1 jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIDINARY ORIGINAL CIVIL JURISDICTION CRIMINAL CONTEMPT PETITION NO. 01 OF 2010 IN SUIT NO. 1600 OF 2009 Rajinder Kumar Sehgal of Bombay, Indian Inhabitant Aged 76 years, residing at 601/602, Neelambar, Sherly Rajan Road, Bandra (W), Mumbai – 400 050 ..Petitioner (Org.Plaintiff No.1) Vs. 1. Lalchand Arya of Mumbai inhabitant, residing at 604, Rose Apartment, Juhu Church Road, Juhu, Mumbai – 400 049. 2. Chandragupta Arya of Mumbai inhabitant, residing at Pushpak, Flat No.3, 49, Linking Road Extn., Santacruz (West), Mumbai – 400 054. 3. Sangeet Arya of Mumbai, inhabitant residing at 14 Alok CHS Ltd. P. Mehta Road, Khotwadi, Santacruz (West), Mumbai-400 054. 2 4. Rajan Bahri of Mumbai, Inhabitant residing at 38-A Sunset Heights, Nargis Dutt Road, 59 Pali Hill, Bandra (West), Mumbai – 400 050. 5. Capt. Devrattan Arya of Mumbai Inhabitant, residing at F-614, Milton Apartment, Juhu Koliwada Road, Juhu, Mumbai – 400 049. 6. The State of Maharashtra Through Govt. Pleader, High Court, Bombay. ..Respondents Mr. F. D’vetre, Senior Counsel a/w Mr. Shyam Mehta i/by Federal and Rashmikant for petitioner. Mr. Rohit Kapadia, Senior Counsel a/w Mr. Mustafa Doctor with Mr. Ranjit Shetty, Risnit Badiani i/by Hariani & Co. for Respondent nos.1 to 5. CORAM: B. H. MARLAPALLE & SMT. V.K. TAHILRAMANI, JJ. Reserved on : February 26, 2010. Pronounced on : March 10, 2010. P.C. 1. This Contempt Petition has been filed under Section 15(1)(b) of the Contempt of Courts Act, 1971 and prays as under:- 3 “that this Hon’ble Court may be pleased to issue notice to Respondents to show cause as to why they ought not to be punished for criminal contempt and on such notice being issued and the said Respndents being heard, to punish the said Respondents with simple imrisonment for a period of 6 months or such other term as this Hon’ble Court may deem fit and proper and/or with a fine of Rs.2000/- or such other amount as this Hon’ble Court may deem fit and proper in the circumstances of the present case.” 2. The petitioner is a member of Arya Samaj, Santacruz (for short “the Samaj”), a registered Public Charitable Trust, since 1972. He is also a life trustee of Arya Samaj Santracruz Trust (referred to as “the Trust”), registered as a Public Charitable Trust with the Charity Commissioner by an order dated 19/8/1975. He came to be appointed as the President of the Trust in the meeting held on 20/5/2009 for a period of three years. The Constitution of the Trust (being a declaration of Trust dated 30/12/1950 and a Modification Declaration Deed dated 5/5/1960 and approved by the Assistant Charity Commissioner by his order dated 19/8/1975) provides for a maximum of 9 Trustees and minimum of 5 Trustees for the Trust. The President and Secretary of the Samaj are ex officio Trustees during the term of their office in the Samaj and other 4 Trustees of the Samaj are life Trustees of the Trust. The petitioner being a trustee of the Samaj is a life trustee of the Trust. Respondent Nos.1 to 5 are also the Trustees of the Trust. Respondent No.1 was a life trustee and President of the Samaj till 22/12/2009 and he came to be replaced by Respondent no.2 as the President of the Samaj. The petitioner was the Vice President of the Samaj during the years 1978-79, 1993-94 and 1999-2000. 3. By an order dated 9/6/2009, the petitioner came to be suspended from the membership of the Samaj along with Shri Vishwabhushan Arya and the said decision was communicated to the petitioner vide notice dated 12/6/2009. The petitioner along with Shri Vishwabhushan Arya filed Suit No. 1600 of 2009 and prayed for a declaration that the suspension was illegal and was required to be quashed and set aside. Restraining orders against defendant nos.1 to 15 who are the Trustees of the Samaj was also sought and a claim of damages in the sum of Rs. 3 lakhs was also made by way of compensation. In the said Suit Notice of Motion No. 2233 of 2009 came to be filed and on 22/6/2009 and by way of ad-interim relief, while making the notice returnable after two weeks, the Trust (Defendant No.17) was restrained from considering the following subjects in the meeting scheduled to be held at 6 p.m. on 22/6/2009: 5 (a) To consider the suspension order dated 12/6/2009 issued by Arya Samaj to the members of the Trust and (b) To fill the vacancies of the office bearers. Obviously the petitioner was doubtful about his continuation as the President of the Trust on acount of his suspension by the Samaj. 4. Defendant Nos.1, 14 and 15 purportedly held the meeting of defendant no.17 i.e. the Trust on 22/6/2009 and transacted certain business. The plaintiffs, therefore, had apprehensions that there would be some adverse action against them in relation to the petitioner being the President of the Trust. When the Motion came up before the learned trial Judge on 6/7/2009, the learned counsel appearing for defendant nos. 1, 3 and 8 to 16 filed a pursis stating that the Samaj had withdrawn the suspension orders issued against the plaintiffs with effect from 6/7/2009. The plaintiffs, therefore, took out Notice of Motion No. 2614 of 2009 praying for the relief of status quo to be maintained as on 22/6/2009. The said Motion was partly allowed on 16/7/2009 in terms of the following order:- (a) The order of suspension dated 9/6/2009 communicated to the plaintiffs vide notice dated 12/6/2009 which came to be withdrawn by the Defendants w.e.f. 6/7/2009 is stayed and shall not operate during the period commencing from 9/6/2009 to 6/7/2009. 6 (b) It is declared that the proceedings of the meeting of the Defendant No. 17 dated 22/6/2009 so also the business transacted therein shall be treated as non-est being in violation of the order passed by this Court dated 6/7/2009. (c) Consequently, the Defendants are restrained from giving effect to the suspension of the plaintiffs and from giving effect to the proceedings and business transacted in the meeting held on 22/6/2009. 5. While the Suit is pending, Contempt Petition No. 70 of 2009 has been filed by the plaintiffs against Respondent nos.1, 3 and 4 alleging breach of the order dated 22/6/2009. On 12/9/2009 a notice was circulated by the petitioner convening a meeting of the Trust on 19/9/2009. On 18/9/2009 the present Respondent nos.1, 3 and 4 addressed a letter to the petitioner and stated that the plaintiffs should not participate in the meeting so as to discuss the defence to contest Suit No. 1600 of 2009, and these items could not be taken up for discussion unless the plaintiffs recused themselves from the meeting. On the same day, the petitioner addressed a letter to Respondent nos.1, 3 and 4 and refused to recuse. The meeting was held in which 7 Trustees allegedly remained present on 19/9/2009 and it was presided over by the petitioner, 7 as the President of the Trust. Respondent Nos.1, 3 and 4 also attended the meeting. Minutes of the meeting were circulated and by their letter dated 1/10/2009, the said respondents called upon the petitioner to change the draft minutes. Another meeting of the Trust was held on 22/12/2009 and there was no unanimity on the draft minutes. 6. On 7.1.2010, the Trust, passed a resolution by circulation as provided under Clause 15 of the Trust Declaration dated 30.12.1950 and the petitioner came to be removed from the post of President, though he continued to be a life trustee. By the said resolution, Shri Lalchand Arya, Respondent No.1 came to appointed as the President of the Trust. This resolution was communicated to the petitioner by a letter dated 8.1.2010 signed by Respondent No.1. By his letter dated 12.1.2010, the petitioner addressed a letter to Respondent no.1, alongwith three other Trustees, stating that the resolution was illegal and could not have been given effect to, though it was passed by a majority. 7. This petition has been moved solely on the ground that the resolution passed by the Trust on 7.1.2010 is nothing but an attempt to put pressure on the petitioner to withdraw the pending sit and the said resolution interferes or tends to interfere with the due course of the judicial proceedings, i.e. the pending Suit. It is the contention of the 8 petitioner that the said resolution amounts to an act of criminal contempt as defined under Section 2(c) of the Act and therefore, this Court should take cognizance of the same and punish the respondents. It appears that, before the petition was filed, the petitioner had approached the learned Advocate General for the State of Maharashtra through is Advocates and the learned Advocate General was placed to grant his consent to initiate proceedings for criminal contempt against the present respondents, vide his letter dated 1.2.2010. A copy of the said letter of consent has been annexed to the petition. 8. Thus, the short question that falls for our consideration is, whether the resolution passed on 7.1.2010 by the majority of the Trustees of the Trust, removing the petitioner from the post of president of the said Trust during the pendancy of Suit No. 1600 of 2009, amounts to a criminal contempt as defined under Section 2(c) of the Act ? 9. Mr. D’vetre, the learned senior counsel, has placed reliance on the following two decisions. 1. Pratap Singh and another Vs. Gurbaksha Singh, AIR 1962 SC 1172 2. Govind Sahay and another Vs. State of U.P., AIR 1968, SC 1513. 9 In the case of Pratap Singh (supra), the respondents had supplied three feet timber to various ordinance depots under the orders of Chief Conservator of Forests and in the year 1954, the Chief Conservator of Forests sent a letter to the respondents alleging that there had been a short supply in the Timber which was sent to the ordinance at Choke and thus, loss of Rs.11,366/- was caused to the Government. By an order dated 16.7.1956, the State Government directed the Chief Conservator of Forests to recover 10% of the loss i.e. Rs.1135/- from the respondents. The respondents, therefore, challenged the said order by instituting a Suit in the Court of Senior Subordinate Judge, Amritsar for a declaration that the order of recovery was void and without effect. The State Government, by relying upon the earlier circular dated 25 th January, 1953 issued by the Chief Secretary to the Panjab Government, instituted a departmental enquiry against the Respondent as he had instituted the Suit without exhausting the departmental remedies and the Respondent, by filing a Suit, for seeking a decision on the legality of the order for recovery, he was charged to have acted contrary to the official propriety and also indulged in an act subversive of good discipline. It is at this stage that the Respondent had instituted a contempt proceeding against the higher officials and the High Court, by its order dated 5.11.1958 had found the appellants guilty of contempt. The supreme Court stated, while upholding the order of the High Court, as under: 10 “...... The question is not whether the action in fact interfered, but whether it had a tendency to interfere with the due course of justice. The action taken in this case against the Respondent by way of a proceeding against him could have only one tendency, namely, the tendency to coerce the Respondent and force him to withdraw his Suit or otherwise not press it. If that be the clear and unmistakable tendency of the proceedings taken against the Respondent, then there can be no doubt that in law, the appellants have been guilty of contempt of Court even though they were merely carrying out the instructions contained in the circular letter.” In para 18 of the said judgment, one of the members of the three Judge Bench, while agreeing with the majority view, observed as under: “(18) I do not dispute the legal proposition that if any pressure is put on a party in order to make him act in a particular manner with respect to pending litigation, that would amount to contempt of Court in which the matter be pending. I however fail to see any such conduct on the part of the appellants in the action taken by them against Gurbaksh Singh.” 11 10. In the case of Govind Sahai (supra), while following the majority opinion in Pratap Singh case (supra), the Supreme Court stated in para 14 as under: “In the instant case, the passing of the orders of expulsion, by the two appellants, against the second Respondent, and the filing of a supporting affidavit in the Suit by the second appellant, clearly indicate that it was a deliberate attempt, by the appellants, to interfere with, or prejudice the second Respondent, in the conduct of the litigation, instituted by him. It is no answer that the action, by way of expulsion, was taken on the basis of the Resolution of All India Congress Working Committee, and to enforce discipline, in the Congress Organization. As emphasized by Das, J. in Pratap Singh’s case any conduct, which interferes with, or prejudices parties litigant, during the litigation, is undoubtedly Contempt of Court. The High Court, in this case was justified in holding the appellants guilty of contempt. We agree with the said conclusion. 11. Let us consider the facts of this case leading to the resolution dated 7.1.2010 by which the petitioner came to be removed from the post of president of the Trust. Admittedly, Suit No. 1600 of 2009 challenged the suspension order dated 9.6.2009 issued by the Samaj and 12 by the said order, the petitioner was suspended from the Membership of the “Samaj” and not the Trust, though in the said Suit Samaj is impleaded as Defendant No.16 and Trust is impleaded as Defendant No. 17. The said suspension order has already been withdrawn and, therefore, what remains pending in the Suit is the prayer for compensation of Rs.3 lacs by way of damages. In the said Suit, Notice of Motion No. 2614 of 2009 was filed and as per the order dated 16.7.2009 passed by the learned trial Judge, the proceedings of the meeting of the Trust held on 22.6.2009 have been declared to be non est as being in violation of the order passed earlier on 6/7/2009 in Notice of Motion No.2233 of 2009. 12. Clauses 13, 14 and 15 of the Trust Declaration read as under: “(13). THE TRUSTEES shall have the power to appoint from time to time one of them as their President and to determine his tenure of office. If at any meeting of the Trustees the President is not present any of the other Trustees present may act as the Chairman of the said meeting. The meeting of the Trustees shall be convened by the President or at the written request of any 2 Trustees. (14). All questions at any meeting shall be decided by a majority of votes and in case of equality of voting, the President of the meeting shall have a casting vote. The quorum of the meeting shall be 13 three Trustees. (15). The Trustees shall have the right to make necessary resolution by circulars instead of by meeting and any resolutions so agreed to by a majority of the Trustees shall be as valid and effectual as a resolution of the Trustees at a meeting duly convened.” 13. It is clear from the said clauses that the Trustees shall have the power to appoint from time to time one of them as their President and to determine his tenure of office. All questions at any meeting shall be decided by a majority of votes and in case of equality of voting, the president of the meeting shall have a casting vote. The quorum of the meeting shall be three Trustees. Trustees shall have the right to make necessary resolution by circulation instead of holding a meeting and any resolutions so passed by the majority of the Trustees shall be as valid and effectual as a resolution of the Trustees at a meeting duly convened. 14. As per clause-15, out of 9 members, 5 of them have passed resolution dated 7.1.2010 by circulation and other four Trustees did not agree with it. Thus, the resolution is passed by a majority of five versus four Trustees. The Trustees have the power to appoint one of 14 them as the President of the Trust at any time and also to determine his tenure of office. Thus, the resolution passed on 7.1.2010 appears to be, prima faice, in keeping view the procedure as laid down under the Trust declaration and in any case, if the petitioner is aggrieved by the said decision, he may amend the pending Suit to challenge the same or initiate other alternative and appropriate proceedings to challenge the said decision of his expulsion from the post of president. The record also indicates, and as has been referred herein above, some of the Trustees had taken exception to the petitioner calling for the meeting on 22.6.2009 as well as on 19.9.2009. Even though the meeting, which was presided over by the petitioner on 22 nd December, 2009, was also opposed by some of the Trustees and more particularly, it was requested to the petitioner to recuse himself from such meetings which were called for, inter alia. to discuss the defence of the Trust so as to oppose the Suit instituted by himself alongwith one more trustee, he did not recuse from the meeting and proceeded to pass resolutions in the said meetings, even touching upon the issues involved in the pending Suit. The resolution so passed in these obtaining circumstances, cannot be said to have been passed to browbeat the plaintiff or to pressurize him to withdraw the Suit and more so, though the plaintiff No.1 has been removed from the post of President, he continues to be a trustee and, therefore, he continues to associate with the Trust which association is not eclipsed or 15 limited by the resolution of the Trust removing him form the post of president. The Respondent Nos. 1 to 5 have passed the resolution dated 7.1.2010 and there are no circumstances to hold that they have collectively or individually acted in any manner so as to interfere or cause to interfere, or tend to influence the adjudication in the pending Suit. The challenge in the pending Suit is substantially to the order or suspension passed by the Samaj and not the Trust. 15. In the case of Omprakash Jaiswal Vs. D. K. Mittal and another, (2000) 3 Supreme Court Cases 171, the Supreme Court, while dealing with the jurisdiction to punish for contempt, observed as under: “The Jurisdiction to punish for contempt is summary but the consequences are serious. That is why the jurisdiction to initiate proceedings in contempt as also the jurisdiction to punish for contempt in spite of a case of contempt having been made out are both discretionary with the Court. Contempt generally and criminal contempt certainly is a matter between the Court and the alleged contemner. No one can compel or demand as of right initiation of proceedings for contempt. Certain principles have emerged. A jurisdiction in contempt shall be exercised only on a clear case having been made out. Mere technical contempt may not be taken 16 note of. It is not personal glorification of a Judge in his office but an anxiety to maintain the efficacy of the justice administration system effectively which dictates the conscience of a Judge to move or not to move in contempt jurisdiction.......... . “ 16. It is well settled that the contempt proceedings being quasi criminal in nature, the jurisdiction has to be invoked with care and circumspection and it has to be most jealously and carefully watched and exercised. Lord Denning in Re-Bramblevale (1969) 3 ALL ER 1062) observed, on the nature of criminal contempt as under: “A Contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time honoured phrase, it must be proved beyond all reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence.... Where there are two equally consistent possibilities open to the Court, it is not right to hold that the offence is proved beyond reasonable doubt. 17 In the case of S. Abdul Karim Vs. M.K. Prakash ( 1976 SC 859, a Three Judge Bench on the issue of standard of proof for holding someone guilty of criminal contempt observed as under: “The broad test to be applied in such a case 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.” 17. On the backdrop of this judicial enunciation, if we examine the petitioner’s contention in support of his prayer to punish the respondents for criminal contempt, we have no doubt in our mind that no case has been made out to take cognizance and initiate contempt proceedings against the respondents for punishing them for criminal contempt as defined under Section 2(c) of the Act, as the resolution dated 7.1.2010 does not amount to either interference or obstruction in the trial of the pending Suit nor does it have a tendency to obstruct or cause interference in the course of justice. In our opinion, the said resolution does not have any bearing so as to pressurize the petitioner to withdraw the Suit and the removal of the petitioner form the post of president does not undermine his association with the Trust as a trustee. 18 If he so desires, he has an opportunity, as noted earlier, to challenge the said resolution either in the pending Suit or in any other appropriate proceedings. This petition, therefore, must fail at the threshold, as there is no case to take cognizance and initiate criminal contempt proceedings against Respondent Nos. 1 to 5. 18. Hence the petition is dismissed. (SMT. V.K. TAHILRAMANI, J.) (B. H. MARLAPALLE,J.)