L-21 Md.Shafiquz Zaman.pdf

8/10/2019 L-21 Md.Shafiquz Zaman.pdf

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LAW OF CONTEMPT

Md.Shafiquz Zaman, IAS

Director General & Spl. Chief Secretary to

Govt. of A.P.Dr.MCR HRD Institute of A.P.



Objective of the law of contempt

The object and purpose of contempt jurisdiction is:

• To uphold the dignity of law courts and their majesty.

• To sustain the confidence of the public in administration of justice

• Not to protect individual judge or magistrate nor tovindicate his or her personal prestige.

• For protecting his personal reputation and prestige the

remedy lies in the action for libel and defamation underSection 499 of IPC.

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The Scope of Contempt of Court

• Unfortunately the Scope of Contempt or Court has

not been defined either in the Constitution or in anyother statute.

•

It is believed that the Legislature had deliberatelyrefrained from enacting or defining the scope of the

law of contempt. The obvious purpose was to

maintain ‘the elasticity of the law to enable it to

reach the wide sweep of the diversity of situationsthat it has to meet.

(Continued) 3



(Continuation)

The Scope of Contempt of Court

• The Supreme Court has in F.M. Sankaram Namboodripad v. T. NaryananNambiar. (1970) 2 SCWR 366, dealt with the definition thus:

“There are many kinds of contempt. The Chief forms of contempt areinsult to Judges, attacks upon them, comment on pending proceedingswith a tendency to prejudice fair trial, obstruction to officers of courts,

witnesses or the parties, abusing the process of the court, breach of dutyby officers connected with the court and scandalising the Judges or thecourts. The last form occurs, generally speaking, when the conduct of aperson tends to bring the authority and administration of the law intodisrespect or disregard. In this conduct are included all acts which bringthe court into disrepute or disrespect or which offend its dignity affront

its majesty or challenge its authority. Such contempt may be committedin respect of a single Judge or a single court but may, in certaincircumstances, be committed in respect of the whole of the judiciary or judicial system.”

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Types of contempt

•

The Contempt of Courts Act of 1971 divides theexpression ‘contempt of court’ to mean twocategories of contempt, viz.,

• (i) civil contempt &

• (ii) criminal contempt.

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Types of contempt

Civil Contempt

Means willful disobedience to any judgment, decree,

direction, order, writ or other process of a court, or

willful breach of an undertaking given to a court.

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Criminal Contempt

• “Criminal contempt” means the publication whether by

words, spoken or written, or by signs, or by visiblerepresentations or otherwise of any matter, or the doingof any other act whatsoever which —

– Scandalises or tends to scandalise, or lowers or tendsto lower, the authority of any court ; or

– Prejudices or interferes or tends to interfere with thedue course of any Judicial proceeding ; or

– Interferes or tends to interfere with, or obstructs ortends to obstruct the administration of Justice in anyother manner.

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Categories of Criminal contempt

• Criminal Contempt has been further divided into

two Categories;

– Direct that is either in the face of the court or withinthe precincts of the Court (Section 14 of the Act)

– Constructive that is outside the view of the court.(Section 15 of the Act)

(Continued)

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Difference between two types of Criminal Contempt

The difference between the two types of abovecases is that of procedure. In the first case theSupreme Court or the High Court can directly

charge the contemnor, hear him and orderpunishment, where as in the later case, everycomplaint has to be filed by the AdvocateGeneral or with the consent of the Advocate

General.

9



Reference through Advocate General

• In criminal contempt cases referred to in Section 15 of the Act,

though the Court can take direct cognizance but generally itinsists for a reference through Advocate General.

• When this provision for the consent of Advocate General wasquestioned, it was held that it was not violative of Article 14

of the Constitution, as the parliament thought that a restraintor check should be placed upon a citizen in a matter ofcriminal contempt for the sake of public good so that onlytenable motions come before the Supreme Court or HighCourt and intervention of the Advocate General was providedfor that purpose.

(J.P.Gupta v. O.P.Chakarvarty (1975) Cr. L J 164)

(Continued)

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(Continuation)

Reference through Advocate General is

Justiciable

• If the Advocate General refuses to give consent to

private persons for filing criminal contempt, the

action of the Advocate General is justiciable.

( P.N.Duba v. P. Shivashankar and others, (1988) 3 SCC 167)

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Courts who can hear Contempts

• Supreme Court of India and High Courts can hear their own contempt andalso contempt of all subordinate courts under their jurisdiction under

Article 129 and 215 respectively of the Constitution.

• For this purpose, all Civil, Criminal and Revenue Courts, are courts withinthe meaning of the Contempts of Courts Act.

• Collector functioning under the Essential Commodities Act., 1955 is not aCourt within the meaning of the Contempt of Courts Act.

(Vide State ot MP Vs. L.C. Bahiram 1<>82 MPJ 835{MP) Division Bench).

• The Central Administrative Tribunal and A.P.State Administrative Tribunal,though are subordinate courts to the High Court but they can hear their

own contempt.

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Court’s views on Civil contempt

• The essence of contemptuous conduct consists in its wilful

nature. Willful connotes the idea of deliberate or intentionalas opposed to unintentional or bona fide conduct.

(Roshan La! Pokia v. Roshan La! Chankan, 1992 Cr U 1378)

• To constitute contempt there should be purposeful and clearintention to flout the order and lack of proper care andcaution is not sufficient to punish a person for contempt.

(Indian Oil Corporation Ltd. V. Sheo Shankar Mishra, (1996) 1 East Cr PC 816

(Pat) : (1996) 1 BLJ 36 : (1995) 2 Pat LJR 875).

13



Examples of contempt

• Secretary of the Congress Committee wrote a recommendatory letter tothe District Magistrate about the facts of the case (AIR 1953 SC 185)

• Use of threats by letters or otherwise to a party while his case is subjudiceor abusing in letters to persons likely to be witnesses (AIR 1962 SC-1172).

• Unnecessary delay in dealing with them may well furnish grounds for aninference that it was due to a natural disinclination and may constitute

contempt. {AIR 1969 SC 189)

• The Chief Minister delivers a speech on a subject which is subjudice' in awrit petition before the High Court with full knowledge - it amounts tointerference with administration of Justice ( AIR 1970 SC 1821).

(Continued)

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(Continuation)


• Circular directing Magistrates to ignore the decisions of the -

High Court tantamounts to Contempt of Court (AIR 1961 SC1315).

• "Judges are guided and dominated by class hatred, class,interests and class prejudices and where the evidence is

balanced between a well-dressed potbellied rich man and apoor ill-dressed and ill-treated person, the Judge instinctivelyfavours the former" -Chief Minister at a Press Conference -Contempt (AIR 1970 SC 2015).

•

In the garb of transfer application, a person can not beallowed to make allegations of a serious nature, scandalizingthe Court and imputing improper motives to the Judge tryingthe case - Contempt (AIR 1972 SC 989)

(Continued)

15



(Continuation)

Examples of contempt• When petitioner was granted temporary custody of his minor

daughter and subsequently not present in court on given datebut fleeing away out of India without permission of court, itamounted to criminal contempt on part of petitioner.

(Srinivasa Rao Kunbhari v. State of A.P., 1996 Cr L J 353 (AP) (1995) 2 An LT 210).

• A lawyer hurled shoes at the Judge in order to over awe, and tobully him (AIR 1981 SC 1382).

• Comments on pending proceedings with a tendency to

prejudice fair trial.(Continued)

16



(Continuation)

Examples of contempt• A person walking into the chamber of a Magistrate and insisting on cancelling the

order he passed against him, else a serious consequence would follow.

• Assault on Magistrate.

• Insult to a Magistrate.

• Private Communication with a Judge or Magistrate about a subjudice matter

• Threatening a counsel in a case.

• Bullying witnesses

• Destroying documents in the custody of the Court.

• Breach of undertaking is misconduct amounting to contempt. (Tukarain v. S.M.Sayam, 1995 Cr U 577)

(Continued)

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(Continuation)

Examples of contempt• In another case of breach of undertaking it was held:

• “The Court passed an order directing the State to fix the pay scales underRevision of Pay and Allowance Rules and to pay them all arrears ofemoluments consequent to such fixation within a stipulated period. Therespondent sought time for compliance of the order and time wasextended. The counsel for the respondent gave an undertaking that theorder would be complied with within the extended time. Subsequently

the respondents instead of complying with the undertaking given,challenged the original order on the grounds that it would create ananomalous position in relation to the reports of the Pay Commission,that it would be against the public policy and that it would cause seriouspressure on the exchequer etc.

(Continued)

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(Continuation)


Rejecting this, the Court said: “……duringthe hearing of the writ petition no such

grounds were made out by the

respondents as are now sought to bemade here in the affidavits-in-opposition.

(Continued)

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(Continuation)

Examples of contempt• Even subsequent to the passing of the order it was not alleged

that compliance of the order would cause hardship to the

Government. To the contrary, it was given to understand atdifferent stages that the order would be complied with andextension of time was also taken for the purpose. And now adecision seems to have been taken by the Government that theorders passed on the basis of undertaking given would not becomplied with and for that different lame excuses have now been

set up. This conduct of the Government tends to bring the Court’s orders to disrespect, lower its prestige and interfere with thecourse of justice.” The Court held the contemnor was guilty afterobserving “It need not be emphasised that the violation of theCourt’s order on the ground that its compliance would causehardship to the Government makes the violation no less wilful

than its positive defense.” (Rabindranath Biswas v. B.C. Mookerji, Secretary,

Department of Land and Land Reforms, Govt. of W.B.,

(1988) 1 Cal HN 239). (Continued)

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(Continuation)

Examples of Contempt

• Suspension of petitioner from service in contemplation of

departmental proceeding pending contempt proceedings,amounts to further act of contempt on part of contemner.

(Dr.) Subhash Chandra Pratihar v. (Mrs.) Leena Chakraborty,1995 Cr U 707 (Cal) (1995) 1 Cal HN 104).

•Where a stay order gave a clear direction to the respondent-contemner to prepare inventory of liquor to be auctionedincorporating the brand name of the liquor and thecontemner did not do so despite repeated requests taking theplea that list of liquor had already been prepared and freshlist was not necessary as that would amount to duplication,and the original list did not contain the brand names, it washeld that disobedience of the stay order was wilful ariddeliberate contempt of court.

(Mahendra Kumar v. State of Rajasthan, 1987 Cr U 627 (Raj)

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What is not Contempt?

• Notings in office file, even if derogatory to Court'sOrder do not constitute Civil or Criminal Contempt.

• The notings in the departmental files by thehierarchy of officials are meant for independentdischarge of official duties and not for exposureoutside, in a democracy, it is necessary that its steelframe in the form of Civil Service is permitted toexpress itself freely, uninfluenced by extraneousconsiderations.

(Reference : AIR 1987 S.C 1554 or (1987) 3 Section 34).

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(Continuation)

What is not Contempt?

• When the order of the court is vague and ambiguous and capable ofmore than one interpretation, any bonafide interpretation cannot

constitute contempt of court.

• If the order passed by the court is capable of being understood intwo ways and the contemnor interprets in one of those two ways, heshould not be held guilty of contempt polled in favour of variouscandidates amounted to announcement of the result, the court was of

the opinion that the respondent could honestly interpret this court'sorder, dated 30 August, 1973 in the manner inwhich he and viz., that he had merely been restrained from formallyannouncing the result of the election, the respondent will be absolved ofhis liability for the contempt alleged to have been committed by him.3

(Chanchal Singh v. Ram Sewak Misra, 1982 All LJ 966 at p. 969)

23



Defences to a charge of Contempt

• Innocent, publication or distribution of matter Section'3).

• Fair and accurate report of judicial proceeding Section4).

• Fair criticism of judicial act .(Section 5)

•

Complaint against the presiding officers-of Subordinate Courts to theHigh Court done in good faith (Section 6).

• Publication of information relating to proceedings in chambers orCamera (Section 7).

• An order passed by a Court without jurisdiction is void. Violation of suchorder is not contempt .

(1981 Cr.II 1880 and 1985 Cr.LJ 359) (Continued)

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(Continuation)

Defences to a charge of Contempt

• When High Court directed release of pensionary benefits to

petitioner and Department released same after deducting

Government dues, it was due compliance of High Court

direction.(State of Haryana v. LU. Dutt, (1995) 29 ATC 540 (SC).

• When non-compliance of directions of court was not wilful

but on account of factor beyond control of contemners,

contempt application dismissed.

(Toshniwaf Bandiju v. State of Punjab, (1996) 1 PLJR 475).

25



What is not defence?

• Non-compliance of order of Tribunal after filing of SLP

amounts to contempt unless order has been stayed.9(Vinod Mani Diwakar v. Union of India, (1995) 29 ATC 12 (CAT Pat).

• Mere filing of appeal does not automatically operate as stayof order in appeal, and non-compliance of order as such willamount to contempt.

( Mantosh Kumar Singh v. State of Bih"*, (1996) 2 PL]R 317.)

• Transfer of an officer who was posted at relevant time canbe no ground to defeat implementation of judgment/order.

(Firm Ganpat Ram Raj Kumar v. Kalu Ram, AIR 1989 SC 2285).

• Obtaining advice from the advocate and not obeying order isno defence. (Continued)

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(Continuation)

What is not defence?

• If a counsel advised a litigant not to obey the order of acourt of law as such an ill-advice of counsel cannot be a validdefence in contempt proceedings. It is the duty of each andevery person who is a party in a proceeding before a court tocomply with the order of the court and if he has anygrievance against the order he is free to file appeal or to

make application before that court for modification ordischarge of the same, but unless that order is stayed, variedor modified the party concerned has no justification to floutthe order of the court.

(S.P.Agarwal v. R.R.Upadhya, 1978 Cr. L J 789 at p 795 (All)

(Continued)

27



What is to be done?• The orders of the court should be complied forth with.

•

If it is found that it is not possible to comply with the order, immediateappeal should be filed and stay orders obtained.

• If stay orders are not granted, comply the orders of the court subject tothe final outcome of the appeal.

• If the parties concerned find it difficult for one good reason or the otherto implement the order within the time visualised in the Court’s order,the court thinks, it is obligatory on the part of such a party to approachthe Court for extension of time instead of taking the attitude of violatingthe order and then trying to implement the order alter a contemptpetition is filed.

(Balaji Krishna Tej v. Inspector of Schools, (1990) 70 Cut LT 402).

(Continued)

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(Continuation)

What is to be done?

In N. Jayaraju v. KG Penchalaiah, 1992 Cr LJ 4077,

"The judiciary and the executive are but two limbs of the State,the third being the Legislature. Each of the three wings haveto function and act in unison and within their own bounds.

While doing so each of them must respect the other as muchas it expects its action to be respected by others. May be thatin some cases the order may be couched in such a languagethat it may create some kind of doubt and confusion in themind of those who have to comply with it but the best way, in

such cases, is not to circumvent the order but to try as muchas possible to comply with it first. If that may not be found

feasible then to make an effort to approach the Court andseek clarification or modification of the order.“

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