OJA/16/2006 1/102 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD O.J.APPEAL No. 16 of 2006 In MISC. CIVIL APPLICATION No. 47 of 2006 In MISC. CIVIL APPLICATION No. 27 of 2006 with CIVIL APPLICATION No. 55 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE ANIL R. DAVE HONOURABLE MR.JUSTICE K.A.PUJ ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= SHARAD BANSILAL VAKIL - Appellant(s) Versus SUO MOTU - Opponent(s) ================================================= Appearance : OJA/16/2006 2/102 JUDGMENT MR M.J. THAKORE, SR. ADVOCATE, MR. S.N. SOPARKAR, SR. ADVOCATE, with MR PRAKASH K JANI for Appellant(s) : 1 NOTICE SERVED for Opponent(s) : 1, ================================================= CORAM : HONOURABLE MR.JUSTICE ANIL R. DAVE and HONOURABLE MR.JUSTICE K.A.PUJ Date : 31/03/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE ANIL R. DAVE) This appeal has been directed against the order dated 24.2.2006 passed in Misc. Civil Application No. 47 of 2006 in Misc. Civil Application No. 27 of 206. 2. Brief facts, giving rise to this appeal, are as under: 2.1 On 17.2.2006, in one of the courts, mobile phone of the appellant, who is a senior advocate OJA/16/2006 3/102 JUDGMENT practising in this court, started ringing. The appellant, upon finding that his mobile phone had started ringing, switched off the phone while going out of the court room so as to see that the court is not disturbed. When the learned single Judge noticed that the phone of the appellant had started ringing in the court, he issued notice to the appellant calling upon him to show cause as to why he should not be punished under the Contempt of Courts Act, 1971 (hereinafter referred to as 'the Act') for ignoring the directions given by that court that nobody should bring his working mobile phone in the court so as to allow his mobile phone to ring. The notice was made returnable on 24.2.2006. It was also directed that the appellant should remain present in the court on that day. The said proceedings were registered as Misc. Civil Application No. 27 of 2006. OJA/16/2006 4/102 JUDGMENT 2.2 The appellant filed Misc. Civil Application No. 47 of 2006, which came up for hearing on 24.2.2006, under sec. 14(2) of the Act with the following prayers: “A. to allow this application and cause the matter to be placed together with a statement of facts of the case before the Hon'ble the Chief Justice for such direction as he may think fit to issue as respects the trial of the charge against the applicant. B. to extend the time for the filing of affidavit-in-reply to Miscellaneous Civil Application No.27 of 2006 by the applicant till expiry of one week from the date of order of this Hon'ble Court on this Miscellaneous Civil Application. C. to stay pending the hearing and final OJA/16/2006 5/102 JUDGMENT disposal of this application, further proceedings in Miscellaneous Civil Application No.27 of 2006. D. to grant such other and further relief as this Hon'ble Court deems fit and proper.” In the said application the appellant submitted that looking to the provisions of sec.14(2) of the Act, and more particularly in view of the judgment delivered by the Hon'ble Supreme Court in the case of Mohmad Zaher Khan v. Vijai Singh and others, AIR 1992 SC 642, the appellant had the option to have the charge against him heard by some judge or judges other than the judge or judges in whose presence or hearing he was alleged to have committed contempt. In para 2.2 of the said application, the appellant has explained the circumstances in which his mobile phone had rung and that he felt sorry for ringing OJA/16/2006 6/102 JUDGMENT of his mobile phone in the court room. 2.3 On 24.2.2006, when the said application – M.C.A. No. 47 of 2006 – was placed for hearing, the learned single Judge did not pass any final order on the said application and adjourned the hearing to 16.3.2006 by passing an order incorporating some other facts. According to the learned single Judge, for the reasons stated in the said order, no final order was passed on the said application. However, the learned single Judge assured the learned counsel for the appellant that before proceeding further in the matter, he would certainly pass an order on the application. 2.4 According to the facts incorporated in the impugned order, due to the incident of ringing of mobile phone of the appellant, the Bar Association of Gujarat High Court had passed OJA/16/2006 7/102 JUDGMENT resolutions, copies of which have been annexed as Annexures-1 & 2 to the said order. So far as the first resolution is concerned, which pertains to intervention of the Bar Association in the said matter, the learned single Judge observed that it was for the Bar to decide as to what the Bar should do. Similarly, so far as the second resolution is concerned, the learned single Judge observed that it had nothing to do with the contempt matter, but he had taken the said resolution on record. 2.5 Thereafter, the learned single Judge has referred to the news published in newspapers named 'Rajsthan Patrika', 'Gujarat Vaibhav', 'Divya Bhaskar' (Ahmedabad Edition) and 'Gujarat Samachar' (Ahmedabad Edition) on 21.2.2006. He has also referred to 'Dainik Bhaskar' published from Indore. The relevant extracts of the said newspapers have been annexed as Annexure-2 to the OJA/16/2006 8/102 JUDGMENT impugned order. The learned single Judge has observed in the impugned order that “the report says that the Bar has stated to the said reporter that since after his appointment Justice Garg did not regularly sit in the Court and does not work for more than two hours. The report also says that in the Resolutions passed by the Lawyers, it has been alleged that instead of entitlement of Rs. 5.50 Lakhs, Justice Garg spent more than Rs. 25 Lakhs for renovation of his bungalow. This report is marked Annexure-5.” 2.6 According to the learned single Judge, the contents of the resolution of the High Court Bar Association and the news reported in the aforesaid newspapers are different. The learned single Judge has observed, “....From the above referred Resolutions 1 and 2, it would be clear that the Resolutions were altogether different than what has been further reported by the press. OJA/16/2006 9/102 JUDGMENT I don't know about the correctness of the reports. I also don't know who is the DNA Reporter, but, in any case, the allegations made against the Court are patently false and do undermine the authority of the Court.” 2.7 The learned single Judge issued notices to the printers, the publishers and the editors of the said newspapers calling upon them to show cause as to why they should not be held guilty under the Act and be not awarded appropriate punishment. The said persons were also directed to appear in person and to file their replies. They were also directed to place a copy of the press note which might have been received by them. 2.8 In the aforesaid circumstances, the appellant has approached this court with a prayer that papers of Misc. Civil Application No. 27 of 2006 OJA/16/2006 10/102 JUDGMENT be directed to be placed before the Hon'ble Chief Justice so that appropriate direction can be given by the Hon'ble Chief Justice. 3. Learned Counsel Shri Mihir Thakore has appeared for the appellant, whereas learned counsel Shri J.N. Pardiwala has appeared as amicus curiae as, normally, in all matters wherein the High Court of Gujarat is a litigant, Shri Pardiwala represents the High Court. 4. Learned counsel Shri Thakore has submitted that according to the provisions of sec. 14(2) of the Act, the person charged with contempt under sec. 14(1) of the Act has an option to be tried by some judge other than the judge or judges in whose presence or hearing the offence is alleged to have been committed and, therefore, according to the learned counsel, the application submitted by the appellant ought to have been granted or OJA/16/2006 11/102 JUDGMENT otherwise disposed of because the learned single Judge had no jurisdiction to conduct the matter in view of the provisions of sec. 14(2) of the Act. 5. It has been submitted by him that the cause of action in the case of the persons, concerned with publication of some contemptuous averments or allegation against the learned single Judge had nothing to do with the ringing of mobile phone with which the appellant was concerned. In view of the said fact, according to the learned counsel, the learned single Judge has erred by tagging cases of other persons with the appellant's case. 6. According to him, looking to the law laid down in the case of Bachharaj Factoies Ltd. v. Hirjee Mills Ltd., AIR 1955 Bombay 355, and in the case of Shankarlal Aggarwala and others v. OJA/16/2006 12/102 JUDGMENT Shankarlal Poddar and others, AIR 1965 SC 507, it has been held that if an order or decision, which causes prejudice to a litigant, the said order or decision can be challenged by filing an appeal. 7. The learned counsel has also referred to the provisions of Rule 11 of the Contempt of Courts (Gujarat High Court) Rules, 1984 (hereinafter referred to as 'the Rules') and has submitted that according to the provisions of the said Rule, every proceedings under the Act should be heard and determined by a Bench of not less than two judges as the Chief Justice might from time to time appoint. Thus, according to him, the learned single Judge was not competent to conduct the case according to the Rules and, therefore, he ought not to have retained control over the proceedings with him and he ought to have referred the matter to the Chief Justice or to the Division Bench taking up contempt matters. OJA/16/2006 13/102 JUDGMENT He has further submitted that as there was no publication of contemptuous statements at the instance of the appellant, there was no reason for the learned single Judge to retain the proceedings with him and more particularly when the learned single Judge had expressly stated that he was not concerned with the resolutions, which had been passed by the Bar Association in relation to ringing of the mobile phone. 8. The learned counsel has further submitted that by an interim order passed by this appellate court on 6.3.2006, the learned single Judge was restrained from proceeding further with Misc. Civil Application No. 27 of 2006, so far as it pertained to the appellant and yet the learned single Judge had passed a further order in the said Misc. Civil Application on 16.3.2006 by misinterpreting the order of the appellate court. He has submitted that the learned single OJA/16/2006 14/102 JUDGMENT Judge ought to have initiated separate proceedings against the persons concerned with the press, if he so desired. Incidentally, the learned counsel has submitted that the learned single Judge should not have made any averment or raised doubt with regard to jurisdiction of the appellate court as it would adversely affect the judicial discipline. He has referred to the judgment delivered by the Hon'ble Supreme Court in the case of Tirupati Balaji Developers (P) Ltd. & others v. State of Bihar and others, (2004) 5 SCC 1, to substantiate his aforesaid submission. 9. Learned counsel Shri Thakore has also cited some other judgments to substantiate his above referred submissions, but we do not think it necessary to enumerate and discuss the same as they also lay down the same principles and the settled legal position. OJA/16/2006 15/102 JUDGMENT 10. Thus, while summarising his submissions, he has submitted that the learned single Judge has erred by not passing an order on Misc. Civil Application No. 47 of 2006 and he ought not to have proceeded further with Misc. Civil Application No. 27 of 2006 in violation of the order passed by the appellate court in Civil Application No. 55 of 2006 in O.J.Appeal No. 16 of 2006. 11. Learned advocate Shri Pardiwala appearing as amicus curiae has fairly submitted that though he was not holding brief for the High Court, he would assist the court in the matter and he has submitted that if the impugned order had been only a procedural order, it could not have been an appealable order. 12. He has fairly submitted that according to law OJA/16/2006 16/102 JUDGMENT laid down by the Hon'ble Supreme Court in the case of R.N. Dey and others v. Bhagyabati Pramanik and others, (2000)4 SCC 400, any order passed after initiation of the contempt proceedings is an appealable order, if the said order is not an order for discharging the rule issued in contempt proceedings. If any order causes any prejudice to a person alleged to have committed contempt, according to his submission, the said order becomes appealable. 13. He has also submitted that according to the law laid down by the Hon'ble Supreme Court in the case of Purushottam Dass Goel v. Hon'ble Mr. Justice B.S. Dhillon and others, AIR 1978 SC 1014, if any order affecting rights of a party is passed, such an order can be challenged by filing an appeal as per sec. 19(1) of the Act. 14. He has fairly submitted that it is a right OJA/16/2006 17/102 JUDGMENT of the contemner to make an application for being tried by some judge other than the judge or judges in whose presence or hearing the offence is alleged to have been committed. 15. We have heard the learned counsel at length and have also gone through the material on record. 16. So far as maintainability of the appeal is concerned, even at the time when the appeal was notified for admission for the first time on 6.3.2006, we had considered the said aspect. Prima facie we were of the view that the appeal was maintainable and, therefore, we had admitted the appeal. We also note that the learned single Judge, against whose order the appeal has been filed, has observed in his order dated 16.3.2006 as under: OJA/16/2006 18/102 JUDGMENT “ No one can dispute that an appeal is a statutory remedy. An appeal shall lie to an appellate forum either under a particular statute or under the Rules or under the provisions of the Letters Patent. Under Section-19 of the Act, an appeal is maintainable before the appellate forum, provided the Judge has exercised his contempt jurisdiction. In certain matters, where proceedings were initiated or some other orders were passed on earlier occasions, the matters were taken to the Appellate Court under Section-19 of the Act and the matter went upto the Supreme Court. The Supreme Court, in number of decisions, has observed that an appeal would be maintainable only if the Court has exercised its contempt jurisdiction and not otherwise. In the matter of D. N. Taneja vs. OJA/16/2006 19/102 JUDGMENT Shri Bhajan Lal, [(198) 3 S.C.C. 26], the Supreme Court has observed that except in cases where the alleged contemnor is convicted of the contempt, an appeal shall not be maintainable; third party has no right to intervene in the matter as the matter is between the court and the alleged contemnor. I do not know whether this legal position has been brought to the notice of the Division Bench or not. Ordinarily, it is expected of the Counsel, who appears for the appellant before a particular Court, that, instead of obtaining a favourable order, he would provide to the Court the correct legal position. Reference may also be made to the judgments of the Supreme Court reported in AIR 1974 SC 2255, AIR 1976 SC 1206 and AIR 1978 SC 1014. The matter has to be adjourned in view of OJA/16/2006 20/102 JUDGMENT the stay granted by the Court. At the same time, I would request the Division Bench to make a clarification in the matter that if, under the High Court Rules, in relation to the contempt proceedings, except Section-14 proceedings, the jurisdiction is conferred upon the Division Bench, then, what shall be the meaning, impact and effect of the liberty given by the Division Bench. The said observations read as under: “It is, however, clarified that it would be open to the learned Single Judge to continue proceedings against the press and others under separate contempt proceedings.” If I observe the order passed by the Division Bench and accept the liberty given to me, I will be committing flagrant violation of the Rules of this Court and if I OJA/16/2006 21/102 JUDGMENT do not observe the order, then also, I may be committing contempt of the lawful authority of the Appellate Court's order. I am in the horns of a dilemma. I hereby direct the Registrar General to place a copy of this order before the Division Bench so that appropriate orders are passed in the matter.” The aforesaid order was passed after the appellate court passed an order on 6.3.2006. 17. The learned single Judge has expressed his doubt with regard to maintainability of the appeal. In our humble opinion, the appeal is maintainable because by virtue of the impugned order passed by the learned single Judge prejudice had been caused to the appellant. In view of the law laid down by the Division Bench of Bombay High Court in the case of Bachharaj Factories Ltd. (supra), which has been confirmed OJA/16/2006 22/102 JUDGMENT by the Hon'ble Supreme Court in the case of Shankarlal Aggarwala and others (supra), the appeal is maintainable. 18. In the case of Bachharaj Factories Ltd. (supra), being aggrieved by an order of adjournment made by the learned Company Judge in a winding up proceedings, an LPA was filed. The question with regard to maintainability of the appeal was raised. Speaking for the Bench, Chagla, C.J. observed in the said judgment that if an order is merely procedural in character, which does not affect rights or liabilities of parties, it would not become appealable, but when the order is not purely procedural in character and if it affects rights and liabilities of the parties, an appeal against such an order is maintainable. Of course, in that case, an appeal against such an order had been filed under the provisions of sec. 202 of [The Indian] Companies OJA/16/2006 23/102 JUDGMENT Act, 1913. The said section read as under: “202. Appeals from orders.- Re-hearings of, and appeals from, any order or decision made or given in the matter of the winding up of a company by the Court may be had in the same manner and subject to the same conditions in and subject to which appeals may be had from any order or decision of the same Court in cases within its ordinary jurisdiction.” 19. Section 202 of the Companies Act, 1913, dealt with “any order or decision” which could have been subject-matter of an appeal. Similarly, if one looks at the provisions of sec. 19 of the Act, that also deals with “any order or decision” against which an appeal can be filed. Section 19 of the Act reads as under: “19. Appeals.-(1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt- (a) where the order or decision is that of a single Judge, to a Bench of not less than two Judges of the Court; (b) .......” OJA/16/2006 24/102 JUDGMENT 20. The Bombay High Court in the case of Bachharaj Factories (supra) has held that “.....what we have to construe is the expression “order or decision” used by the Legislature, and in our opinion in its context and in the juxtaposition in which the two words “order” and “decision” have been used, the Legislature clearly intended that that order or decision should be subject to appeal which was not purely procedural in character but which affected the rights or liabilities of parties.” 21. The said interpretation given to word 'order' and 'decision' has been confirmed by the Hon'ble Supreme Court in the case of Shankarlal Aggarwala and ors. v. Shankarlal Poddar and others, AIR 1965 SC 507. Thus, in the instant case, even if the order, which has been challenged is an order OJA/16/2006 25/102 JUDGMENT of adjournment, as it causes prejudice to the appellant, it becomes an appealable order. 22. It is pertinent to note a subsequent development in the matter. The apprehension of the appellant has in fact turned out to be true. In fact, the persons concerned with publication of contemptuous statements in the newspapers have challenged validity of the order dated 16.3.2006, whereby they have also been directed to remain present before the learned single Judge and in the appeals filed by them the present appellant has been joined as a respondent. This fact reveals that in fact prejudice has been caused to the appellant as apprehended by him because he has been dragged to another litigation, which is not concerned with ringing of his mobile phone. 23. The learned single Judge has also referred to some judgments in his order dated 16.3.2006. The OJA/16/2006 26/102 JUDGMENT intention of the learned single Judge is to show that the appeal filed against his order dated 24.2.2006 is not maintainable. Looking to the facts of the case, the said judgments do not lay down legal position to the effect that the impugned order is not appealable. 24. The learned single Jude has referred to the judgment delivered in the case of D.N. Taneja v. Bhajan Lal, (1988) 3 SCC 26. The facts and circumstances of the said case were different. The High Court did not impose any punishment on the alleged contemner and the order acquitting the contemner was held to be not appealable under the provisions of sec. 19(1) of the Act. 25. The learned single Judge has also referred to the judgment delivered by the Hon'ble Supreme Court in the case of Barada Kanta Mishra v. Orissa High Court, AIR 1976 SC 1206, wherein the OJA/16/2006 27/102 JUDGMENT Hon'ble Supreme Court has held that an interlocutory order, which is procedural in nature, is not appealable. As observed hereinabove, in the instant case, the impugned order is not merely procedural in nature but it also prejudicially affected the appellant and, therefore, the law laid down in the said judgment cannot be looked into in the instant case. 26. The learned single Judge has also referred to the judgment delivered in the case of Baradakanta Mishra v. Mr. Justice Gatikrishna Misra, C.J. of the Orissa High Court, AIR 1974 SC 2255. In the said case, by virtue of the order challenged, the motion made by the appellant to initiate proceedings for contempt against the Chief Justice and other Judges was rejected and, therefore, according to the provisions of sec.19(1) of the Act, it was held that the appeal was not maintainable. OJA/16/2006 28/102 JUDGMENT 27. Similarly, in the judgment delivered in the case of Purushottam Dass Goel v. Hon'ble Mr. Justice B.S. Dhillon and others, AIR 1978 SC 1014, it has been held by the Hon'ble Supreme Court that the order by virtue of which contempt proceedings are initiated is not appealable under sec. 19(1) of the Act. In the said case, the order of the High Court directing issuance of notice to show cause as to why the person alleged to have committed contempt should not be proceeded against and the said notice was challenged under the provisions of sec. 19(1) of the Act. The Hon'ble Supreme Court held in the said case that the said order was not appealable under sec. 19(1) of the Act. In the instant case, the facts are absolutely different