Appeal aginst dismissal of the 340 crpc in the cat
yogesh
(Querist) 21 March 2013
This query is : Resolved
Sir, what will be the nomenclature of the case petition for filing appeal aginst the order under section 341 CrPC if the CAT dismissed the MISCELLANEOUS petition under section 340 CrPC
Raj Kumar Makkad
(Expert) 21 March 2013
You have no other remedy but to move to High court now seeking revision under section 401 of Criminal Procedure Code.
yogesh
(Querist) 21 March 2013
Sir,
CAT cases come under civil proceedings whether revision under section 401 is maintainable?
Becuase there is provision for appeal under section 341 CrPC which bars for revision??
341. Appeal.
(1) Any person on whose application any court other than a High Court has refused to make a complaint under sub-section (1) or sub-section (2) of section 340, or against whom such a complaint has been made by such court, may appeal to the court to which such former court is subordinate within the meaning of sub-section (4) of' section 95, and the superior court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case may be, making of the complaint which such former court might have made under section 340, and if it makes such complaint, the provisions of that section shall apply accordingly.
(2) An order under this section and subject to any such order, an order under section 340, shall be final, and shall not be subject to revision
Devajyoti Barman
(Expert) 21 March 2013
Challenge the order in Writ petition or under Article 227.
Raj Kumar Makkad
(Expert) 22 March 2013
HIGH COURT OF JUDICATURE OF ALLAHABAD
A.F.R.
COURT NO. 38
''RESERVED'
CIVIL MISC. WRIT PETITION NO 17056 Of 2002
Dinesh Chandra Bajpai ----- Petitioner
Vs.
Central Administrative Tribunal & ors.----- Respondents.
--------------
Hon'ble Dr.B.S.Chauhan,J.
Hon'ble Ghanshyam Dass, J.
(Delivered by Hon'ble Dr. B.S.Chauhan, J.)
This writ petition has been filed for quashing the order dated 22.11.2001, passed by the Central Administrative Tribunal in a Contempt Application not punishing the contesting respondents.
Facts and circumstances giving rise to this case are that the petitioner along with some other persons filed Original Application No. 1245 of 1988 challenging the order dated 30th January, 1987 terminating their services from the post of substitute khallasi. The said application was allowed vide judgment and order dated 29.11.1991 directing the respondent nos. 2 to 4 as under.
"Let the list be prepared within a period of three months and in case the applicants are senior to those who have been taken back in service or they had been retained, the applicants shall also be given service immediately after the expiry of three months. Though they may be treated in continuous service but they will not be entitled to claim any monetary benefit whatsoever in respect of this period."
As the said order was not complied with and the seniority list was not prepared within the stipulated period, petitioner along with four other applicants filed the Contempt Application No. 911 of 1992. After considering the averments and the pleadings, including the reply filed by the respondents to that contempt application, the Tribunal on 13th May, 1997 passed a detailed order, relevant part thereof reads as under:-
"The Registrar is directed to send the charges to all the respondents and a notice as required under Section 340 of Code of Criminal Procedure to respondent no. 1 R.K.Parasher. The charges and notice be returnable after six weeks."
When the matter came up for hearing the charges were framed again on 5.8.1997 in the following manner.
"a. That you on 29.2.1992 on expiry of period of three months from the date of judgment, 29.11.91 & on 16.1.92, 24.3.92 & 29.4.92, when the representation were submitted about compliance of judgment were given to you, wilfully disobeyed the direction, first by not preparing the seniority list in time & then preparing incorrect & false seniority list showing Ratan Pal & others as junior & denying their right of absorption on the ground of juniority.
b.But giving fresh appointment to Dinesh Kumar on 16.7.87, Moti Lal on 17.7.87, Kaushal Ram on 15.7.87 & Kishan Lal on 15.2.1987 and,
c.Then appointing Ratan Pal, Dinesh Kumar, D.K.Dass & Krishan Murari on 17.8.95, accepting their seniority to several other persons but refusing the appointment to Dinesh Chandra Bajpayee. And there by committing contempt under section 12 of Contempt Act read with section 17 of Tribunal Act."
The respondents contested the contempt petition and stood exonerated vide impugned judgment and order dated 22.11.2001. Hence this petition.
Shri T.S.Pandey, learned counsel for the petitioner has vehemently submitted that as the charges had been framed by the Court vide order dated 13th May, 1997, framing of the charges again by the Court vide order dated 5.8.1997 was without jurisdiction and the Tribunal had no right to proceed on the charges framed on 5.8.1997. In view of the evidence led by the parties the Tribunal ought to have recorded the finding that the respondents had disobeyed the orders of the Court wilfully and should have punished them. Therefore, the order impugned dated 22.11.2001 deserves to be quashed and respondents are liable to be punished.
On the other hand, Shri Tarun Verma, learned counsel for the respondents has raised the preliminary objection regarding the maintainability of the writ petition contending that the contempt is a matter between Court and contemnor and the petitioner could only have brought the matter to the notice of the Tribunal. But once the contempt application has been rejected, petitioner cannot maintain the writ petition. Order dated 13.5.1997 was only of an interim nature. As the matter has finally been dismissed, the order dated 5.8.1997 also gets merged with the final order and the order dated 13th May, 1997 stood superseded vide order dated 5.8.1997. Therefore, petitioner cannot submit that the order dated 13th May, 1997 could have been enforced. The petition is liable to be dismissed.
We have heard the learned counsel for the parties and perused the record.
It has been contended by Shri Pandey, learned counsel for the petitioner that once the Tribunal has found the case worth initiating the contempt proceeding and proceedings had been initiated, that order will subsist and it cannot be held that the parties had been exonerated and petitioner is still entitled to maintain a writ petition.
It is settled law that no litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to be passed in the case and if the claim petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting interim order and thereafter blame the Court. The fact that the writ/claim petition is found, ultimately, devoid of any merit, shows that a frivolous petition had been filed. The maxim "Actus Curie neminem gravabit" is applicable in such a case, which means that the act of the Court shall prejudice no-one. In such a situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised as institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the Court. (Vide Dr. A.K. Sircar Vs. State of Uttar Pradesh and others, 1993 Suppl.(2) SCC 734; Shiv Shanker and others Vs. Board of Directors, Uttar Pradesh State Road Transport Corporation and another, 1995 Suppl (2) SCC 726; Kanoria Chemicals and Industries Ltd. Vs. U.P. State Electricity Board & ors., (1997) 5 SCC 772; the Committee of Management, Arya Inter College Vs. Sree Kumar Tiwary, AIR 1997 SC 3071; and G.T.C. Industries Ltd. Vs. Union of India and others, 1998 (3) SCC 376).
The same view has been taken by the Hon'ble Supreme Court in the case of N. Mohanan Vs. State of Kerala and others, AIR 1997 SC 1986; and Bileshwar Khan Udyog Khedut Shahkari Mandi Ltd. Vs. Union of India & ors. AIR 1999 SC 1198, wherein it has been held that the appointment/ continuation in service by interim order, does not create any legal right in favour of the appointee. In State of U.P. and others Vs. Raj Karan Singh, (1998) 8 SCC 529, the Hon'ble Apex Court has categorically held that interim order cannot disturb the position in law and if a person is in service by virtue of the interim order of the Court, he cannot agitate the issue that his continuation in service in such a condition has improved his claim to regularisation.
Similar view has been reiterated by the Hon'ble Apex Court in Style (Dress Land) Vs. Union Territory, (1999) 7 SC 689 and Bimlendu Kumar Chatterjee Vs. Dipa Chatterjee & ors, (2001) 8 SCC 5.
Thus in view of the above, the submissions raised by Shri Pandey that as at interim stage the learned Tribunal was of the view that respondent authorities had committed a contempt and that order will subsist is preposterous and not worth consideration.
Undoubtedly, the order dated 13.5.1997 stood superseded by another order dated 5.8.1997. Petitioner has not challenged that order dated 5.8.1997 nor there is any prayer even in this petition for quashing the same. Even if this Court comes to the conclusion that order dated 5.8.1997 was bad and the learned Tribunal ought to have proceeded with on the charges framed on 13th May, 1997, the Court cannot do so for the reason that the order dated 5.8.1997 has not been placed on record.
It is settled proposition of law that unless the order under challenge is filed and placed on record, the Court has no power to quash the same. In Surender Singh Vs. Central Government, AIR 1986 SC 2166, the Hon'ble Supreme Court has held that the High Court cannot pass an order in such a case in absence of the impugned order being on record. The Apex Court observed as under:-
"In absence of order under challenge, the High Court could not quash the same. Normally whenever an order of the Government or some authority is impugned before the High Court under Article 226 of the Constitution, copy of the order must be produced before it. In absence of impugned order it would not be possible to assign the reason which have impelled the authority to pass the order. It is therefore, improper to quash an order which is not produced before the High Court in a proceeding under Article 226 of the Constitution."
Thus in view of the above, the submissions made by Shri Pandey, learned counsel for the petitioner are preposterous and as the order dated 5.8.1997 has not been placed on record, the Court is not in a position as to what extent it has superseded the earlier order dated 13th May, 1997. Neither it is permissible in law nor it is desirable to probe the issue further and we find no force in the submissions that the order dated 13.5.1997 had become final and the Tribunal ought to have proceeded on that order.
Shri Pandey has submitted that the petitioner cannot be rendered remedyless and, therefore, this Court is under a legal obligation to entertain this writ petition. Undoubtedly, a party cannot be rendered remediless as there can be no dispute to settled legal proposition that if there is a wrong there must be a remedy. (Vide Rameshwar Lal Vs. Municipal Council, Tonk, (1996) 6 SCC 100; and Smt Jatan Kanwar Golchha Vs. Golchha Properties Pvt. Ltd., AIR 1971 SC 374).
The question does arise if the contempt petition has been dismissed, in the facts and circumstances of the case as to whether the petitioner has been rendered remediless.
In Purshottam Vs. Chairman M.S.E.B. & Anr., (1999) 6 SCC 49, the Apex Court has held that dismissal of the contempt petition does not take away the rights of the parties and the same can still be enforced.
In the instant case, petitioner has not claimed any relief seeking the enforcement of the order passed by the Tribunal on 29.11.1991. Therefore, it cannot be held that the parties had been rendered remediless. Therefore, the question remains as to whether petitioner has any right to get the respondents punished by filing this writ petition.
It is settled law that writ petition under Article 226 of the Constitution is maintainable for enforcing the statutory or legal right or when there is a complaint by the petitioner that there is a breach of the statutory duty on the part of the respondents. Therefore, there must be judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to. The Court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfies the Court that he has a legal right to insist on such performance. The existence of the said right is the condition precedent to invoke the writ jurisdiction. (State of Kerala Vs. K.G. Madhavan Pillai, AIR 1989 SC 49; State of Kerala Vs. Smt A. Lakshmikutty, AIR 1987 SC 331; Mani Subrat Jain & ors. Vs. State of Haryana, AIR 1977 SC 276; Calcutta Gas Company (Propriety Ltd.) Vs. State of West Bengal & ors., AIR 1962 SC 1044; Rajendra Singh Vs. State of M.P., AIR 1996 SC 2736; and Rani Laxmibai Kshetriya Gramin Bank Vs. Chand Behari Kapoor & ors., (1998) 7 SCC 469). Therefore petitioner has to show that he has a legal right to be enforced through the writ Court.
It is settled legal proposition that the contempt is a matter between the Court and contemnor. A party may bring the matter only to the notice of the Court. Dealing with this issue the Hon'ble Supreme Court in D.N .Tajeja Vs. Bhajan Lal, (1988) 3 SCC 26 observed as under:-
"A contempt is a matter between the court and the alleged contemnor. Any person who moves the machinery of the court for contempt only brings to the notice of the court certain facts constituting contempt of court. After furnishing such information he may still assist the court, but it must always be borne in mind that in a contempt proceeding there are only two parties, namely, the court and the contemnor. It may be one of the reasons which weighed with the legislature in not conferring any right of appeal on the petitioner for contempt. The aggrieved party under Section 19 (1) can only be the contemnor who has been punished for contempt of court."
This Court in Kishan Swaroop & ors Vs. R.P.Pandhi & ors, (1988) 1 ALJ 398 placing reliance upon the earlier Full Bench judgment in Ravi Sarswat Vs. R.C.Maheshwari & ors., (1986) 23 Alld Crl. Cases 409 held that if any person who brings the facts to the notice of the Court regarding disobedience of its order is just as an informant. "The aggrieved party is the Court." As the order of the Court has been disobeyed or in a criminal contempt, the Court has been scandalized. Therefore, the rights of the informant cannot be held to have been affected giving a cause of action to prefer an appeal if the Court does not punish the contemnor for the reason that none of their rights is affected or jeopardized. The Full Bench in the case of Ravi Sarswat (Supra) has held that the informant who filed the contempt petition has no right to file an appeal against the order dismissing his application for initiating contempt proceedings.
The Court has to be alive of the fact that while interpreting the provisions of a statute it can neither add nor substract a word. There is a maxim "A Verbis Legis Non Ext Recedendrum". The said maxim was applied by the Hon'ble Supreme Court in Balasinor Nagrik Lal Pandya, AIR 1987 SC 849 holding that a section is to be interpreted by reading all its part altogether and it is not permissible to omit any part thereof.
Thus, in view of the above we are of the considered opinion that the petition is not maintainable on behalf of the petitioner.
Even if it is maintainable, the Court has to examine the case from different angle altogether.
It is settled law that in a case where the order is passed through mistake, inadvertence or by mis-understanding of the meaning and purport of the order, but unless it is intentional, no charge of contempt can be brought home. In : B.K.Kar Vs. Hon'ble the Chief Justice and his companion Justices of the Orissa High Court & Anr. , AIR 1961 SC 1367, the Hon'ble Supreme Court has observed as under:-
"There may perhaps be a case where an order disobeyed could be reasonably construed in two ways and the subordinate court construed it in one of those ways but in a way different from that intended by the superior court. Surely, it cannot be said that disobedience of the order by the subordinate court was contempt of the superior court. There may possibly be a case where disobedience is accidental. If that is so, there would be no contempt."
Similarly, in: Debabrata Bandopadhyay & ors. Vs. the State of West Bengal & Anr., AIR 1969 SC 189, the Hon'ble Supreme Court has observed as under:-
"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 behoves the court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in courts and tribunals. It is only when a clear case of contumacious conduct not explainable otherwise, arises that the contemnor must be punished------------Punishment under the law of Contempt is called for when the lapse is deliberate and in disregard of one's duty and in defiance of authority. To take action in an unclear case is to make the law of contempt do duty for other measures and is not to be encouraged."
The same view had been taken by the Hon'ble Apex Court in: M/S Bharat Coking Coal Ltd. Vs. State of Bihar & ors., AIR 1988 SC 127; Dushyant Somal Vs. Sushma somal, AIR 1981 SC 1026; Niyaz Mohammed & ors Vs. State of Haryana & ors., (1994) 6 SCC 332; and K.J. Pathare Vs. S.J. Pathare, (1971-73) Bom. L.R. 616.
Thus, there has to be a clear-cut direction and if there is a willful disobedience in compliance thereof, a party may lodge the grievance otherwise not. There may be a case where contempt petition may be filed that the judgment and order had been complied with only partially. In such a case the court has to examine: what were the circumstances under which the judgment could not be given effect to fully. In: Lt. Col. K.D. Gupta Vs. Union of India & ors., AIR 1989 SC 2011, this aspect was considered, as the petition was filed that the entire amount, as directed by the Hon'ble Supreme Court, had not been paid to him. The Union of India took the plea that before making the payment to the applicant therein, it was under an obligation to deduct the Income Tax at Source. The Hon'ble Supreme Court rejected the plea of contempt and held that in such a case neither the plea of mala fide nor of willful disobedience can be entertained as the Authority had acted bona fide in compliance of the law in force. If the order is capable of being interpreted in two different ways, the court should not resort to the contempt proceedings.
In the case of: Manish Gupta & ors. Vs. Gurudas Ray, (1995) 3 SCC 559, the Apex Court observed that where an Authority passes the order in pursuance of the judgment of a Court and the order is to be passed in accordance with the Rules holding the field and the party is aggrieved of such an order, it is not permissible for such a party to bring a contempt petition if he is aggrieved of such an order. If the party feels that the order has not been made in accordance with the relevant rules, he may persue the remedy available to him in law for enforcing his rights.
A Constitution Bench of the Hon'ble Supreme Court, in State of Bihar Vs. Rani Sona Bati Kumari, AIR 1961 SC 221, has categorically held that the said provisions deal with the wilful defiance of the order passed by the Civil Court. The Apex Court held that there must be wilful disobedience of the injunction passed by the court and order of punishment be passed unless the court is satisfied that the party was, in fact, under a misapprehension as to the scope of the order or there was an unintentional wrong for the reason that the order was ambiguous and reasonably capable of more than one interpretation or the party never intended to disobey the order but conducted himself in accordance with the interpretation of the order. The proceedings are purely quasi-criminal in nature and are, thus, punitive. Even the corporate body like municipality/government can be punished though no officer of it be a party by name. A similar view has been reiterated by the Hon'ble Supreme Court in Aligarh Municipal Board & ors. Vs. Ekka Tonga Mazdoor Union & ors., AIR 1970 SC 1767; by the Allahabad High Court in Ratan Narain Mulla Vs. The Chief Secretary, Govt. of U.P. & ors.,1975 Cr.L.J. 1283; and by the Delhi High Court in M/s. Jyoti Limited Vs. Smt. Kanwaljit Kaur Bhasin & Anr., 1987 Cri. L.J. 1281.
In Andre Paul Terence Ambard Vs. Attorney General for Trinidad and Tabago, AIR1936 PC 141, the Privy Council has observed that the proceedings under the Contempt of Courts Act are quasi-judicial in nature and orders passed in those proceedings are to be treated as orders passed in criminal cases. In Sukhdeo Singh Vs. Hon'ble the Chief Justice Teja Singh & Hon'ble Justice the Par Pepsu High Court at Patila, AIR 1954 SC 186, the Supreme Court has taken the same view.
A Full Bench of Punjab & Haryana High Court, in Sher Singh Vs. R.P. Kapoor, AIR 1968 Pb. 217, has held that the contempt proceedings are, by all means, a quasi-criminal in nature. The applicant must prove his allegations beyond reasonable doubt and the alleged contemnors are entitled to the benefit of doubt. The same view has been taken by the Division Bench of Madras High Court in B. Yegnaryaniah, AIR 1974 Mad.313; and by the Lahore High Court in Homi Rustom G. Pardiawala Vs. Sub-Inspector Baig & ors., AIR 1941 Lah. 196.
In S. Abdul Karim Vs. M.K. Prakash, AIR 1976 SC 859, the Hon'ble Apex Court has held that the standard of proof required to establish a charge in contempt proceedings is the same as in any other criminal proceedings. It is all the more necessary to insist upon strict proof of such charged act complained of is committed by a person performing judicial/quasi-judicial proceedings.
In Jawand Singh Hakum Singh Vs. Om Prakash, AIR 1959 Pb 632, the Punjab & Haryana High Court, while dealing with a contempt matter, had observed that guilt of a person of having committed contempt of court, must rest on reasonable certainty. Suspicion, no matter how strong and speculative, however, suspicions must not form the basis for contempt.
In Chhotu Ram Vs. Urvashi Gulati & ors., (2001) 7 SCC 530, the Hon'ble Supreme Court held that burden and standard of proof in contempt proceeding, being quasi-criminal in nature, is the standard of proof required in criminal proceedings, for the reason that contempt proceedings are quasi-criminal in nature.
Similarly in Mrityunjoy Das & Anr. Vs. Sayed Hasibur Rahaman & ors., AIR 2001 SC 1293 the Hon'ble Supreme Court placing reliance upon a large number of its judgments, including, Murray & Co. Vs. Ashok Kumar Newatia, AIR 2000 SC 833; V.G.Nigam Vs. Kedar Nath Gupta, AIR 1992 SC 2153, has held that jurisdiction of the contempt has been conferred on the Court to punish an offender for his contemptuous conduct or obstruction to a majesty of law, but in the case of quasi-criminal in nature, charges have to be proved beyond reasonable doubt and alleged contemnor becomes entitled to the benefit of doubt. It would be very hazardous to impose sentence in contempt on some probabilities.
In the instant case the learned Tribunal after examining the entire facts recorded the findings of facts as under:-
I. No averment had been made by the respondents deliberately to mislead the Tribunal.
II.If any error had crept into the pleadings of the respondents it was mainly due to their misunderstanding of the order of the Tribunal dated 29.11.1991.
III. The two seniority lists- one based on the number of days of working as verified by the respondents and the other based on the date of appointment, have resulted due to misunderstanding.
IV. The interpretation of the term "similarly placed" in the initial order contributed to the misunderstanding on the part of the respondents in preparation of the seniority list.
V. The seniority list could not be prepared within the period given by the Tribunal due to the fact that the judgment dated 29.11.1991 was communicated to the respondents on 17.1.1992. Data had to be collected and seniority list based on dates of initial engagement of casual labourers could be finalised by 23.4.1992, which exceeded the time limit granted by the Tribunal only about a week.
VI. The appointment of certain other persons had been made by the other officers and the contesting respondents could not be held responsible for their appointment as the same had been made under the orders of the General Manager. Thus, none of the contesting respondents could be held guilty of the charges for which they had been tried.
VII. None of the contesting respondents could be found guilty of fabricating false evidence.
VIII. The language used in order dated 13.5.1997 issuing the show cause notice to the opposite parties as to why he should not be punished under Section 340 Cr.P.C. was the stage prior to the stage of framing of the charge, and thus, charges had rightly been framed by subsequent order.
IX. The petitioner miserably failed to substantiate the charges, and therefore, no case of contempt was made out.
As the findings recorded by the Tribunal are the findings of fact, this Court cannot sit in appeal against the same. The Court, not being a Court of Appeal, is not competent to substitute its own view on factual aspects of the case. The Court can review to correct errors of law or fundamental procedural requirements which may lead to manifest injustice and can interfere with the impugned order in "exceptional circumstances".
To sum up, firstly, the petition is not maintainable against the order of discharge of the respondents in a contempt proceeding as contempt is a matter between Court and contemnor and the informant has no right to raise the grievance if the Court does not find sufficient ground to punish the alleged contemnor.
Even if the Court or Tribunal framed the charges, the same could be altered, modified at any stage of the proceedings as it is permissible in a criminal trial. Therefore, it can also not be held that once the show cause notice had been issued as to why the proceedings should not be initiated under Section 340 Cr.P.C. the Tribunal was not competent to frame the charges subsequently and it was bound to proceed in accordance with the show cause notice dated 31.7.1997. Even if for the sake of argument it is assumed that petition is maintainable, we find no ground to interfere with the impugned order in exercise of the limited jurisdiction of judicial review in a writ jurisdiction as the Tribunal held that there was no willful defiance of the orders.
Petition is devoid of any merit and is accordingly dismissed.
17.4.2003
