Abdul Karim Vs. M. K. Prakash &
Ors  INSC 14 (30 January 1976)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
BEG, M. HAMEEDULLAH BHAGWATI, P.N.
CITATION: 1976 AIR 859 1976 SCR (3) 276 1976
SCC (1) 975
Contempt of Court's Act 1971-Sec. 2(c)-Standard
of proof for Criminal contempt-contempt by a judicial officer- Assumption-If
should be willful of jurisdiction erroneously or passing a wrong order.
The appellants in Criminal Appeals 195 and
196 are the owner and Manager of a timber depot respectively (hereinafter
referred to as appellants). Appellants complained to the Police that Respondent
No. 1 had collected a large number of persons with deadly weapons and that the
sheds constructed by the appellants were attacked and that there was
apprehension that the shed would be demolished.
The Police seized the disputed timber. The
appellants made an application praying that the seized logs may be handed over
to them. Respondent No. 1 also made an application claiming the timber to be
his property. After perusing the Police Report and hearing the counsel for the
claimants, the Magistrate directed the Forest' Range officer to keep the timber
in his custody pending the further investigation by the Police. Respondent; No.
1 filed a Revision in the High Court against the said order of the Magistrate.
The High Court did not grant stay of the order of the Magistrate. The High
Court, however, observed that as the rainy season was approaching it was
necessary that the timber should be removed from the place as early as
possible. Thereafter, the Police officer submitted the final report stating
that the earlier Police report was biased and that the appellants were the
owners of the disputed timber arid that the timber might be released to them.
On that the Magistrate passed an order directing that the timber should be
returned to the appellants. The Magistrate also issued. a letter to the Forest
Range officer directing him to hand over the seized timber to the appellants,
Respondent No. 1 filed a contempt petition in
the High Court against the appellants, as well as against the appellant in
Appeal No. 118 of 1971, the Magistrate. The charge against the Magistrate was
that he passed the second order without giving notice to respondent No. I and directed
the Forest Range officer to release the timber urgently and thereby defeated
whatever order the High Court might have finally passed in revision and that he
permitted process of the court to be abused and that he impeded the course of
justice. The Magistrate filed his affidavit and stated that the High Court had
not stayed his order and that he ordered the delivery of the disputed timber in
the bona fide discharge of his official duty after accepting in good faith the
final report made by the Police in which it was indicated that its notice had
been given to the complainant and a copy of such notice was also enclosed.
The High Court did not find the appellants
guilty of contempt. The High Court, however, found the Magistrate guilty of
'Criminal contempt' on the following grounds:
1. The case between the parties had gained
notoriety in the State and attracted a good deal of public attention.
2. The certified copy of the order was taken
only by appellant No. I, and since the case was not posted in the open court,
appellant No. I must have shown the order to the Magistrate at a place other
than the open court.
3. The Magistrate passed the order in spite
of the fact that he was aware that the revision application was pending in the
High Court which was seized of the matter of determining the question of the
custody of the timber.
4. The Magistrate did not give notice to the
other side before passing the A order. The procedure adopted by the Magistrate
in writing the letter to the Forest Range officer asking him to release the
timber urgently is very strange and reveals an anxiety on the part of the
Magistrate to help the appellants. The urgency can only be to circumvent any
possible orders of stay that might be passed by the High Court.
In appeal filed by the Magistrate.
HELD: (1) Section 2(c) of the Contempt of
Courts Act 1971 codifies the definition of criminal contempt which had
previously been crystallized by judicial decisions. The broad test to be
applied in such cases is whether the act complained of was calculated to
obstruct or had an intrinsic tendency to interfere with the course of justice
and the due administration of law. The standard of proof required to establish
a charge of criminal contempt is the same as in any other criminal proceeding.
It is all the more necessary to insist on strict proof of such charge when the
act or omission complained of is committed by the respondent under colour of
his office as a Judicial officer. Wrong order or usurpation of jurisdiction by
a Judicial officer owing to an error of judgment or to a misapprehension of the
legal position, does not fall within the mischief of 'criminal contempt'. Human
judgment is fallible and a judicial officer is no exception. Consequently, so
long as a Judicial officer in the discharge of his official duties acts in good
faith and without any motive to defeat, obstruct or interfere with the due
course of justice, the court will not, as a rule, punish him for a criminal
contempt. Even if it could be urged that mens rea as such is not an
indispensable ingredient of the offense of contempt, the courts are loath to
punish a condemner if the act or omission complained of was not willful. [203B
D-G] D (Case of Debabrata Bandopadhyay A.I.R. 1969 S.C. 189.
cited with approval.) (2) The main ground
which influenced the High Court was that the case '` had gained certain amount
This was a very vague, indefinite and
In the instant case, the prejudice generated
by this creeping circumstance has unmistakably vitiated the approach of the
High Court. 1284 C-D] (3) The explanation given by the Magistrate was at least
sufficient to dispel the suspicion that the Magistrate while passing the order
was actuated by a motive to impede or obstruct or defeat the course of justice.
It was immaterial as to who showed the certified copy of the order of the High
Court to the Magistrate. On reading the final report of the Police and the
order of the High Court the Magistrate mist have honestly formed the opinion
that there was no need to give the notice to the other party and that it was
necessary to direct the Poorest officer to deliver the timber urgently to the
appellants. It is true that under the circumstances, the prudent course for the
Magistrate would have been to postpone the making of any final order in regard
to the delivery of the timber till the final disposal of the revision petition
by the High Court. It would have been also proper for him to have given
opportunity of being heard to the other side before making any order.
Nevertheless it was evident from the stark
circumstances of the case, that in failing to do so, the Magistrate was not
actuated by any improper motive or deliberate design to impede, obstruct or
interfere with the course of justice or to circumvent or defeat the proceedings
in the Revision pending before the High Court. Consequently the penal action
taken by the High Court was not justified. [284 H, 285A, B, F, 286A-D]
CRIMINAL APPELLATE JURISDICTION: Criminal
118 of 1971.
From the Judgment and order dated 15th
October, 1970 of the Kerala High Court at Ernakulam in O.P. No. 4879 of 1969
and Criminal Appeals Nos. 195 and 196 of 1971.
Appeals by special leave from the judgment
and order dated the 15th October, 1970 of the Kerala High Court at Ernakulam in
O.P No. 4879 of 1969.
278 A.S.Nambiar for the Appellant in Crl.
Kunhiraman Menon and A. 5. Nambiar for the
Appellants in Crl A. Nos. 195 and 196 of 1971.
For the respondents in all the appeals: Nemo.
the Judgment of the Court was delivered by- SARKARIA, J.-These three appeals
arise out of a common judgment of the High Court of Kerala holding the
appellants guilty of contempt of court.
S. Abdul Karim, the appellant in Criminal
Appeal 118 of 1971. was, at the material time, a Munsif-Magistrate posted at
Perambra. He was Respondent No. 3 in the contempt petition filed in the High
Court and will hereafter be referred to as R. 3.
A. P. Parukutty Mooppilamma and A. P.
Achuthankutty Nair, appellants in Cr. Appeal No. 195 of 1971 were respondents 1
and 2 in the original petition before the High Court, and will be hereafter be
called R. 1 and R. 2. The appellant K. P. Ramaswami in Criminal Appeal No. 195
of 1971 was Respondent 4 before the High Court. He will, for short, be called
M. K. Prakash, Respondent No. 1 in all these
appeals before us, was the petitioner in the contempt petition before the High
Court. He will hereafter be called as 'P'.
The facts are these:
R-1 is the owner of the olathooki Ariyalakkan
Malavaram in Kayanna Amsom which is managed for and on her behalf by her son,
R-2. On March 28, 1969 R-I presented a petition through R-2, to the
Superintendent of Police, Kozhikode alleging that the accused persons (P and
his men) were likely to trespass into the olathukki Arialakkan Malavaram to
remove her timber. It was alleged that 'P' had collected a large number of
persons and equipped them with dangerous weapons, unlicensed guns. swords etc.;
that the sheds constructed by the petitioner and occupied by his workers and
watchmen were being attacked and there was an apprehension that P and his men
would demolish the sheds.
The Superintendent of Police appears to have
forwarded this petition to the Police Station Kayanna where, on its basis, a
case under ss. 143, 147 and 506, Penal Code was registered against 'P' and
The Sub-Inspector in-charge of the Police
Station, went to the spot and took into possession the disputed timber
comprising of 587 logs and entrusted the same on a kychet to two strangers. On
April 22, 1969, R-l made an application, Ex. P-3, before the Magistrate (R-3)
praying that the seized logs be handed over to him. Thereafter, 'P' also made
an application to the Magistrate claiming the timber to be his property and
prayed for delivery of its possession to him.
The Magistrate thereupon issued notice to the
Police who made a report. After hearing the Counsel of the rival claimants and
perusing the police report (Ex. P-17) and other material, the Magistrate on
April 279 28, 1969, passed an order, directing the Forest Range officer to keep
the logs in his custody pending further investigation by the Police. Against
this order 'P' filed Cr. Revision Petition No. 176 of 1969 in the High Court.
No interim order directing the Magistrate to stay further proceedings or defer
further action regarding the delivery of the disputed timber was issued by the High
While P's Revision application was pending in
the High Court, the Police officer, R-4, after completing the investigation,
obtained the opinion of the Assistant Public Prosecutor on September 20, 1969
and submitted a Final Report on September 24, 1969 to the Magistrate (R-3). The
material part of this Final Report runs as under:
"On 16-7-69 a petition from the
complainant was received alleging that the investigation conducted by my
predecessor was one-sided and biased against him and he had produced certain
documents to support his contention that the property belongs to him and which
were not considered by my predecessor. Based on this petition I continued the
investigation and in the course of my investigation, I questioned the
Divisional Forest officer, Collect and the Forest Range officer, Kuttiady. They
stated that the permit issued to M. K. Prakash in Kalpaidiyan Thirumudiyan
Malavaram was stayed by the Government and hence not operated upon till now.
They also stated that the 587 logs of timber seized by my predecessor were from
olathukku Arialakkan Malavaram in the possession and ownership of the mother of
the complainant and those logs were cut by Smt. A. R. Parukutty Amman's workmen
and for which proceedings have 1 been taken against them under the M.P.P.F.
To the same effect the Range officer Kuttiady
had fired an affidavit heifer the High Court in O.P. 2045/69 filed by the
accused in this case. In the' said O.P. the accused had questioned the validity
of the Government order allowing Smt. Parukutty Amma to remove timber` cut from
the permitted and non- perrnitted area of olakhukki Arialakkan Malavaram and
the High Court had upheld the order of the Government and the complainant's
mother was allowed to transport all timber cut from the Malavaram, both from
the permitted and non-permitted area. According to the Divisional Forest
officer there is no Malavaram known as Kalpidiyan Thirumudiyan Malavaram in
Pilliperuvnna Amsom as per the Registration Manual. I also questioned the complainant
and his workmen and they stated that there was no trespass as such by the
accused or his henchmen. They did not enter the Malavaram, nor have they
intimidated any of them and as such no offense has been made out u/s 447 or 506
Under the above circumstances, it is clear
that Shri M. K. Prakash accused in this case was not allowed to operate his
permit and the 587 logs of timber seized by my predecessor were cut by the
complainant's mother and the same 280 belong to her. These logs are now in the
custody of the Range officer, Kuttiady as per the order of the Munsiff
Magistrate Perambra and the same may be ordered to be released to the mother of
the complainant and the case is referred as mistake of fact." Upon this
report the Magistrate (R-3) passed this order:
"Notice given Case referred as mistake
Further action dropped. Return timber logs to
complainant.'' Sd/-M. M. 26-9-1969 In pursuance of this order, the Magistrate
issued a letter (Ex. P-10) dated September 26j 1969, to the Forest Range
officer Kuttiady, directing him that 587 logs seized by the Inspector of
Police, Quilandy, then in his custody, be urgently released to R-1 (the mother
of the complainant) .
In compliance with the order of the
Magistrate, the Range officer symbolically handed over the charge of the timber
to R. 1.
On the preceding facts, 'P' on November 26,
1969, made a petition in the High Court complaining that R-1, R-2, R-3, R-4 and
R-5 (Sri P. K. Appa Nair, Advocate) had committed contempt of the High Court
within the meaning of s. 3 of the Contempt of Courts Act, 1952 and prayed that
the respondents be punished for committing that contempt. The High Court issued
notice to R-l to R-5 who filed affidavits in reply.
The Magistrate (R-3) stated that he had
passed the order directing delivery of possession of the disputed timber to R-l
in the bona fide discharge of his official duty, after accepting in good faith,
the final report made by the police in which it was indicated- that its notice
had been given to the complainant, and a copy of such notice was also enclosed.
- He further averred:
"The purchase of the petitioner's rights
by the 1st Respondent referred to in the F.I.R. and Ex. P-3 petition was not
denied by the petitioner. on the other hand, his counsel during the hearing of
Exts. P-3 and P-4 petitions had admitted the same. even though he had a case
that the petitioner was duped to sign the same and receive part of the
consideration. Under the circumstances, I had no reason to reject P-6 report,
it was accepted in its entirety and final orders were passed bona fide
directing return of the logs to the complainant. The criminal revision 176 of
1969 itself is only against Ext.(1)order directing entrustments of the logs to
the Forest Range officer pending further investigation. The order in revision
that may be ultimately passed by the Hon'ble Court can have reference only to
what should be done with the logs pending investigation. The order in revision
would not and cannot relate to the disposal of the logs after the completion of
the investigation. It is therefore 281 wrong to suggest that the final order is
calculated to over-reach the possible orders in the pending Cr. Revision Petition."
In his affidavit, the Magistrate emphasised that in Cr. Revision 176 of 1969,
the High Court had not issued any interim order staying further proceedings.
R-1, R-2, R-4 and R-5, also, in their reply
affidavits denied the allegations made against them by 'P' in the contempt
The Advocate-General assisted the High Court
and filed a statement of facts on February 16, 1970.
After considering the replies, a memoranda of
charges was drawn up against R-1 to R-5 on February 10, 1970. The material part
of the charges served on R-3 ran as under:
"That you, on receipt of the final
report, even without giving notice to the petitioner, not only passed an order
on 26-9-69 on the final report directing the return of the timber logs to the
complainant but also wrote a letter (copy of which is Ext. P-10) to the Forest
Range officer, Kuttiadi, directing him urgently to release the timber logs to
the 1st respondent-thereby effectively defeating whatever order the Honourable
High Court may finally pass in Criminal Revision Petition 176 of 1969 and
Criminal Miscellaneous Petition 309/69, and that in consequences of your order
the timber logs were actually handed over to the 1st respondent;
That in so doing:
(a) you have acted unjustly, oppressively and
irregularly in the execution of your duties, under colour of judicial
proceedings wholly unwarranted by law and procedure, (b) you have also
permitted the process of your court to be abused by the other respondents and
thereby diverted the due course of justice and (c) you have also impeded the
course of justice by defeating the final orders that are liable to be passed by
the High Court in Criminal Revision Petition 176/69 and Cr. Misc.
Petition 309/69; thereby committing gross
contempt of the Honourable High Court, to which you are subordinate." The
Magistrate (R-3) submitted a further counter- affidavit denying the charges.
The High Court rejected the Magistrate's
explanation and found him guilty of contempt on grounds which may be summarised
as below :
(1) "The case between the Petitioner and
the 1st and the second respondent had gained certain amount of notoriety not
only in the area but also in the State".
282 Allegations were being made "that
even the then Minister of Forests was unjustly favouring R-1 and R-2. The case
before the Munsiff-Magistrate would naturally have attracted quite a good deal
of public attention." (2) R-3 permitted R-1 and R-2 to approach and
influence him. This inference was available from the circumstance that in his
affidavit, R-3 has said that an order dated May 2, 1969, passed by the High
Court in C.M.P.
5869/69 in O.P. 2405/69 was shown to him and
the certified copy of this order was obtained from the High Court only by R-1.
The copy must therefore have been shown to the Magistrate by R-1 or her
Advocate or by R-2 or his agents. "This could not have been in the open
court. There was no posting of the case to 26-4-1969".
(3)(a) R-3 was aware that Criminal Revision
176/69 and Cr. M.P. 309/69 against his earlier order, was pending in the High
Court which was "seized of the matter of determining the question of
custody of the timber. His explanation that he felt that he was free to pass an
order because only the question of interim custody was involved in Cr. Rev.
Petition No. 176 of 1969..... was
(3)(b) R-3 passed the order on the Final
Report, directing the release of the logs, without caring to issue notice to
the petitioner (P).
(4) In the letter Ex. P-10, dated 26-9-1969,
the Magistrate wrote to the Range officer that the logs should be released to
"This is a very strange procedure,
unheard of, and reveals an anxiety on the part of the Munsiff-Magistrate to
help R-1 and R-2. The urgency can only be to circumvent any possible orders of
stay that may be passed by (the High) Court".
We have heard R-1 and the Counsel for the
other appellants. R-1 has argued his case in person because, according to him
he has no funds to engage a Counsel. His submissions are straight and simple.
He has reiterated what he had stated in his further affidavit filed in reply to
the memorandum of charge in the high Court.
In sum, his defence is that in all the
proceedings relating to the disposal of the disputed timebr including the
making of the order dated September 26, 1969, the issuing of the letter,
Ex.-10, of the same date, and in failing to issue notice to 'P', he acted in
the bona fide discharge of his duties; that even if what he did or omitted, was
wrong, it was no more than an honest error of judgment on his part. In particular,
it is submitted that Ground No. 1(1) is not based on any cogent or legal
evidence but on mere rumours and hearsay and 283 it is too vague and general;
that even so, it was not incorporated in the charges against him. It is further
maintained that the inferences of ulterior motives on the part of the appellant
vide Grounds (2) and (4) drawn by the High Court were wholly unjustified. It is
contended that the approach of the High Court, is not in consonance with the
law laid down by this Court in Debabrata Bandopadhyay and ors. v. State of West
Bengal and anr.(1) Before dealing with the contentions canvassed by the
appellant, it will be useful to recall the law on the point.
Clause (c) of s. 2 of the Contempt of Court
Act, 1971 merely codifies the definition of "criminal contempt" which
had previously been crystalised by judicial decisions. It defines 'criminal
contempt' to mean publication of any matter, or the doing of any other act
which- "(1) 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 proceedings;
(iii)interferes or tends to interfere, or
obstructs or tends to obstruct, the administration of justice in any other
manner." The broad test to be applied in such cases is, whether the act
complained of was calculated to obstruct or had an intrinsic tendency to
interfere with the course of justice and the due administration of law. The
standard of proof required to establish a charge of 'criminal contempt' is the
same as in any other criminal proceeding. It is all the more necessary to
insist upon strict proof of such charge when the act or omission complained of
is committed by the respondent under colour of his office as a judicial
Wrong order or even an act of usurpation of
jurisdiction committed by a judicial officer, owing to an error of judgment or
to a misapprehension of the correct legal position, does not fall within the
mischief of "criminal contempt". Human judgment is fallible and a
judicial officer is no exception. Consequently, so long as a judicial officer
in the discharge of his official duties, acts in good faith and without any
motive to defeat, obstruct or interfere with the due course of justice, the
courts will not, as a rule, punish him for a "criminal contempt".
Even if it could be urged that mens rea, as such, is not an indispensable
ingredient of the offence of contempt, the courts are loath to punish a
contemner, if the act or omission complained of, was not wilful.
In Debabrata Bandopadhyaya's case (supra),
Hidayatullah C.J. speaking for the Court elucidated the position, thus:
"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 (1) (A.I.R. 1969 S.C. 189.) 284 practices
in courts and tribunals. It is only when a clear case of contumacious conduct
not explainable otherwise, arises that the contemner 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 is 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." The judgment of
the High Court is to be tested in the light of the above enunciation.
The main ground, as already noticed, which
greatly influenced the decision of the High Court, was that this case between
the parties had gained a certain amount of notoriety and allegations were being
openly made that the then Minister for Forests was out to favour R-1 and R-2
against 'P'. This was a very vague, indefinite and nebulous circumstance which
had no better status than any other general rumour, gossip or talk in the town.
Courts have to guard against cognizance of such rumours and general allegations
as they prejudice an objective treatment and a fair determination of the
problems before them. In the instant case, the prejudice generated by this
creeping circumstance has unmistakably vitiated the approach of the High Court.
It has hindered a correct appreciation of the submissions made by R-3 in reply
to the charges. In his counter-affidavit R-3 stated:
"In the final report filed by the 4th
respondent which is marked in these proceedings as P-6, there is reference to
an order passed by this Honourable Court allowing the 1st respondent to remove
the cut timber.
The order aforesaid is the order dated
2-5-1969 in C.M.P. 5869/1969 in o.P. 2405/1969, wherein it is said that it is
necessary that the timber should be removed from the place as early as possible
certified copy of this order was also shown to me and that was the reason why I
wrote Ext. P-10 letter to re lease the cut logs without delay. The reason that
prompted me to pass the final orders are therefore (1) there was no stay of
further proceedings pending Crl.R.P. 176/1969 (2) the Crl.R.P. itself related
only to Ex.R. Order for custody pending further investigation, and can have no
reference to the ultimate result of investigation (3) it was admitted before me
that the 1st respondent had purchased the alleged rights of the petitioner and
part of the consideration was already paid, even though he had the case that
the assignment is not valid, and (4) this Honourable Court had in C.M.P.
5869/1969 aforesaid directed the speedy removal of the timber from the place by
the 1st respondent." In our opinion, the above reply given by the
Magistrate was at least, sufficient to dispel the suspicion that in making the
order dated. September 26, 1969, in regard to the delivery of the timber to R-1
he was actuated by a motive to impede or obstruct or defeat the 285 course of
justice. The notoriety of the case looming large in their minds, the learned
Judges of the High Court without due consideration rather hastily rejected the
explanation of the Magistrate that he had directed (vide his letter Ex.P-10),
urgent delivery of the timber to R-1 because on seeing the copy of the High
Court's order, dated May 2, 1969, which was shown to him, he was of the opinion
that t such a course was indicated therein. The point of substance was, whether
such an order was made by the High Court and had been shown to the Magistrate
before he made the order for urgent delivery of the timber. It was immaterial
if certified copy of that order was shown to the Magistrate by R-1 or her
Counsel or her agent.
Ex.R-1 is a certified copy of that order
dated May 2, 1969 which was passed by the High Court in C.M.P. 5869/1969 in
O.P. 2405/1969, M. K. Prakash v. R-1 to R-4, C.M.P. 5869/69 was a petition made
by `P' before the High Court praying that the operation of the order of the
then Respondent 1 be stayed and the other respondents, including the
Magistrate, be directed not to cause the removal of the felled trees pending
disposal of the original petition.
After hearing arguments of the Counsel for
the parties, the High Court made an order, the material part of which reads as
"As the rainy season is fast approaching
it is necessary that the timber should be removed from the place as early as
possible. Otherwise, the same would be lost to all concerned. It is seen from
the counter affidavit of the 4th respondent that she had already given an
undertaking to the Government to pay the compounding fee, if any that may be
fixed by the Forest Authorities. In the circumstances it appears to be only
just to vacate the order of interim injunction passed on this petition.
Accordingly the order of interim injunction passed on this petition is vacated
and this petition is dismissed but in the circumstances without costs.
On reading a copy of this order, and hearing
the persuasive arguments of the party or her Counsel, the Magistrate might have
honestly, albeit wrongly, formed the opinion that there was no need to give
notice to the other party (`P') and that it was necessary to direct the Forest
officer to deliver the timber in question urgently to R-1.
We are therefore unable to agree with the
High Court that by his letter Ex.P-10, the Magistrate directed urgent delivery
of the logs to R-1 because "there was an anxiety on his part to help R-1
and R-2 and to circumvent any possible orders of stay that may be passed by the
High Court". If the Magistrate had read the High Court's order, dated May
2, 1969, before making this order of urgent delivery and this fact has not been
disputed then his explanation can not be dubbed as wholly puerile".
Rather, the order dated May 2, 1969, whereby
P's request for ad-interim stay or injunction with regard to these logs was
declined by the High Court, could have induced the Magistrate to go ahead with
the making of the ex-parte final order in regard to the delivery of the logs to
3-L522SCI/76 286 It is true that the
Magistrate was aware that P's criminal revision petition against his interim
order, dated April 28, 1969, and was then pending in the High Court. In such a
situation, the prudent course for him was to postpone the making of any final
order in regard to' the delivery of this timber till the final disposal of the
revision petition by the High Court. It would also have been proper for him to
issue notice to 'P' and give an opportunity of being heard before making any
order. That would have been the ideal. But the point for consideration is
whether the Magistrate deliberately did not follow this prudent course or
whether he misdirected himself owing to an error of judgment. The stark
circumstances viz. that the High Court had declined to issue any interim
injunction or stay order in favour of `P' in the criminal revision pending
before it; that there was an observation in the High Court's order, dated May
2, 1969, stressing the need for speedy removal of the cut timber and the
possibility of its being damaged by the in-coming rainy season; that he was
labouring under the impression, though wrongly, that the order, dated April 28,
1969, was merely an interim order which had exhausted itself on the completion
of the police investigation and the presentation of the Final Report by the
police in which there was a positive finding that the timber belonged to R-1
and R-2 and they were entitled to its restoration-taken in their totality, go
to show that in making the wrong order regarding delivery of the timber, the
Magistrate was not actuated by any improper motive or deliberate design to
thwart, impede, obstruct or interfere with the course of justice or to
circumvent or defeat the proceedings in revision pending before the High Court.
In the absence of any mens rea, the
Magistrate had at the most committed only a technical contempt of the High
Court, in such a case, as was pointed out by this Court in Debabrata
Bandhopadhyay's case (supra), penal action was not called for.
We therefore allow R-3's appeal and set aside
his conviction and sentence.
No conviction for contempt of court has been
recorded against the appellants in the companion appeals by the High Court. All
that we would observe in their (R-1 and R-2) case is that the High Court has
made sweeping observations with regard to the civil rights, which might
prejudice them in establishing their claims by a regular suit. They shall
therefore not be taken into account by any court before which the dispute with
regard to this timber may come up for adjudication in due course. Similarly any
adverse remarks made against the Police officer (R-4) will not by themselves be
taken conclusive as to his conduct in handling this case.
Subject to these observations we dismiss
Criminal Appeals Nos. 195 and 196 of 1971.
P.H.P Criminal appeal 118 of 1971 allowed.
Criminal appeals 195 & 196 dismissed.