1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R G.B.Jain & Sons Vs. Shrimat Pandey & ors. S.B.CR. MISC.CONTEMPT PETITION NO.24/1998 UNDER SECTION 12 OF THE CONTEMPT OF COURTS ACT. Date of Judgment: March 09, 2009 P R E S E N T HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.M.C.Bhoot, for petitioner. Mr.M.S.Singhvi) Mr.N.M.Lodha ) for respondents. Mr.B.P.Bohra ) REPORTABLE BY THE COURT : 1. This protracted Contempt Petition filed long back in June, 1998, captioned as “Criminal Contempt”, under Section 12 of the Contempt of Courts Act, hereinafter referred-to as “the Act”, is still under adjudication as to whether disobedience of the order of this Court dt.23.6.98 passed at 4.30 PM by the Vacation Judge of 2 this Court at his residence in S.B.Cr. Misc.Stay Petition No.340/98 (Misc. Petition No. 478/1998), amounts to Civil or Criminal Contempt. 2. Before narrating the brief facts as alleged in the Contempt Petition filed on 25.6.98, it is apparent from the body of Contempt Petition that it was titled as S.B. Criminal Contempt Petition but on 5.4.1999, when the case came up before the learned Single Judge, learned Addl.Advocate General raised an objection that the caption of the petition is “Criminal Contempt”, therefore, the matter should be heard only by the Division Bench. At this point, learned counsel for the petitioner stated that it is a “Civil Contempt” and due to misconception, it has been stated as “Criminal Contempt”. In view of the above arguments, the learned Single Judge deferred the matter for two days to first decide as to whether it is a “Civil Contempt” or “Criminal Contempt”. Then the case was adjourned for one reason or the other. Ultimately, on 16.2.09, learned counsel Mr.M.S.Singhvi appearing on behalf of respondents submitted that this petition has become infructuous, as the Division Bench has already decided one of the issue involved in this Cr.Misc.Contempt 3 Petition in D.B.Cr.Contempt Petitions No.26/98 and No.39/96 on 13.1.09. A copy of the said order was supplied to Mr.M.C.Bhoot, learned counsel for the petitioner, to which Mr.Bhoot wanted time to verify and make submissions on 20.2.99 and further submitted that unless the record of both these two D.B.Cr.Contempt Petition is called for, the proceedings of those Contempt Petitions cannot be referred in this Contempt Petition. Upon this, with the consent of both the parties, the record was ordered to be called for , to decide as to whether this is a “Civil Contempt” or “Criminal Contempt as well as this petition and the case was posted on 25.2.09. Previous to that date, learned counsel for the petitioner submitted an application for correction of the caption from “Criminal Contempt” to “Civil Contempt” alongwith the amended cause title. Reply to the same was also filed by the respondents showing the conduct of the petitioner in judicial proceedings in S.B.Civil Revision No.114/04. On 2.3.09, when the case was listed, disposal of this application for correction of caption was also kept open with the main petition. Accordingly, the arguments on the main petition alongwith the question as to whether it is a “Civil Contempt” or “Criminal Contempt” and the 4 application for correction of the caption were heard at length. 3. The order of this Court passed in S.B.Cr.Misc.Stay Petition No.340/98 in S.B.Cr. Misc. Petition No.478/98 reads as under: “Issue notice to the respondents, returnable on 26th June, 1998. Be given Dasti for service. In the meanwhile, status quo as it exists today be maintained.” 4. The respondents in this Cr.Misc. Petition were two viz; State of Rajasthan through Collector Udaipur and Commissioner Municipal Council Udaipur, whereas the present Contempt Petition has been filed against four persons viz; (1) Shrimat Pandey, Collector, Udaipur; (2) Sumati Lal Bohra, Addl.Collector (City), Udaipur; (3) Bharat Singh, Addl.S.P. Udaipur; and (4) Inder Singh Solanki, Tehsildar, Girva, Distt.Udaipur. 5. In short, the facts of the present Contempt Petition are that on 7.9.1995, a conditional order was issued to the petitioner u/s.133 CrPC, whereby he was called upon to remove the amusement equipments commissioned at the places leased out/licensed to the 5 petitioner by the Municipal Council. Petitioner while giving the background of other circumstances detailed in the main petition u/s.482 CrPC (478/98) as well as in S.B.Civil Writ Petitions No.3184/95 and 1747/96, apprehended dismantling of his equipments under the garb of Section 133 CrPC despite orders from the various courts referred in the above petitions, for which no detailed reference is required. Ultimately, the trial Court decided the proceedings u/s.133 CrPC on 15.6.98 with a direction to remove the establishment/ the entertainment park within 7 days i.e. by 22.6.98, else, the case will be registered against him under Sec.188 IPC and the SHO, Amba Mata shall remove the equipments, confiscate them with the help of the Urban Improvement Trust for which the expenditure shall be recovered from the petitioner. Petitioner preferred a revision petition against it on 18.6.98, which was admitted on 19.6.98 by the learned Sessions Judge, who transferred the same to the ADJ No.2, Udaipur. The case was fixed on 20.6.98 for final hearing and after hearing the final arguments on 22.6.98, the revision was dismissed against which the petitioner preferred the Cr.Misc. Petition being No.478/98 and obtained the impugned stay order on 23.6.98, the disobedience of 6 which is under challenge in this Contempt Petition. It is also alleged in the Contempt Petition that prior to passing of this order, petitioner sent a detailed telegram to the authorities on 21.6.98. In the Contempt Petition, it is also alleged that the respondents blatantly belied the following order of this Court passed in Writ Petition No.3184/95 on 10.11.95, whereby the conditional order u/s.133 CrPC was challenged: “In case, the proceedings are ultimately held against the petitioner and there is an imminent direction of dispossession, the petitioner would be granted breathing time to move the other appropriate forums available to him under the law.” 6. On getting the certified copy, the petitioner filed the present Misc. Petition, obtained the stay order at the residence of the Vacation Judge on 23.6.98 at 4.30 PM and sent a fax to respondent No.1 i.e. the Collector Udaipur at 17:51 Hrs and also to U.I.T. at 17:55 Hrs. It is also pleaded in this contempt petition that Shri Hanuman Prasad Sharma, advocate and a representative of the petitioner Shri Gani Mohd. also went at the residence of respondent No.1, where Sumatilal Bohra, respondent No.2, was present, who read it and thereafter refused to receive it officially and 7 returned the same. Their oral request was also declined. The P.A. of the respondent No.1 i.e. the Collector, Udaipur was available at the residence was delivered the copy at 6 PM and he made an entry to that effect in the register. Both the representatives of the petitioner went at the site at 6.15 PM but none of the non-petitioners present on the site obliged the petitioner by respecting the order of this Court and bluntly declined to receive it. By reading and showing the stay order to them, added fuel to the fire and from 7 PM onwards, the activities were additionally intensified inasmuch as thereafter the respondents No.1 and 2 reached at the site at 8.30 PM, commissioned additional labourers and machineries and destroyed equipments. This process continued upto 10.30 PM. However, further dismantling activities continued till late night by acting under vengeance. The incident was also reported in the press, the copies of which have been attached with the file, which according to the petitioner, supports his version. The copies of the notices were sent by fax on 26.6.98 for appearance of the respondent No.1 but the fax machine was switched off and later on somehow or the other, they were received. It is also alleged in the petition that these 8 dismantling activities were undertaken in defiance of this Court's order by respondents No.1 and 2 and just to wreak vengeance on account of filing criminal case against them and they are guilty of wilful and deliberate disobedience of the stay order of this Court and in order to uphold the majesty and dignity of the order of this Court, stern action be taken against them with maximum punishment. Alongwith this petition, an affidavit of the petitioner has been filed vis a vis Annex.A, a copy of the telegram addressed to six persons dt.21.6.98, Annex.B telegram dt.22.6.98, Annex.C fax copy dt.23.6.98 and Annex.D photostat copies of the news items. 7. Reply to the Contempt Petition has been filed jointly by the respondents No.1 and 2 in which they have denied for having committed any contempt and have also stated at the outset that advertently or inadvertently, if any contempt has been committed by them, they tender unconditional apology. While admitting various orders passed in the proceedings as referred-to above, it has been stated that the final order u/s.133 CrPC was passed by the Addl.District Magistrate (City) Udaipur on 15.6.98 and 7 days' time 9 was granted to the petitioner to remove the equipments installed at the amusement park by 22.6.98. The revision was also dismissed against this order by the ADJ No.2, Udaipur and in compliance of the order, the SHO, PS, Amba Mata went on the spot by taking the aid of the UIT and seized the property at 12.30 PM and started dismantling the equipments fixed at the amusement park. It is stated in the reply that some person on behalf of the petitioner came at the residence of respondent No.1 i.e. the Collector and delivered the message to the Security Guard at 6.30 PM, who in turn, delivered the same to one Shri Chauhan, LDC. Respondent No.1 i.e. the Collector, Udaipur, who had left for inspection at 4 PM on the same day and was not available at the time the message was delivered. Therefore, Shri Chauhan read the message and immediately contacted the Addl.Collector, respondent No.2, who in turn, directed the respondent No.4 Inder Singh Solanki, Tehsildar, Girwa that the status quo be maintained and work be stayed and the order of this Court be complied with. Respondent No.4 Tehsildar reached at the spot at 7 PM and informed the SHO, Amba Mata to comply with the order of this Court. The dismantled material was loaded in the trucks provided 10 by the UIT and dumped in the compound of Municipal Council, Udaipur for safety. Despite complying with the directions contained in the judicial orders 15.6.98 and 22.6.98, petitioner has made wild and baseless allegations to gain the sympathy of this Court to hide his fault. They have denied that the respondents No.1 and 2 ever visited the site and no deliberate, malicious and contemptuous act was done by them. Respondent No.2 has also filed affidavit in support of his reply. Respondents No.3 Bharat Singh, Addl.S.P. and respondent No.4 Inder Singh Solanki, Tehsildar have submitted the reply to the extent of the facts relating to them, narrated by respondents No.1 and 2 and have also filed their affidavits. 8. Thereafter, a rejoinder was filed by the petitioner in which it is stated that the respondent No.1 has not filed affidavit in support of the reply and reply of all the respondents is ex facie false and by & large, repeated the same facts as stated in the main Contempt Petition. In the last, it is also stated that the action of the respondents in removing the equipments on 23.6.98 by itself tantamounts to criminal contempt in the light of the earlier order made by this Court for giving 11 breathing time. It is also stated that the petitioner has been literally ruined and in such circumstances, tendering of apology is of no consequence, unless the status quo is restored, as it existed on 22.6.98. Petitioner has also filed the affidavit in support of it alongwith additional affidavits of one Hanuman Prasad Sharma advocate, Gani Mohd., Ram Prakash, Vyanktesh, Ashok Kumar, Suryakant, Bhimanand and Kailash in which they have stated that the dismantling activity was going on at 10.30 PM, where respondents No.1 and 2 were present. In addition, the copies of newspaper items of 24.6.98 have also been filed. Thereafter, additional affidavit was filed by Shri Pandey, Collector in which he has supported the averments taken in the reply and clearly stated that he was not immediately available. His staff informed the Addl.Collector, respondent No.2 with regard to the receipt of the fax message, who in turn, directed respondent No.4 to comply with the directions of this Court. Accordingly, whatever material was dismantled till the time of receipt of the order, was also carried to the Municipal Council. The allegations have been emphatically denied by him in his additional affidavit. The similar affidavit has been filed by the respondent 12 No.2 Sumati Lal Bohra. Petitioner also submitted 11 documents alongwith his affidavit again on 16.11.98 relating to the proceedings under the Rajasthan Municipalities Act and also by the District Magistrate, Udaipur in Case No.76/95 etc. including the order of this Court passed in Civil Writ No.1747/96 and the copy of the FIR Annex.9 filed against respondents No.1 and 2 on 4.6.98, log book, Commissioner's report etc. 9. A counter to the rejoinder was also filed by respondent No.1 with the support of 15 documents marked as Annex.R1/1 to R1/15 relating to the log book, applications, licence, letters etc. They have also filed the affidavits of V.K.Singhvi, Yeshwant Singh Choudhary, Rooplal & Dhan Singh Rathore. Petitioner also moved an application with the affidavit of one Narayan Singh that Rooplal is not the same, whose affidavit has been filed by the respondents also alongwith the counter affidavit of one Rooplal s/o Nathu Meena so as to make out a case of enquiry under Section 340 CrPC. 10. On the basis of the petition and the documents filed by the petitioner, it is contended by Mr.M.C.Bhoot 13 learned counsel for the petitioner that the respondents have taken false pleas that they were not having knowledge of the order of this Court dt.23.6.98, which was delivered to them at 6 PM and the work continued upto 3 AM as per the log book. The respondents also tried to obtain false affidavit of Rooplal whereas the affidavit filed by the petitioner is more genuine. The seizure memo is contrary to Commissioner's report. According to him, there is no specific denial with regard to the affidavits filed by the petitioner in the reply filed by respondent No.2. The action of the respondent was in utter disregard of the order of this Court as well as the earlier orders. They were having malice with the petitioner, as they also initiated proceedings u/s.285 of the Rajasthan Municipalities Act. According to him, this Contempt Petition should be treated as a Civil Contempt punishable under Sec.12 of the Act and the order passed on 13.1.09 by the Division Bench of this Court in Criminal Contempt is behind the back of the petitioner. It has been further argued by Mr.M.C.Bhoot that the log book filed y respondent No.1 in 2005 cannot be looked into at this later stage. It is a manipulated document. The malice of the respondents is clear from the letter Annex.8 in which the reference 14 of the discussion with the Collector has been given. The action being malafide and deliberate, the respondents should be adequately punished. In support of his contentions, he has also placed reliance on the case of State of Raj. v. Smt.Sohani Devi reported in 1999(1) RLW p.269, dealing with breach of injunction order under Order 39, Rule 1 & 2 read with Section 151 CPC. 11. In reply, Mr.M.S.Singhvi, learned counsel for the respondents has submitted that it is a case of Criminal Contempt in the light of the orders passed by the Division Bench, referred-to above, wherein allegations were similar to that of the present Contempt Petition. This Contempt Petition should be dismissed by virtue of Section 20 of the Act. According to the learned counsel, petitioner to gain his profit out of the business, has falsely implicated the respondents in various litigations and this Court has observed so while deciding the above two D.B.Cr.Contempt Petitions, which were filed on 6.7.98 i.e. just after the present Contempt Petition, wherein the same relief was sought. According to the learned counsel, even if it is treated to be a Civil Contempt, then also, no case is made out as the activities were carried out prior to receipt of the order 15 of this Court in compliance to the judicial order. According to him, the allegation of malice is also devoid of force because the proceeding of Section 285 of the Municipalities Act was initiated in the year 1985, when the respondent No.1 was not posted there. While drawing the attention of the Court towards various orders filed with the reply, it is submitted that in this amusement park, there was a complaint that one girl died on account of accident, which was located to disturb the public road and the Superintendent of Police, Udaipur also wrote for the same. According to him, the orders of the Municipal Board were not signed by the Commissioner. They were simply signed by the Administrator, who was not competent to grant the licence etc. and to issue various corrigendum. He has further submitted that the news items are no evidence and if at all, this Court looks into it, there is no mention that the respondent No.1 was present at the site as alleged in the petition and the affidavits are self contradictory to the rejoinder. It was the duty of the SHO to dismantle as per the direction in judicial proceedings but he has not been made party to the petition. The seizure memo was prepared at 12.30 PM and thereafter, dismantling started, which continued 16 upto 6.30 or 7 PM, till stay was received. According to him, even if this Court comes to the conclusion that there is any technical disobedience of the orders of this Court in an interval of half to one hour, the answering respondents have sought unconditional apology, which may be accepted. In support of his contentions, he has relied on various authorities to strengthen his argument that there cannot be a contempt, unless it is wilful or deliberate disobedience. 12. Mr.N.M.Lodha, appearing on behalf of respondent No.2, has submitted that the Addl.Collector Sumatilal Bohra was not party in the main Misc. Petition and no notice was served on him and, therefore, he cannot be held liable for contempt but despite that, when he came to know from the clerk of the Collector, he immediately directed the Tehsildar to comply with the orders of this Court. According to him, this Contempt Petition has been filed to blackmail the officers, who were discharging their duties in a lawful manner to protect public cause. 13. Having bestowed deep consideration on the rival contentions putforth by the learned counsel for the 17 parties, it will be first appropriate to examine as to whether the present Criminal Contempt Petition filed u/s.12 of the Act is a Civil Contempt or Criminal Contempt, which is still kept open by the order of this Court dated 5.4.99 and also the application of the petitioner dt.24.2.09 for correction of the caption from “Criminal” to “Civil” vis a vis the nature of the present petition. 14. Section 2 of the Act deals with the definition. Clause (a) of Section 2 defines “contempt of court” which means either civil contempt or criminal contempt. Clauses (b) & (c) of Section 2 deals with “civil contempt” and “criminal contempt” respectively, which are as under: “2. Definitions.- In this Act, unless the context otherwise requires,- (a) xxx (b) “civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court; (c) “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which - (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any 18 court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.” 15. From the bare perusal of these clauses, it appears that any disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court is civil contempt, whereas any publication, whether by words, spoken or written, or by signs, or by visible representation, or otherwise, of any matter or the doing of any other act whatsoever which scandalizes or tends to scandalize, or lowers or tends to lower the authority of any court or prejudices or interferes or tends to interfere with, the due course of any judicial proceeding or obstructs the administration of justice in any manner, is a criminal contempt. If these definition clauses of the Act are read in the light of the averments made in the present contempt petition, particularly with relief, it appears to be a case of disobedience of this court's order dated 23.06.98 passed by the learned vacation Judge at 4.30 PM at Jodhpur residence which 19 was in the form of the directions to the respondents at Udaipur arrayed in the S.B. Criminal Misc. Petition No.478/98, being Civil Contempt. But in addition to this disobedience of the order of this Court dated 23.06.98, if the petition is read as a whole, there are certain more allegations. The relevant paras of the contempt petition are reproduced below: “7. xxx Since what had transpired in the learned trial court and under what circumstances, the case was transferred by the learned sessions Judge and what was going on outside the Court, the petitioner could sense it all very well and hesitate to describe in the petition lest it might divert the attention of this Hon'ble Court and may possibly provide some handle to the other camp to start harassing the petitioner by filing another contempt against him. 8. xxx Therefore, on 21.6.1998 itself, a detailed telegram running into 3 closely typed pages was sent to all such various authorities at whose corner the petitioner could apprehend the dismantling of the establishment, including all the non-petitioners. A copy of the telegram is annexed herewith and marked as Annex.A. 10. That despite all apprehensions, the petitioner as a law abiding citizen believed in the observations of this Hon'ble Court dated 10.11.1995 and falsely continued to have faith in the system and applied for certified copy of the order which was received by him in the late hours on 22.6.1998.” 16. If the above referred allegations are looked into in the light of the definition of “criminal contempt” as 20 defined in Clause (c) of Section 2 of the Act, it not only relates to scandalizing or lowering the authority of the Court but also in the nature of prejudicing the due course of judicial proceeding and interference or obstruction in the administration of justice, because para 7 as referred-to above, is nothing but it casts aspersion on the authority of the learned Sessions Judge, who transferred the case to the learned Addl.Sessions Judge. Further, para 8 relates to Annex.A of the petition, which is a three page telegram sent on 21.6.98, copies of the same were also endorsed to Hon'ble the Chief Justice and judge concerned, who passed the order in Writ No.1747/97 as well as to the Civil Judge in Civil Suit No.181/98. Though this telegram dt.21.6.98 was with regard to the order to be passed on 22.6.98 in the revision petition against the order u/s.133 CrPC, wherein the reminder of the earlier order about stay passed on 24.5.96 by this Court, Annex.4 was also given. In the last para of this telegram, it is mentioned that if the order passed on