Priti Karmarkar vs S.S. Bharasme And Ors.
2005 Latest Caselaw 1460 Bom

JUDGMENT

R.C. Chavan, J.

1. This is an application for restoration of Contempt Petition No. 102 of 2005 dismissed for want of prosecution on 16-8-2005.

2. According to the learned Counsel for the applicant/petitioner, the petition was listed for hearing on 16-8-2005. On 10-8-2005, the car of the petitioner's counsel was stolen and he had to lodge a report with police. The counsel, therefore, could not attend the Court from 10-8-2005 to 16-8-2005, when the petition was dismissed. Therefore, he has sought restoration of the petition.

3. I have heard the learned Counsel for the applicant/petitioner. The reason given for non-appearance on 16-8-2005 is not acceptable, because theft of a car may immobilize a person for a day or two. After the report was lodged, there was no reason why the counsel could not come to the Court and attend to his matters, for which he had accepted briefs from the clients, on the dates fixed. In any case, there was enough time for the counsel to request his colleagues in the Bar to see that the matters in which he was supposed to appear did not go by default. Therefore, on merits, the petitioner does not have good justification for restoration of the petition.

4. Apart from this, there is yet another reason why the petition cannot be restored. In a judgment reported in 2004(2) Mh.L.J. 1047, Panjabrao Sadashiorao Wankhede v. Rajeev Agrawal Secretary, Ministry of Co-operation, Mumbai, this Court has held that once the contempt proceedings are dropped for any reason whatsoever, they cannot be restored. While so holding, this Court had considered the entire scheme of the provisions of the Contempt of Courts Act as also the rules framed by the High Court thereunder. In that case, the order, which was sought to be set aside, read as under :

None for the petitioner, AGP for respondent-State. It appears that the petitioner is not interested in prosecuting the matter. Contempt proceedings are dropped. Petition dismissed.

In this context, the Court observed that since Section 12 of the Contempt of Courts Act does not make any difference between the punishment for civil contempt and punishment for criminal contempt, the punishment being by way of Misc. Civil Appln. No. 579 of 2005 in Contempt Petition No. 102 of 2005 in W. P. No. 5981 of 2004 decided on 12-12-2005. (Nagpur) incarceration, the restoration of a petition would amount to a type of double jeopardy. The Court also considered the provisions of relevant Section 256 of the Code of Criminal Procedure in respect of the procedure of dealing with summons cases and the principle of autrefois acquit. The Court, therefore, held that the Miscellaneous Civil Application for restoration is not tenable and was, therefore, dismissed.

5. The learned Counsel for the applicant submitted that in Zynab Hydari v. State of Maharashtra and Ors. reported in 2004(3) Mh.L.J. 275, this Court had held that if a contempt petition is dismissed in default, the Court has the power to set aside the order and restore the petition for being heard on merits. The learned Counsel, therefore, submitted that since the decision of the Court in Zynab Hydari v. State of Maharashtra and Ors. empowered the Court to restore the contempt petition, the Court may do so.

6. It may be seen that the Court rendered the decision in Zynab Hydari v. State of Maharashtra and Ors. on 18-3-2004. The decision in Panjabrao Sadashiorao Wankhede v. Rajeev Agrawal, Secretary, Ministry of Co-operation, Mumbai was rendered on 10-10-2003, It has to be presumed that all the previous decisions of the Court are available for being placed before the successive Benches. The doctrine of precedent implies that a decision rendered is binding on a Bench deciding the same question subsequently. If the Bench has to take a different view, it is required to record its reasons for doing so and refer the matter to a Larger Bench. The Bench deciding Zynab Hydari's case does not seem to have been made aware of the decision In Panjabrao Sadashiorao Wankhede's case. Had the decision in Panjabrao Sadashiorao Wankhede's case been placed before the Bench deciding the Zynab Hydari's case, it is certain that Zynab Hydari's case would not have been decided in the manner in which it has been done. In view of this, since the decision earlier in point of time, had not been considered by the Bench deciding Zynab Hydari's case, the decision in Zynab Hydari's case could be said to be rendered per incuriam.

7. While deciding Panjabrao Sadashiorao Wankhede's case, the Court had considered all the aspects of the matter and taken into consideration all the relevant provisions. Therefore, relying on the said decision, it has to be held that a contempt petition dismissed in default cannot be restored.

8. The contempt alleged in this case arises out of breach of an order passed by this Court in Writ Petition No. 5981 of 2004 on 21-12-2004, whereby the respondent-University was directed to complete the enquiry according to the procedure as early as possible and in any case not beyond six weeks from the date of the order. If the respondent has still not completed the enquiry, the petitioner may examine whether non-compliance by University even after the petition was dismissed gives rise to a fresh cause of action and whether a fresh petition could lie. Therefore, she may not be entirely without a remedy, since the breach by the University would continue.

9. In view of this, the application is rejected.