Bunna Prasad & Ors Vs. The State of
U.P. & ANR [1968] INSC 123 (24 April 1968)
24/04/1968 SIKRI, S.M.
SIKRI, S.M.
SHELAT, J.M.
BHARGAVA, VISHISHTHA
CITATION: 1968 AIR 1348 1969 SCR (1) 115
ACT:
Contempt of Courts Act, 1952, ss. 4 and
5-Accused applying to Panchayat not to proceed with matter because of stay
order granted by High Court-No proper affidavit or other evidence to support
application-Panchayat disbelieving applicant and continuing trial-If guilty of
contempt-Whether bound to adjourn for better proof.
HEADNOTE:
M, an accused person in certain proceedings
pending before the Nyaya Panchayat filed a petition under Art. 227 in the High
Court and obtained a stay of the proceedings on December 20, 1963 . Thereafter
when the Panchayat met to proceed with the matter, he made an application
supported by a document purporting to be an affidavit stating that the High
Court had admitted his writ petition and had stayed further proceedings before
the Panchayat; and that therefore nothing further should be done in the matter.
However, the, Panchayat did not allow his application and proceeded (to hold M
and others guilty and imposing fines on them.
M, thereafter filed an application under ss.
4 and 5 of the Contempt of Courts Act. 1952, alleging contempt of the High
Court by the Panchayat. An affidavit filed before the High Court by the
Sarpanch stated that the document filed by M, by way of an affidavit in support
of his application had not been verified by any proper authority and for this
and other reasons the Panchayat did not believe that the High Court had stayed
the proceedings. The High Court held the members of the Panchayat guilty of
contempt and observed that if they wanted to ascertain the matter, they should
have at best stayed the proceedings for a short while and asked the applicant
to produce a certified copy of the stay order; in not doing so, the Panchas had
obviously not acted bona fide and their action amounted to, willful
disobedience of the High Court's order.
On appeal to this Court,
HELD : The appeal must be allowed and the
judgment and order of the High Court set aside.
The only material before the Panchayat was
the application dated December 25. 1963, which was not supported by 'any
affidavit sworn to before a person authorised to administer oaths. Further, the
application did not contain the date of the order; even a copy of the telegram
stated to have been sent by M's advocate in the High Court was not attached to
the application. On this material the bona fides of the Panchas could not be
doubted if they refused to accept the mere statement of the party that the High
Court had stayed the proceedings before them. In such matters those who assert
that a person had knowledge of the order must prove this fact beyond all
reasonable doubt. If there is any doubt. the benefit, ought to be given to the
person charged with contempt of court.[120 F-H; 121 A--B] It is true that in
certain cases proceedings can be adjourned to enable the parties to file better
proof, but a judicial officer is not bound (to do so and, if the bona fide does
not in his discretion adjourn proceedings, it cannot be said that he has
committed contempt of court. [121 C-D] 116
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No.112 of 1965.
Appeal by special leave from the jurisdiction
and order dated April 29, 1965 of the Allahabad High Court in Criminal Misc.
'Contempt Case No. 43 of 1965.
A. S. R. Chari, M. K. Ramamurthi, Vineet
Kumar and Shyamala Pappu, for the appellants.
O. P. Rana, for respondent No. 1.
J. P. Goyal, V. C. Prasar and S. P. Singh for
respondent No. 2.
The Judgment of the Court was delivered by
Sikri, J. This appeal by special leave is directed against the judgment of the
Allahabad High Court adjudging the five appellants guilty of contempt of court
and sentencing each of them to pay a fine of Rs. 1,000/and further ordering
that in case of default they shall undergo simple imprisonment for two weeks.
The High Court held that the five appellants had disobeyed an order of stay
passed by it staying proceedings pending before the Nyaya Panchayat, Jokha
Khas, District Deoria.
The relevant facts are these. On September 2,
1963, Yashoda, son of Raj Kumar, filed a complaint before the Nyaya Panchayat,
Jokha Khas, against Jagdeo, Mahabir and Laxmi alleging that he had been abused
and be laboured and his property worth Rs. 40/damaged. On September 10, 1963,
the Nyaya Panchayat assembled and evidence was led before it. The case was
adjourned to December 25, 1963. On October 11, 1963, Mahabir, accused, made an
application under s. 85 of the U.P. Panchayat Raj Act, 1947, to S.D.M., Deoria,
to transfer the proceedings on the ground that the complainant Yashoda was
father of Bunna Prasad, Sarpanch of Nyaya Panchayat, Jokha Khas. On November
28, 1963, the S.D.M. rejected this application. On December 13, 1963, a notice
was issued to the five members of the Panchayat to assemble on December 25,
1963, and hear the case. On December 20, 1963, Mahabir moved an application
under Art.
227 of the Constitution challenging the order
of the S.D.M., dated November 28, 1963, and on the same day the High Court
admitted the application and stayed further proceedings before the Nyaya
Panchayat. An urgent copy of the order was applied for and obtained on that
very day and the counsel sent a telegram in the following words "Allahabad
He 20 Baldeopd cashier Trust Sdr GR Mahabir application admitted stay granted
Banwarilal." 117 It is alleged on the side of the applicant, Mahabir, that
immediately after the receipt of the telegram an application accompanied by an
affidavit and the telegram of his counsel in the High Court was presented
before the Nyaya Panchayat with the prayer to stay further proceedings but the
Sarpanch refused to take it. This fact was denied and the High Court seems not
to have relied on this fact in its judgment. It seems to us that it is not
proved on the evidence here that any such application was made before the Nyaya
Panchayat.
No application dated December 21, 1963, which
was not accepted by the Nyaya Panchayat, has been produced.
On December 23, 1963, Mahabir submitted an
application in the Court of Shri R. Singh, S.D.M., Deoria, alleging that
"writ petition has been admitted and a stay order has been issued. But
notwithstanding my informing the Panchayat Adalat of that, I am not getting any
hearing there, and when an application is made there, it is not entertained."
He prayed that the Panchayat Adalat be directed to postpone proceedings pending
the receipt of the stay order. He produced the telegram received from the
Advocate before the S.D.M. In the affidavit accompanying the application,
however, no mention was made about Mahabir having informed the Panchayat Adalat
of the stay order or the fact that the order and the application was not being
entertained by the Adalat. It happened that the S.D.M. was absent on December
23, 1963, and papers were put up before Shri S. K. Srivastava, Additional
Sub-Divisional Magistrate, who issued the order "Put up with
records". Apparently he did not take any further action till December 26,
1963. But as the notice against Shri Srivastava has been discharged by the High
Court, we need not give any further details about his various orders, On
December 25, 1963, the Nyaya Panchayat met and proceeded to hear the case. The
order sheet reads thus :
"Put up today the 25th December, 1963.
The complainant and the accused are present. The statements of the complainant
and his witnesses, Bhabhuti and Damri, are recorded.
The accused refused to make statements and
put down their signatures. Today, the 25th December, 1963, Mahabir has made an
application to the Court and signed it before it.
Hence judgment shall be given on
25-12-63." This order was signed by three Panchas, Phagu Parsad, Jagat
Dubey and Badri Yadav. On the same day a final order was made holding the
accused guilty and imposing a fine of Rs. 3/each on accused Nos. 1 and 3, and
Rs. 9/on accused No. 2. The application of Mahabir, referred to in the order,
reads thus:
118 .lm15 Sir, It is submitted that I have
filed a writ petition in the above case, in the High Court. It has been
admitted by the High Court which has stayed proceedings also in this case.
It is, therefore, prayed that the proceedings
in this case may be stayed." A document purporting to be an affidavit was
also attached, in which it was stated "I make oath and say that in the
above case I have filed a writ petition in the High Court, that it has been
admitted, and that proceedings in the case have been stayed by the High
Court." We looked at this so-called affidavit and found. that it has not
been sworn to before any person authorised to administer oaths.
On May 21, 1964, Mahabir filed an application
under ss. 4 and 5 of the Contempt of Courts Act, 1952, against the five
appellants and S. K. Srivastava, A.S.D.M. The main allegation, apart from
reciting the facts which we have already detailed above, was that "in
spite of the knowledge of the interim stay dated 20-12-63 passed by the Hon'ble
High Court the Sarpanch, the Opposite Party No. 1 and the members of the Bench,
Opposite Parties Nos. 2 to 5 disobeyed the order of the Hon'ble High Court and
disposed of the case on 25-12-63 and thus they committed contempt of the
Hon'ble High Court." Affidavits were filed in the High Court by Baldeo
Prasad, pairokar of Mahabir, Burma Prasad, the Sarpanch, and Mahabir, and
statements of Phagu Prasad and Bunna Prasad were recorded on oath. Bunna
Prasad, in his affidavit, stated that as the Nyaya Panchayat was not satisfied
for want of evidence by way of proper affidavit etc., the Nyaya Panchayats
proceeded with the case. Phagu Prasad. in his statement, stated "As the
paper of Mahabir's application and affidavit was not good, we had asked -him to
get them written on a proper paper obtained from the Tehsil. We had also told
him to get the affidavit verified before some Tehsil authority. We had told
Mahabir as above before we had read the application and affidavit presented
before the Nyaya Panchayat. Mahabir told us that he is not prepared to go to
Tehsil, but is presenting before the Panchayat whatever he has got in his
possession." Phagu Prasad further stated that "no other affidavit had
ever been filed before us, but we knew that in the law courts the 119
affidavits,which are filed, are verified by some authority."He further
added that "the reason why we did not believe theaffidavit of Mahabir was
that it did not contain any date of theHigh Court's stay order." Bunna
Prasad, in his statement, stated that he had told Mahabir to bring the
affidavit on a good quality paper of full size, and Mahabir thereupon told him
that he would present whatever he had. According to him, the Panchas did not
tell Mahabir that his affidavit was not proper; they, however, told him to get
it verified in Tehsil and that it should be duly sealed.
The High Court, on examination of the
evidence, came to the conclusion that it was the Sarpanch who bad initially
declared that the affidavit of the applicant was not proper and that the matter
should file a proper affidavit in support of his allegations, though the
Sarpanch had admitted in his deposition that he had to authority to tell
Mahabir that his affidavit was not proper. It appeared to the High Court that
"the Sarpanch first wanted to avoid the petitioner's affidavit being
brought on the record by declaring that it was not proper because it did not
fully evidence the fact that the High Court had passed an order staying
proceedings before the Nyaya Panchayat." The High Court further held that
"the Nyaya Panchas faithfully accepted the objections raised by the
Sarpanch and dittoed him about the impropriety of the petitioner's affidavit
and inadequacy of the evidence contained therein regarding the stay order
alleged to have been. passed by the High Court." The High Court
disbelieved the explanation of the Panchas given before it because no mention
of these was made in the order sheet dated December 25, 1963. The High Court
held :
"There was no reasonable ground for the
Panchas to have doubted the averments made in the application and affidavit of
Mahabir that the High Court had stayed further proceedings before the
Panchayat, nor is there anything in the order sheet to show that the Panchas
did not believe the contents of the application, and affidavit of Mahabir.
However, if they wanted to ascertain the
matter, they should have at best stayed the proceedings for a short while and
should have asked the applicant to produce a certified copy of the stay order.
In the alternative, they should have verified from the Sub Divisional
Magistrate whether Mahabir had really filed an application and affidavit before
him along with the original telegram received from his counsel at Allahabad
saying that the High Court had already stayed the proceedings before the Nyaya
Panchayat. But the Panchas did nothing of the kind. The action of the Nyaya Panchas
in not doing so was obviously not bona fide and 120 amounts to wilful
disobedience of the High Court's order.
The learned counsel for the appellants, Mr.
Chari, says that no contempt of court has been established because a Court is
entitled not to act on an application which is not accompanied by an affidavit
properly sworn to or a certified copy of the order He urges that the Nyaya
Panchayats exercised judicial powers and, even if the Panchas erred in not
staying proceedings, before finding them guilty of contempt of court it should
be definitely proved that the order was passed deliberately to by-pass the
order of the High Court.
This Court quoted with approval the following
passage from Oswald's Contempt of Court, in Hoshiar Singh v. Gurbachan.
Singh(1):
"The judgment or order should be served
on the party personally, except in the following cases : (1) prohibitive
orders, the drawing up of which is not completed;........
In order to justify committal for breach of a
prohibitive order it is not necessary that the order should have been served
upon the party against whom it has been granted, if it be proved that he had
notice of the order aliunde, as by telegram, or newspaper report, or otherwise,
and knew that it was intended to be enforced, or if he consented to the order,
or if he was present in Court when the order -Was pronounced, or *hen the
motion was made, although he left before the order was pronounced." We
need not consider whether it makes any differnce in law if the order has been
drawn up. We will for the purpose of this case assume that it does not make any
difference. It is also clear that in such matters those who assert that a
person had knowledge of the order must prove this fact beyond all reasonable
doubt. If there is any doubt, the benefit ought to be given to the person
charged with contempt of court. If a person bona fide comes to the conclusion
on the material placed before him that the source of information is not
authentic he cannot be held guilty of contempt of court for disobeying the
order.
The question then arises whether the Sarpanch
and the Panchas had knowledge of the existence of the order of the High Court
dated December 20, 1963. The only material before them was the application
dated December 25, 1963, which was not supported by any affidavit sworn to
before a person authorised to (1) [1962] Supp. 3 S.C.R. 127,138.
121 administer oaths. Further, the
application did not contain the .date of the order; even a copy of the telegram
was not attached to the application; and the application seems to have been
made after the proceedings on that date had commenced and evidence taken. We
are unable to appreciate how on this material the bona fides of the Panchas can
be doubted if they refused to accept the mere statement of the party that the
High Court had stayed proceedings before them. It seems to us that the High
Court did not appreciate that the so-called affidavit which was filed before
the Panchas was in fact not an affidavit at all. it had not been sworn to before
any person authorised to administer oaths.
It was no part of the duty of the Panchas to
enquire from the S.D.M. about the filing of the application before him.
At any rate, he has apparently no
jurisdiction to stay proceedings before the Nyaya Panchayats when no Proceeding
is pending before him. It is true that in certain cases proceedings can be
adjourned to enable the parties to file better proof, but a judicial officer is
not bound to do so and, if he bona fide does not in his discretion adjourn proceedings,
it cannot be said that he has committed contempt of court. It must also be
borne in mind that Panchas are not well-versed in law and procedure and the
records maintained by them should not be judged in the same manner as that of
ordinary courts. With respect, the High Court should not have drawn an adverse
inference from the fact that the reasons for not accepting the prayer for stay
were not recorded. Contempt of court is a serious matter and a High Court
should be chary of finding a judicial officer guilty of contempt of court for
disobeying its orders unless there is unimpeachable evidence that the judicial
officer had knowledge of the order of the High Court. In our opinion, there is
no such evidence in this case.
The learned counsel for the State contends
that we should not reappreciate the facts, but, with respects, it seems to us
that the High Court, while dealing with the evidence, has not kept in mind the
principles which we have mentioned above.
In the result we allow the appeal and set aside
the judgment and order of the High Court.
R.K.P.S. Appeal allowed.
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