-. Judgc.s order of Dccemhcr 23. 1963 he c;11Tied out although the Scss1or:is J111J~;c s stay order had hcen rcc.eived in hi" office before 1h:1t. . The Hi.ch Coyrt held that there had hccn gross delay in th-~ co01:n1u.n1~1llon. antl cxccut10.n of the o'rders of the superior court.:; hv the D1:-.tnct I\1og1stratc and h15 , 0 hordin:ites and th:11 there \\';i'i a \\'ell-knit con:-µi:-:-icv. to oav the amn.1;nt in deposit tn S in defiance of the orders or the .<.upcnor court.s. Again~!
their conviction by the High (:ourt the appcllan~'S can1c to th1<.. Court. HFLD: (i) Th:rc is nothing in "· "17 (;rin1i11.1l Prna..·dure .<~0clc v.·hich excluded the u-.c of .in 1nden1nity f">\)nd such .1s ''"'s execu1..:d 1n tl~c case
The Sessions Judge dtd not 01der th.11 the hond ~houhl he t;1kcn 111 c DEBABRATA V. WEST BENGAL (Hidayatuiiah, C.J.) the name of Jny particular court. A bond in the name of the Govern~
mcnt of West Bengal substantially compl;od with the order of the Sessions Judge as it could be enforced against S without any trouble [308 F-G] (ii) Jn holding that the District Magistrate alone could accept the
bond the High Court ignored th·o powers of the Additional District Magistrate unde'r the Code of Criminal Procedure. The practice of courts in Bengal is also against the proposition because such bonds are usually considered for acceptance by the
Additional District Magistrate [308 G-H] (iii) The High Court went wrong in holding that there was a conspi- racy by the officials concerned. For a conspiracy to be hatched there must be some foundation of gain o'r purpose.
The conspirators would at least know that there was nothing to be gained by delaying the orders since the monay was already paid out. The stay orders were ineffective since there was nothing to stay.
There was no doubt som·~ delay but it could be dealt with in other ways than punishment for an imaginary con- tempt of court. [309 G-H, 310 Al Jn the circum:.tanoes of the case the High Court \Vas also \vrong in
taking into account against the appellants their failure to make an appology. [310 BJ A question whether there is contempt of court or not is a serious one. The court is both the accuser as well as the judge of the accusation. lt behoves the court to act with as great
circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in courts and tribunals. It is only when a clear case of contumacious conduct not explainable otherwise, arises, that the con- temner must be punished [310 F]
LThe Court, however, cautioned all concerned that orders of stay, bail, injunctions received from superior courts must receive close and prompt attention and unnecessary delay in despatching or dealing with them may \Yell furnish grounds for an infc'rence that it was due to a natural disincli- nation to- deal with the n1atter born of indifference and som·.etimcs even of contumaciousness.] [311 A-B]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 55 of 1965. Appeal by special I.eave from the judgment and order dated June 16, 1964 of the Calcutta High Court in Criminal Misc. Case No. 28 of 1964.
Debobrata Mukherjee and P. ·K. Chakravarty, for the appel- lants. [ G D. N_ Mukherjee for P. K. Bose, for respondent No. 1. Niren De, Solicitor-General, B. Sen and G. S. Chatterjee, for the intervener.
Hidayatullah, C.J. The five appellants are District Magis- trate 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. SCPREME COURT REPORTS [1969] J SCR. One Bircndra Kumar Sarkar, Sub-Agent of Phosphate
Co. Ltd. Krishnagar, District Nadia, was prosecuted for contravention of the Fertiliser Control Order, read with s. 7 ( 1) of the Essential Commodities Act and on his own pica was convicted and sen- tenced to Rs. 20 fine or simple imprisonment for 10 days.
We are not concerned with his conviction. The fertiliser seized dur- ing investigation was sold by order of the Court and the sale pro- ceeds held in deposit. On the conviction of Bircndra Kumar the amount in deposit (Rs. 4,215) was directed on March 11, 1963 to be returned to him. The same day the Phosphate Cn. Ltd. applied to take out the amount and the Magistrate reversed the earlier order and directed that the amount be paid to the Com- pany.
Bircndra Kumar appealed to the Sessions Judge, Nadia under s. 520 of the Code of Criminal Procedure. Thi' appeal succeeded and on December 23, 1963, the Ses,ions Judge direct- ed the Magistrate to deliver the amount to Sarkar upon his fur- nishing security and executing a bond to the satisfaction of the District Magistrate, Nadia.
On January 3, 1964 Sarkar pro- duced 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. Mookhcrjec, Magistrate Isl Class, who recom- mended its acceptance.
It was then accepted by A. Sen, Addi- tional District Magistrate, Nadia. On January I I, 1964 the ac- countant attached to the Court of N. C. Mookerjce reported and the !alter directed issuance of a pay order. Sarkar received the pay order the same day and deposited it with his bankers (State Bank of India) on January I 3, I 964.
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 2J, 1963 and asked for stay. Stay was not immediately granted but notice was issued to Sarkar to show c:iusc on January 16, 1964. Later a stay order was also sent. On January I 3, I 964 the High Court issued a rule and also directed stay of operation of the Session' Judge's order of December 23, 1963.
It will be seen from the above facts that the actual payment of money was made under the orders of the Sessions Jud~e passed on December 23, 1963 as far back :t> January 11, 1964. The High Court has considered the question of 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 wme to it later. We shall now trace the progress of the orders which were passed by the Sessions Judge and the High Court in pro- ceedings subsequent to January I 964. For this purpose it . is
sufficient to extract the summary of the events made by the High Court itself : c c DEBABRATA v. WEST BENGAL (Hidayatu//ah, C.J.) " …. 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. Jn the meantime Sessions Judge's Memo No. 170 that had been received in the District Magistrate's Office on 16th of January 1964 was also
despatched to the trial Magistrate's Court on 29th of January, 1964 by Memo. No. 554 Jm. and the trial Magistrate received it on 30th January, 1964. Ses- sions Judge's Memo. No. 108 dated 11th January,
1964 which was received in the District Magistrate's Office on 15th January, 1964 and is said to have been despatched to the trial Magistrate's Court on 22nd January, 1964 with Memo. No. 443 Jm. is said to have
been received by the Bench Clerks of the trying Magis- trate on 25th January, 1964 and put up before the Magistrate only on 1st February, 1964." On the above facts the High Court framed the following
questions . – " ( 1 ) Has there been disobedience of the order of the Sessions Judge, Nadia that money should be given to Birendra Kumar Sarkar on a Bond to the satisfaction of the District Magistrate, Nadia?
( 2) Was the Bond upon which pay order for the money had been made a document that complies with the order for the Sessions Judge of Nadia dated 23rd December, 1963? (3) Was Memo. No. 443 Jm. dated 20th January,
1964 directing to carry out Sessions Judge's order dated 23rd December. 1963 after the order of stay made by the Sessions Judge on 14th January, ·1964 was received in the District Magistrate's office on 16th January 1964
by Memo. No. 108 dated 11th January 1964 an inten- tional violation of the stay order ? The first two questions were treated as interconnected and dealt with together. The High Court found fault with the bond
:10s Sl'PREME ('01.:RT REPORTS [1%9] I S.C.R. and abo opined that none else save the District Magistrate could accept the bond. With all respect, the High Court erred on both the :Lspccts.
The bond is reproduced below "BO;.JD A bond is made this <lay by Sri Biren<lra Kumar Sarkar son of late Bilash Chandra Sarkar of Chand Sarak. Krishnagar, Dt. Nadia is hereby agreed and re-
ceived Rs. 4,125 !Rupees four thousand one hundred and twenty-live only) which has been deposited in the court in connection with G.R. Case No. 338 of 1961 and the said amoun1 has been ordered by !he Sessions
Judge of l\adia in case (Criminal Appeal No. 75 of 1963). I Birendra Kumar Sarkar s Io late Bilash Chan- dra Sarkar bind myself and my heirs. executors, adrni- nistralors and representatives to refund the entire money
if disputes arises to the Government of West Bengal or its successors. c I bind myself. my heirs, executors, administrators and represenlatives firmly by this bond signed in my own hand da'.c<l this the 3rd day of January. I 964.
Sd/- Biren<lra Kumar Sarkar. 3-1-64 Signature of the executant S1~ned in my presence and identified. Rajendranath Biswas. Muktear. Krishnagar. 3-1-64" Now it is admitted that there is no prescribed form of bond applicable to the ca~~. The form had to be devised for the pur- pose. The bond which was taken in an ordinary indemnity bond. There is nothing in the words of s. 517, Criminal Procedure Code. which excluded the use of an indemnity bond.
The Sessions Judge did not order that the bond should be taken in the name of any particular court. A hond in the name of the GovernmelK of West Bengal substantially (if not wholly) complied with the order of the Sessions Judge.
It could be enforced against Sarkar without any trouble. The further point that the District Magi~· trate alone could accept the bond ignores the powers of the Addi- tional District Magistrate under the Code of Criminal Procedure. The practice of courts in Bengal is also against the proposition because such bonds arc usually considered for accep'.ance by Additional D'strict Ma~istrate<. The High
Couq apparently thinks that the District Magistrate was a persona des1gnata for the pumose. We are unable to read such an inference in th.c order of the Sc.ssions Judge which ran :
II DEBABRATA v. WEST BENGAL (Hidayatult'ah, C.J.) "The learned Magistrate be directed to deliver the sale proceeds which are now deposit (sic) in Court to the accused on the accused's furnishing bond of the
amount covered by the sale proceeds to the satisfaction of the District Magistrate, Nadia." c lo our judgment the High Court could not base any action on such material. It may be pointed out that the High Court did
not throw into the balanc~ the acceptance of the bond by the Additional District Magistrate holding that there was room for an error there but took serious note of the fact that the bond was not in the proper form. We do not agree with the High Court. This brings us to the last question. The fact here is that the orders took some time before reaching their destination. While we do not condone such delays, we think that the High Court was taking too strict a view of the matter.
Two things seems to have played a prontinent part in the drawing of the inference against the concerned officers. The first is that ther.e was an intentional disobedience of the orders. This the High Court visualised in the following terms :
"That by itself bespeaks of a well throughout (sic) scheme to achieve an end and that end is the cheiished goal to make over the money to Birendra Kumar Sarkar by violating the stay order of the Sessions Judge dated
14th January, 1964. For carrying out that scheme the file in which the order sheet started on 3rd J anua1y, 1964, was started separately and to seclude the features in that file it was withheld from this Court when return
was made to the Rule in Criminal Revision case No. 60 of 1964 until it was thought useful for making a defence in this Contempt Rule. No other view of the matter could be suggested by the thre.e learned Advocntes
appearing for the several parties or the learned Advo- cate for the State, Mr. Fanindra Mohan Sanyal, and no other view is possible . . Now it. seems quiie impossible to subscribe to this opinion. For a conspiracy to be hatched ther.e, must be some foundation of gain or purpose.
The conspirators (if they knew anything) would at least know that there was nothing: to be gained by delaying tbe orders smce the money was already paid out. Once that bad happened some fresh order would be necessary to demand back the amount from Sarkar or the bond would be enforced.
The sti:y orders were ineffective since there was nothing to stay. To thmk !hat the officers (one and all) were actuated by a rr:.otive to frustrate the stay orders is to imagine a state of affairs for which ~here w~s. no warrant at all.
There was thus no question of undermmmg the authonty of the Court of Sessions Judge' or SVPREME C<Jl"RT REPORTS [1969] ! S.C.R. of bringing the 'administration of justice in the District of Nadia to ridicule'.
Nor can it be said that there was a deliberate inter- ference with or obstruction to due course of justice. There was no doubt some delay but that was a differ.~nt ma'.ter and could be dealt with in other ways than punishment for an imaginary contempt of court.
The second point which the High Court unfor:unately placed at the very forefront was failure to offer an apology and noted with great show of emotion that none was offered. Of course,
an apology must be offered and that too clearly and at the earliest opportunity. A person who offers a belated apology runs the risk that it may not be aceerted for such an apology hardly shows the contrition which is the essence of the purging of a contempt. However, a man may have the courage of his convictions and may stake his all on proving that he is not in contempt and may take the risk.
In the prt~sent case the appellants ran the gauntlet of rnch risk and may be said to have fairly succeeded. The High Court was extremely hard upon the appellants in this case. Details collected from the files of the case having no
bearing upon the question of contempt were freely used. They carry no convincement. There arc observations which in their tone do sltow that the mailer was not approached in that cool manner in which the High Court considers contempt of itself or of courts subordinate to it.
This is a matter of regret to this Coo rt. A qu.~stion whether there is contempt of court or not is a serious one. The court is both the accuser as well as the judge of the accusation.
It behoves the court to act wi'h a:; great cir- cumspection as possible making all allowances for error> of judgment and ditficulties arisin.g from inveterate practices in courts and tribunals. It is onlv when a clear case of contumacious con- duct not explainable otherwise. arises that the conternner :nust be punished. It musr be real'»~d that our system of courts often rcsu!'.s in delay of one kind or another.
The remedy for it is reform and punishment departmentally. Punishment under the Jaw of Contempt is called for when the lapse is deliberate and in disregard of one's duty and in defiance of authority. To rake ac- tion in an unclear case is to make the law of con'.cmpt do duty for other measures and is not to he encouraged.
Jn this case. no doubt there was some avoidable delay but as pointed out above it was the result of our system of transmission of orders of superior courts which must pass throug.h several hands and not the product of design or defiance of the superior courts. In these circumstances. i• cannot be said that there was contempt of the authority of the Hii:h Court or of the Sessions Judge and the several appellants could not be convicted or punished. ln
c DEBABRATA V. WEST BENGAL (Hidayatuliah. C.J.) 3 I 1 this view of the matter we set aside their convictions and order refund of their fines. We, however, caution all concerned that
orders of stay, bail, injunctions received from superior courts must receive close and prompt atiention and unnecessary delay in despatching or dealing with them may well furnish grounds for an inference that it was due to a natural disinclination to deal with the matte.r born of indifference and sometimes even of con- tumaciousness.
G.c. Appeal ailowed .