Debabrata Bandopadhyay Vs. The State of
West Bengal & ANR  INSC 148 (2 July 1968)
02/07/1968 HIDAYATULLAH, M. (CJ)
HIDAYATULLAH, M. (CJ) RAMASWAMI, V.
CITATION: 1969 AIR 189 1969 SCR (1) 304
CITATOR INFO :
F 1976 SC 859 (20,24,33) R 1991 SC2176 (13)
Contempt of Court-Sessions Judge directing in
appeal under s. 520 Cr. P.C. that money in deposit in court be paid to accused
on his executing bond to satisfaction of District Magistrate-Bond executed in
form of indemnity bond in favour of State Government-Accepted by Additional
District Magistrate-Acceptance of bond in such form and by such authority
whether constituted contempt of court of Sessions Judge. Delay in transmission
of orders of superior courtsWhen constitutes contempt.
S who was Sub-Agent of a Phospate company was
convicted for a contravention of the Fertiliser Control Order read with s. 7(1)
of the Essential Commodities Act. The fertiliser seized during investigation
was sold by the order of the Court and the sale proceeds held in deposit. The
trial Magistrate ordered the fertiliser to be returned to the company but S
filed an appeal under s. 520 of the Code of Criminal Procedure and on December
23, 1963 the Sessions Judge directed the Magistrate to deliver the amount to S
upon his furnishing security and executing a bond to the satisfaction of the
District Magistrate. On January 3, 1964 S produced a certified copy of this
order and asked to be allowed to take out the amount and furnished a bond. The Magistrate
recommended its acceptance and it was then accepted by the Additional District
Magistrate. On January 11, 1964 the Magistrate directed the issuance of a pay
order. S received it on the same day and deposited it with his bankers on
January 13. The Company meanwhile had filed a revision petition before the High
Court and asked the Sessions Judge to stay his order of December 3, 1963. The
Sessions Judge passed an order of stay on January 14. 1964 which was received
in the District Magistrate's office on January 16, 1964. Even after the receipt
of that order in the District Magistrate's office a -communication was sent to
the trial magistrate on 20th January,1964 directing him to carry out the
Sessions Judge's order dated December 23, 1963. The High Court charged the
District Magistrate and other appellants for contempt and held that contempt of
the Court of the Sessions Judge had been committed because : (a) The Magistrate
accepted S's bond which was not in proper form and thus failed to carry out the
Sessions Judge's order of December 23, 1963; (b) The bond was accepted by the
Additional District Magistrate whereas the Sessions Judge had ordered that the
bond should be to the satisfaction of the District Magistrate; (c) The District
Magistrate directed that the Sessions Judge's order of December 23, 1963 be
carried out although the Sessions Judge's stay order had been received in his
office before that. The High Court held that there had been gross delay in the
communication and execution of the orders of the superior courts by the
District Magistrate and the subordinates and that there was a well-knit
conspiracy to pay the amount in deposit to S in defiance of the orders of the
superior courts. Against their conviction by the High Court the appellants came
to this Court.
HELD : (i) There is nothing in s. 517
Criminal Procedure Code which excluded the use of an indemnity bond such as was
executed in the case. The Sessions Judge did not order that the bond should be
taken in 305 the name of any particular court. A bond in the name of the
Government of West Bengal substantially complied with the order of the Sessions
Judge as it could be enforced against S without any trouble [308 F-G] (ii) In
holding that the District Magistrate alone could accept the bond the High Court
ignored the powers of the Additional District Magistrate under the Code of
Criminal Procedure. The practice of courts in Bengal is also against the
proposition because such bonds are usually considered for acceptance by the
Additional District Magistrate [308 GH] (iii) The High Court went wrong in
holding that there was a conspiracy by the officials concerned. For a
conspiracy to be hatched there must be some foundation of gain or purpose. The
conspirators would at least know that there was nothing to be gained by
delaying the orders since the money was already paid out. The stay orders were
ineffective since there was nothing to stay. There was no doubt some delay but
it could be dealt with in other ways than punishment for an imaginary contempt
of court. L309 GH,[310 A] In the circumstances of the case the High Court was
also wrong in taking into account against the appellants their failure to make
an apology.[1310 B] A question whether there is contempt of court or not is a
serious one. The court is both the accuser as well as the judge of the
accusation. It behaves the court to act with as great circumspection as
possible making all allowances for errors of judgment and difficulties arising
from inveterate practices in courts and tribunals. It is only when a clear case
of contumacious conduct not explainable otherwise, arises, that the condemner
must be punished [310 F] [The Court, however, cautioned all concerned that
orders of stay, bail, injunctions received from superior courts must receive
close and prompt attention and unnecessary delay in dispatching or dealing with
them may well furnish grounds for an inference that it was due to a natural
disinclination to deal with the matter born of indifference and sometimes even
of contumaciousness. [311 A-B]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 55 of 1965.
Appeal by special leave from the judgment and
order dated June 16, 1964 of the Calcutta High Court in Criminal Misc.
Case No. 28 of 1964.
Debobrata Mukherjee and P. K. Chakravarty,
for the appellants.
D. N. Mukherjee for P. K. Bose, for
respondent No. 1.
Niren De, Solicitor-General, B. Sen and G. S.
Chatterjee, for the intervener.
Hidayatullah, C.J. The five appellants are
District Magistrate of Nadia and his four assistants who have been found guilty
of contempt of the High Court of Calcutta and the Sessions Court of Nadia and
sentenced to fines with imprisonment in default of payment. They now appeal by
special leave granted by this Court.. The facts are long and need a full
306 One Birendra Kumar Sarkar, Sub-Agent of
Phosphate Co. Ltd.
Krishnagar, District Nadia, was prosecuted
for contravention of the Fertiliser Control Order, read with s. 7(1) of the
Essential Commodities Act and on his own plea was convicted and sentenced to
Rs. 20 fine or simple imprisonment for 10 days. We are not concerned with his
conviction. The fertiliser seized during investigation was sold by order of the
Court and the sale proceeds held in deposit. On the conviction of Birendra
Kumar the amount in deposit (Rs. 4,215) was directed on March 11, 1963 to be
returned to him.
The same day the Phosphate Co. Ltd. applied
to take out the amount and the Magistrate reversed the earlier order and
directed that the amount be paid to the Company. Birendra Kumar appealed to the
Sessions Judge, Nadia under s. 520 of the Code of Criminal Procedure. This
appeal succeeded and on December 23, 1963, the Sessions Judge directed the
Magistrate to deliver the amount to Sarkar upon his furnishing security and
executing a bond to the satisfaction of the District Magistrate, Nadia. On
January 3, 1964 Sarkar produced a certified copy of this order and asked to be
allowed to take out the amount and furnished a bond. The bond was found in
order by N. C. Mookherjee, Magistrate 1st Class, who recommended its
acceptance. It was then accepted by A. Sen, Additional District Magistrate,
Nadia. On January 11, 1964 the accountant attached to the Court of N.
C. Mookerjee reported and the latter directed
issuance of a pay order. Sarkar received the pay order the same day and
deposited it with his bankers (State Bank of India) on January 13, 1964.
On January 8, 1964 the Company expressed to
the Sessions Court, its intention of moving an application for revision in the
High Court at Calcutta against the order of December 23, 1963 and asked for
stay. Stay was not immediately granted but notice F was issued to Sarkar to
show cause on January 16, 1964. Later a stay order was also sent. On January
13, 1964 the High Court issued a rule and also directed stay of operation of
the Sessions Judge's order of December 23, 1963.
It will be seen from the above facts that the
actual payment of money was made under the orders of the Sessions Judge passed
on December 23, 1963 as far back as January 11, 1964.
The High Court has considered the question of
the contempt of the Sessions Judge's order from the angle of the kind of bond
which was accepted, and the Officers who accepted it.
We shall come to it later. We shall now trace
the progress of the orders which were passed by the Sessions Judge and the High
Court in proceedings subsequent to January 1964.
For this purpose it is sufficient to extract
the summary of the events made by the High Court itself:
307 " The stay order dated 14th of
January, 1964 was communicated by. the Sessions Judge by his Memo. No. 170 and
it was received by the District Magistrates Office on 16th of January, 1964. On
20th January, 1964 Memo No.
443 Jm. containing the direction to carry out
the order of the Sessions Judge dated 23rd December, 1963 was drafted by Pulak
Kumar De and it was signed by another Magistrate Shri Jyotirmoy Ghose. On 22nd
January, 1964 on which date the Rule issued by this Court in Criminal Revision
No. 60 of 1964 was also received in the District Magistrate's Office.
It was sent to the trial Magistrate's Court
with Memo No. 549 Jm. only on 29th January 1964 and was received in the trial
Magistrate's Court on 30th January, 1964. In the meantime Sessions Judge's Memo
No. 170 that had been received in the District Magistrate's Office on 16th of
January 1964 was also dispatched to the trial Magi strate's Court on 29th of
January, 1964 by Memo. No.
554 Jm. and the trial Magistrate received it
on 30th January, 1964. Sessions Judge's Memo.
No. 108 dated 11th January, 1964 which was
received in the District Magistrate's Office on 15th January, 1964 and is said
to have been dispatched to the trial Magistrate's Court on 22nd January, 1964
with Memo. No. 443 Jm.
is said to have been received by the Bench
Clerks of the trying Magistrate on 25th January, 1964 and put up before the
Magistrate only on 1st February, 1964." On the above facts the High Court
framed the following questions:"(1) Has there been disobedience of the
order of the Sessions Judge, Nadia that money should be given to Birendra Kumar
Sarkar on a Bond to the satisfaction of the District Magistrate, Nadia ? (2)
Was the Bond upon which pay order for the money had been made a document that
complies with the order for the Sessions Judge of Nadia dated 23rd December,
1963 ? (3) Was Memo. No. 443 Jm. dated 20th January, 1964 directing to carry
out Sessions Judge's order dated 23rd December, 1963 after the order of stay
made by the Sessions Judge on 14th January, 1964 was received in the District
Magistrate's office on 16th January 1964 by Memo. No. 108 dated 11th January
1964 an intentional violation of the stay order? The first two questions were
treated as interconnected and dealt with together. The High Court found fault
with the bond 308 and also opined that none else save the District Magistrate
could accept the bond.
With all respect, the High Court erred on
both the aspects. The bond is reproduced below':
"BOND A bond is made this day by Sri
Birendra Kumar Sarkar son of late Bilash Chandra Sarkar of Chand Sarkar,
Krishnagar, Dt. Nadia is hereby agreed and received Rs. 4,125 (Rupees four
thousand one hundred and twenty-five only) which has been deposited in the
court in connection with G.R. Case No. 338 of 1961 and the said amount has been
ordered by the Sessions Judge of Nadia in case (Criminal Appeal No. 75 of
1963), 1 Birendra Kumar Sarkar s/o late Bilash Chandra Sarkar bind myself and
my heirs, executors, administrators and representatives to refund the entire
money if disputes arises to the Government of West Bengal or its successors.
I bind myself, my heirs, executors,
administrators and representatives firmly by this bond signed in my own hand
dated this the 3rd day of January, 1964.
Sd/Birendra Kumar Sarkar, 3-1-64 Signature of
the executant Signed in my presence and identified. Rajendranath Biswas,
Krishnagar, 3-1-64" Now it is admitted
that there is no prescribed form of bond applicable to the case. The form had
to be devised for the purpose. The bond which was taken in an ordinary
indemnify bond. There is nothing in the words of s. 517, Criminal Procedure
Code, which excluded the use of an indemnity bond.
The Sessions Judge did not order that the
bond should be taken in the name of any particular court. A bond in the name of
the Government of West Bengal substantially (if not wholly) complied with the
order of the Sessions Judge. It could be enforced against Sarkar without any
trouble. The further point that the District Magistrate alone could accept the
bond ignores the powers of the Additional District Magistrate under the Code of
The practice of courts in Bengal is also
against the proposition because such bonds are usually considered for
acceptance by Additional District Magistrates. The High Court apparently thinks
that the District Magistrate was a persona designate for the purpose. We are
unable to read such an inference in the order of the Sessions Judge which ran:
309 "The learned Magistrate be directed
to deliver the sale proceeds which are now deposit (sic) in Court to the
accused on the accused's furnishing, bond of the amount covered by the sale
proceeds to the satisfaction of the District Magistrate, Nadia." In our
judgment the High Court could not base any action on such material. It may be
pointed out that the High Court did not throw into the balance the acceptance
of the bond by the Additional District Magistrate holding that there was room
for an error there but took serious note of the fact that the bond was not in the
proper form. We do not agree with the High Court.
This brings us to the last question. The fact
here is that the orders took some time before reaching their destination.
While we do not condone such delays, we think
that the High Court was taking too strict a view of the matter. Two things
seems to have played a prominent part in the drawing of the inference against
the concerned officers. The first is that there was an intentional disobedience
of the orders.
This the High Court visualised in the following
"That by itself bespeaks of a well
throughout (sic) scheme to achieve an end and that end is the cherished goal to
make over the money to Birendra Kumar Sarkar by violating the stay order of the
Sessions Judge dated 14th January, 1964. For carrying out that scheme the file
in which the order sheet started on 3rd January, 1964, was started separately
and to seclude the features in that file it was withheld from this Court when
return was made to the Rule in Criminal Revision case No. 60 of 1964 until it
was thought useful for making a defence in this Contempt Rule. No other view of
the matter could be suggested by the three learned Advocates appearing for the,
several parties or the learned Advocate for the State, Mr. Fanindra Mohan
Sanyal, and no other view is possible.
Now it seems quite impossible to subscribe to
For a conspiracy to be hatched there must be
some foundation of gain or purpose. The conspirators (if they knew anything)
would at least know that there was nothing to be gained by delaying the orders
since the money was already paid out. Once that had happened some fresh order
would be necessary to demand back the amount from Sarkar or the bond would be
enforced. The stay orders were ineffective since there was nothing to stay. To
think that the officers (one and all) were actuated by a motive to frustrate
the stay orders is to imagine a state of affairs for which there was no warrant
at all. There was thus no question of undermining the authority of the Court of
Sessions Judge' or 310 of bringing the 'administration of justice in the
District of Nadia to ridicule'. Nor can it be said that there was a deliberate
interference with or obstruction to due course of justice. There was no doubt
some delay but that was a different matter and could be dealt with in other
ways than punishment for an Imaginary contempt of court.
The second point which the High Court
unfortunately placed at the very forefront was failure to offer an apology and
noted with great show of emotion that none was offered. Of course, an apology
must be offered and that too clearly and at the earliest opportunity. A person
who offers a belated apology runs the risk that it may not be accepted for such
an apology hardly shows the contrition which is the essence of the purging of contempt.
However, a man may have the courage of his convictions and may stake his all on
proving that he is not in contempt and may take the risk. In the present case
the appellants ran the gauntlet of such risk and may be said to have fairly
The High Court was extremely hard upon the
appellants in this case. Details collected from the files of the case having no
bearing upon the question of contempt were freely used. They carry no
convincement. There are observations which in their tone do show that the
matter was not approached in that cool manner in which the High Court considers
contempt of itself or of courts subordinate to it.
This is a matter of regret to this Court.
A question whether there is contempt of court
or not is a serious one. The court is both the accuser as well as the judge of
the accusation. It behaves the court to act with as great circumspection as
possible making all allowances for errors of judgment and difficulties arising
from inveterate practices in courts and tribunals. It is only when a clear case
of contumacious conduct not explainable otherwise, arises that the condemner
must be punished. It must be realised that our system of courts often results
in delay of one kind or another. The remedy for it is reform and punishment
departmentally. Punishment under the law of Contempt is called for when the
lapse is deliberate and in disregard of one's duty and in defiance of
authority. To take action in an unclear case is to make the law of contempt do
duty for other measures and is not to be encouraged.
In this case, no doubt there was some
avoidable delay but as pointed out above it was the result of our system of
transmission of orders of superior courts which must pass through several hands
and not the product of design or defiance of the superior courts. In these
circumstances, it cannot be said that there was contempt of the authority of
the High Court or of the Sessions Judge and the several appellants could not be
convicted or punished. In 311 this view of the matter we set aside their
convictions and order refund of their fines. We, however, caution all concerned
that orders of stay, bail, injunctions received from superior courts must
receive close and prompt attention and unnecessary delay in dispatching or
dealing with them may well furnish grounds for an inference that it was due to
a natural disinclination to deal with the matter born of indifference and
sometimes even of contumaciousness.
G.C. Appeal allowed.