Criminal Contempt Petition No.8 of 1996,Criminal Writ Petition No. 246 of 1993

2nd August, 2001

Petitioner Counsel: Mr. M. P. BADAR
Respondent Counsel: Mr. ANIL S. MARDIKAR

Cases Cited:
Arun Kumar Krishnarao Balpande Vs. Wasudeorao Kondbaji Ganar, 1996(1) Mh.L.J. 491 [Para 8,13]
Delhi Judicial Service Association, Tis Hazari Court, Delhi Vs. State of Gujrat, AIR 1991 SC 2176 [Para 8,13]
Vidya Charan Shukla Vs. Tamil Nadu Olympic Association, AIR 1991 Madras 323 [Para 8]
Omprakash Jaiswal Vs. D. K. Mittal, AIR 2000 SC 1136 [Para 11,13]
Pritam Pal Vs. High Court of Madhya Pradesh, Jabalpur, AIR 1992 SC 904 [Para 13]

JUDGMENT

J. N. PATEL, J. :- Heard Mr. Badar, learned Special Counsel for the petitioner, Mr. Anil S. Mardikar, learned counsel for respondent no.1 and learned A.P.P. for respondent no.2.

2. The petitioner who is Divisional Forest Officer was required to initiate contempt proceedings against respondent no.1 for having failed to comply with the directions of this court issued while disposing the Criminal Writ Petition No.246/1993 by its Judgment and Order dated 29.3.1995 under which respondent no.1 was directed to produce the truck before the Authorised Officer i.e. the Deputy Conservator of Forests, Amravati immediately.

3. It is the case of the petitioner that respondent No.1 Gattusa Sakharam Dhole is the owner of Motor Truck bearing registration No.MTV 1445 which was caught while transporting illegally felled teak timber. The proceedings came to be initiated against respondent no.1 by the Authorised Officer for confiscation of the Motor Truck as provided under section 61(A) of the Indian Forest Act and the Authorised Officer passed an order of confiscation of the seized teak wood and the Motor Truck on 30.3.1992. The respondent no.1 preferred an appeal impugning the said order before the District & Sessions Judge, Amravati. The 2nd Additional Sessions Judge, Amravati vide its order dated 23.8.1993 set aside the order of confiscation and ordered that the Truck be handed over to the respondent no.1 on Supratnama to the tune of Rs. 2,00,000/-.

4. The Forest Department, aggrieved by the order passed by the 2nd Additional Sessions Judge, Amravati, challenged the same before this Court by filing Criminal Writ Petition No.246/1999. This Court on 29.3.1995 allowed the Criminal Writ Petition in favour of the Forest Department and directed the respondent no.1 to produce the Truck before the Authorised Officer who is the Deputy Conservator of Forest, Amravati immediately. Inspite of this specific directions the respondent no.1 failed to produce the truck, therefore, the Authorised Officer issued registered notices to the respondent and as the respondent no.1 did not respond, the petitioner filed an application under section 91 of Criminal Procedure Code, before the Court of Sessions for issuing summons to the respondent no.1 for production of the truck. In response to the said proceedings respondent filed reply and submitted that the truck is under repair and he would produce it within a week. But he failed to comply with it. The respondent no.1 on 5.2.1996 filed an application before the 2nd Additional Sessions Judge, Amravati stating that the truck is under repairs at Warud and it would be repaired within 4-5 days and had requested for one month's time to produce the truck. On such application being made, the Forest Department, made search of the truck in the garages at Warud, but it was not traced and the fact was brought to the notice of the court. It is the case of the petitioner that respondent no.1 in the mean time brought the chassis of the motor vehicle having registration No. MTV 1445 the damaged iron parts in Truck No.MTV-1023, near the Dear Breeding Center, Wadali and unloaded it there, inspite of the objection of the Watchman and therefore, a report was made of the incident by the Forest Department to the Police. The petitioner took photographs of the truck i.e. chassis and scrap material dumped by the respondent no.1 and produced it before the 2nd Additional Sessions Judge, Amravati. On 27.2.1996 the IInd Additional Sessions Judge passed order on Application under section 91 of Criminal Procedure Code and observed therein that the photographs show that practically it is a scrap of the truck and directed the petitioner to approach the High Court as the order of return of the truck was passed by the High Court, which was not complied by respondent no.1, therefore, there appears to be breach of the said order committed by respondent no.1 and it is in these circumstances the petitioner has moved this Court.

5. It is the case of the petitioner that respondent no.1 has played a fraud by dumping the scrap and chassis in the premises of the Forest Department, so as to make a show of compliance of the order passed by this Court, which is nothing but clear disobedience of the orders of the Courts. It is submitted that respondent no.1 willfully and intentionally did not comply with the orders passed in Criminal Writ Petition No.246/1993 and also aggravated the contempt by disobedience of the order passed on the application under section 91 of the Criminal Procedure Code for issuance of summons to the respondent no.1 and therefore, the respondent be directed to comply with the judgment dated 29.3.95 in Criminal Writ Petition No.246/1993 by production of the truck before the Authorised Officer and alternatively to make payment of Rs. 2,00,000/- and further be punished for having committed contempt of court for disobeying the order of this Court in accordance with law and the petition be allowed with cost.

6. On 13.6.1996, this Court on hearing Mr. Badar, Special Counsel for the petitioner passed an order "Notice". Inspite of notice being served, the respondent did not care to file any reply and that is how the petition has came for final hearing.

7. Mr. Badar, learned counsel appearing for the petitioner submitted that respondent no.1 failed to surrender the motor vehicle confiscated under the Forest Act before the Authorized Officer in terms of the orders passed by this Court, which amounts to disobedience of the order passed by this Court, which would attract the provisions of Contempt of Courts Act. It is submitted that not only the respondent no.1 flouted the orders of this Court and failed to comply with it, but when the proceedings were initiated to secure its compliance, played a fraud by dumping the chassis and scrap material along with it as a substitute for truck in the premises of the Forest Department. It is submitted that the photographs annexed to the petition would show that the respondent no.1 had no intention to comply with the orders of this Court and therefore deserves to be punished for having committed contempt of Court.

8. Mr. Badar submitted that no person can be permitted to cheat and defraud the courts, as in the case of respondent no.1 who has intentionally dumped the chassis and scrap material instead of the motor truck which stood confiscated under the orders of this Court. It is submitted that respondent no.1 has executed a supratnama after which the Motor Vehicle was released by the 2nd Additional Sessions Judge, Amravati by allowing his appeal which was in the sum of Rs. 2,00,000/- which itself shows that motor truck was in working condition when it came to be released and therefore, when its confiscation was ordered, it was obligatory on his part to return the motor vehicle in good condition to the authorised officer as it stood confiscated by the orders of this court and vested in the state government. According to Mr. Badar, compliance of the order of this court in this manner, is nothing short of interference and obstruction in the administration of justice which is actionable, therefore, the respondent be punished. In support of his contention, learned counsel Mr. Badar has placed reliance on the case of Arun Kumar Krishnarao Balpande .vs. Wasudeorao Kondbaji Ganar and others [1996(1) Mh.L.J. - 491], Delhi Judicial Service Association, Tis Hazari Court, Delhi .vs. State of Gujrat and others [AIR 1991 Supreme Court 2176], Vidya Charan Shukla .vs. Tamil Nadu Olympic Association and another [AIR 1991 Madras 323]

9. Mr. Badar submitted that in addition to punishing the contemnor for disobedience of the orders of this court, this Court should also order the respondent to deposit a sum of Rs. 2,00,000/- alongwith the interest from the date this court passed an order directing him to surrender the motor vehicle on its confiscation till the same is paid, as no litigant should be encouraged to disobey the orders of the court and benefit out of it with impunity.

10. Mr. Mardikar, learned counsel appearing for respondent no.1 submits that this is not a case which would come within the definition of criminal contempt, and this would be a civil contempt defined under section 2(b) of the Contempt of Courts Act, 1971. Further it is submitted that respondent no.1 has complied with the order of this court and surrendered motor truck to the Forest Department. It is submitted that motor vehicle has met with an accident and therefore, the same has been surrendered in the condition in which it was lying in the garrage for repairs. It is because of the orders of the Court of Sessions, which did not offer time to the respondent no.1 to get the motor vehicle repaired, it was delivered to the Forest Department in as is where is condition. It is submitted that motor vehicle had met with an accident having dashed against a tree.

11. It is submitted by Mr. Mardikar, learned counsel for respondent no.1 that the contempt petition as filed and presented would not attract the provisions of Contempt of Courts Act as no action was initiated within the prescribed period of limitation. Mr. Mardikar relied upon the case of Omprakash Jaiswal .vs. D. K. Mittal, reported in AIR 2000 Supreme Court 1136. According to Mr. Mardikar, this court had only issued notice, and failed to take cognizance of the contempt within one year, therefore, it strikes at the jurisdiction of the court. Further it is submitted that this court did not initiate the contempt proceedings by passing an order of issuing notice to the respondent to show cause why he be not punished for contempt and so the proceedings will have to be dropped. Mr. Mardikar also drew our attention to the rules framed by this court relating to contempt, under article 215 of Constitution of India and the Contempt of Courts Act 1971 and submitted that once the petitioner has initiated the proceedings for contempt under the Contempt of Courts Act, they can not invoke provisions of article 215 of the Constitution of India, therefore, the petition needs to be dismissed.

12. The facts are not disputed. The petitioner by the judgment and order of this court passed on 29.3.1995 in Criminal Writ Petition No.246/1993 was specifically directed to produce the truck before the authorised officer as it stood confiscated, as the order dated 30.3.92 passed by authorised officer was upheld by this Court, which is not challenged by respondent no.1. Further respondent no.1 also did not comply with the order passed by this court, which was to be done "immediately". It is only after the petitioner initiated proceedings before the Additional Sessions Judge that he dumped the chassis of truck showing compliance of the order and dumped the material near the Deer Breeding Center, Wadali on or about 15.2.1996. On examining the case we are satisfied that the respondent no.1 not only disobeyed the orders of this court directing him to surrender motor vehicle immediately, but he acted dishonestly as instead of surrendering the motor vehicle he dumped the scrap and chassis as is evident from the photograph. Respondent no.1 even did not bother to file an affidavit in reply before this Court and therefore, we have come to the conclusion that the party who acts with dishonest intention and fraudulently fails to comply with the order of the court, does commit criminal contempt, as it is not only interference but also obstruction to the administration of justice and this is not a case of mere willful disobedience of any direction passed by the court or breach of undertaking.

13. It is true that this Court on 13.6.96 passed an order "Notice" which in view of Judgment of the Supreme Court rendered in the case of Omprakash Jaiswal .vs. D. K. Mittal, reported in AIR 2000 Supreme Court 1136 (cited supra) does not amount of taking of cognizance by the court and action under section 20 of the Contempt of Courts Act would be barred, but this by itself would not prevent the court from taking cognizance of such dishonest and fraudulent act on the part of respondent by invoking its extraordinary powers under article 215 of the Constitution. In the case of Arunkumar Krishnarao Balpande .vs. Wasudeorao Kondbaji Ganar, reported in 1996(1) Mh.L.J. page 491 (cited supra), the Division Bench of this Court has examined the issue and held as under :

"(10). In view of the decision of the Supreme Court reported in AIR 1991 SC 2176 (cited supra) it has to be held now that it is open to the High Court to take suo motu action on the materials being placed before it provided the Court is satisfied that Criminal Contempt really exists. But when such a course is adopted it need hardly be emphasised that the suo motu jurisdiction has to be exercised with circumspection and caution so that frivolous petitions are never entertained. As a matter of fact, the decision reported in 1990 Cri.L.J. 2179 (cited Supra) relates to a settlement made by former Chief Justice E.S. Venkatramaih which was alleged to be contemptuous. Though it was held that the petition is not maintainable as the petitioner did not obtain consent of Advocate General, in paragraph 12 of the judgment. Their Lordships went into the merits of the alleged contempt and dismissed the petition on merits as well as on maintainability.

(11). As we have already pointed out on the basis of the decision reported in AIR 1991 SC 2176 (cited supra) that power of this Court, under Article 215 of the Constitution of India, as a Court of record to punish for contempt cannot be in any way impinged upon by the Legislation, the function of this petition being only to bring to the notice of this Court that certain circumstances exit which would constitute criminal contempt,if the court is satisfied on perusal of the said material placed before the Court that criminal contempt has been committed, the restrictions imposed under the Act cannot be a hurdle for the Court to take cognizance of the criminal contempt suo motu even though the said materials were placed by a party.

(12). The ratio of the decision in Pritam Pal vs. High Court of Madhya Pradesh, Jabalpur, AIR 1992 SC 904 in our view, makes the position more clear. In the said decision Their Lordships observed that the Supreme Court and the High Court, being Courts of Record as embodied under Articles 129 and 215 respectively, the constitutionally vested right cannot be either abridged by any legislation or abrogated or cut down. Nor can they be controlled or limited by any statute or by any provisions of the code of Criminal Procedure or any Rules. In paragraph 42 of the said decision, Their Lordships observed".

"....Incidentally, we may say that the submission of the contemnor that the impugned order is vitiated on the ground of procedural irregularities and that Article 215 of the Constitution of India is to be read in conjunction with the provisions of sections 15 and 17 of the Act of 1971, cannot be countenanced and it has to be summarily rejected as being devoid of any merit."

But caution is made in the exercise of this jurisdiction. Their Lordships in paragraph -41 further held that ;

".... The caution that has to be observed in exercising this inherent power by summary procedure is that the power should be used sparingly, that the procedure to be followed should be fair and that the contemnor should be made aware of the charge against him and given a reasonable opportunity to defend himself."

From the said decision, it is clear that when the Court is at the question as to whether it should exercise its jurisdiction under Article 215 suomotu it cannot be successfully maintained that the same has to be subjected to the provisions of the Contempt of Courts Act. Therefore, the contention of the learned counsel Mr. S. G. Aney as to the maintainability on that ground no longer can be sustained."

We do not think that the court is helpless, so as not to take any action against contemnor - respondent no.1, otherwise as rightly submitted by Mr. Badar, Special Counsel for the Forest Department any person may commit fraud and get away scot free with impunity and mock at the helplessness of the court in its failure to secure compliance of its order. A party can not be made to suffer due to inaction on the part of the court in securing compliance of its order.

14. We therefore, hold that respondent no.1 is guilty of committing contempt of this court in not complying with its direction. But before we proceed to punish respondent no.1 contemnor, we give him an opportunity to purge the contempt and therefore, in case respondent no.1 deposits the sum of Rs. 2,00,000/- with interest @ 9% P.A. from 1.4.95 till he deposits the amount of Rs. 2,00,000/- (which is the sum which the respondent offered to pay in lieu of the motor vehicle in the bond executed by him before the Sessions Court on release of his truck,) within a period of 8 weeks from the passing of this order, he will not be liable for punishment and in case respondent fails to do so, then we will be constrained to take further steps in the matter. If respondent no.1 deposits the said amount as directed, he will be at liberty to remove the chassis and the scrap material from where it is dumped at his own risk after seeking discharge certificate from the authority concerned of having deposited the amount.

15. The petition stands disposed of accordingly. The matter be placed before this court on the expiry of 8 weeks as in case the respondent no.1 does not avail of the opportunity granted by this Court, this court would pass further appropriate orders in the matter after hearing the parties on the point of sentence.

Order accordingly.