Delhi High Court
Maan Singh @ Jai Narayan vs Anupam Bhushan on 20 July, 2015
Author: Manmohan
#12 & 13
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CONT.CAS(C) 171/2015
MAAN SINGH @ JAI NARAYAN ..... Petitioner
Through Mr. Prem Prakash, Advocate
versus
ANUPAM BHUSHAN ..... Respondent
Through Mr. Gautam Narayan, Addl. Standing
Counsel for Govt. of NCT of Delhi.
WITH
+ CONT.CAS(C) 172/2015
NITIN KHURANA ..... Petitioner
Through Mr. Prem Prakash, Advocate
versus
ANUPAM BHUSHAN ..... Respondent
Through Mr. Gautam Narayan, Addl. Standing
Counsel for Govt. of NCT of Delhi.
% Date of Decision: 20th July, 2015
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
1. Present contempt petitions have been filed alleging that petitioners
had been arrested in complete violation of the peremptory directions given
by the Supreme Court in the case of Arnesh Kumar Vs. State of Bihar &
Anr., 2014 (8) SCALE 250 decided on 2nd July, 2014.
2. According to Mr. Prem Prakash, learned counsel for the petitioners,
police officials in the present cases did not furnish the reasons and material
which necessitated their arrest while producing the accused before the
Magistrate. In this connection, he draws this Court's attention to the order
dated 22nd September, 2014 passed by CMM, South East District, Saket
Courts while granting bail to the petitioners. The relevant portion of the said
order is reproduced hereinbelow:-
"6. In the present case the charge sheet has already been
filed against both the accused persons. It is pertinent to mention
here that arrest of the accused persons by the previous IO SI
Anupam was made in violation of Provisions of Section 41of the
Cr. P.C.
Present IO SI Anupam has failed to explain those
grounds on which arrest of accused persons was made. No
permission was taken by the previous IO SI Anupam from the
higher authority, neither any notice u/s. 160 Cr. P.C. was served
upon the accused persons for joining the investigation. Hence in
these circumstances IO SI Anupam had made arrest of accused
in utter violation of provisions of Section 41 Cr.P.C.
The accused persons are no more required in
investigation and charge sheet has already been filed qua the
accused persons. Therefore both accused namely Maan Singh @
Jay Narayan and accused Nitin Khurana are admitted on bail on
furnishing bail bond in a sum of Rs. 50,000/- along with one
surety each in the like amount."
3. In support of his submissions, Mr. Prem Prakash, learned counsel for
petitioners refers to the following portion of the judgment in Arnesh Kumar
Vs. State of Bihar & Anr. (supra) :-
"13. Our endeavour in this judgment is to ensure that police
officers do not arrest accused unnecessarily and Magistrate do
not authorise detention casually and mechanically. In order to
ensure that we have observed above, we give the following
direction:
(1) All the State Governments to instruct its police officers
not to automatically arrest when a case under Section
498-A of the IPC is registered but to satisfy themselves
about the necessity for arrest under the parameters laid
down above flowing from Section 41, Cr. P.C.
xxxx xxxx xxxx xxxx
(7) Failure to comply with the directions aforesaid shall
apart from rendering the police officers concerned liable
for departmental action, they shall also be liable to be
punished for contempt of court to be instituted before
High Court having territorial jurisdiction."
4. On the other hand, Mr. Gautam Narayan, learned additional standing
counsel for Government of NCT of Delhi appearing for the respondent
points out that in accordance with the direction given by the Supreme Court
in Arnesh Kumar Vs. State of Bihar & Anr. (supra), the police department
had issued a circular only on 17th November, 2014. Consequently, Mr.
Gautam Narayan submits that on the date of the arrest the respondent-
contemnor did not have knowledge or notice of the directions issued by the
Supreme Court in the aforesaid case. In support of his submission, he relies
upon judgment of the Supreme Court in All India Anna Dravida Munnetra
Kazhagam Vs. L.K. Tripathi and Others, (2009) 5 SCC 417 wherein it has
been held as under:-
"53. We have considered the submissions/arguments of learned
counsel for the parties. Sections 2(b) and (c) of the 1971 Act
which define civil and criminal contempt read as under:
"2. (b) „civil contempt‟ means wilful disobedience to any
judgment, decree, direction, order, writ or other process of a
court or wilful breach of an undertaking given to a court;
(c) „criminal contempt‟ means the publication (whether
by words, spoken or written, or by signs, or by visible
representations, or otherwise) of any matter or the doing of
any other act whatsoever which--
(i) scandalises or tends to scandalise, or lowers or
tends to lower the authority of any court; or
(ii) prejudices, or interferes or tends to interfere
with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs
or tends to obstruct, the administration of justice in any
other manner;"
54. An analysis of Section 2(b) of the 1971 Act shows that wilful
disobedience to any judgment, decree, direction, order, writ or
other process of a court or wilful breach of an undertaking given
to a court constitutes civil contempt. If this definition is read with
Article 129 of the Constitution of India, it becomes clear that
being a court of record, this Court can punish a person for civil
contempt if it is found that he has wilfully disobeyed any
judgment, etc. or violated an undertaking given to the Court.
55. The term "wilful" (willfull) has not been defined in the 1971
Act. Therefore, it will be useful to notice dictionary meaning of
the said term. As per The New Oxford Illustrated
Dictionary (1980 Edn.), the term "wilful" means "asserting or
disposed to assert one's own will against instruction, persuasion,
etc.; obstinately self-willed; deliberate, intentional, showing
perversity or self-will".
xxxx xxxx xxxx xxxx
57. As per Stroud's Judicial Dictionary, Vol. 5 (4th Edn.), "wilful
disobedience" means:
"(1) The wilful disobedience of a SEAMAN or apprentice is
„wilfully disobeying any lawful command DURING the
engagement‟: „There may be many cases in whichDESERTION,
or ABSENCE without leave, would not amount to wilful
disobedience, and in these cases the seaman would only be
liable to the lesser penalty. Where, however, the seaman
deserts or is intentionally absent without leave after the time
at which he has been lawfully ordered to be on board, his
desertion or absence may amount to "wilful disobedience,"
and, consequently, that he would be liable to imprisonment.
The words "during the engagement" seem to suggest that the
contract between the employer and the employed should be
taken into account, and that if, having regard to that
contract, the order was one which the employed was bound to
obey, his disobedience might be dealt with under clause
(d)‟;"
58. In Shorter Oxford English Dictionary, the term "wilful" has
been defined as:
"1. Asserting or disposed to assert one's own will against
persuasion, instruction, or command; governed by will
without regard to reason; obstinately self-willed or perverse.
2. Willing; consenting; ready to comply with a request,
desire, or requirement--1598.
3. Proceeding from the will; done or suffered of one's
own free will or choice; voluntary--1687.
4. Done on purpose or wittingly; purposed, deliberate,
intentional. (Chiefly, now always, in bad sense of a
blameworthy action; freq. implying „perverse, obstinate‟.)"
xxxx xxxx xxxx xxxx
60. The facts of Dharam Godha case [(2003) 11 SCC 1] were
that by an order dated 8-7-1996, this Court approved the
proposal made by the Government of India for takeover of M/s
Ashok Paper Mills by M/s Nouveau Capital and Finance Ltd. and
disposed of the writ petition filed by Ashok Paper Kamgar Union.
Later on, by an order dated 1-5-1997, all concerned were
directed to participate in implementation of the scheme and the
Finance Secretary, Ministry of Finance, Government of India
was directed to ensure that the legal requirements are fulfilled
and the mill is rehabilitated and both Phases I and II of the
scheme are given effect to. Two more orders were passed by the
Court in the matter on 31-7-2000 [Ashok Paper Mills Kamgar
Union v.Union of India, (2003) 11 SCC 16] and 1-9-2000 [Ashok
Paper Mills Kamgar Union v.Union of India, (2000) 7 SCC 326 :
2000 SCC (L&S) 922] . The petitioner alleged that the
respondents have failed to comply with the directions given by
the Court for implementation of the scheme and, therefore, they
are liable for contempt of court.
xxxx xxxx xxxx xxxx
62. Para 17 of the judgment which contains discussion on the
subject reads as under: (Dharam Godha case [(2003) 11 SCC 1],
SCC pp. 14-15)
"17. Section 2(b) of the Contempt of Courts Act defines
„civil contempt‟ and it means wilful disobedience to any
judgment, decree, direction, order, writ or other process of a
court or wilful breach of undertaking given to a court. '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
facts mentioned above show that none of the respondents to
the petition can be held to be directly responsible if the
Scheme which had been formulated by the Government of
India on 28-6-1996 and had been approved by this Court by
the order dated 8-7-1996 could not be implemented in letter
and spirit as many factors have contributed to the same. The
reasons given for non-inclusion of Shri Umadhar Prasad
Singh in signing of the agreement appear to be quite plausible.
NCFL has undoubtedly not discharged its liability of making
payment of its entire liability of Rs 6 crores. However, it has
come out with a case that some additional expenditure has
been incurred in running the unit. It is not possible to get the
complete financial picture only on the basis of the affidavits
filed in the present petition. On the material on record,
therefore, it is not possible to hold that the charge of having
committed contempt of court on account of alleged non-
compliance with the orders passed by this Court on 8-7-1996,
1-5-1997 [Ashok Paper Mills Kamgar Union v. Union of
India, (1997) 10 SCC 113] and 31-7-2000 [Ashok Paper Mills
Kamgar Union v. Union of India, (2003) 11 SCC 16] has been
established against any one of the respondents."
(emphasis added)
63. In DDA v. Skipper Construction [(1995) 3 SCC 507] this
Court highlighted the distinction between the civil and criminal
contempt in the following words: (SCC p. 517, paras 43-44)
"43. Civil contempt is defined under Section 2(b) of the
Act. Thus, any wilful disobedience to the order of the court to
do or abstain from doing any act is prima facie a civil
contempt. Civil contempt arises where the power of the court
is invoked and exercised to enforce obedience to orders of the
court.
44. On the contrary, criminal contempts are criminal in
nature. It may include outrages on the Judges in open court,
defiant disobedience to the Judges in court, libels on Judges or
courts or interfering with the courts of justice or any act which
tends to prejudice the courts of justice."
5. Mr. Gautam Narayan also points out that answering respondent has
submitted to this Court an unconditional apology for any inadvertent
oversight of any direction of the Supreme Court and that he would not repeat
the same in future.
6. Having heard learned counsel for the parties, this Court is of the view
that the standard of proof to sentence a contemnor is that of a criminal
proceeding and the breach would have to be established beyond reasonable
doubt.
7. Since in the present case it cannot be concluded that respondent-
contemnor had knowledge of the Supreme Court's judgment in Arnesh
Kumar Vs. State of Bihar & Anr. (supra), this Court is of the view that
respondent cannot be held guilty of 'wilful disobedience' under the
Contempt of Courts Act, 1971. However, petitioner is granted liberty to file
any other alternative proceeding in accordance with law.
With the aforesaid liberty and observations, present petitions stand
disposed of.
MANMOHAN, J
JULY 20, 2015
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