JUDGMENT
R. Bhattacharyya, J.
1. The above Misc. Case is directed against the order passed by his Lordships in Criminal Revision Nos. 89 & 90 of 1994, the Hon’ble Mr. Justice Arun Kumar Dutta dated 16.5.94 “directing the officer-in-charge Jorashanko PS be accordingly, hereby appointed receiver in respect of the aforesaid 5 rooms in question in the disputed premtses. He shall immediately take charge of the said 5 rooms; and shall hereafter make over possession of the same to the party concerned according to orders which may be passed by the City Civil Court in the aforesaid Title Suit No. 971 of 1992 in the light of the observations hereinabove made. Gauged in the background of the totality of the circumstances indicated above such a course also seems to the to be fit and proper for prevention of it (further) possible breach of peace and multiplicity of such like criminal proceedings”. This order “shall not in any way preclude the petitioner Durgaprasad Gupta from taking steps against the contemner No. 1 Sahadeb Dey, for civil contempt and or under Order 33 Rule 2A of the Code of Civil Procedure before court for his alleged violation of the injunction order dated 15.7.92 the way he allegedly did as discussed above”.
2. The above order, since resulted in infraction of right, the aggrieved preferred the criminal misc, case above referred to. In regard to get a grip to the core controversy about the viability of the contempt application, it is necessary in all fitness of things to set out the factual background of the case.
3. A criminal revision being Criminal Revision Case No. 89 of 1994 was initiated against the order of the learned additional Chief Metropolitan Magistrate dated 17.12.93 in G.R. Case No. 4163 of 1993. The complainant put up a prayer before the learned ACMM to put him in possession of the 5 rooms of the disputed premises by removing the padlocks of the doors. The learned Magistrate declined to pass such an order for the reasons recorded in the order. The impugned order fell for consideration before his Lordship and for passing an interim order directing the officer-In-charge Jorashanko PS. to remove the padlocks from the doors of the 5 rooms comprised into 2 floors namely. 2 rooms on the second floor and 3 rooms on the ground floor of premtses 55, Shimla Street coupled with a further prayer before the court of revision to allow him to enjoy the rooms until disposal of the matter.
4. The opposite party No. 2 Sahadeb Dey also put in an application for being added as a party thereto praying for not to pass an order in the manner as asked for by the complainant as it would occasion prejudice to him having a vital interest in the litigation. However, he was added as opposite party No. 2 for disposal of the issue. It transpires from the record that a contempt petition was filed on 18.4.94 and, in view of his urgency, the same was moved on 19.4.94 upon notice to the contemnors,
5. The petitioner in his application has forcefully urged the background of the tenancy in respect of premises No. 55, Shimla Street. His father was the original tenant for well over 3 decades. Shewnath, the father of the petitioner died infested on 1.9.79 his widow and sons including the
petitioner who became the joint tenants of the said premises under the Landlord, the Paul family. The heirs of Shewnath were in actual physical possession of the premises as joint tenants who had never surrendered their tenancy. Sahadeb Dey the opposite party No. 2 claimed to have purchased the disputed premises from the original owners by a deed of conveyance dated 15.5.92. In apprehension of interference of peaceful possession by the new purchasers Sahadeb and his associates both Durga and Debiprasad filed a suit in the court of City Civil Court on 20.5.92 against the said Sahadev Dey and 5 others which was registered as Title Suit No. 971 of 1992 for declaration and for other incidental reliefs.
6. The defendant No. 6 suffered an interim order of injunction passed by the City Civil Court. He was restrained from transferring the property to anybody till the disposal of the injunction application.
7. The Defendant No. 1 Sahadeb, the added opposite party No. 2 the alleged contemnor No. 1 who also filed an application for temporary injunction with a prayer for restraining the plaintiffs from exercing possessions of the premises. Both the injunction petitions were heard and disposed of by the learned Judge on 15.7.92- The injunction petition filed by the plaintiffs was allowed restraining the defendants from interfering with the possession of the plaintiffs of the disputed premises as tenants till the disposal of the suit. The appeal filed by Sahadeb, since aggrieved by the order before the Division Bench was disposed of directing the parties to maintain status quo till the disposal of the appeal. The same was disposed of by the Division Bench on 13.1.94 which contained a direction amongst others on the trial court to dispose of the suit within a period of 4 months from the date of communication of the order. The impugned order of the trial court which became the subject matter of challenge before the Division Bench had not been interfered with.
8. A writ application was filed since the appeal according to him was abortive. An application under section 144 of the CRPC was also filed before the executive Magistrate in vain. He made an attempt to dispossess the plaintiffs of Title Suit No. 971 of 1992. although the injunction order dated 15.7.92 was alive. On the basis of the complaint, the Jorashanko PS Case No. 479 dated 9.12.93 was started under sections 448, 427, 324/ 144 IPC. The police started investigation and arrested the accused.
9. To avoid breach of peace and for apprehended danger, the key was kept in the custody of the police. Both the complainant and the accused also suffered an order of rejection of their respective’ prayers to be in possession of the premises by making over the key of it. The defendants of the said title suit had forcibly entered into the disputed premises on 10.4.94 which was a Sunday and the padlocks of the 5 rooms were removed by some plain clothed, police men who made over the key and delivered vacant possession of the rooms to Sahadeb Dey although the defendants had knowledge that the matter was still subjudiced.
10. Charge-sheet was duly submitted by the police on 17.4.94 under section 324/114 of the IPC presumably on the plea that the accused was on the possession of the said 5 rooms. The case was transferred to the file of Metropolitan Magistrate 15th court. Thereafter, the accused Sahadeb
on an intermediate date on 21.3.94 had approached the transferee court for return of the keys of 5 rooms that remained in the custody of police. The learned ACMM refused to pass an order on the basis of the application made which according to the complainant petitioner bore the suppression of facts. Report was called for by the learned Magistrate from the 1O for hearing the petition dated 4.4.94. the 1O submitted a report which contained a no-objection in handing up the keys of the 5 rooms kept under lock and key to the accused No. 1, The learned Magistrate had directed the keys to be returned of the 5 rooms in question to the accused/alleged contemnor No. 1 Sahadeb on receipt. The accused Sahadeb came to possess the same on 10.4.94 with the aid and assistance of the police. It was an attempt to frustrate the order of injunction dated 15.7.92 since the revisional application pending disposal. The attempt of the accused/ alleged contemnor is to interfere with the Judicial proceedings in suppression of all relevant facts and, accordingly, he is liable to a contempt under criminal Jurisdiction under section 2(c) (ii) & (iii) of the Contempts of Court Act, 1971.
11. The revisional application in the background of the aforenoted facts could not be sustained but the contempt application became the germane for consideration dwelling on the viability of the criminal contempt. The learned court since found that the accused Sahadeb committed an act prejudicing or interfering or tendering to interfering with the due course of the Judicial proceedings pending before the provisional court and obstructing or tending to obstruct the administration of justice, in the background of the facts listed above constituted criminal contempt within the realm of section 2(c) (ii) & (iii) of the Contempts of Courts Act, 1971.
12. It is upon these premises, the order of his Lordship has been brought under severe criticism as the action complained of by the petitioner cannot bring the case within the fold of section 2(c) (ii) & (iii) of the Contempt of Courts Act, 1971. The possession of 5 rooms, since, taken forcibly in complete violation of the order of the trial court and the appeallate court, the pendency of the criminal revision could bring the case with the mischief of Contempt of Courts Act. 1971.
13. The question that posed up for consideration in the instant case is about the jurisdictional error if committed by the learned court in
initiating a contempt proceeding not presumably but within the width of section 2(c)(i) (ii) (iii) of the Contempt of Courts Act, 1971. If the action of the contemnor comes within section 2(c)(i) (ii) (iii) of the said Act, a proceeding may very well He for contempt in criminal Jurisdiction but to set at rest the controversy, it has been debated at the bar that there is no scope to draw up any contempt proceeding far less a criminal contempt against the contemnor as the action complained of does not embrance any criminal contempt.
14. The basic feature of the criminal contempt founded on interference and obstruction of Justice as revertrated by the conduct is the barometer constituting criminal contempt. There is a fundamental difference between civil contempt and criminal contempt in that civil, distinguished from criminal, contempt is a wrong, for which, the law awards to reparation to the injured party; though nominally a contempt of court, it 13 infact,
a wrong of a private nature as between subject and subject and the king
is not a party to the proceedings to punish it. The punishment is a form of execution for enforcing the right of a suitor. The civil contempt is merely drawn up since obstructed for effective implementation of an order. It is in its essence a process of execution.
15. Among other constituents, the criminal contempt, as stands out, relates to causing of prejudice or interferes or tends to interferes with, due course of any Judicial proceedings or interferes or tends to interfere with or obstructs the administration of justice in any other manner.
16. In the background of the above, the court is not a relieved of obligation to be satisfied before drawing up of criminal that it is vested with Jurisdiction. Section 2(c)(i) (ii) (iii) dominates the field for invoking Jurisdiction by a court drawing up a criminal contempt. In the state of materials if affords any jurisdiction is a question to investigate.
17. It has been claimed and counter-claimed at the bar that a criminal contempt may be drawn up by a single Judge and the assumption of jurisdiction does not affect the jurisdiction of the single Judge. The case can be classified into two where a single Judge can draw up a contempt, if the contempt has been committed by the contemnor of his own court. But the contempt, if perpetrated by any contemnor, as distinguished from the court of the single Judge, there could not be any scope to escape from the mischief of section 18 read with section 2(c)(i) (ii) (iii).
18. If we advert to section 18 of the Contempt of Courts Act, it looms large that a criminal contempt under section 15 shall be heard and determined by a bench of not less than two Judges. The allegations have been soared too high that there was conclous violation of the order of the civil court, since the order of injunction passed by the civil court had been violated as there was taking of forcible possession of the 5 rooms against which, revision arose and pended disposal. There is no material on record that the case could come within the fold of criminal contempt. The assumption of Jurisdiction by the learned single Judge does not agree with the provision of law. A single Judge may very well draw up a contempt but he is statutorily bound to refer the matter to the court having determination to adjudicate upon the criminal contempt.
19. There is no slender material on record that the contempt was committed by the contemnor of the court of Judge. The alleged contempt, as a spoken to, was of different court, primarily, pivoted on violation of order of injunction passed by the City Civil Court.
20. If we travel through the provisions of Code of Civil Procedure of 1908, it is worthy to note that alleged violation had been complained of on an order of injunction passed by the court hereinbefore mentioned, for which, section 2(c) of the Contempt of Courts Act cannot foster the criminal contempt. Section 2(c) of the Contempt of Courts Act has different field to play considered with Order 39 of the Code of Civil Procedure. 1908. Section 2(c)(ii) & (iii) is applicable to the facts of the present case, is wholly unwarranted.
21. If we attach maximum premium to the claim of the petitioner for
drawing up contempt or for issuance of a rule, it is manifest that sufficient
aid could be taken of from Order 39, Rule 2A of the Code of Civil Procedure. There is much uproaring that the order of the learned court below relating to injunction was deliberately violated by the alleged contemnor founded on a title suit where the remedy has been provided by Order 29, Rule 2A for the consequence of disobedience and breach of injunction.
22. The act of the alleged contemnor if translated into action can never bring the case even remotely which section 2(c)(i) (ii) (iii) as the petitioner had effective alternative remedy of the nature specified under Order 39, Rule 2A of the Code of Civil Procedure and should not be permitted to skip over that remedy and take resort to initiate the proceedings under the Contempt of Courts Act for the desired objective. Had it been a violation of the court itself, certainly the court could proceed in contempt.
23. Further, it evolves from the nature of complaint or allegations that the criminal contempt, about which the petitioner is vocal is a far cry in wilderness. If the petitioner indulged in to cheer his ego within the realm of Contempt of Courts Act, 1971, the provision of the Order 39. Rule 2A should not find its room or place in the statute which is not the object of law when a specific alternative remedy provided as indicated above. The remedy sought to have been harvested under the Contempt of Courts Act, 1971 is a misnomer. The court in Dr. Bimal Chandra Sen v. M/s. Kamala Mathur 1983 Cr LJ 495 came to the conclusion that violation of an order of injunction could be dealt with under Order 39 Rule 2A of the Code of Civil Procedure before the sub-ordinate court and the High Court in exercise of its discriminatory power under section 10 would refuse to exercise any Jurisdiction under the said section.
24. Therefore, in the advent of Order 39 Rule 2A, section 2(c) (ii) (iii) of the Contempt of Courts Act, 1971 for the nature of allegations the application is not maintainable, since it is not a criminal contempt. The High Court is devoid of power to initiate a contempt on the basis of the allegations made. The petitioner made an endeavour to give a dodge to the fact in vain under the canopy of criminal contempt.
25. For the reasons indicated above, the case of Ramamohana Rao & Ors. v. Chalasani Puma Chandra Rao 1981 Cr LJ 1322 has no manner of application to the facts in issue. The facts of the case of the ruling under reference are totally different and distinguishable from the case at hand. The facts of the case of the ruling under reference were that the contemnor made an interference with execution of the search warrant directing the commissioner to search the Police Station and take the persons wrongfully confined in its custody by its acts, such as. refusal to show the CD Books, the refusal to take notice to produce the CD Books; snatching away the papers relating to the panchanama of the refusals threats made to the commissioner and the panchas and the prevention of the commissioner from interviewing the persons in the lock up. This petitioner was sought to be dismissed on ground that consent of Advocate General as required by section. 15(1)(b) was not taken. In the above aspect. it was held that it was a civil contempt. The present case does not verge on the facts of the case of the filling under reference.
26. The next case relied on is S.K. Sarkar, Member Board of Revenue U.P. Lucknow v. Vinay Chandra Mishra 1981 Cr LJ 283, but it is not applicable to the facts of the present case.
27. In short, the facts of the ruling under reference are that an application for vacating the stay order came up for hearing before the appellant herein in the capacity of a Member of the Revenue Board on October, 1973, the respondent, Shree Vinay Chandra Mishra appeared as counsel in that court on behalf of the appellant therein to oppose the prayer for vacating the stay order. What happened thereafter on that day according to the allegations in the petition, spoke of an affidavit dated October 23, 1973 of Shree V.C. Mishra. Advocate filed before the High Court was as follows :–
That on the said date the opposite party [appellant herein) heard the counsel of the parties in the case and was pleased to confirm the stay order.
That even after passing of the order the counsel (the respondent in that appeal) addressed the court (opposite party) further and during the course of his argument the opposite party (appellant herein) tore off the order and vacated the stay order and threw the file for getting the signatures of the parties affixed on the same. Thus, it is manifest that the act complained of or the allegation in the case at hand is not
identical which could foster the right of a petitioner to proceed under section 2(c) of the Contempt of Courts Act. 1971.
28. The next case relied on by the learned Judge in P.N. Duba v. P. Shibsankar & Ore. . we respectfully disagree with the learned single Judge that the facts of the ruling under reference could not be made applicable to the case at hand. An application for contempt was filed for criticism being made about the Judicial system or Judges which might interfere with administration of justice as the administration of Justice and justices are open to public criticism and public scrutiny which were the subject matter of the decision before their Lordships. Their Lordships never dealt with the evolution of the order of injunction, if could be dealt with under the Contempt of Courts Act dehorns Order 39, Rule 21. We have gone through meticulously the applications and the affidavit filed by the parties including Chief Justice in effect is not inconsistent with section 18 of the Contempts of Court Act. We have meticulously gone through the Judgment under appeal but we must respectfully disagree with the interpretation put on by the learned trial Judge in respect of sections 15, 17 and 18. There cannot be said that criminal contempt application should be heard and disposed of by a Division Bench. In the perspective of Law, we are unable to persuade ourselves to agree with any of the findings and observations made by the learned trial Judge. Accordingly, we set aside all of them.
The issuance of Rule by the learned trial Judge is not founded upon fact and law and for the reasons aforesaid. Accordingly, the direction for
issuance of rule is set aside. The criminal Misc. case is allowed and the order impugned is set aside.
A.B. Mukherjee, J.
1. I agree.
2. Misc case allowed