IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Contempt Petition No. 43 of 2008 Manish Tandon S/O Sri Kamal Kumar Tandon, R/O L 29 Ramganga Vihar, Kath Road, M.D.A. Colony, Moradabad. ........ Petitioner. Versus 1. Mr. Subir Kumar, Chief Judicial Magistrate, Dehradun. 2. Richa Tandon W/O Sri Manish Tandon, D/O Anil Malhotra, R/O 29 Railway Road, Rishikesh, District Dehradun. ....Respondents. Sri Sharad Sharma, learned counsel for the applicant-petitioner. Date April 01, 2008. Hon’ble B.S. Verma, J. This contempt petition has been filed to summon the respondents in person and to punish them for deliberately flouting the order dated 11-12-2007 passed by this Hon’ble Court in C-482 Application No. 919 of 2007 Manish Tandon Vs. Richa Tandon and others (hereinafter referred to as C-482 application). On 11-12-2007, this Court has passed an order in Criminal Misc. Application No. 919 of 2007 to the following effect:- “Heard. Admit. Issue notices to respondents no. 1 to 6. No need to issue notice to respondent no.7. Respondents nos. 1 to 6 shall file counter affidavit within a period of one month. List thereafter. Till the next date of listing, operation of the impugned order dated 17.11.2007 passed by Chief Judicial Magistrate, Dehradun in Case No. M-286 of 2007, Smt. Richa Tandon vs. Manish Tandon & others, shall remain stayed.” At the outset, it may be mentioned that petitioner Manish Tandon and respondent no.2 Richa Tandon are husband 2 and wife. Respondent no.1 is the Chief Judicial Magistrate Dehradun before whom Case No. M 286 of 2007, under the Protection of Women from Domestic Violence Act, 2005, Smt. Richa Tandon Vs. Manish Tandon and others (hereinafter referred to as the Case) was filed on 17-11-2007. The case was ordered to be registered and notices were ordered to be issued to the opposite parties fixing 27-11-2007. Along with the application, the applicant Richa Tandon filed an affidavit for grant of ex-parte interim relief for alimony etc. The learned Chief Judicial Magistrate allowed the application and inter alia by the order dated 17-11-2007 directed the husband-Manish Tandon to pay a sum of Rs. 5,000/- per month as interim maintenance to the wife. On 27- 11-2007 the case was taken up by the Presiding Officer and the time was granted to the opposite parties to file objection fixing 10-12- 2007. On 10-12-2007, case was taken up, both the parties were present, but objection was not filed and the case was fixed for hearing on 11-12-2007. On 11.12.2007, the opposite party filed objection and the case was adjourned to 12-12-2007. On 12-12- 2007, parties’ counsel were present. A sum of Rs. 5,000/- was paid to the counsel for the applicant Richa Tandon. It was further ordered that the drafts be returned to the opposite parties in original. The opposite parties were directed to file the stay order passed by the High Court by 20-12-2007. Aggrieved by the said order, the husband-petitioner came up before this Court and this Court passed the order dated 11- 12-2007 as mentioned above. According to the petitioner-applicant, on 11.12.2007 itself, an application was moved before the respondent no.1 and the fact of passing of interim order in C-482 application was brought on record and prayer for grant of seven days time to file certified copy of the order was made therein. A copy of the application dated 11.12.2007 has been annexed as Annexure A-4 to the affidavit. According to the petitioner, instead of accommodating the 3 petitioner for a period of seven days, the Presiding Officer proceeded to fix 12.12.2007. On 12.12.2007, the petitioner moved an application before the court below stating therein that in view of the interim order passed by the High Court on 11.12.2007 he is not prepared and willing to make the payments to respondent no.2. The petitioner prayed for issuance of appropriate direction as to whom the amount of maintenance was to be made. The grievance of the petitioner is that in spite of knowledge of the interim order passed by this Court, the passing of judicial orders dated 11-12-2007 and 12-12-2007 are in deliberate disregard to the stay order passed by this Court. By way of supplementary affidavit, the petitioner has filed true copy of the application-dated 12.12.2007 filed by the petitioner before the court below. The petitioner has also filed affidavit duly sworn in by Shri Umesh Arora, Advocate, on 15-3- 2008 in this contempt petition. I have heard learned counsel for the petitioner at length and perused the material on record. The first contention of the learned counsel for the petitioner is that the Presiding Officer i.e. Chief Judicial Magistrate Dehradun had the knowledge of stay order passed by this Court from the application moved by the petitioner dated 11-12-2007, hence the Chief Judicial Magistrate Dehradun was under obligation not to insist upon the petitioner to make compliance of his order dated 17-11-2007. In support of his contention, learned counsel has relied upon the case of Tarafatullah Mandal and others Vs. S.N. Maitra and others [AIR 1952, Calcutta, 919]. I have perused the Division Bench judgment of the Calcutta High Court in the case Tarafatullah Mandal (supra). To my mind, in paragraph no. 31, the test to find out the contempt has 4 been provided. Paragraph no. 31 of the said judgment reads as under:- “31. Before a proceeding for contempt can succeed, it is of paramount importance to establish first, the service of the order of the Court said to have been disobeyed upon the person alleged to have committed contempt thereof, secondly the precise act of contempt, thirdly the precise responsibility of the contemner in the act of contempt and fourthly the date of the alleged contempt being subsequent to the service of the order said to have been disobeyed. These are the four indispensable requisites and failure to establish any one of them must mean dismissal of the petition for contempt.” In the case at hand, it is an admitted fact that the petitioner had not supplied or filed any copy of the C-482 petition in the court below, which was filed before this Court challenging the order dated 17-11-20074 passed by the Chief Judicial Magistrate Dehradun. The petitioner has annexed photocopy of the application dated 11-12-2007 as Annexure A-4. From a bare perusal of this paper, it cannot be ascertained whether this application was actually presented before the court concerned on 11-12-2007. Condition no.1 as laid down in paragraph no. 31 has not at all been fulfilled because neither the copy of the order passed by this Court was filed nor the averments made in the application dated 11.12.2007 were supported by an affidavit. Moreover, photo copy of entire order- sheet has been filed by the petitioner as Annexure S.A.-1 to the supplementary affidavit. In the proceedings dated 11.12.2007, there is no mention of production of the application dated 11.12.2007 before the Chief Judicial Magistrate Dehradun, though there is specific mention that objection was filed by the opposite parties. 5 The contention of the learned counsel for petitioner is that when the two bank drafts each for as sum of Rs. 2,5000/- had been filed in the court of Chief Judicial Magistrate, Dehradun in compliance of his order dated 17-11-2007, there was no occasion for the Presiding Officer to insist upon the payment of Rs. 5,000/- to the counsel for the applicant-respondent no.2 and to order for return of bank drafts in original to the opposite parties and such an act on the part of the Officer is a contempt in itself. In the contempt cases, this Court is concerned only to examine the first test whether the Officer was served with the order of this Court. My answer to this question is ‘no’ for the following reasons:- Firstly, the petitioner has never filed copy of memo of C-482 application before the court concerned, hence the Presiding Officer of the Court cannot be presumed to have any knowledge of the proceedings having been initiated before this Court. Copy of exact stay order passed by this Court was not filed in the court below. Therefore the information given by the learned counsel for the petitioner in the court below has not been substantiated by any cogent evidence such as by filing affidavit of the petitioner or by filing extract copy of the stay order. Secondly, the counsel for the petitioner in the court below had not filed an affidavit before the Chief Judicial Magistrate Dehradun stating therein that as per information received from Sri Sharad Sharma Advocate High Court, the operation of the order dated 17-11-2007 had been stayed. Such a circumstance is very much doubtful. To my mind, if the counsel before the court below who had received the message telephonically would have been sure that stay order was passed in his favour, it was obligatory on the part of the counsel to substantiate his averment by filing an 6 affidavit of the petitioner. To sum up, the information given by the counsel for the petitioner through application dated 11-12-2007 had not been supported by any cogent evidence or by exact copy of the stay order. Thirdly, even on 12.12.2007, an application was moved before the C.J.M. Dehradun but the applicant did not like to file an affidavit in support of the averments made in the application. The relevant portion of the application reads as under:- “Sir, In the above matter it is respectfully submitted that in compliance of the orders of this learned court dtd 12-12-2007, the respondent has brought a sum of Rs. 5000/- to be paid to the petitioner, but the petitioner is not present in the court today. It is also submitted that Hon’ble High Court of Uttarakhand has also been pleased to stay the operation of the orders of this learned court dated 17.11.07, vide its orders dated 11.12.07, though the respondent is not prepared & willing to pay a sum of Rs. 5000/- to the petitioner towards maintenance. It is therefore PRAYED that, in the light of the submission made above, this learned court be pleased to pass suitable orders, to meet the ends of justice, specifically as to directing the respondent to pay the said amount to the petitioner, whether the amount be paid to the petitioner herself or through her counsel.” On this application, order dated 12-12-2007 has been passed to the effect “Allowed to pay to ld. Counsel for petitioner.” To my mind, unless copy of order passed by this Court was made available to the court concerned or the averments made in the applications dated 11.12.2007 and 12.12.2007 had been duly supported by an affidavit of the partly concerned, it cannot be presumed that the court below had knowledge of the exact stay 7 order passed by this Court in C-482 application and, therefore, there exists no good ground to initiate contempt proceedings against the Officer concerned. The learned counsel for the petitioner has vehemently contended that official communication is not a condition precedent when there is no reason to doubt authenticity of it. According to learned counsel Sri Sharad Sharma, the Presiding Officer concerned was fully aware of the exact order passed by this Court, hence is prima facie guilty for flouting the order dated 11-12-2007 passed by this Court. In support of his submission he has relied on the Apex Court judgment in the case of The Aligarh Municipal Board and others V. Ekka Tonga Mazdoor Union and others [AIR 1970 Supreme Court Page 1767]. In paragraph 8 of the judgment, the Apex Court has inter alia observed as under:- “In order to bring home a charge of contempt of court for disobeying orders of Court those who assert that the alleged contemmers had knowledge of the order must prove this fact beyond reasonable doubt.” The ratio of the judgment cannot be disputed. In the case before the Apex Court, the certified copy of the interim order was obtained and the same was shown to the demand Inspector of the Municipal Board. The order passed by the High Court was, produced before the authority concerned and there had been a note “Seen. Orders of the High Court should be obeyed.” On perusal of the entire material on record, I am of the considered view that in the case at hand, the exact order passed by the High Court cannot be said to be in the knowledge of the Presiding Officer. Copy of stay order passed by this Court was never shown to the learned court below till 12-12-2007. the case law is of no avail to the petitioner. 8 Learned counsel for the petitioner has urged that the Chief Judicial Magistrate Dehradun had no occasion to ask for making payment of Rs. 5,000/- in cash to the respondent no.2 Richa Tandon particularly, when the petitioner had already deposited two Bank Drafts each for a sum of Rs. 2,500/- which were drawn in the name of two minor children Master Ishant and Master Adyaitya. No reason has been assigned by the learned counsel for the petitioner as to why those bank drafts were prepared in the name of minor children, while there was specific order of the Chief Judicial Magistrate Dehradun for payment of Maintenance of Rs. 5,000/- per month in favour of the applicant Richa Tandon and not the minor children. Be that as it may, even if the petitioner was aggrieved by the propriety of the order dated 12-12-2007 passed by the Presiding Officer-respondent no.1, it was open to him to have availed appropriate remedy under the law. This Court in exercise of contempt jurisdiction cannot look into the propriety of the judicial orders passed by the Chief Judicial Magistrate as provided under Section 397 of the Code of Criminal Procedure. Lastly, is pertinent to mention that in the contempt petition, prayer for punishing the Chief Judicial Magistrate Dehradun (respondent no.1) and Richa Tandon, wife of the petitioner himself, has been made. Strangely enough, the respondent no.2, namely Richa Tandon, was neither represented before the High Court in C-482 application nor she had been served with the stay order passed by this Court nor there is any averment made in the affidavit filed by the petitioner to the effect that she is also guilty of willful disobedience of the order passed by this Court, but the petitioner has arrayed Richa Tandon as respondent no.2 to the contempt petition. In view of the discussions made in the foregoing paragraphs, prima facie the petitioner has miserably failed to establish that the respondent no.1 has willfully disobeyed the order of this Court. Therefore, no case of contempt either against the 9 Chief Judicial Magistrate Dehradun the respondent no.1, or Richa Tandon, the respondent no.2 is made out. Accordingly, the contempt petition is liable to be dismissed outright at the threshold. The contempt petition is dismissed in limine. (B.S. Verma, J.) RCP