Menka Gambhir vs Union Of India And Others
2022 Latest Caselaw 7226 Cal

                  IN THE HIGH COURT AT CALCUTTA
                    Constitutional Writ Jurisdiction
                            Appellate Side
Present:-
The Hon'ble Justice Moushumi Bhattacharya.


                            CPAN 941 of 2022
                                   in
                          WPA 19748 of 2022

                             Menka Gambhir
                                  vs.
                         Union of India and Others


For the petitioner                  :       Mr. Jishnu Saha, Adv
                                            Mr. Ayan Bhattacharya, Adv.
                                            Ms. Poulami Bhowmick, Adv.


For the Alleged contemnor           :       Mr. S.V. Raju, Ld. A.S.G.
Nos. 3 to 6                         :       Mr. Phiroze Edulji, Adv.
                                    :       Ms. Anamika Pandey, Adv.
                                            Mr. Samrat Goswami, Adv.



For the alleged contemnor           :       Mr. Billwadal Bhattacharyya, ld. Dy.S.G.

No. 2
                                    [


Last Heard on                           :   29.09.2022.


Delivered on                            :   30.09.2022.

Moushumi Bhattacharya, J.

1. The petitioner says that the alleged contemnors have wilfully

disobeyed an order passed by this Court on 30th August, 2022 by which

the Enforcement Directorate (ED) was to question the petitioner in

Kolkata and was also directed not to take any coercive steps against the

petitioner during the pendency of the writ petition.

2. The petitioner seeks to make out a case, through learned counsel,

that the alleged contemnors have acted in contumacious disregard of

the second direction passed by the Court, namely not to take any

coercive steps against the petitioner. Counsel seeks to rely on the

following facts in support of this contention.

3. The petitioner was prevented from travelling to Thailand to meet

her ailing mother from 10th to 22nd September, 2022. The petitioner was

served with a summons dated 10th September, 2022 from the

Directorate of Enforcement while the petitioner was detained at the

Kolkata Airport. The petitioner was summoned at the ED office at 12.30

a.m. on 12th September, 2022. Counsel submits that the alleged

contemnors resorted to coercive steps against the petitioner in

preventing the petitioner from travelling to Thailand on 10th September,

2022.

4. Learned ASG appearing for the alleged contemnor nos. 3 to 6

being the Enforcement Directorate, urges that the acts complained of do

not amount to wilful disobedience of the order passed by this Court.

Counsel places a Look Out Circular (LOC) dated 25th March, 2022 for

the petitioner which is to remain in force until a deletion request is

received by the Bureau of Immigration. Counsel submits that the

petitioner chose to inform the ED of the proposed travel on the date of

travel itself and that the ED hence did not have time to consider the

request. Counsel submits that the ED has issued a summons on the

petitioner requiring the petitioner to appear before the authority on 12th

September, 2022 at 12.30 a.m. Counsel places a later communication

by which ED apologized for the typographical error in calling for the

attendants of the petitioner at 12.30. a.m. instead of 12.30 p.m.

Counsel places emphasis on the fact that ED has not caused willful

disobedience of the order in requiring the petitioner to appear before it

for questioning.

5. The learned DSG appearing for the alleged contemnor no. 2 being

the Immigration Officer, adopts the submissions made on behalf of the

Enforcement Directorate and further submits that the petition lacks the

degree of proof which is required in a quasi-criminal proceedings of the

present nature. Counsel points to the fact that the relevant paragraphs

of the petition have not been properly verified in accordance with

relevant Rules of this Court. It is also submitted that the Immigration

Officer cannot be made a party since the Immigration Officer was not a

party to the writ petition and did not have any knowledge of the order

passed by this Court therein at any point of time.

6. The issue which falls for consideration is whether, the alleged

contemnors, in preventing the petitioner from travelling to Thailand,

have wilfully disobeyed the order passed by this Court. In essence, the

question which is to be answered, is whether detaining the petitioner at

the Kolkata Airport and disallowing her to travel would amount to

taking coercive steps against the petitioner.

7. The expression "coercive steps" is generally understood to mean

steps towards arrest and confinement of a person. Although the phrase

has frequently been used in numerous orders, parties before the courts

accept the meaning to be protection from arrest and detention. The

words carry an unmistakable sense of forceful confinement in a manner

so as to severely restrict the freedom of a person. In Punit v. State &

Anr., 2017 SCC OnLine Raj 4061; a Single Bench of the Rajasthan High

Court construed the phrase "no coercive steps" to automatically mean

that a person cannot be arrested.

8. In the present case, the petitioner seeks to fuse the petitioner's

detention at the Kolkata Airport and being prevented from travelling to

Thailand with the protection granted to the petitioner against coercive

steps being taken by the ED. Shorn of any underlying motives ascribed

to the actions of the ED, the petitioner's detention at the Kolkata Airport

and disallowing her from travel does not amount to coercive steps as

meant in the order passed by this Court on 30.8.2022. In coming to this

view the attending circumstances assume significance.

9. The order was passed on 30.8.2022; the petitioner informed the

ED on 10.9.2022 at 14:32 hours by mail that the petitioner intended to

travel to Thailand on 10.9.2022 itself to meet her ailing mother. The

petitioner furnished her co-ordinates during her stay in Thailand and

enclosed her flight tickets with the communication. The very fact that

the petitioner chose to inform the ED of her travel plan on the date of

travel itself tilts the scales towards the steps taken by the ED and

consequent to the petitioner's intimation. The petitioner was served with

the summons from the Enforcement Directorate at the Airport and

prevented from boarding the flight to Thailand. The case sought to be

made out by the petitioner is further weakened by the production of a

Look-Out Circular dated 25.3.2022 with reference to the petitioner. It is

significant that the Look-Out Circular was issued much before the

interim protection granted on 30.8.2022. It can thus be assumed that

the petitioner was prevented from travelling outside India by the alleged

contemnor no. 2 (Immigration Officer) by reason of the Look-Out

Circular. This definitely takes the alleged contemnor no. 2 outside the

parameters of the present contempt proceeding as also the fact that the

alleged contemnor no. 2 was not a party to the writ petition and cannot

be fastened with knowledge of the order passed by this court in the said

writ petition. (Ref. Parents Association of Students vs. M.A. Khan; (2009)

2 SCC 641.)

10. With reference to the other alleged contemnors, namely the

Enforcement Directorate, this Court is inclined to accept the contention

that the ED simply issued the summons on the petitioner in furtherance

of the direction on it to question the petitioner at its zonal office at

Kolkata (as opposed to Delhi). Hence, it cannot be said that the ED

acted in contumacious disregard of the order passed by this Court in

summoning the petitioner for questioning at its Kolkata office.

11. On the other point raised in support of the contentions of the

petitioner with regard to the unearthly hour for questioning, this Court

is of the view that the same may amount to harassment but certainly

not an act of contempt. In any event, 12.30 am was subsequently

corrected to mean 12.30 pm by the communication forming part of

records.

12. A proceeding in contempt must involve a conscious act of wilful

and deliberate disobedience of an order of Court (Ref. Dr. U.N. Bora vs.

Assam Roller Flour Mills; (2022) 1 SCC 101). Not only must the alleged

contemnor have full knowledge of the order at the relevant point of time

but must also act in deliberate violation of the same being fully

conscious of the act and its consequences. The contumacious act must

also relate to an order which is clear, unambiguous and is not capable

of being given multiple interpretations. In this context, it must also be

said that the direction on the alleged contemnors not to take any

coercive steps against the petitioner was not specifically defined by

including certain actions and excluding others. Hence, the possible

interpretations of that direction now sought to be given on behalf of the

parties further absolves the alleged contemnors of any possible

violation.

13. It follows that the petitioner is seeking a clarification of the

interim order passed by this Court in the guise of the present contempt

proceeding. There is little doubt that the petitioner cannot seek such

clarification in the special and limited jurisdiction of a contempt

proceedings. Reference may be made to an order passed by a learned

Judge on 2.6.2022 in WPA 9723 of 2022 where the petitioners before

the Court had specifically sought for permission to travel outside India

for medical treatment during the pendency of proceedings initiated by

the Enforcement Directorate. The aforesaid order strengthens the view

that the petitioner should have come with an appropriate application for

clarification instead of seeking an interim order in contempt

proceedings.

14. In view of the above reasons this Court is not inclined to accept

that the alleged contemnors have caused any wilful or deliberate

violation of the directions passed by this Court in the order dated

30.8.2022 in detaining the petitioner and preventing the petitioner from

travelling outside India. CPAN 941 of 2022 is accordingly dismissed

without any order as to costs.

Urgent photostat certified copies of this judgment, if applied for,

be supplied to the respective parties upon fulfillment of requisite

formalities.

(Moushumi Bhattacharya, J.)