PETITIONER:
PUSHPABEN & ANR.
Vs.
RESPONDENT:
NARANDAS V. BADIANI & ANR.
DATE OF JUDGMENT29/03/1979
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
KOSHAL, A.D.
CITATION:
1979 AIR 1536 1979 SCR (3) 636
1979 SCC (2) 394
ACT:
Contempt of Courts Act-Section 12(3)-Scope of-Sentence
of imprisonment-When should be awarded in civil contempt.
HEADNOTE:
Respondent No. 1 filed a complaint under s. 420 IPC
against the appellants alleging that a loan taken by them
from him had not been repaid. While the complaint was
pending before a Magistrate the parties entered into a
compromise under which the appellants undertook to repay the
loan before a stipulated date. The Magistrate accordingly
allowed the parties to compound the case.
When the appellants failed to repay the loan in
accordance with the undertaking given before the Magistrate
the respondent moved the High Court for taking action
against the appellants for contempt of court. On the view
that the appellants had committed a willful disobedience of
the undertaking the High Court held that they were guilty of
civil contempt and sentenced them to one month's simple
imprisonment.
Allowing the appeal in part,
^
HELD: 1. The appellants had committed willful
disobedience of the court of the Magistrate by committing
serious breach of the undertaking given to it on the basis
of which alone they had been acquitted. The High Court was,
therefore, right in holding that the appellants were guilty
of civil contempt under s. 2(b) of the Contempt of Courts
Act. [638 A]
2. Having regard to the circumstances of the case the
present case falls within the first part of s. 12(3) of the
Act and a sentence of fine alone should have been awarded by
the High Court. By enacting the section the legislature
intended that a sentence of fine alone should be imposed in
normal circumstances. Special power is, however, conferred
on the court to pass a sentence of imprisonment if it
thought that ends of justice so required. Therefore, before
a court passed a sentence of imprisonment it must give
special reasons for passing such a sentence. [638 G]
In the present case there are no special reasons why
the appellants should be sent to jail
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 43
of 1975.
From the Judgment and Order dated 9-1-1973 of the
Bombay High Court in Criminal Application No. 681/72.
V. S. Desai, P. H. Parekh, C. B. Singh, M. Mudgol, B.
L. Verma and J.C. Rajani, for the Appellants.
637
M. N. Shroff for the Respondents.
The Judgment of the Court was delivered by
FAZAL ALI, J.-This is an appeal under S. 19 of the
Contempt of Courts Act (hereinafter called the Act) against
an order of the High Court of Bombay convicting the
appellants for a Civil Contempt and sentencing them to one
month’s simple imprisonment. The facts of the case have been
fully detailed by the High Court and it is not necessary for
us to repeat the same all over again. It appears that
Respondent No. 1 had given a loan of Rs. 50,000/- to the
appellants on certain conditions. Somehow or other, the loan
could not be paid by the appellants as a result of which
Respondent No. 1 filed a complaint under S. 420 I.P.C.
against the appellants. While the complaint was pending
before the Court of the Magistrate, the parties entered into
a compromise on 22-7-1971 under which the appellants
undertook to pay the loan of Rs. 50,000/- with simple
interest @ 12% per annum on or before 21-7-1972. An
application was filed before the Court for allowing the
parties to compound the case and acquit the accused. The
Court after hearing the parties, passed the following
order:-
“The accused given an undertaking to the court
that he shall repay the sum of Rs. 50,000/- to the
complainant on or before 21-7-1972 with interest as
mentioned on the reverse. In view of the undertaking, I
permit the compromise and acquit the accused”.
It is obvious, therefore, that the Court permitted the
parties to compound the case only because of the undertaking
given by the appellants.
Thereafter, it appears, that the undertaking was
violated and the amount of loan was not paid to the
Respondent No. 1 at all. The respondent, therefore, moved
the High Court for taking action for contempt of Court
against the appellants as a result of which the present
proceedings were taken against them. The High Court came to
the conclusion that the appellants had committed a wilful
disobedience of the undertaking given to the Court and were,
therefore, guilty of civil contempt as defined in S. 2(b) of
the Act. Hence, this appeal before us.
Mr. V. S. Desai appearing in support of the appeal has
raised two short points before us. He has submitted that
there is no doubt that the appellants had violated the
undertaking but in the circumstances it cannot be said that
the appellants had committed a wilful disobedience of the
orders of the Court. So far as this point is concerned, we
fully agree with the High Court. In the circumstances, the
appellants undoubtedly committed wilful disobedience of the
order of the court
638
by committing a serious breach of the undertaking given to
the Court on the basis of which alone, the appellants had
been acquitted. For these reasons, the first contention put
forward by Mr. Desai, is overruled.
It is, then, contended that under S. 12(3), normally
the sentence that should be given to an offender who is
found guilty of civil contempt, is fine and not
imprisonment, which should be given only where the Court is
satisfied that ends of justice require the imposition of
such a sentence. In our opinion, this contention of learned
counsel for the appellants is well-founded and must prevail.
Sub-section 3 of S. 12 reads thus :-
“Notwithstanding anything contained in this
section, where a person is found guilty of a civil
contempt, the Court, if it considers that a fine will
not meet the ends of justice and that a sentence of
imprisonment is necessary shall, instead of sentencing
him to simple imprisonment, direct that he be detained
in a civil prison for such period not exceeding six
months as it may think fit”.
A close and careful interpretation of the extracted
section leaves no room for doubt that the Legislature
intended that a sentence of fine alone should be imposed in
normal circumstances. The statute, however, confers special
power on the Court to pass a sentence of imprisonment if it
think that ends of justice so require. Thus before a Court
passes the extreme sentence of imprisonment, it must give
special reasons after a proper application of its mind that
a sentence of imprisonment alone is called for in a
particular situation Thus, the sentence of imprisonment is
an exception while sentence of fine is the rule.
Having regard to the peculiar facts and circumstances
of this case, we do not find any special reason why the
appellants should be sent to jail by sentencing them to
imprisonment. Furthermore, respondent No. 1 before us
despite service, has not appeared to support the sentence
given by the High Court. Having regard to these
circumstances, therefore, we are satisfied that the present
case, squarely falls in the first part of S. 12(3) and a
sentence of fine alone should have been given by the High
Court. We, therefore, allow this appeal to this extent that
the sentence of imprisonment passed by the High Court is set
aside and instead the appellants are sentenced to pay a fine
of Rs. 1000/- each. In case of default, 15 days simple
imprisonment. Four weeks time to pay the fine.
P.B.R. Appeal allowed in part.
639