iminal Appeal No 55 of 1965
Appeal by special leave from the judgment and order dated June 16 1964 of the Calcutta High Court in Criminal Misc
Case No 28 of 1964
Debobrata Mukherjee and P K Chakravarty for the appel lants
D N Mukherjee for P K Bose for respondent No 1
Niren De Solicitor General B Sen and G section Chatterjee for the intervener
Hidayatullah CJ
The five appellants are District Magis trate of Nadia and his four assistants who have been found guilty of contempt of the High Court of Calcutta and the Sessions Court of Nadia and sentenced to fines with imprisonment in default of payment
They now appeal by special leave granted by this Court
The facts are long and need a full narration
306 One Birendra Kumar Sarkar Sub Agent of Phosphate Co Ltd Krishnagar District Nadia was prosecuted for contravention of the Fertiliser Control Order read with section 71 of the Essential Commodities Act and on his own plea was convicted and sentenced to Rs 20 fine or simple imprisonment for 10 days
We are not concerned with his conviction
The fertiliser seized during investigation was sold by order of the Court and the sale proceeds held in deposit
On the conviction of Birendra Kumar the amount in deposit Rs 4215 was directed on March 11 1963 to be returned to him
The same day the Phosphate Co Ltd applied to take out the amount and the Magistrate reversed the earlier order and directed that the amount be paid to the Company
Birendra Kumar appealed to the Sessions Judge Nadia under section 520 of the Code of Criminal Procedure
This appeal succeeded and on December 23 1963 the Sessions Judge directed the Magistrate to deliver the amount to Sarkar upon his furnishing security and executing a bond to the satisfaction of the District Magistrate Nadia
On January 3 1964 Sarkar produced a certified copy of this order and asked to be allowed to take out the amount and furnished a bond
The bond was found in order by N C Mookherjee Magistrate 1st Class who recommended its acceptance
It was then accepted by A Sen Additional District Magistrate Nadia
On January 11 1964 the accountant attached to the Court of N C Mookerjee reported and the latter directed issuance of a pay order
Sarkar received the pay order the same day and deposited it with his bankers State Bank of India on January 13 1964
On January 8 1964 the Company expressed to the Sessions Court its intention of moving an application for revision in the High Court at Calcutta against the order of December 23 1963 and asked for stay
Stay was not immediately grantedbut notice F was issued to Sarkar to show cause on January 16 1964
Later a stay order was also sent
On January 13 1964 the High Court issued a rule and also directed stay of operation of the Sessions Judge s order of December 23 1963
It will be seen from the above facts that the actual payment of money was made under the orders of the Sessions Judge passed on December 23 1963 as far back as January 11 1964
The High Court has considered the question of the contempt of the Sessions Judge s order from the angle of the kind of bond which was accepted and the Officers who accepted it
We shall come to it later
We shall now trace the progress of the orders which were passed by the Sessions Judge and the High Court in proceedings subsequent to January 1964
For this purpose it is sufficient to extract the summary of the events made by the High Court itself 307  The stay order dated 14th of January 1964 was communicated by
the Sessions Judge by his Memo
No 170 and it was received by the District Magistrates Office on 16th of January 1964
On 20th January 1964 Memo No 443 Jm
containing the direction to carry out the order of the Sessions Judge dated 23rd December 1963 was drafted by Pulak Kumar De and it was signed by another Magistrate Shri Jyotirmoy Ghose
On 22nd January 1964 on which date the Rule issued by this Court in Criminal Revision No 60 of 1964 was also received in the District Magistrate s Office
It was sent to the trial Magistrate s Court with Memo No 549 Jm
only on 29th January 1964 and was received in the trial Magistrate s Court on 30th January 1964
In the meantime Sessions Judge s Memo No 170 that had been received in the District Magistrate s Office on 16th of January 1964 was also dispatched to the trial Magi strate s Court on 29th of January 1964 by Memo
No 554 Jm
and the trial Magistrate received it on 30th January 1964
Sessions Judge s Memo
No 108 dated 11th January 1964 which was received in the District Magistrate s Office on 15th January 1964 and is said to have be en dispatched to the trial Magistrate s Court on 22nd January 1964 with Memo
No 443 Jm
is said to have been received by the Bench Clerks of the trying Magistrate on 25th January 1964 and put up before the Magistrate only on 1st February 1964
 On the above facts the High Court framed the following questions 1 Has there been disobedience of the order of the Sessions Judge Nadia that money should be given to Birendra Kumar Sarkar on a Bond to the satisfaction of the District Magistrate Nadia  2 Was the Bond upon which pay order for the money had been made a document that complies with the order for the Sessions Judge of Nadia dated 23rd December 1963  3 Was Memo
No 443 Jm
dated 20th January 1964 directing to carry out Sessions Judge s order dated 23rd December 1963 after the order of stay made by the Sessions Judge on 14th January 1964 was received in the District Magistrate s office on 16th January 1964 by Memo
No 108 dated 11th January 1964 an intentional violation of the stay order The first two questions were treated as interconnected and dealt with together
The High Court found fault with the bond 308 and also opined that none else save the District Magistrate could accept the bond
With all respect the High Court erred on both the aspects
The bond is reproduced below  BOND A bond is made this day by Sri Birendra Kumar Sarkar son of late Bilash Chandra Sarkar of Chand Sarkar Krishnagar Dt
Nadia is hereby agreed and received Rs 4125 Rupees four thousand one hundred and twenty five only which has been deposited in the court in connection with GR Case No 338 of 1961 and the said amount has been ordered by the Sessions Judge of Nadia in case Criminal Appeal No 75 of 1963 1 Birendra Kumar Sarkar so late Bilash Chandra Sarkar bind myself and my heirs executors administrators and representatives to refund the entire money if disputes arises to the Government of West Bengal or its successors
I bind myself my heirs executors administrators and representatives firmly by this bond signed in my own hand dated this the 3rd day of January 1964
Sd Birendra Kumar Sarkar 3 1 64 Signature of the executant Signed in my presence and identified
Rajendranath Biswas Muktear
Krishnagar 3 1 64 Now it is admitted that there is no prescribed form of bond applicable to the case
The form had to be devised for the purpose
The bond which was taken in an ordinary indemnify bond
There is nothing in the words of section 517 Criminal Procedure Code which excluded the use of an indemnity bond
The Sessions Judge did not order that the bond should be taken in the name of any particular court
A bond in the name of the Government of West Bengal substantially if not wholly complied with the order of the Sessions Judge
It could be enforced against Sarkar without any trouble
The further point that the District Magistrate alone could accept the bond ignores the powers of the Additional District Magistrate under the Code of Criminal Procedure
The practice of courts in Bengal is also against the proposition because such bonds are usually considered for acceptance by Additional District Magistrates
The High Court apparently thinks that the District Magistrate was a persona designate for the purpose
We are unable to read such an inference in the order of the Sessions Judge which ran 309 The learned Magistrate be directed to deliver the sale proceeds which are now deposit sic in Court to the accused on the accused s furnishing bond of the amount covered by the sale proceeds to the satisfaction of the District Magistrate Nadia
 In our judgment the High Court could not base any action on such material
It may be pointed out that the High Court did not throw into the balance the acceptance of the bond by the Additional District Magistrate holding that there was room for an error there but took serious note of the fact that the bond was not in the proper form
We do not agree with the High Court
This brings us to the last question
The fact here is that the orders took some time before reaching their destination
While we do not condone such delays we think that the High Court was taking too strict a view of the matter
Two things seems to have played a prominent part in the drawing of the inference against the concerned officers
The first is that there was an intentional disobedience of the orders
This the High Court visualised in the following terms That by itself bespeaks of a well throughout sic scheme to achieve an end and that end is the cherished goal to make over the money to Birendra Kumar Sarkar by violating the stay order of the Sessions Judge dated 14th January 1964
For carrying out that scheme the file in which the order sheet started on 3rd January 1964 was started separately and to seclude the features in that file it was withheld from this Court when return was made to the Rule in Criminal Revision case No 60 of 1964 until it was thought useful for making a defence in this Contempt Rule
No other view of the matter could be suggested by the three learned Advocates appearing for the several parties or the learned Advocate for the State Mr Fanindra Mohan Sanyal and no other view is possible
Now it seems quite impossible to subscribe to this opinion
For a conspiracy to be hatched there must be some foundation of gain or purpose
The conspirators if they knew anything would at least know that there was nothing to be gained by delaying the orders since the money was already paid out
Once that had happened some fresh order would be necessary to demand back the amount from Sarkar or the bond would be enforced
The stay orders were ineffective since there was nothing to stay
To think that the officers one and all were actuated by a motive to frustrate the stay orders is to imagine a state of affairs for which there was no warrant at all
There was thus no question of undermining the authority of the Court of Sessions Judge  or 310 of bringing the administration of justice in the District of Nadia to ridicule 
Nor can it be said that there was a deliberate interference with or obstruction to due course of justice
There was no doubt some delay but that was a different matter and could be dealt with in other ways than punishment for an Imaginary contempt of court
The second point which the High Court unfortunately placed at the very forefront was failure to offer an apology and noted with great show of emotion that none was offered
Of course an apology must be offered and that too clearly and at the earliest opportunity
A person who offers a belated apology runs the risk that it may not be accepted for such an apology hardly shows the contrition which is the essence of the purging of a contempt
However a man may have the courage of his convictions and may stake his all on proving that he is not in contempt and may take the risk
In the present case the appellants ran the gauntlet of such risk and may be said to have fairly succeeded
The High Court was extremely hard upon the appellants in this case
Details collected from the files of the case having no bearing upon the question of contempt were freely used
They carry no convincement
There are observations which in their tone do show that the matter was not approached in that cool manner in which the High Court considers contempt of itself or of courts subordinate to it
This is a matter of regret to this Court
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 practices in courts and tribunals
It is only when a clear case of contumacious conduct not explainable otherwise arises that the condemner 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 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
In this case no doubt there was some avoidable delay but as pointed out above it was the result of our system of transmission of orders of superior courts which must pass through several hands and not the product of design or defiance of the superior courts
In these circumstances it cannot be said that there was contempt of the authority of the High Court or of the Sessions Judge and the several appellants could not be convicted or punished
In 311 this view of the matter we set aside their convictions and order refund of their fines
We however caution all concerned that orders of stay bail injunctions received from superior courts must receive close and prompt attention and unnecessary delay in dispatching or dealing with them may well furnish grounds for an inference that it was due to a natural disinclination to deal with the matter born of indifference and sometimes even of contumaciousness
GC Appeal allowed


Summary:
S who was Sub Agent of a Phospate company was convicted for a contravention of the Fertiliser Control Order read with section 71 of the Essential Commodities Act
The fertiliser seized during investigation was sold by the order of the Court and the sale proceeds held in deposit
The trial Magistrate ordered the fertiliser to be returned to the company but S filed an appeal under section 520 of the Code of Criminal Procedure and on December 23 1963 the Sessions Judge directed the Magistrate to deliver the amount to S upon his furnishing security and executing a bond to the satisfaction of the District Magistrate
On January 3 1964 S produced a certified copy of this order and asked to be allowed to take out the amount and furnished a bond
The Magistrate recommended its acceptance and it was then accepted by the Additional District Magistrate
On January 11 1964 the Magistrate directed the issuance of a pay order
S received it on the same day and deposited it with his bankers on January 13
The Company meanwhile had filed a revision petition before the High Court and asked the Sessions Judge to stay his order of December 3 1963
The Sessions Judge passed an order of stay on January 14
1964 which was received in the District Magistrate s office on January 16 1964
Even after the receipt of that order in the District Magistrate s office a communication was sent to the trial magistrate on 20th January1964 directing him to carry out the Sessions Judge s order dated December 23 1963
The High Court charged the District Magistrate and other appellants for contempt and held that contempt of the Court of the Sessions Judge had been committed because  a The Magistrate accepted S s bond which was not in proper form and thus failed to carry out the Sessions Judge s order of December 23 1963 b The bond was accepted by the Additional District Magistrate whereas the Sessions Judge had ordered that the bond should be to the satisfaction of the District Magistrate c The District Magistrate directed that the Sessions Judge s order of December 23 1963 be carried out although the Sessions Judge s stay order had been received in his office before that
The High Court held that there had been gross delay in the communication and execution of the orders of the superior courts by the District Magistrate and the subordinates and that there was a well knit conspiracy to pay the amount in deposit to S in defiance of the orders of the superior courts
Against their conviction by the High Court the appellants came to this Court
HELD  i There is nothing in section 517 Criminal Procedure Code which excluded the use of an indemnity bond such as was executed in the case
The Sessions Judge did not order that the bond should be taken in 305 the name of any particular court
A bond in the name of the Government of West Bengal substantially complied with the order of the Sessions Judge as it could be enforced against S without any trouble 308 F G ii In holding that the District Magistrate alone could accept the bond the High Court ignored the powers of the Additional District Magistrate under the Code of Criminal Procedure
The practice of courts in Bengal is also against the proposition because such bonds are usually considered for acceptance by the Additional District Magistrate 308 G H iii The High Court went wrong in holding that there was a conspiracy by the officials concerned
For a conspiracy to be hatched there must be some foundation of gain or purpose
The conspirators would at least know that there was nothing to be gained by delaying the orders since the money was already paid out
The stay orders were ineffective since there was nothing to stay
There was no doubt some delay but it could be dealt with in other ways than punishment for an imaginary contempt of court
L309 G H310 A In the circumstances of the case the High Court was also wrong in taking into account against the appellants their failure to make an apology1310 B 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 practices in courts and tribunals
It is only when a clear case of contumacious conduct not explainable otherwise arises that the condemner must be punished 310 F The Court however cautioned all concerned that orders of stay bail injunctions received from superior courts must receive close and prompt attention and unnecessary delay in dispatching or dealing with them may well furnish grounds for an inference that it was due to a natural disinclination to deal with the matter born of indifference and sometimes even of contumaciousness
311 A B