JUDGMENT
S.K. Gupta, J.
1. This appeal under Section 476-B of the Jammu and Kashmir code of Criminal Procedure, 1989 (1933 AD) (hereinafter referred to, as ”the Code”) arises out of an order dated 19-4-2004
passed by the learned single Judge in contempt proceedings under the Jammu and Kashmir Contempt of Courts Act, 1997. By
virtue of the aforesaid order, the learned single Judge did not find any ground to proceed against the respondents under the
Contempt of Courts Act, 1997 and the rule issued against the respondents, stood discharged and the Contempt Petition No. 29-
B of 2003 along with connected CMP(s) was dismissed.
2. It appears that appellant filed a writ petition bearing No. SWP No. 583 of 2003, alleging certain irregularities and illegalities committed by the respondents in utilization of the quota for the posts of Senior Assistants/Head Assistants in the Revenue Department. The aforesaid writ petition was disposed of vide order dated 4-8-2003 along with connected CMP(s) in directing the respondents to make the post of Senior Assistants/Head Assistants in accordance with law. Alleging infraction of the aforesaid order passed by the writ Court, contempt petition came to be preferred in stating that the vacancies of Head Assistants and; Senior Assistants have not been referred by the respondents to the Jammu and Kashmir State Service Selection Recruitment Board for making selection of candidates.
3. The respondents were put to notice in
the Contempt petition.
The stand taken by the respondents in their reply was that appointments by direct recruitment and by promotion to various posts, besides the posts of Senior Assistants/Sections Officers, have been made in accordance with the provisions of the Jammu and Kashmir Revenue (Subordinate) Services Rules, 1973. It was also submitted that one Babu Ram Khajuria, Junior Assistant in the respondents’ office, has been promoted as Senior Assistant on the recommendation of the Departmental Promotion Committee on 13-8-2003. The respondents further submitted to have not made any appointment either by direct recruitment or by promotion. The learned single Judge, in view of the statement made on affidavit by the respondents, found that no ground to proceed against the respondents in the contempt petition under the Contempt of Courts Act was made out and dismissed the same along with connected CMP(s) filed by the petitioner for proceeding against the respondents under Section 476 of the Code.
4. Aggrieved by this order, the appellant, Jagdev Singh, impugned its correctness before us in this appeal under Section 476-B of the Code.
Indubitably, the order impugned has been passed by the learned single Judge in contempt petition, by virtue of which contempt petition along with CMP filed under Section 476 of the Code by the appellant-petitioner was dismissed. Section 19 of the Jammu and Kashmir Contempt of Courts Act, 1997 provides an appeal from any order or decision passed by the High Court in contempt petition and reads as under :–
“Section-19 (1) An appeal shall He as of right from any order or decision of the High Court in the exercise of its jurisdiction to punish for contempt;
(a) Where the order or decision is that of a single judge, to a bench of not less than two judges of the Court;
(2) Pending any appeal, the Appellate Court may order that —
(a) the execution of the punishment or order appealed against be suspended;
(b) if the appellant is in confinement, he be released on bail; and
(c) the appeal be heard notwithstanding that the appellant has not purged his contempt.
(3) Where any person aggrieved by any order against which an appeal may be filed satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by Sub-section (2).
(4) An appeal under Sub-section (1) shall be filed–
(a) in the case of an appeal to a Bench of the High Court within thirty days;
(b) in the case of an appeal to the Supreme Court, within sixty days from the date of the order appealed against.”
5. A plain reading of the aforesaid provisions makes it abundantly clear that an appeal is provided only in case of an order or decision passed by the High Court to punish for contempt. By the impugned order, the learned single Judge has dismissed the contempt petition after having found no ground from the reply filed by the respondents, to continue the proceedings. Therefore, no appeal is maintainable against such order under Section 19 of the Contempt of Courts Act, 1997.
As regards the dismissal of the CMP, preferred by the appellant-petitioner under Section 476 of the Code, for initiating perjury proceedings against the respondents for filing false and misleading statement of facts in the contempt proceedings, the right to file an appeal under Section 476-B of the Code arises only when a finding is recorded under Section 476 (1) of the Code and in that event to make the complaint is refused. For facility of reference, Sections 476(1) and 476-B are reproduced below :–
“Section-476(1) — When any Civil, Revenue or Criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interest of Justice that an inquiry should be made into any offence referred to in Section 195, Sub-section (1), Clause (b) or Clause (c), which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to Magistrate of the first class having jurisdiction, and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non-bailable may, if it thinks necessary so to do, send the accused in custody to such Magistrate, and may bind over any person to appear and give evidence before such Magistrate :
Provided that, where the Court making the complaint is the High Court, the complaint may be signed by such officer of the Court as the Court may appoint.”
“Section 476-B. Appeals :– Any person on whose application any Civil, Revenue or Criminal Court has refused to make a complaint under Section 476 or Section 476-A, or against whom such a complaint has been made, may appeal to the Court to which such former Court is subordinate within the meaning of Section 195, Sub-section (3), and the superior Court may thereupon, after notice to the parties concerned direct the withdrawal of the complaint or, as the case may be, itself make the complaint which the subordinate Court might have made under Section 476 and, if it makes such complaint the provisions of that section shall apply accordingly.”
6. From the aforesaid provisions, it is clearly manifest that a Court, whether, suo motu, or on an application by a party under Section 476 (1) of the Code, having been already seized of a matter may tentatively form an opinion that further action against some party or witness may be necessary in the interest of justice. The view taken and reasons recorded by the Court in the principal case, in which a false statement is stated to have been made, have a great bearing and indeed action to be taken depends upon the overall opinion formed by the Court. The High Court while deciding the civil rights of a party in a writ petition must be taken to be acting as a Civil Court. The High Court as a superior Court has full powers under Section 476 to prefer a complaint in respect of an offence committed in or in relation to any proceeding before it. The jurisdiction of the High Court is not taken away because an appeal was allowed by the Code in respect of a complaint or refusal to lay a complaint by the subordinate Court.
7. In case AIR 1961 SC 181 : (1961 (1) Crl LJ 317), Narain Das v. State of Uttar Pradesh and Anr., it was held that a single Judge of the High Court is subordinate to appellate Bench within Section 195(3) of the Code. An appeal against the order of the High Court in writ proceedings, refusing to file the complaint under Section 476 of the Code lies to Division Bench of the High Court.
8. In the instant case, the learned single Judge in proceedings under Contempt of Courts Act, 1997 found that no ground was made out, after the reply was filed by the respondents, to proceed against the respondents under the Contempt of Courts Act, 1997 and dismissed the contempt petition along with CMP(s) under Section 476(1) filed by the petitioner and discharged the rule. The right to file an appeal accrues to the appellant under Section 476-B only after the learned single Judge has recorded a finding that a false statement on affidavit has been filed by the respondents and on the basis of which the Contempt petition has been dismissed, and not otherwise in view of the reasons recorded by the learned single Judge in the Contempt application, which has a direct and great bearing on the application for initiating action against the respondents. In the above view of the matter, we are clearly of the opinion that the reasons recorded in the contempt proceedings by the learned single Judge are based on the statement of facts on affidavit filed by the respondents, which resulted in dismissal of the Contempt Petition alongwith CMP(s) under Section 476 of the Code filed by the petitioner in alleging the said statement false and misleading. In our view, there is no merit in this appeal filed under Section 476-B of the Code, particularly when no finding is returned by the learned single Judge in relation to such statement of facts on affidavit, as is envisaged under Section 476 (1) of the Code.
9. In the result, the appeal preferred by
the appellant-petitioner, in our opinion, does
not possess any merit and is, accordingly, dismissed.