IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cont. Case (Civil) No.522 of 2006
M/s Femco Promoters & Developers & Anr. ...Petitioner(s)
-Versus-
Shri Shakti Pado Ghosh & Anr. ... ... ...Opp. Parties
------------
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE D.K.SINHA
For the Petitioner(s): M/s P.A.S. Pati & Indrajeet Sinha,
Advocates.
For the Opp. Parties:
-------------
14/ 25.08.2008
This is a petition for contempt filed by the petitioners alleging
non-compliance of the order dated 29.11.2005 passed in W.P.(C)No.1603
of 2004 by which the matter was disposed of in view of the settlement
arrived at between the petitioner and the opposite-parties-contemnors
incorporating certain extracts from the supplementary affidavit filed by the
opposite-parties-contemnors indicating that the opposite parties would
agree to accept a sum of Rs.5 lakhs from the petitioner and the opposite-
parties-contemnors would then vacate the flat within two months after if a
sum of Rs.5 lakhs is paid to him by the petitioners by issuing bank draft in
favour of the Respondents-Contemnors. The opposite-parties-contemnors
further stated in their affidavit that the deponent will deliver the key of the
flat to the court within two months from the date of receipt of the aforesaid
sum in full. The opposite-parties-contemnors still further stated in the
supplementary affidavit that after receipt of a sum of Rs.5 lakhs, the
deponent will agree to withdraw the case bearing C/1 Case No.919 of
1999 pending in the Court of the Judicial Magistrate, 1st Class,
Jamshedpur seeking necessary permission from the court in this regard.
It is now alleged in this contempt petition that the opposite-
parties-contemnors although received a sum of Rs.5 lakhs from the
petitioner and the flat has also been vacated by them and a key has been
handed over to the High Court, the case bearing No. C/1 Case No.919 of
1999 is still pending in the Court of Judicial Magistrate, 1st Class,
Jamshedpur as the same has not been withdrawn by the opposite-parties-
contemnors. It is alleged that the contempt proceeding should be initiated
2.
against them for violating their undertaking given out in their
supplementary affidavit.
We are informed that the case which is pending before the
Judicial Magistrate, 1st Class is a case registered against the petitioner
under Sections 406/420/467 & 468 I.P.C. and it is contented that a
contempt proceeding be initiated against the opposite-parties for not
withdrawing the case in spite of the undertaking to that effect.
The Counsel for the petitioner has been heard but the
counsel for the opposite-parties-contemnors are consistently not
appearing before this Court. However, we cannot defer the matter time
and again merely for non-appearance of the Respondents-Contemnors.
Having heard the Counsel for the petitioner and after perusal
of the impugned order sought to be complied, we could notice that the
case had been registered against the petitioner under the sections
referred to hereinbefore which admittedly are not compoundable and
therefore it is not possible for this Court to initiate a contempt proceeding
against the opposite-parties. In our view, there has been lapse on the
part of the petitioner to accept the compromise as the petitioner ought to
have realized that although the opposite-parties-contemnors offered to
withdraw the cases against them, the same was not clearly permissible
since the offences are not compoundable under the Cr.P.C. In effect,
therefore, the petitioner entered into a compromise with the opposite-
parties which was clearly not lawful. However, we are also conscious of
the fact that the said compromise was allowed by a coordinate Division
Bench and hence we deem it appropriate to honour the same as we are
not sitting in appeal against the order passed earlier. But at the same time
it is not possible for this Court to initiate a contempt proceeding against
the opposite-parties for not withdrawing the case registered against them
as the offences are not compoundable. We, therefore, dispose of this
contempt petition with liberty to the petitioner to file a petition under
3.
Section 482 of the Cr.P.C. and get the criminal case quashed in
accordance with law. If a petition for quashing is filed, it is obvious that the
court concerned would take care of the circumstances in which the case
was registered against the petitioner.
This contempt petition thus is dismissed with liberty to the
Petitioner to take recourse to the appropriate legal remedy.
[Gyan Sudha Misra, C.J.]
[D.K.Sinha,J.]
P.K.S./S.B.