Full Judgment Text
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PETITIONER:
ABDUL KARIM
Vs.
RESPONDENT:
M. K. PRAKASH AND ORS.
DATE OF JUDGMENT30/01/1976
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
BEG, M. HAMEEDULLAH
BHAGWATI, P.N.
CITATION:
1976 AIR 859 1976 SCR (3) 276
1976 SCC (1) 975
ACT:
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.
HEADNOTE:
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, urgently.
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
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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.
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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.)
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(2) The main ground which influenced the High Court was
that the case ’‘ had gained certain amount of notoriety.
This was a very vague, indefinite and nebulous circumstance.
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]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
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. A.118/71.
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,
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be called R. 4.
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 others.
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 Court.
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. Act.
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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 (1) IPC.
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 Of fact.
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
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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 petition.
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
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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 puerile".
(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 R-1, urgently.
"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
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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 officer.
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.
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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
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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 under:
"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 R-1.
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, 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
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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.
287