Sri N. Prateep Kumar vs M.Jagadeesh Chandra Prasad,
2022 Latest Caselaw 2400 AP

  THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                   CONTEMPT APPEAL No.13 OF 2021
 (Reference to third judge in view of the conflicting opinion by Judges in
                            the Division Bench)
ORDER:

This appeal was preferred under Section 19 (1) of the

Contempt of Courts Act, 1971 before the Division Bench to set

aside the order dated 21.10.2021, finding appellant guilty for

contempt of C.C.No.722 of 2021.

Learned single Judge held as follows:

―4. In the circumstances, this Court has no hesitation in holding that the respondent has committed a clear and unequivocal violation of the orders of this Court amounting to deliberate disobedience of the orders of this Court. Accordingly, the respondent has committed contempt of the orders of this Court.

5. In view of this clear contempt, the respondent is sentenced to simple imprisonment for a period of four weeks and a fine of Rs.2,000/- (Rupees two thousand only) payable within two weeks from the date of this order. Failing which, the respondent shall be liable for further simple imprisonment of two weeks.

6. This order is suspended for a period of four weeks to enable the respondent to file an appeal against this order if he so chooses.‖

Aggrieved by the above order, the appellant herein preferred

the appeal raising several contentions.

Upon hearing argument of both the counsel, the presiding

brother Judge (Justice Ahsanuddin Amanullah) of the Division

Bench agreed with the findings recorded by the learned single

Judge modified the impugned order and sentenced the contemnor

to pay fine of Rs.10,000/- while reducing the sentence of

imprisonment from four (4) weeks to one (1) week. Whereas, other

brother Judge (Justice B.Krishna Mohan) after elaborate

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consideration of law laid down by various Courts, mostly the Apex

Court, extended the benefit of doubt to the appellant and

exonerated him from contempt case accepting the unconditional

apology for the delay in implementation of the order.

In view of conflicting opinions expressed by both the Judges

in the Division Bench, this reference is made by the Division Bench

in term of Clause 36 of the Letters Patent, formulated a question

for reference to the third Judge as follows:

"Whether the appeal deserves disposal by reducing the term to one week's imprisonment and increasing the fine to Rs.10,000/- in terms of the judgement by Ahsanuddin Amanullah, J; or whether the appeal is to be allowed as per the judgement by B. Krishna Mohan, J?"

In view of the specific question formulated by the Division

Bench, it is necessary to examine the scope of reference with

reference to Clause 36 of the Letters Patent, Section 98 Clause (2)

of Code of Civil Procedure (for short ―C.P.C.‖) and rules framed by

the Andhra Pradesh High Court under the Contempt of Courts Act,

1971.

A bare look at the order dated 28.02.2022, it is clear that the

Division Bench of the High Court based on Clause 36 of Letters

Patent directed the Registry to make reference to third Judge.

Section 98 of the C.P.C. deals with procedure for hearing

appeal by two or more judges. Section 98 of C.P.C. reads as

follows:

"(1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges.

(2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed :

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Provided that where the Bench hearing the appeal is 1[composed of two or other even number of Judges belonging to a Court consisting of more Judges than those constituting the Bench] and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal including those who first heard it.

(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court."

Section 98 of C.P.C. is applicable only when the appeals are

filed under Order XLI of C.P.C. or under Order XLII of C.P.C.

depending upon the value of the appeal.

The Contempt of Courts Act is a complete code containing

the procedure for conducting enquiry either in Civil or Criminal

contempt and remedy by way of appeal to the Appellate Court

under Section 19 of the Contempt of Courts Act, 1971. When once

the appeal is preferred under Section 19 of the Contempt of Courts

Act, 1971, question of application of Section 98 (2) of C.P.C. does

not arise. In fact, rules are framed by the Andhra Pradesh High

Court under Contempt of Courts Act, which are known as the

Contempt of Courts Rules, 1980 (for short ―the Rules‖).

According to Rule 36 (1) of the Rules, every appeal filed

under the Contempt of Courts Act, 1971 shall be numbered as

contempt Appeal. Rule 36 (2) of the Rules says that every such

appeal against the order of a single Judge shall be posted before a

Bench of two Judges for orders as to whether notice shall issue to

the respondent. Rules 36 (3) of the Rules says that the procedure

for regulation of such appeals shall be the same as for appeals

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under Clause 15 of the Letters patent. Rule 36 (4) of the Rules says

that no Court fee shall be payable on the memorandum of appeal

filed by the contemnor.

As per sub-rule (3) of Rule 36 of the Rules the procedure

applicable to the appeal filed under Clause 15 of the Letters Patent

is applicable to the Contempt Appeal. Consequently, application of

Rule 36 of Letters of Patent cannot be found fault. Therefore,

reference made by the Division Bench formulating a question is in

strict adherence to the rules framed by the High Court of Andhra

Pradesh under the Contempt of Courts Act.

In fact, no argument is advanced by both the counsel with

regard to invoking clause 36 of the Letters patent while making

reference. However, it necessitated examination as to the

procedure to be followed in case of any conflict of opinion by one or

more Judges, in the bench.

In view of the specific question formulated by the Division

Bench, it is necessary to examine few facts of the case.

The appellant - contemnor is an I.F.S. officer, who placed the

writ petitioner, Forest Range Officer under suspension on the

ground of mis-conduct. The same was challenged before this Court

in Writ Petition No.8724 of 2020. Learned single Judge of this

Court by order dated 13.08.2020 suspended the order placing the

petitioner under suspension, passed the following order.

"Further time is granted for filing counter.

Interim direction is granted till further orders.

Post on 07.09.2020."

The appellant - contemnor without implementing the order

of this Court, passed a casual order revising the suspension order

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and extended the suspension for another six (6) months.

Contemnor extended the suspension order of the writ petitioner on

07.07.2020 and filed counter affidavit on 02.08.2020. Articles of

charge were served on the writ petitioner herein on 03.08.2020.

Learned Government Pleader though filed counter, uploading the

same in the website during virtual hearing, but the same was not

placed on record. However, learned single Judge suspended the

suspension order of the writ petitioner. The appellant - contemnor

himself admitted that he came to know about the order of this

Court on 25.09.2020 when a copy was communicated to him.

Later, second review was taken up by the contemnor on

31.12.2020, extended suspension of the writ petitioner, since the

interim order passed by the learned single Judge was not brought

to the notice of the contemnor.

Thus, the appellant - contemnor allegedly violated the order

passed by the learned single Judge on 13.08.2020 by extending

the suspension of the writ petitioner in second review by order

dated 31.12.2020.

The main endeavour of the appellant - contemnor is that the

order of the learned single Judge was not placed before him by the

concerned staff and action was initiated against the staff for not

placing the order copy along with the file at the time of reviewing

the suspension of the writ petitioner. Therefore, under the bonafide

mistake, the order in revision/extension of suspension dated

31.12.2020 was passed on account of serious mistake committed

by the concerned staff. The file relating to initiation of

departmental proceedings against the concerned staff for their

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failure to annex copy of the order passed by this Court is placed on

record, which would clinchingly establish that the order passed by

this Court was not placed on file at the time of extending the

suspension order.

Learned counsel for the writ petitioner seriously disputed the

fact, based on the allegations made in the affidavit and additional

affidavit, refuted the contention of the contemnor that the order

was not brought to the notice of the contemnor at the time when

the second review was taken up, since, the order is within his

knowledge.

Learned counsel for the writ petitioner would draw the

attention of this Court to the admission in paragraph No.3 of the

reply affidavit filed by the contemnor, which is as follows:

"3. It is further submitted that, the orders of the Hon'ble Court dated 13.08.2020 were received in this office on 25.09.2020 and the Government in Memo No.1663/Sec.IV/A1/2020, EFS&T Dept., dated 15.09.2020 (received in this Office on 29.09.2020), requested to take necessary action for filing Counter Affidavit in W.P.No.8724/2020 filed by the petitioner on behalf of Government also."

In the same paragraph, he further admitted that due to

COVID Pandemic situation the staff were not available to take up

follow up action immediately. On receipt of the contempt affidavit

on 16.04.2021 followed by the receipt of Contempt Notice on

12.05.2021, the action to implement the interim orders was

expedited and in compliance to the orders of the Hon'ble Court, the

suspension orders of the petitioner were revoked on 14.06.2021.

Though order was communicated to the contemnor, he

simply forwarded the same to Conservator of Forests without

applying his mind.

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Learned counsel has further drawn attention of this Court to

paragraph No.2 of the additional reply affidavit, which is as follows:

"I submit that the interim orders passed by this Hon'ble Court were not placed before me, by the concerned while putting up the petitioner's suspension case for review. Had the interim orders passed by this Hon'ble Court been brought to my knowledge, I would not have extended the suspension period, when the 2nd review was held and would have implemented the interim orders of the Hon'ble Court, without any delay. For the lapses committed by the subordinate staff, action has been initiated against all the concerned staff in proceedings No.1931/2020/Vig.1(ii) dated 17.09.2021."

Learned counsel also drawn the attention of this Court to

paragraph No.3 of the additional reply affidavit, which runs as

follows:

"............. The petitioner never submitted any representation after 13.08.2020 as mentioned in his affidavit. Having filed counter on 4/10.8.2020 if I had the knowledge of interim orders dt.13.8.2020, I would have taken steps to file vacate petition....."

The said two paragraphs are of no use to prove wilful

violation of order by the contemnor.

During pendency of the proceedings, I.A.No.01 of 2021 in

C.A.No.13 of 2021 is filed. In paragraph No.5 of the affidavit filed

along with the petition, the contemnor stated as follows:

"It is submitted that the learned Single Judge was pleased to pass interim orders on 13.08.2020 suspending the order dated 30.12.2019. The said interim orders were served on my office on 25.09.2020 and the same was placed before me. Further, the Government vide Memo No.1663/Sec.IV/A1/2020 dated 25.09.2020 requested my office to take necessary action for filing counter affidavit in the said writ petition."

Taking advantage of the statement made on oath, learned

counsel for the petitioner would submit that the interim order was

placed before the contemnor. When once the order is placed before

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him, knowledge as to the contents of the order is attributable to

the contemnor and he cannot plead ignorance about the contents

of the order. Therefore, the judicial admission made in paragraph

No.5 of the affidavit filed in I.A.No.01 of 2021 in C.A.No.13 of 2021

is suffice to conclude that the contemnor is posted with the

knowledge about the order passed by the learned single Judge on

13.08.2020, which was served on the office of the contemnor on

25.09.2020.

Admissions are of two types, one is judicial admission and

another is evidentiary admission. Admissions are not conclusive

proof, but the admissions estop the person who made such

admission to contend otherwise. When a judicial admission is

made in the pleadings or in any document regarding a particular

fact in issue, such fact need not be proved by adducing evidence in

view of Section 58 of the Indian Evidence Act. It is settled law that

admission is the best piece of evidence. The Supreme Court, in

―Sita Ram Bhau Patil vs. Ramachandra Nago Patil1‖, held:-

"Admission is the best piece of substantive evidence that an opposite party can rely upon, though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. Admission may in certain circumstances, operate as an estoppel. The question which is needed to be considered is what weight is to be attached to an admission and for that purpose it is necessary to find out as to whether it is clear, unambiguous and a relevant piece of evidence, and further it is proved in accordance with the provisions of the Evidence Act. It would be appropriate that an opportunity is given to the person under cross-examination to tender his explanation and clear the point on the question of admission."

In view of the above, the law on the admissions can be summarised to the effect that admission made by a party though not conclusive, is a decisive factor in a case unless the other party

1 AIR 1977 SC 1712

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successfully withdraws the same or proves it to be erroneous. Even if the admission is not conclusive it may operate as an estoppel. Law requires that an opportunity be given to the person who has made admission under cross-examination to tender his explanation and clarify the point on the question of admission. Failure of a party to prove its defence does not amount to admission, nor it can reverse or discharge the burden of proof of the Plaintiff."

In another decision ―Nagubai Ammal and others vs. B.

Shama Rao2" the Supreme Court held:-

"Admission made by a party is admissible and best evidence, unless it is proved that it had been made under a mistaken belief. While deciding the said case reliance has been placed upon the judgment in Slatterie v. Pooley (1840) 6 M & W 664, wherein it had been observed "What a party himself admits to be true, may reasonably be presumed to be so."

In ―Union of India (UOI) vs. Ibrahim Uddin3‖ the Supreme

Court observed that admission are the best piece of evidence and

can be relied on by the Courts in deciding any issue. In ―Amba

Lal vs. Union of India4‖ the Constitution Bench of the Supreme

Court held that for a decision to be based on admission, it must be

in writing; and the admission is more satisfactory if a body

entrusted with statutory functions takes necessary precautions

when its decision is mainly to depend upon such admission.

On close analysis of the admissions made by the contemnor

in various affidavit, more particularly reply affidavit, and affidavit

in I.A.No.01 of 2021 would clinchingly establish that the appellant

- contemnor had knowledge about the order passed by the learned

single Judge as it was placed before him. Placing of order before

him is for perusal of the order and not otherwise.

2 AIR 1956 SC 593 3 (2012) 8 SCC 148 4 AIR 1961 SC 234

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Thus, learned brother Justice Ahsanuddin Amanullah

rightly rejected the contention of the contemnor that the

contemnor did not violate the order willfully or intentionally and

the same cannot be interfered with in the present reference.

During hearing, this Court directed the contemnor to

produce the record pertaining to the orders passed by the

authorities from time to time. Accordingly, the record is placed

before this Court. On perusal of the record, I find that the copy of

the order passed by this Court was communicated to the authority

on 25.09.2000 though the order was passed on 13.08.2020.

Thereafter, correspondence had taken place and the Government

issued Memo No.1663/Sec.IV/A1/2020 dated 25.09.2020. In the

reference of the said Memo, interim order passed by this Court in

W.P.No.8724 of 2020 is mentioned. The said memo was sent to the

Principal Chief Conservator of Forests, the appellant herein on

25.09.2020.

Even thereafter, File No.EFS02-19021/93/2019-VIG Sec-

PCCF, reference No.10057/2019/Vig-1(iii) dated 08.10.2020 was

issued from the office of the appellant. There is a clear reference

about the interim order passed by the learned single Judge in

W.P.No.8724 of 2020 in the said letter and directed the concerned

officers to ―attend this on top priority‖. It is explicit from the

correspondence that the appellant was posted with knowledge

about the interim order passed by this Court, otherwise, the

question of mentioning the interim order in the reference of the

said file does not arise.

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Communication between the authorities is sufficient to

conclude that the appellant received interim order passed by the

learned single Judge, based on the said interim order only,

communication was made, issued Memo No.10057/2019/Vig-1(iii).

Despite the knowledge about the interim order passed by the

Court, the appellant did not revoke the suspension order

immediately, but revoked on 14.06.2021, reinstated the writ

petitioner with all consequential benefits, posting order was issued

on 22.06.2021, and the same was received by the writ petitioner on

23.06.2021. Action of the appellant in passing an order dated

14.06.2021 revoking the suspension and reinstating the writ

petitioner almost 10 months from the date of order passed by the

learned single Judge despite knowledge about the passing of order,

can safely be held to be wilful disobedience of the Order. Therefore,

the contention of the contemnor that he had no knowledge about

the order passed by the learned single Judge is liable to be

rejected. Accordingly, learned brother Justice Ahsanuddin

Amanullah rejected the same rightly.

One of the major contentions raised by learned senior

counsel is that the appellant did commit no contempt willfully or

disobeyed the order of this Court intentionally. Unless the Court

concludes that disobedience or violation of order is intentional, the

Court cannot impose any sentence holding the contemnor guilty

for the contempt. There is no dispute with regard to the general

principle that Court shall record a finding that the disobedience is

wilful or intentional, but to arrive at such conclusion, the totality

of the circumstances including pleadings in summary enquiry have

to be taken into consideration.

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Since it is a reference, this Court cannot go beyond the scope

of reference. However, learned Brother Justice B.Krishna Mohan

extended the benefit of doubt and exonerated the contemnor.

Learned Justice Ahsanuddin Amanullah modified the

impugned order and sentenced the contemnor to pay fine of

Rs.10,000/- while reducing the sentence of imprisonment from

four (4) weeks to one (1) week. To examine the legality of finding

imposing sentence, it is necessary to advert to relevant provisions

of the Contempt of Courts Act, 1971.

Section 12 of the Contempt of Courts Act, 1971 is the

relevant provision, which deals with imposition of punishment and

it is extracted hereunder.

―12. Punishment for contempt of court.--

(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both:

Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court.

Explanation.--An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.

(2) Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it.

(3) 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.

(4) Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who, at the

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time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of each such person:

Provided that nothing contained in this sub-section shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission.

(5) Notwithstanding anything contained in sub-section (4), where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer.

Explanation.--For the purpose of sub-sections (4) and (5),--

(a) ―company‖ means any body corporate and includes a firm or other association of individuals; and

(b) ―director‖, in relation to a firm, means a partner in the firm.‖

Section 12 clause (1) of the Contempt of Courts Act, 1971

prescribes the maximum punishment of imprisonment, so also fine

amount or both. But there is a clear interdict on the powers of the

Court to impose sentence in excess of the fine amount prescribed

or specified in sub-section (1) of Section 12 of the Contempt of

Courts Act, 1971. Therefore, there is a direct restriction on the

powers of the Court to impose sentence more than the specified in

sub-Section (1) of Section 12 of the Contempt of Courts Act, 1971.

A Constitution Bench in the case of ―Supreme Court Bar

Association vs. Union of India5‖' while considering this Court's

power to punish for contempt at page 421 observed as follows:

( 1998 ) 4 SCC 409

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"21. It is, thus, seen that the power of this Court in respect of investigation or punishment of any contempt including contempt of itself, is expressly made "subject to the provisions of any law made in this behalf by Parliament" by Article 142(2). However, the power to punish for contempt being inherent in a court of record, it follows that no act of Parliament can take away that inherent jurisdiction of the court of record to punish for contempt and Parliament's power of legislation on the subject cannot, therefore, be so exercised as to stultify the status and dignity of the Supreme Court and/or the High Courts, though such a legislation may serve as a guide for the determination of the nature of punishment which this Court may impose in the case of established contempt. Parliament has not enacted any law dealing with the powers of the Supreme Court with regard to investigation and punishment of contempt of itself, (we shall refer to Section 15 of the Contempt of Courts Act, 1971, later on) and this Court, therefore, exercises the power to investigate and punish for contempt of itself by virtue of the powers vested in it under Article 129 and 142(2) of the Constitution of India."

"24. Thus, under the existing legislation dealing with contempt of court, the High Courts and Chief Courts were vested with the power to try a person for committing contempt of court and to punish him for established contempt. The legislation itself prescribed the nature and type, as well as the extent of, punishment which could be imposed on a contemner by the High Courts or the Chief Courts. The second proviso to Section 4 of the 1952 Act (supra) expressly restricted the powers of the courts not to "impose any sentence in excess of what is specified in the section" for any contempt either of itself or of a court subordinate to it."

Referring to the powers of the High Court under Article 215

to impose punishment with reference to Contempt of Courts Act,

1971 at page 428, the Court held as follows:

"37. The nature and type of punishment which a court of record can impose in a case of established contempt under the common law have now been specifically incorporated in the Contempt of Courts Act, 1971 insofar as the High Courts are concerned and therefore to the extent the Contempt of Courts Act, 1971 identifies the nature or types of punishments which can be awarded in the case of established contempt, it does not impinge upon the inherent powers of the High Court under Article 215 either. No new type of punishment can be created or assumed."

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The said principle is reiterated by another Full Bench of the

Apex Court in ―Pallav Sheth vs. Custodian6‖

In ―Bal Kishan Giri vs. State of U.P.7‖ the Apex Court

considered the scope of acceptance of unconditional apology, and

observed as follows:

―Being a member of the Bar, it was his duty not to demean and disgrace the majesty of justice dispensed by a court of law. It is a case where insinuation of bias and predetermined mind has been leveled by a practicing lawyer against three judges of the High Court. Such casting of bald, oblique, unsubstantiated aspersions against the judges of High Court not only causes agony and anguish to the judges concerned but also shakes the confidence of the public in the judiciary in its function of dispensation of justice. The judicial process is based on probity, fairness and impartiality which is unimpeachable. Such an act especially by members of Bar who are another cog in the wheel of justice is highly reprehensible and deeply regretted. Absence of motivation is no excuse.

In view of the above, we are of the considered opinion that the High Court has not committed any error in not accepting the Appellant's apology since the same is not bona fide. There might have been an inner impulse of outburst as the Appellant alleges that his nephew had been murdered, but that is no excuse for a practicing lawyer to raise fingers against the Court.‖ The Apex Court further observed that Section 12(1) of the

Act provides that if the Court is satisfied that contempt of court

has been committed, it may punish the contemnor with simple

imprisonment for a term which may extend to six months, or with

fine which may extend to Rs. 2,000/-, or with both. Section 12(2)

further provides that "notwithstanding anything contained in any

other law for the time being in force, no court shall impose a

sentence in excess of that specified in Sub-section (1) for any

contempt either in respect of itself or of a court subordinate to it."

Thus, the power to punish for contempt of the court is subject to

limitations prescribed in Sub-section (2) of the Act. Hence, in view

(2001 ) 7 SCC 549

(2014) 7 SCC 280

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of the above, the fine of Rs.20,000/- imposed on the Appellant by

the High Court by way of impugned judgment and order, is

reduced to Rs.2,000/- by the Apex Court.

Thus, the punishment, which is not authorised under

Section 12 of the Contempt of Courts Act or in excess of the

punishment prescribed under Section 12 cannot be imposed by

Court both as per the Contempt of Courts Act, 1971 and as per the

law laid down by the Apex Court in the judgments (referred supra).

Learned brother Justice Ahsanuddin Amanullah imposed

fine of Rs.10,000/-, which is in excess of punishment authorised

under Section 12 (1) of the Contempt of Courts Act, 1971. Hence,

imposition of fine in excess of one prescribed under Section 12 (1)

of the Contempt of Courts Act, 1971, shall be reduced to

Rs.2,000/- only.

Yet, another contention of the learned counsel for the

contemnor is that once the contemnor offered unconditional

apology, the Court has to accept such unconditional apology

except where the apology was not bonafide. In view of the

explanation annexed to sub-section (1) of Section 12 of the

Contempt of Courts Act, the Court has to record the reasons for

rejection of apology tendered by the contemnor/appellant herein. If

the apology expressed by the appellant/contemnor is tainted with

malafides, the Court can reject such apology recording specific

reason.

Turing to the facts of the present case, learned brother

Justice Ahsanuddin Amanullah discussed the same in paragraph

No.25, as the counsel before the Division Bench contended that

the appellant tendered an unconditional apology at the first

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instance, but the Court did not accept such apology for the reason

that such apology was not tendered immediately on receipt of the

memorandum of the contempt petition on 16.04.2021, but only

after receipt of show cause notice in the contempt case on

12.05.2021, thereafter also the suspension was not revoked and

reinstated the writ petitioner immediately, but on 14.06.2021 the

suspension was revoked.

In paragraph No.26 also learned brother Justice Ahsanuddin

Amanullah considered the reason for rejection of apology and

recorded his finding based on facts. According to the

appellant/contemnor, communication from his counsel viz. the

government counsel concerned, was not clear due to which he even

sought a clarification. The appellant urged that in the letter of the

government dated 25.09.2020, the direction was to file a counter-

affidavit in the writ petition, due to which he had marked it to the

Chief Conservator of Forests, WLM Circle, Tirupati, on 08.10.2020

itself. But the learned brother Justice Ahsanuddin Amanullah

concluded that a casual and mechanical approach ought to have

been eschewed by the appellant, instead he had to be vigilant.

Such conduct is nothing short of callousness towards the order of

the Court. It was incumbent upon the appellant to have gone

through the order of the learned Single Judge, which was referred

to and placed with the letter dated 25.09.2020, carefully and

ensured it was complied with, in letter and spirit. Learned brother

Justice Ahsanuddin Amanullah recorded that the contemnor

violated the order deliberately while referring to the judgment in

―Attorney General vs. Times Newspapers Limited8‖

(1973) 3 All E R 54 (HL)

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In any view of the matter, this Court need not examine

whether the apology is conditional or unconditional and the

rejection is in accordance with law since the scope of reference is

limited. In view of the language employed in clause 36 of the

Letters Patent, reference Court can decide the point referred, but

need not confine to the findings only. Whereas, language employed

in proviso to Section 98 (2) of C.P.C., it must be confined to

reference only. The word ―only‖ indicates that the reference Court

can limit its findings only to the point on which both judges of the

Division Bench differed. But in view of the language employed in

clause 36 of the Letters Patent, jurisdiction of the Judge, to whom

the matter is referred, is wider than the jurisdiction under Section

98 (2) of C.P.C.

In another judgment ―Vishram Singh Raghubanshi vs.

State of U.P.9‖ the Apex Court did not accept the unconditional

apology, observed as follows:

―The Appellant filed second affidavit dated 24.11.2005 tendering apology. The apology has been tendered under pressure only after framing of the charges by the High Court in the Criminal Contempt when Appellant realised that he could be punished. The apology was not tendered at the earliest opportunity, rather tendered belatedly just to escape the punishment for the grossest criminal contempt committed by him. The language used by the Advocate for a judicial officer where he practices regularly and earns his livelihood is such that any apology would fall short to meet the requirement of the statutory provisions. There has been no repent or remorse on the part of the Appellant at an initial stage. Had it been so, instead of making grossest and scandalous allegations against the judicial officer, writing complaint against him to the Administrative Judge in the High Court of Allahabad, the Appellant could have gone to the concerned judicial officer and tendered apology in open court.

The Appellant instead of yielding to the court honestly and unconditionally, advanced a well guarded defence by referring to all the facts that led to the incident. Apology tendered by the Appellant gives an impression that the same was in the alternative and not a complete

AIR 2011 SC 2275

MSM,J ca_13_2021

surrender before the law. Such attitude has a direct impact on the court's independence, dignity and decorum. In order to protect the administration of public justice, we must take action as his conduct and utterances cannot be ignored or pardoned. The Appellant had no business to overawe the Court.‖ In the present case also, learned brother Justice Ahsanuddin

Amanullah observed that apology tendered by the appellant -

contemnor is not immediate on receipt of notice i.e. on the date of

first appearance, but it was tendered belatedly pleading lame

excuse, which is not permitted. Therefore, learned brother Justice

Ahsanuddin Amanullah rightly rejected the unconditional apology

tendered by the contemnor recording specific reasons, thereby

rejection of apology is in accordance with law.

Second part of the question is ―whether exonerating the

contemnor extending benefit of doubt be sustained?‖

Undoubtedly, the proceedings in contempt are akin to

criminal prosecution. Both learned judges in the Division Bench,

after elaborate discussion of material on record recorded their

findings.

In ―Kanwar Singh Saini vs. High Court of Delhi10‖ the

Apex Court held that the contempt proceedings being quasi-

criminal in nature, the standard of proof requires in the same

manner as in other criminal cases. The alleged contemnor is

entitled to the protection of all safeguards/rights which are

provided in the Criminal Jurisprudence, including the benefit of

doubt. There must be a clear-cut case of obstruction of

administration of justice by a party intentionally to bring the

matter within the ambit of the said provision. The case should not

rest only on surmises and conjectures.

(2012) 4 SCC 307

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In ―Mrityunjoy Das vs. Sayed Hasibur Rahaman11", it was

observed as follows:

―The jurisdiction of contempt has been conferred on the court to punish an offender for his contemptuous conduct or obstruction to the majesty of law, but in the case of quasi-criminal in nature, charges have to be proved beyond reasonable doubt and the allege contemnor becomes entitled to the benefit of doubt. It would be very hazardous to impose sentence in contempt proceedings on some probabilities .‖

In ―U.N.Bora vs. Assam Roller Flour Mills Assn12, the

Apex Court after referring various judgments concluded that the

proceedings are quasi-criminal in nature, and therefore, standard

of proof required in these proceedings is beyond all reasonable

doubt. It would rather be hazardous to impose sentence for

contempt on the authorities in exercise of the contempt jurisdiction

on mere probabilities.

In ―Rama Narang vs. Ramesh Narang13‖, the Apex Court

observed that the contempt proceedings are quasi-criminal in

nature and the standard of proof required is in the same manner

as in the other criminal cases. The alleged contemnor is entitled to

the protection of all safeguards/rights which are provided in the

criminal jurisprudence, including the benefit of doubt. There must

be a clear-cut case of obstruction of administration of justice by a

party intentionally, to bring the matter within the ambit of the said

provision. The Apex Court has also referred to the observations

made in ―Debabrata Bandopadbyay vs. State of West

Bengal14‖, wherein it was observed, that punishment under the

(2001) 3 SCC 739

(2022) 1 SCC 101

AIR 2021 SC 721

AIR 1969 SC 189

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law of contempt is called for when the lapse is deliberate and in

disregard of one's duty and in defiance of authority.

In view of the law laid down by the Apex Court, principles

applicable to criminal trial are applicable to contempt proceedings.

It is clear that the standard of proof required to prove the

guilt of the contemnor in contempt case is in the same manner as

in the criminal cases. It is well established principle of criminal

jurisprudence that the guilt of the accused must be proved beyond

all reasonable doubts. However, the burden on the prosecution is

only to establish its case beyond all reasonable doubt and not all

doubts.

The standard of proof statutorily required as per Section 3 of

the Indian Evidence Act is one of 'preponderance of probability.

Section 3 does not speak of anything about 'proof beyond

reasonable doubt' though the degree of proof required in a criminal

case in India is higher than 'preponderance of probability.

'Preponderance of evidence' is succinctly explained in Black's Law

Dictionary, 1891 6 Abridged Edition, 1991, and the same is as

follows:

'Preponderance of evidence is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not."

The word 'proved' means that a fact is said to be proved

when after considering the matters before it, the court either

believes it to exist, or considers its evidence so probable that a

prudent man ought under circumstances of the case to act upon

the supposition that it exists. No conclusive proof is required to

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state that a fact is proved. The process involved is one of weighing

the probabilities. Hence preponderance of probability is the basis

for a decision in civil case. But even without Section 3 of the

Evidence Act, prescribing any higher degree of proof for a decision

in criminal cases, criminal courts in India have been insisting for a

degree of proof which is higher than the one required for a decision

in civil cases.

Therefore, principle ―proof beyond reasonable doubt‖

assumed importance on the well-known principle that ―100

criminals may escape, but one innocent should not be punished.‖

Thus, the principle ―reasonable doubt or benefit of doubt‖ is based

on burden of proof and onus of proof. The word ‗reasonable doubt'

is not defined anywhere. However, Glanville Williams in his book

'Criminal Law' Second Edition has opined that the phrase

reasonable doubt' is virtually indefinable. This concept of

'reasonable doubt' is explained by Justice Cookbur, as follows:

'It is business of the prosecution to bring home the guilt of the accused to the satisfaction of the minds of the jury; but the doubt to the benefit of which the accused is entitled to must be such as rational thinking, sensible man fairly and reasonably entertain, not the doubt of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle skepticism. There must be doubt which a man conscientiously entertain.' In the case of ―State of U.P. vs. Krishna Gopal15‖ the

Supreme Court has succinctly explained the concept 'Reasonable

Doubt' as follows:

―...... There is an unmistakable subjective element in the evaluation of the degree of probability and quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and ultimately on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time,

AIR 1988 SC 2154

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uninformed legitimization of trivialities would make mockery of administration of criminal justice.'

This decision is subsequently followed by the Supreme Court

in the case of ―State of Madhya Pradesh vs. Dharkole @ Govind

Singh16‖ reiterating that doubts would be called reasonable if they

are free from a zest of abstract speculation and that reasonable

doubt is not an imaginary, trivial or a merely possible doubt; but a

fair doubt based on reason and common sense. 'Reasonable Doubt'

must grow out of the evidence in the case or from the lack of it as

opposed to mere vague apprehensions. As explained in the case of

KRISHNAGOPAL, though criminal courts insist for a higher degree

of proof, it is not an absolute standard.

Way back in 1973 itself, Justice V.R.Krishna lyer in the case

of ―Shivaji Sahabrao Bobade vs. State of Maharashtra17‖ has

held that 'in an anxiety to apply the jurisprudential presumption of

innocence of an accused, court should not forget to moderate the

same by a pragmatic need to make criminal justice potent and

realistic. The caution so given in the said case is relevant and the

same is extracted below:

―Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principle or golden thread of proof beyond reasonable doubt, which runs through the web of our law, should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go, but one innocent martyr shall not suffer is a false

[2004] 13 SCC 308

AIR 1973 SC 2622

MSM,J ca_13_2021

dilemma. Only reasonable doubts belong to the accused. Otherwise, any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author (Glanville in proof of guilt) has saliently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent." In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic.‖

It is a cardinal principle of criminal jurisprudence that the

guilt of the accused must be proved beyond all reasonable doubts.

However, the burden on the prosecution is only to establish its

case beyond all reasonable doubt and not all doubts.

Another golden thread that runs through the web of the

administration of criminal justice is that if two views are possible

on the evidence adduced, one pointing to the guilt and other

towards innocence, the view which is favorable to the accused

(contemnor) should be accepted. It seems to be very similar to the

principle, called ―Benefit of Doubt‖ which is widely used in criminal

prosecution. However, the rule regarding the benefit of doubt does

not warrant acquittal of the accused by resorting to surmises,

conjectures or fanciful considerations.

The cherished principles or golden thread of proof beyond

reasonable doubt which runs through the web of law should not be

stretched morbidly to embrace every hunch, hesitancy and degree

of doubt.

MSM,J ca_13_2021

In ―Ramesh Harijan vs. State of U.P.18‖ the Apex Court

held that doubt nurtured must not be fanciful doubt or lingering

suspicion but must be doubt based on reason and commonsense it

is true to say with Vis count Simon, that a "miscarriage of justice

may arise from the acquittal of the guilty no less than from the

conviction of the innocent. "In short, our jurisprudential

enthusiasm for presumed innocence must be moderated by the

pragmatic need to make criminal justice potent and realistic. A

balance has to be struck between chasing chance possibilities as

good enough to set the delinquent free and chopping the logic of

preponderant probability to punish marginal innocents. The Court

has adopted these cautions in analyzing the evidence and

appraising the soundness of the contrary conclusions reached by

the courts below. Certainly in the last analysis reasonable doubts

must operate to the advantage of the appellant.

Keeping in view the principles laid down in the judgments

(referred supra), now, I shall examine the finding recorded by my

learned brother Justice B.Krishna Mohan. In the entire judgment

written by my learned brother Justice B.Krishna Mohan, he

referred facts and judgments of the Apex Court, but in paragraph

No.56 concluded as follows:

―Following the principles laid down in the above said decisions, in the present case also the appellant can be exonerated for contempt of court giving benefit of doubt as he tendered unconditional apologies sincerely for the delay in implementation of the order of the court with all consequential benefits soon after receiving the notice in the contempt petition itself without anybody's intervention.‖ Learned brother Justice B.Krishna Mohan did not discuss

anything as to how benefit of doubt to the case on hand is

AIR 2012 SC 1979

MSM,J ca_13_2021

applicable, more particularly about two views, one favourable to

the appellant and any reasonable doubt to disbelieve the wilful

disobedience, it appears that it is only fanciful not real doubt,

applying the same exonerated the appellant and what reasonable

doubt that had arisen to exonerate the contemnor by applying the

principle of benefit of doubt is not known. Thus, in my view,

exoneration of the contemnor by referring the judgments (referred

supra) is not in accordance with law.

In the present case, the contemnor failed to show any reason

for his failure to implement the order except pleading that the

order of this Court was not placed before him at the time of

reviewing the suspension order, which is apparently false in view of

the judicial admission and correspondence. Therefore, extension of

benefit of doubt to the appellant-contemnor is inconsistent with

the material ex-facie.

Learned brother Justice B.Krishna Mohan did not consider

the material on record and surrounding circumstances to extend

the benefit of doubt, but simply applied the principle of benefit of

doubt and exonerated the contemnor.

General principles relating to contempt of Courts as laid

down by the Apex Court were reiterated in the order passed by

both the Judges in the Division Bench. Therefore, it is unnecessary

to reiterate the law laid down by the Apex Court and other Courts

which are referred in the judgment of Division Bench.

In view of my foregoing discussion, conclusions arrived by

my learned brother Justice B.Krishna Mohan to exonerate the

appellant - contemnor extending benefit of doubt is not based on

sound reasons. Therefore, I am unable to agree with the view taken

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by learned brother Justice B.Krishna Mohan, while concurring

with the view taken by learned brother Justice Ahsanuddin

Amanullah regarding sentence of imprisonment of one (1) week,

but reducing sentence of fine to Rs.2,000/- from Rs.10,000/-.

In the result, the reference is answered agreeing with the

view taken by learned brother Justice Ahsanuddin Amanullah in

all respects including sentence of imprisonment of one (1) week,

but reducing sentence of fine to Rs.2,000/- from Rs.10,000/- while

disagreeing with the view taken by learned brother Justice

B.Krishna Mohan.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY

06.05.2022 Ksp

After pronouncing the above order, learned counsel for

appellant/Contemnor requested this Court to suspend the above

order, so as to enable him to prefer an appeal before the Supreme

Court.

At request of the learned counsel for appellant/Contemnor,

the above order is suspended for a period of three (3) weeks to

prefer appeal. In case no appeal is preferred or no stay is granted

by the Supreme Court in the appeal, if any preferred,

appellant/Contemnor shall surrender before Registrar (Judicial),

High Court of Andhra Pradesh on 27.05.2022 before 05.00 p.m. to

undergo sentence as stated supra.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:06.05.2022 Note: Issue C.C. today.

B/o Ksp