Haridas Das & ANR Vs. State of
West Bengal & Ors [1964] INSC 78 (16 March 1964)
16/03/1964 SARKAR, A.K.
SARKAR, A.K.
HIDAYATULLAH, M.
MUDHOLKAR, J.R.
CITATION: 1964 AIR 1773 1964 SCR (7) 237
CITATOR INFO:
RF 1973 SC2190 (9)
ACT:
Penal Code-Bringing a false charge of a
commission of an offence-The offence charged need not be a criminal, offenceIt
may be an offence under a special law like Contempt of Court Act-Whether a
proceeding under Contempt Court Act a criminal proceeding-Indian Penal Code, 1860
(45 of 1860), ss.40,41 and 211.
HEADNOTE:
The appellants were ordered to be proceeded
against under ss. 193, 199 and 211 of the Indian Penal Code, 1860. They
appealed to this Court against that order under certificate granted under Art.
134(1) (c), of the Constitution.
It was contended before this Court that for a
person to be charged and tried under s. 211 Penal Code he must either have
instituted a criminal proceeding or caused such proceeding to be instituted or
he must have falsely charged a person; with having committed a criminal offence
and since what the appellants did was to initiate a proceeding for committal
for contempt of court they cannot be proceeded against under s. 211 Penal Code.
Held. (per Sarkar, J.) Assuming that a
proceeding for committal for contempt of court is not a criminal proceeding
within the meaning of s. 211 Penal Code, falsely charging a person with
commission of an offence would be an offence under that section. When that
section says that an offence under it may be committed by falsely charging a
person with the commission of an offence it does not intend that the offence
must be one which gives rise to a criminal proceeding. Offence is defined by s.
40 of the Penal Code meaning an offence under the Code or under any special law
and taking the definition ,of the special law contained in s. 41 as meaning a
law applicable to particular subject it will be seen that an offence under
Contempt of Court Act is an offence within the ambit of s. 211. The appellants
have by falsely bring a charge of Contempt of Court made themselves liable to
be proceeded against under s. 211 Penal Code.
Empress v. Jamoona, (1881) I.L.R. 6 Cal. 620,
Karim Buksh v.Queen Empress, (1890) I.L.R. 17 Cal. 574 and Queen Empress
v.Karigowda, (1895) I.L.R. 19 Bombay 51, distinguished.
(per Hidayatullah, J.) There can be no doubt
that the institution of contempt of court proceedings is institution of
criminal proceedings because a contempt of court can be punished by
imprisonment and fine and that brings an accusation charging a man with
contempt of court within the expression "criminal proceedings" in s.
211 Penal Code. Such proceedings were described as quasi criminal proceedings
by Privy Council because with proceedings are not tried under the Criminal
Procedure Code. That Code is not exhaustive of criminal proceedings and
punishments of contempt by summary procedure before the superior courts are
special criminal proceedings which the Code of Criminal Procedure does 38 not
even regulate. The High Court has therefore acted with jurisdiction to order a
prosecution under s. 211 Penal Code.
(per Mudholkar, J.): Making a false charge
before any person, whosoever he may be is covered by s. 499 Indian Penal Code.
Section 211 Indian Penal Code is applicable to a case where a false charge is
made by the accused person against another before a person competent to enquire
into it and' either take proceedings himself or cause proceedings to be
initiated. It is not limited to false charges made to a person who-also has the
power to try the accused or commit him for trial by other...court.
(ii).It would not be right to read the words
or "falsely charges" as being in any way restricted by the words
"institute or causes to be instituted any criminal proceeding".
The legislature has clearly provided for two
kinds of acts, one the institution of proceedings and the other of making a
false charge and there is no compelling reason for reading the section as if it
is limited to institution of a complaint upon a false charge.
(iii).....The word offence under s. 211 would
also include a thing punishable under a special law and the law of contempt
being a special law an offence under Contempt of Court Act would be an offence
under s. 211 and therefore the. order of the High Court was right.
CRIMINAL APPELLATE JURISDICTION-Criminal
Appeal No. 141 of 1961. Appeal from the judgment and order dated January 5,
1959 of the Calcutta High Court in Civil Revision No. 3 of 1957.
Sarjoo Prasad and P. K. Chatterjee, for the
appellants.
Niharendu Dutt Majumdar, P. K. Chakravarty
and P. K. Bose, for respondent No. 1.
S. C. Majumdar, for respondents Nos. 2 to 4.
March 16, 1964. The following judgments were
delivered.
SARKAR, J.-The High Court at Calcutta made an
order directing the Registrar of the Court to file a complaint in the Court of
a magistrate against the appellants under ss.
211, 199 and other appropriate sections of
the Indian Penal Code. The Registrar thereupon filed a complaint against the
appellants under ss. 193, 199 and 211 of the Code. The appellants have appealed
against the order of the High Court under a certificate granted under Art.
134(1)(c) of the Constitution.
It appears that the appellants had moved the
High Court for committal for contempt of court of certain respondents, whom I
will call the Mondal respondents, for breach of an injunction issued in a suit.
That injunction prohibited the respondents from disturbing the appellants'
possession of some property. It was said by the appellants that the Mondal
respondents attempted to enter forcibly into the properties in 239 breach of
the injunction and "in the course of such attempt broke open the gate, cut
down one tree and also broke down the gate". The High Court referred the
matter to the Subordinate Judge for a report on the allegation about breach of
injunction and on a consideration of that report came to the conclusion that
the appellants "could not reasonably be believed" and expressed its
agreement with the Subordinate Judge's view that "the allegations made by
the petitioners are not true". The petitioners referred to are the
appellants. The petition for committal for contempt of court was thereupon
dismissed. Thereafter the Mondal respondents moved the High Court and obtained
the order directing a complaint to be lodged as earlier mentioned.
Their case was that deliberate false
statements had been made in affidavits used by the appellants in connection
with their application for the committal of the Mondal respondents for contempt
of ,court.
Mr. Sarjoo Prasad appearing for the
appellants has first said that the order in so far as it directed a complaint
under ss. 193 and 199 of the Code could not be supported as there was no
definite finding in the order dismissing the application for contempt of court
that any false statement bad been made. I have earlier set out the relevant
parts of that order and I think that it contains such a finding. The High Court
held that "the allegations............ are riot true". It is
unnecessary to pursue this question further for Mr. Sarjoo Prasad's contention
is obviously unsustainable.
Another point made by Mr. Sarjoo Prasad was
that -there was no case for lodging a complaint under s. 211 of the Code.
He said that in order that an offence under
that section might be committed by a person, he must either have instituted a
criminal proceeding or caused such proceeding -to be instituted or he must have
falsely charged a person with having committed an offence. It was said that the
appellants could not be said to have done any of these things. His contention
was that, what they had done was to start a proceeding for committal for
contempt of court and such proceeding was not a criminal proceeding.
I will assume that a proceeding for committal
for contempt of court is not a criminal proceeding within the meaning of that
expression as used in s. 21 1. On this basis, no doubt, it cannot be said that
the appellants had instituted or caused to be instituted any criminal
proceeding. But the section also says that falsely charging a person with the
commission of an offence would be an offence under it and it seems to me that
the appellants did so charge the Mondal respondents. Mr. Sarjoo Prasad's answer
was that the charge 240 contemplated by the section had to be a charge which
would give rise to a criminal proceeding. I am unable to agree.
Mr. Sarjoo Prasad based his contention on
three cases, none of which, in my opinion, supports him. The first case was of
Express v. Jamoona(1). There it was held that the charge had to be made to a
person competent to act upon it, a person having the power to investigate and
send up for trial. The next case was Karim Buksh v. The Queen Empress(2) and it
held that the making of a false complaint to the police of a cognizable offence
was the instituting of a criminal proceeding within the meaning of that
expression in the second paragraph in s. 211 which entailed a higher
punishment. The last case referred to was Queen Empress v.
Karigowda(3) where it was held that the words
'falsely charging' in s. 211 were used in a technical sense and the making of
an imputation of the commission of an offence in evidence given in a
departmental enquiry was not the making of a charge in that sense. Quite
clearly we are not concerned with any of the questions discussed in these cases
or the view there taken.
As, however, in all these cases the charge
alleged to have been made related to an offence triable in a criminal
proceeding all the judgments incidentally referred to institution of criminal
proceedings in connection with the charge. In none of them, however, was the
question with which we are concerned, namely, whether a false charge can be
made in respect of an offence which could be tried by a proceeding which was
not a criminal proceeding, raised. It was not, and could not have been,
intended in these cases to say that the offence in respect of which a false
charge had been brought must be one which was triable by a criminal proceeding
only. Therefore. I have said that these cases do not support the proposition
for which Mr. Sarjoo Prasad contends.
As a matter of construction, and that is all
that we have to go by in the absence of any authority, I agree with the view of
the High Court that when the section says that an offence under it may be
committed by falsely charging a person with the commission of an offence. it
does not intend that the offence must be one which gives rise to a criminal
proceeding. There is no warrant for a contrary view. Indeed the definition of
the word offence in s. 40 of the Code shows that such a contrary view would be
wrong. Under that definition the word 'offence' in s. 211 means an offence
punishable under the Code or under any special or local law (1) (1881) T.L.R. 6
Cal. 620.
(2) (1890) I.L.R. 17 Cal. 574.
(3) (1895) I.L.R. 19 Bom. 51.
241 as defined in it. Section 41 defines a
special law as a law applicable to a particular subject. Now the Contempt of
Courts Act is an Act dealing with the subject of contempt of courts and is,
therefore, a special law. It also provides for punishment for contempt of court
by simple imprisonment up to six months, subject to certain conditions
mentioned:
see ss. 3 and 4. A charge of having committed
a contempt of court is, therefore, a charge of having committed an offence
within the meaning of s. 21 1. Such a charge was admittedly brought in this
case and that charge was furthermore preferred to the only person who could act
upon it, namely, the High Court, for without its sanction no complaint for
lodging a false charge of contempt of court could have been made. The order to
lodge the complaint in regard to an offence under s. 211 was unobjectionable.
I, therefore, think that there is no
substance in this appeal and would dismiss it.
HIDAYATULLAH, J.-The High Court of Calcutta
has ordered the Registrar of that Court to make a complaint in writing against
the appellants for their prosecution under ss. 193, 199 and 211 of the Indian
Penal Code. The High Court, however, certified the case as fit for appeal under
Art.
134(1)(c)of the Constitution and the present
appeal is the result.
The appellants had obtained a temporary
injunction from the High Court against respondents 2 to 4 restraining them from
disturbing possession of the appellants over certain properties. The appellants
made an application to the High Court alleging that the respondents in defiance
of the order tresspassed on the property breaking down a gate and cuttig down a
tree. In that application they asked for action under the Contempt of Courts
Act. The High Court remitted the case for enquiry. It was reported that the
allegation was false. The High Court came to a like conclusion and ordered the
Registrar to file a complaint for the prosecution of the appellants. At the
hearing, preliminary objections were raised about the competency of the appeal,
but were subsequently withdrawn when we intimated that we were not disposed to
interfere with the order of the High Court on merits.
This Court will not ordinarily do more than
examine in such cases whether the High Court has fairly considered a case to
reach the conclusion that prima facie there is good reason to launch the
prosecution, that there is reasonable prospect of conviction and that it is
expedient in the interest of justice to order a prosecution. Judged from this
angle, I am satisfied that the High Court correctly viewed the case.
It is, however, contended that s. 211 of the Indian
Penal Code cannot apply because no offence under s. 211 can 242 prima facie be
held to be committed by the appellants when they made the application which has
led to their prosecution. S. 211 reads as follows:"211. False charge of
offence made with intent to injure Whoever, with intent to cause injury to any
person, institutes or causes to be instituted any criminal proceeding against
that person, or falsely charges any person with having committed an offence,
knowing that there is no just or lawful ground for such proceeding or charge
against that person, shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine, or with both; and if
such criminal proceeding be instituted on a false charge of an offence
punishable with death, imprisonment for life, or imprisonment for seven years
or upwards, shall be punishable with imprisonment of either description for a
term which may extend to seven years, and shall also be liable to fine."
It is quite clear that prima facie the intention of the appellant would be to
cause injury to the respondents if their report to the High Court was false.
The only question really is whether they instituted a criminal proceeding. An
application to take proceedings under the Contempt of Courts Act undoubtedly
can be regarded as causing a criminal proceeding to be instituted. There is no
substance in the contention that the application neither charged the
respondents with any offence, nor instituted a criminal proceeding against
them. There may be some dispute as to whether it charged the respondents with
an offence and as to that I say nothing, but, in my judgment there can be no
doubt that it amounted to the in situation of a criminal proceeding because a
contempt of court can be punished by imprisonment and fine and that 'brings an
accusation charging a man with contempt of court within the wide words
'criminal proceedings'. Such proceedings were described as quasi criminal
proceedings by the Privy Council because such proceedings are not tried under
the Criminal Procedure Code.
That does not render it any the less a
criminal proceeding because the Criminal Procedure 'Code is not exhaustive of
criminal proceedings and punishments of contempt’s by summary procedure before
the superior courts are special criminal proceedings which the :Criminal
Procedure Code does not even seek to regulate. If there was no just or lawful
ground for commencing this proceeding for contempt in the High Court (and it is
held by the High Court that there was none) then the requirements of 243 s. 211
of the Indian Penal Code must be taken to be prima facie satisfied. In my
opinion, the High Court acted with jurisdiction to order a prosecution under s.
211 of the Indian Penal Code in the present case. Of course, the appellants
will be entitled to raise any plea of law or fact in the case and I will only
say that what has been said by the High Court or by this Court in relation to
the facts, should not stand in their way of substantiating any plea or pleas. I
agree for these reasons that the appeal be dismissed.
MUDHOLKAR, J.-The question raised before us
in this appeal by a certificate granted by the Calcutta High Court is whether
that Court was right in directing a complaint to be filed against the
appellants for offences under ss. 199 and 211 of the Indian Penal Code.
The matter arose like this. The respondents
2, 3 and 4 purchased at a sale held for the realization of rent, plot No. 365
of village Jagdispur, district 24 Parganas on or about April 7, 1951 and
obtained delivery of possession through court. But apparently they were able to
get only paper possession. On September 25, 1951 the appellant No. 1 Haridas
Das instituted a suit in the court of Munsif at Sealdah for a declaration that
his right, title and interest had not been effected by the sale, for
confirmation of his possession over the land and for a permanent injunction
restraining the respondents 2 to 4 from disturbing his possession. He also made
an application for a temporary injunction restraining the respondents from
disturbing his possession. The application was, however, dismissed by the
Munsif and his order was affirmed in appeal by the Third Additional District
Judge at Alipore. The appellant thereupon preferred an application for revision
before the High Court from the order of the Additional District Judge.
By order dated May 3, 1954 B. K. Guha, J.,
granted temporary injunction to the appellant No. 1 restraining the respondents
2 to 4 from disturbing,, his possession till the disposal of the suit and
observed in his order that no serious inconvenience would be caused to them if
they were asked in substance to possess the property jointly with the appellant
No. 1.
On or about June 12, 1956 the appellant No. 1
filed an application in the High Court under the Contempt of Courts Act, 1926
alleging, inter alia, that on June 7, 1956 respondents 2 to 4, along with
others, attempted to enter forcibly into the plot with respect to which an
injunction had been -,ranted by the High Court. In the course of that attempt
they broke open the gate and cut down a tree standing on the plot. He further
averred that the police then arrived on the scene and restored peace. According
to him the respondents 2 to 4 had by this action committed a breach of the
injunction 244 granted by the High Court. This application was verified by an
affidavit affirmed by the second appellant Jyotish Kumar Seal who said that the
facts set out in all the paragraphs of the application were true to his
knowledge. After the application was made the Court issued a rule calling upon
the respondents 2 to 4 to show because why they should not be committed and
punished for contempt of court for violating the order of injunction. The
parties were heard on July 25, 1956 and the Bench which heard it directed the
Subordinate Judge, Alipore to make an enquiry and submit a report. In
accordance with this direction the Subordinate Judge examined the witnesses
named by the appellants and in addition examined as court witness the
Officer-in-charge of the Police Station, Rajarhat, to whom a report of the
incident had also been made by the appellants. The Subordinate Judge then
submitted his report to the High Court. After its receipt the High Court heard
the parties, considered the report on August 30, 1957 and made an order
discharging the rule. In the course of the order the High Court observed as
follows: -nate Judge, the allegations made by the petitioner are not true. We
have ourselves gone through the evidence and agree with the view obviously
taken by the learned Subordinate Judge. It may be, as s tated by Jyotish Kumar
Seal, that some persons of the opposite parties did go to the garden and
enquire who authorised him to construct the hut, which he was doing, but the
story that the members of the opposite parties broke open the gate, and cut
down the tree, cannot reasonably be believed. Inspite of what the witnesses
have spoken, it is worth remembering, as pointed by the learned Subordinate
Judge that in the report to the Officer-in-charge, Rajarhat, nothing was said
about any golmal or any looting or any damage done to the garden or to the
trees." On September 17, 1957 the respondents 2 to 4 filed an application
under s. 466 read with s. 195 of the Code of Criminal Procedure before the High
Court for making a complaint against appellants under s. 211, I.P.C. and/or any
other appropriate section in relation to the proceeding in the contempt matter
before the High Court. The High Court issued a rule to the appellants, heard
them in answer to the application and come to the conclusion that it was
expedient in the interests of justice that a complaint should be made.
The High Court, therefore, made the rule
absolute and directed the Registrar, Appellate Side to file a com245 plaint
against the appellants under ss. 211 and 199 I.P.C.
and/or any other appropriate section to the
Chief Presidency Magistrate, Calcutta. In pursuance of this direction the
Registrar lodged a complaint on January 16, 1959 under ss. 193, 199 and 211,
I.P.C. in the court of the Chief Presidency Magistrate, Calcutta. The
appellants made an application before the High Court under Arts. 133(1)(c) and
134(1)(c) of the Constitution for grant of a certificate of fitness for appeal
to this Court. By Order dated May 8, 1959 the High Court granted the
certificate, overruling the objections made on behalf of the respondents. The
ground on which the High Court granted the certificate was that the decision in
The Empress v. Jamoona(1) where it was held that for a conviction under s. 211
of the Penal Code it was necessary that the false charge should have been made
to a Court or an officer having jurisdiction to investigate and send it up for
trial, was not noticed by the High Court.
With regard to the objection raised on behalf
of the respondents that the order of the High Court directing that a complaint
be lodged was not a final order, the High Court held that whether it is a final
order or not is not free from doubt and that the benefit of that doubt ought to
be given to the appellants.
Before us Mr. Sarjoo Prasad has placed
reliance upon the decision referred to in the order of the High Court granting
certificate and also on the decision of Ranade, J., in Queen Empress v.
Karigowda(2). In the first of these cases one Jamoona appeared before Captain
Simpson, Adjutant, 11th M.N.I., and Station Staff Officer and charged a noncommissioned
officer with rape. An enquiry was held by Captain Simpson and the charge was
found to be false. The Commanding Officer caused the appellant to be prosecuted
in a criminal court under s. 211 I.P.C. She was committed for trial and was
convicted by the Judicial Commissioner with respect to that offence. On appeal
the High Court held that the Station Staff Officer having neither magisterial
nor police powers, s. 211 was not attracted. In the course of his judgment Mitter,
J., observed:
"We do not think it unduly refining the
words to say that the false charge must be made to a Court or to an officer who
has powers to investigate and send up for trial." Section 211, I.P.C.
reads thus:
"Whoever, with intent to cause injury to
any person, institutes or causes to be instituted any criminal proceeding
against that person, or falsely (1)(1881) I.L.R. 6 Cal. 620. (2) (1895) I.L.R.
19 Bom. 51.
246 charges any person with having committed
an office, knowing that there is no just or lawful ground for such proceeding
or charge against that person, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with
both;
and if such criminal proceeding be instituted
on a false charge of an offence punishable with death, imprisonment for life or
imprisonment for seven years or upwards, shall be punishable with imprisonment
of either description for a term which may extend to seven years, and shall
also be liable to fine." Breaking up the section, it is clear that before
it can be invoked three things have to be proved: (a) that the accused had
intended to cause injury to any person; (b) that with that object he instituted
or caused to be instituted a criminal proceeding against that person or in the
alternative falsely charged him with having committed an offence and (c) that
he did so with the knowledge that there may be no just or lawful ground for
such proceeding or charge against that person. Does the section mean that a false
charge made before any person is punishable there under or is it restricted to
such charge being made to a person holding a particular position? It seems to
me that since making of a false charge before any person, whosoever he may be,
is covered by s. 499, I.P.C., it would be appropriate to construe this section
as being applicable only to a case where a false charge is made by the accused
person against another before a person who is competent to enquire into it and
either take proceedings himself or cause proceedings to be initiated. I do not,
however, think that it is limited to false charges made to a person who also
has the power to try the accused or commit him for trial by another court.
Such an interpretation is sufficient to
prevent any overlapping of the provisions of this section with those of s. 500
and it is not necessary to go further than this.
In the other case the facts were these:
One Karigowda was tried for an offence under
s. 211. Indian Penal Code for having falsely deposed in an enquiry into bribery
by a District Magistrate that he had paid bribe of Rs. 300 to a Magistrate in
the District of Bijapur, named Jehangir. After the conclusion of the enquiry
Jehangir obtained permission from the Government to prosecute Karigowda for an
offence under s. 500, I.P.C. A complaint was also made against him of an
offence under s. 211, I.P.C. The trying magistrate, at, the end of the trial,
struck out the 247 charge under s. 500 and convicted him of an offence under s.
211 only. On appeal the Joint Sessions Judge
reversed the conviction under s. 211. The Government then preferred an appeal
before the High Court. The High Court reversed the acquittal of Karigowda under
s. 500 and maintained the conviction under s. 211, I.P.C. Jardine, J., one of
the two Judges who heard the case, referring to Jamoona's case(1) said that
that case was inapplicable and then observed:
"The present case, however, seems to me
to be taken out of section 211 by the fact that Karigowda did not apparently
intend to set the criminal law in motion. He had been produced before Mr.
Monteath against his will; and though what he said is 'information' under
section 191, clause c. of the Procedure Code, and 'defamation' under the Penal
Code, I am of opinion, after considering the Full Bench case(2) that the
imputations do not make up a 'false charge'." (p. 61-62).
Ranade J., however, has made certain
observations upon which Mr. Sarjoo Prasad has placed strong reliance. Those
observations are:
"The words 'falsely charging' used in
that section must be construed along with the words which speak of the
'institution of proceedings'. These latter words are obviously used in a
technical and exclusive sense, and by parity of reasoning, the same restricted
sense must be given to the words which relate to a false charge." (p. 69).
He also agreed with Jardine, J., that
Karigowda had not made a complaint of his own accord and what he said was
simply in answer to certain question put to him at the departmental enquiry. In
my judgment it would not be right to read the words "or falsely
charges" as being in any way restricted by the words "institutes or
causes to be instituted any criminal proceeding". The legislature has
clearly provided for two kinds of acts: one the institution of proceedings and
the other of making a false charge and I see no compelling reason for reading
the section as if it is limited to the institution of a complaint upon a false
charge.
Such an interpretation would completely shut
out criminal proceedings in which no charge of an offence has been made.
1, therefore, agree with the view taken by
the Full Bench in Karim Bux's case(2), to which Jardine, J., had referred.
(1) (1881) I.L.R. 6 Cal. 620. (2) I.L.R. 17
Cal. 574.
248 With regard to the interpretation to be
placed upon the two phrases used in s. 211 Wilson, J., who delivered judgment
of the court in that case observed, inter alia:
"I agree that we must take it that the
legislature did not regard the two phrases (that is, 'institutes criminal
proceedings' and 'falsely charges') as coextensive in meaning but considered
that there were or might be cases to which one would apply and not the
other." (p. 578).
As illustrations of proceedings in which no
charge of an offence is made Wilson, J., has referred to proceedings under s.
107 and s. 109 of the Code of Criminal Procedure.
As an illustration of a false charge which
does not amount to institution of a criminal proceeding, he has referred to a
charge made to a judge of civil court in order to obtain sanction to prosecute
another (which was a prerequisite for prosecution before the amendment by Act
18 of 1923) and pointed out that this would not be the institution of a
criminal proceeding. In my opinion, therefore, the point raised by Mr. Sarjoo
Prasad must fail.
Apart from the offence under s. 211, the
complaint against the appellants embraces two more offences: one is for giving
false evidence which is punishable under s. 193 and the other of making a false
statement in a declaration which is by law receivable as evidence under s. 199,
I.P.C. There could be no impediment to a complaint being made with regard to
these two offences. Mr. Sarjoo Prasad, however, says that the High Court, after
it received the report of the Subordinate Judge, did not find that it was
wholly false but found that it was partly false and in this connection draws
our attention to the following observations of the High Court:
"It may be, as stated by Jyotish Kumar
Seal, that some parties did go to the authorised him to construct the but which
he was doing but that the members of the opposite parties broke open the gate,
an cut down the tree, cannot reasonably be believed." It is true that the
High Court has not said that the respondents 2 to 4 did not visit the plot at
all; but the injunction did not restrain them from visiting the plot.
What they were restrained from doing was to
disturb the possession of the appellant No. 1 and, therefore, there was no
question of their rendering themselves liable for contempt because they visited
the plot. Indeed that was not the gravamen of the charge against him in the
contempt application made by 249 the appellant No. 1. The gravamen of the
charge was that -they in fact disturbed his possession and caused damage to
property. This was the crucial allegation and this allegation has not been
found to be true by the High Court.
In the -circumstances there was clearly a
prima facie case for proceeding against the appellants not only under s. 211
but also under ss. 193 and 199, I.P.C.
Mr. Sarjoo Prasad, however, said that he
would be able to show by reference to the evidence recorded by the Subordinate
Judge during the enquiry made by him that the statement of the Station Officer
upon which the High Court has placed reliance is not correct and that his
statement to the effect that in the report made to him nothing was said about
"any golmal or any looting or any damage done to the garden or to the
trees." It is sufficient to say that we are not sitting in judgment over
the order of the High Court by which the rule for committing the respondents 2
to 4 for contempt was discharged. The appeal before us is against another order
and that is the order directing a complaint to be filed against the appellants.
Mr. Sarjoo Prasad then contended that the
false charge referred to in s. 211 must be with respect to an offence under the
Indian Penal Code and that by making an application of the kind which the
appellant No. 1 made he had not charged the respondents 2 to 4 with any offence
under the Penal Code. The word 'offence' is described in s. 40 of the Indian
Penal Code. The relevant part of the definition runs thus:
"Except in the chapters and sections
mentioned in clauses 2 and 3 of this section, the word 'offence' denotes a
thing made punishable by this Code.
In chapter IV, chapter VA and in the
following sections, namely, sections 64, 65 211, 213,.. ... the word 'offence'
denotes a thing punishable under this Code, or under any special or local law
as hereinafter defined ...................." It will thus be clear that
the word offence used in s. 211 would also include a thing punishable under a
special law.
Special law is defined in s. 41 as a law
applicable to a particular subject. The law of contempt is a particular subject
and the High Court has inherent power to punish a person for the offence of
contempt committed by him by disobeying an injunction issued against him.
Disobedience of an injunction issued by the High Court is not something with
respect to which action under s. 24 or s. 95 of the Code of Civil Procedure
could alone be taken but being contempt of the 250 High Court's order, is
punishable by it in its discretion in exercise of its inherent powers. The only
limitation which the statute has placed is with regard to the punishment that
the High Court can meet out to the contemner. I am, there-fore, satisfied that
the Order of the High Court was right and, accordingly, I dismiss the appeal.
Upon the view which I have taken, it is not
necessary to consider whether the proceeding before the High Court was a
criminal proceeding. In support of the contention that it is not a criminal
proceeding, Mr. Sarjoo Prasad has placed reliance upon the decision of the
Privy Council in S. N. Bannerjee v. Kuchwar Lime and Stone Co., Ltd.(1). In
that case, their Lordships held that a committal for contempt for breach of an
injunction was not criminal in its nature, and referred to the decisions in
Radha Krishna Das v. Rai Krishn Chand(2) and Scott v. Scott(3). Since we did
not hear full arguments upon this question, I do not feel called upon to
express any opinion on the point.
Before parting with the appeal, I would like
to point out that two preliminary objections were raised before usone by Mr.
Niharendu Dutt Majumdar on behalf of respondent No. 1 and the other by Mr. S.
C. Majumdar on behalf of respondents 2 to 4. Mr. Dutt Majumdar's preliminary
objection was that the order of the High Court was not a final order and he
addressed a long argument in support of it. The objection of Mr. S. C. Majumdar
was that the appellants had failed to prefer their appeal within the time
allowed by the rules of the Court and that they had made false allegations in
support of their application for condoning the delay and, therefore the
condonation be revoked. We have heard both at considerable length on these
points. At the conclusion of Mr. Sarjoo Prasad's arguments we made it clear to
the respondents that we did not want to call upon them to reply on merits and
enquired whether in the circumstances they pressed their preliminary
objections. Both of them said that in the circumstances they did not want to
press those objections. No order on these two preliminary objections is,
therefore, necessary.
Appeal dismissed.
(1) I.L.R. 17 Pat. 770.
(2) 28 I.A. 182.
(3) (1913) A.C. 417 at 456.
Back
