Sitanshu Dutta vs Sri Piyush Verma, S.C.J.M. And ...
2021 Latest Caselaw 4040 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 2
 

 
Case :- CONTEMPT APPLICATION (CIVIL) No. - 1142 of 2021
 

 
Applicant :- Sitanshu Dutta
 
Opposite Party :- Sri Piyush Verma, S.C.J.M. And Another
 
Counsel for Applicant :- Indra Mani Tripathi
 

 
Hon'ble Suneet Kumar,J.

Heard Shri Indra Mani Tripathi, learned counsel for the applicant and perused the material brought on record.

Applicant had filed a petition under Article 227 of the Constitution of India being Matter Under Article 227 No. 4889 of 2019, assailing the cognizance order and entire proceeding pending before the Special Chief Judicial Magistrate, Kanpur Nagar. The Court vide order dated 8 July 2019, stayed the further proceedings of the case till the next date of listing. Operative portion of the order reads thus:

"Till the next date of listing further proceedings of case No. 1663 of 2018, arising out of Case Crime No.102 of 2014, u/s 147, 420, 406, 467, 468, 504, 506 I.P.C., P.S.- Swaroop Nagar, District Kanpur Nagar, with regard to petitioner namely Sitanshu Dutta, shall remain stayed."

The instant application under the Contempt of Court Act, 1971, has been filed alleging that order dated 8 July 2019, and general orders dated 26 March 2020 & 1 December 2020, passed by the Division Bench in Writ Petition No. 4889 of 2019 and Public Interest Litigation (PIL) No. 564 of 2020, providing that the interim order operating in pending cases to continue in view of Covid-19 pandemic.

It is urged by learned counsel for the applicant that the interim order was filed/submitted before the court below on 7 August 2019. The general orders/interim order came to be extended from time to time until 5 January 2021. It is submitted that despite having knowledge of the general orders, opposite party/learned Court below issued bailable warrant against the applicant on 30 January 2021. It is further submitted that applicant made an application, duly supported by an affidavit on 8 February 2021, to recall the warrant, inter alia, stating therein that the interim order granted by this Court staying further proceedings of the trial stands extended by the general orders passed by the Division Bench. Despite the application and knowledge of the orders, opposite party issued non bailable warrant against the applicant on 8 February 2021. It is, therefore, alleged that opposite party has wilfully and deliberately flouted the interim order, as well as, general orders passed by this Court.

On specific query, learned counsel for the applicant admits that the general order was not extended after 5 January 2021, however, learned counsel would insist that the orders dated 30 January 2021 and 8 February 2021, passed by the Court below tantamounts to flouting the general orders passed by the Division Bench. It is an act of impropriety by the court below. Further, it is submitted that the order of the trial court summoning the applicant is not in terms of the declaration of law rendered by the Supreme Court in Asian Resurfacing of Raod Agency Pvt. Ltd. v. CBI1. He further submits that an application seeking extension of the stay in terms of Asian Resurfacing (supra) is pending consideration before this Court. In other words, it is urged that until pendency of the stay extension application, the Court below could not have proceeded with the trial.

Pursuant to the decision of the Supreme Court rendered in Asian Resurfacing, Registry of this Court vide Circular dated 26 April 2018, addressed to all judicial officers subordinate to the High Court, directed them to follow the mandate of the decision scrupulously. The Circular reads thus:

"To,

All the Judicial Officers,

Subordinate to High Court of Judicature at

Allahabad.

C.L. No. 12 / Admin. 'G-II' Dated: Allahabad 26.04.2018

Sub: Order dated 28.03.2018 of Hon'ble the Supreme Court passed in Criminal Appeal Nos 1375-1376 of 2013 titled Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. Vs Central Bureau of Investigation.

Madam/Sir,

While hearing the above-mentioned Criminal Appeals, Hon'ble the Supreme Court has directed that in all cases pending before the High Courts or other courts relating to PC Act or all other civil or criminal cases, where stay of proceedings is ordered, stay will automatically lapse after six months from the date of such order unless extended by a speaking order on the parameters fixed by the Hon'ble Apex Court vide instant judgment. Same course may also be adopted by civil and criminal appellate/revisional courts. The trial courts may, on expiry of above period, resume the proceedings without waiting for any other intimation unless express order extending stay is produced.

I am, therefore, directed by Hon'ble Court to enclose herewith a pdf copy of above-mentioned judgment along with the instant circular letter with the request to go through the judgment carefully and follow the mandate thereof scrupulously."

Paragraphs 35 and 36 of the Asian Resurfacing (supra) reads thus:

"35. In view of above, situation of proceedings remaining pending for long on account of stay needs to be remedied. Remedy is required not only for corruption cases but for all civil and criminal cases where on account of stay, civil and criminal proceedings are held up. At times, proceedings are adjourned sine die on account of stay. Even after stay is vacated, intimation is not received and proceedings are not taken up. In an attempt to remedy this, situation, we consider it appropriate to direct that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended. In cases where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order. The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized. The trial Court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced.

36. Thus, we declare the law to be that order framing charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 Cr.P.C. or Article 227 of the Constitution. However, the said jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered. Thus considered, the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to re- appreciate the matter. Even where such challenge is entertained and stay is granted, the matter must be decided on day-to-day basis so that stay does not operate for an unduly long period. Though no mandatory time limit may be fixed, the decision may not exceed two-three months normally. If it remains pending longer, duration of stay should not exceed six months, unless extension is granted by a specific speaking order, as already indicated. Mandate of speedy justice applies to the PC Act cases as well as other cases where at trial stage proceedings are stayed by the higher court i.e. the High Court or a court below the High Court, as the case may be. In all pending matters before the High Courts or other courts relating to PC Act or all other civil or criminal cases, where stay of proceedings in a pending trial is operating, stay will automatically lapse after six months from today unless extended by a speaking order on above parameters. Same course may also be adopted by civil and criminal appellate/revisional courts under the jurisdiction of the High Courts. The trial courts may, on expiry of above period, resume the proceedings without waiting for any other intimation unless express order extending stay is produced."

It is contended by learned counsel for the applicant that the court below had not granted opportunity to the applicant to produce a speaking order before issuing the NBW, further, the conduct of the opposite party tantamounts to judicial indiscipline in not following the order of the Superior Court staying the trial.

The principles that emerge from the mandate of Asian Resurfacing can be summed up as follows:

(i) The trial court and the Superior Court is bound by the law declared by the Supreme Court in Asian Resurfacing;

(ii) It is incumbent upon the party in whose favour the stay order is operating to approach the Superior Court/High Court, as the case may be, and obtain a speaking order in terms of Asian Resurfacing;

(iii) In absence of a speaking stay order after a lapse of six months from the date of judgment rendered in Asian Resurfacing or from the date of the stay order whichever is later would not bind the trial court;

(iv) Asian Resurfacing is judgment in rem; the aggrieved litigating party is bound to obtain a fresh speaking stay order in terms of the Supreme Court judgment and not wait until the trial resumes after six months;

(v) Non speaking order extending the stay, though being an order of the Superior Court/High Court, would not bind the trial court in view of the law declared in Asian Resurfacing;

(vi) All interim orders staying the trial would stand automatically vacated after lapse of six months unless extended by a speaking order in exceptional case;

(vii) Where the trial court has proceeded with the trial following Asian Resurfacing/High Court Circular, that would not preclude the aggrieved party to the trial to obtain a fresh speaking stay order in the pending case.

The Supreme Court recently while deciding Misc. Application No. 1577 of 2020 in Criminal Appeal Nos. 1375-1376 of 20132, in Asian Resurfacing, taking notice of the observations of the Magistrate that lower court cannot pass any order which has been stayed by the High Court. The Apex Court observed that such orders are in teeth of para-35 of the judgement and Magistrates all over the country will follow the mandate in letter and spirit. The Court made following observation :

"we must remind the Magistrates all over the country that in our pyramidical structure under the Constitution of India, the Supreme Court is at the Apex, and the High Courts, though not subordinate administratively, are certainly subordinate judicially. This kind of orders fly in the face of para 35 of our judgment. We expect that the Magistrates all over the country will follow our order in letter and spirit. Whatever stay has been granted by any court including the High Court automatically expires within a period of six months, and unless extension is granted for good reason, as per our judgment, within the next six months, the trial court is, on the expiry of the first period of six months, to set a date for the trial and go ahead with the same."

The contempt jurisdiction is limited to punish the contemnor, not for disobedience of the order, but upon returning a finding that the disobedience is wilful. Mere disobedience is not sufficient unless it is shown and proved that the disobedience is wilful, deliberate and intentional.

In Ashok Paper Kamgar Union vs. Dharam Dhoda and others3, Supreme Court while explaining the expression ''wilful' and Section 2 of the Contempt Act, held, that it means an act or omission done voluntarily and intentionally with the specific intent not to do something that the law requires to be done. In order to constitute contempt, the order of the court must be of such nature which is capable of execution in normal circumstances.

"17. ...... "Wilful" means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extraordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case....."

The Court must not only be satisfied about the disobedience, but should also be satisfied that such disobedience was wilful and intentional. If from the circumstances of a particular case, the Court is satisfied that although there has been a disobedience but the disobedience is the result of some compelling circumstances under which it is not possible for the contemnor to comply the order, the court would not punish the alleged contemnor.

It is settled law that casual, accidental or unintentional acts of disobedience under the circumstances which negate any suggestions of contumacy, may amount to a contempt in theory only but that does not render the contemnor liable to punishment. To hold somebody guilty of contempt of Court, the concerned person must have wilfully disobeyed judgment, decree etc. or should have wilfully committed breach of an undertaking given to a Court. (Refer: B.K. Kar vs. High Court of Orissa4; State of Bihar vs. Rani Sonabati Kumari5 and N. Baksi vs. O.K. Ghosh6, the principle was reiterated in Jiwani Kumari Parikh vs. Satyabrata Chakravorty7 and Gyani Chandra vs. State of Andhra Pradesh8).

It is noticed that regularly contempt petitions are being filed against the judicial officers on an allegation of flouting the directions issued by this Court in petitions under Article 226/227 of the Constitution of India and/or under Section 482 Code of Criminal Procedure, directing the court below to expedite the pending proceeding/trial and conclude it within a stipulated time period. Mere non conclusion of the proceedings within time frame would not constitute civil contempt within meaning of Contempt of Court Act, 1971. The court below does not have plenary powers to do away with the mandatory statutory procedural requirement. The Court is expected to follow procedure known in law, which means insist for formal pleadings, frame issues, record evidence and thereafter to enter upon determination and render decision therein. The disobedience of order to conclude proceedings within a time bound period, perse, would not tantamount to wilful and intentional act so as to constitute contempt against the judicial officer.

Having due regard to the facts and circumstances brought on record, learned counsel for the applicant failed to point out any wilful and deliberate disobedience of the writ court order and the general orders passed by the Division Bench.

The contempt petition is, accordingly, dismissed.

Order Date :- 19.3.2021

Mukesh Kr.