Case: M/S. Clough Engineering Limited Vs. Oil &amp; Natural Gas Corporation, A Company Incorporated Under The Companies Act

appointing the officer of the Court to investigate into the facts and get the factual report. This is how the Apex Court has followed its own procedure to deal with the contempt action. In the present matter the appellant is a multinational company and its officers may be either in this country or out of this country. If the officers of appellant are in this country the required information, namely, the names of the officers of appellant and record pertaining to the sale or disposal of machinery would have been investigated either giving directions to police officers. But such course cannot be adopted in this case because the officers allegedly committing contempt and record is located outside the country. Now as a result of the globalization of the business and market, multinational companies are coming to this country along with their officers, they carry on business and/or undertake certain contracts here. When litigation starts in this country and thereby they are under the orders of this Court. But if the officers of said company who are outside the country commit breach of the orders of this court, unless their names have been found or brought before this Court, it will not be possible for this court to deal with the officers of these multinational companies who have flouted the orders passed by this Court. Therefore, this Court cannot be a silent spectator to the fact that the information regarding the names of the alleged contemnor - officers is exclusively with the multinational company and as the company is also one of the contemnors along with them, cannot be forced to disclose the names of its officers. Therefore, even though we find that directly the directions cannot be given to the company probably in view of Article 20(3) of the Constitution, yet it cannot be said that this Court is helpless. On the contrary in view of the inherent powers to punish for the contempt, this Court can provide for its own procedure and machinery to find out the names of the contemnors and to deal with them. In Zahiras case (supra) the Apex Court found the appointment of the Registrar to investigate into the facts under what circumstances Zahira made various statements and after getting report Supreme Court proceeded to deal with contempt. In the similar matter what we have noticed is that the contempt of court is a quasi criminal proceeding and ultimately it resulted into punishment for the offence of contempt of court. Here, the alleged contemnor - appellant, is a corporate body and is before this Court, however the officers of this company are outside India, namely, they are in Australia, and their names are not known to the Court. This is a case wherein the information in respect of the offence of contempt of court is outside India and the said information is required for punishing the contemnors. What we find is that the Code of Criminal Procedure, 1973, Section 166-A deals with a situation in respect of crimes or offences where the evidence is available outside India. We quote the said section: 166-A. Letter of request to competent authority for investigation in a country or place outside India. - (1) Notwithstanding anything contained in this Code, if , in the course of an investigation into an offence, an application is made by the investigating officer or any officer superior in rank to the investigating officer that evidence may be available in a country or place outside India, any Criminal Court may issue a letter of request to a Court or an authority or place competent to deal with such request to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to record his statement made in the course of such examination and also to require such person or any other person to produce any document or thing which may be in his possession pertaining to the case and to forward all the evidence so taken or collected or the authenticated copies thereof or the thing so collected to the Court issuing such letter. 21. Thus, what we find is that the information in respect of the names of the persons who alleged to have committed the contempt of court, the manner in which the machinery was disposed of and the record prepared by those officers for disposing of those machineries can be investigated by invoking the powers as provided in section 166-A of the Cr.P.C. or on the line of the procedure provided in this section. We therefore find it appropriate to direct the Chief Metropolitan Magistrate, Mumbai to issue a letter of request to a Court or an authority in Australia where the office of appellant was located and where the sale transaction of disputed machinery has taken place on 15/10/2007, who is competent to deal with the request to examine orally any person employed by the appellant - company, who is supposed to be acquainted with the facts and circumstances of the present case and to record their statements made in the course of the case. The Chief Metropolitan Magistrate, Mumbai shall also issue a letter of request to the said Court or Authority requesting to investigate and find out as to who are the officers of the appellant - company who are responsible for the disposal of the machinery on 15th October 2007. 22. The Prothonotary & Sr. Master of this Court is directed to forward the copies of the contempt petition, original arbitration petition from which the contempt proceeding arose and this order to the Chief Metropolitan Magistrate, Mumbai so that he can forward the necessary copies of the proceedings to the Court or Authority in Australia to investigate into this aspect of the matter. After a receipt of information from the Court or Authority in Australia as directed above, the same shall be transmitted to the learned Single Judge of this Court so that he can take further steps in the matter.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. On reading both these judgments it appears that the appeal would not lie. The emphasis is placed by the learned counsel Mr. Kamdar on the following quotation from the said judgment, namely,r an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19. In special circumstances, they may be open to challenge under Article 136 of theHe has also relied upon the following ratio, namely,n appeal under section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment forHe, therefore, submitted that present appeal is not maintainableFrom the perusal of the order of the Commissioner dated, it appears that some of the officers of the Municipal Corporation joined hands with the employees and manipulated the gradation list and/or issued regularization orders which are contrary to the directions issued by this Court in Ramadhar case. All the employees concerned who are responsible for the aforesaid mischief deserve an appropriate action by the Commissioner, Municipal Corporation. In these circumstances, Commissioner, Municipal Corporation is directed to take departmental action against all the erring officers who have played mischief or played some mala fide rate (sic) in issuing the orders of regularization which are contrary to the directions issued by this Court in Ramadhar case or have manipulated the things for the purpose of issuing regularization orders of the employees who were not eligible for the regularization. Aforesaid action shall be taken by the Commissioner, Municipal Corporation within a period of three months from today. In case some action is to be taken by the State, an appropriate step shall be taken by him in this regard drawing attention of the State within a period of 30 days from today12. Thus, on reading these paragraphs from the Supreme Court judgment we find that out of the two interpretations, namely, out of narrow and broader interpretations, the Supreme Court has accepted the broader interpretation. The broader interpretation is that the languagey order or decision of the High Court in the exercise of its jurisdiction to punish foris sufficiently wide to relate also to the orders or decisions made by the High Court in the course of proceedings which may result in the conviction or sentence for contempt. On reading the language of section 19 of the Contempt of Courts Act, we also find that the appeal has been provided in Section 19 as against any order or decision of the High Court while the said High Court is exercising its jurisdiction to punish for contempt. Thereby the requirement is that whenever the High Court is in exercise of its jurisdiction to punish for contempt; has dealt with the matter and passed any order that order will be appealable under section 19 of the Contempt of Courts Act13. Therefore it naturally flows from the language of section 19 of the Contempt of Courts Act that it need not be an order of conviction, but any order including the order of conviction can be challenged under section 19 of the Contempt of Courts Act. The only requirement is that the order must have been passed by the High Court in its jurisdiction to punish for contempt. The wordscannot be interpretated to mean that there should be necessarily punishment and thereby an appeal will lie. We find that the judgment of the Supreme Court in the matter of Midnapore (supra) has not been considered by the Supreme Court in the matter of Municipal Corporation of Jabalpur (supra). Therefore we are left at a controversy, namely, out of the two judgments which differ so far as the ratio are concerned, which of those judgments should be followed by this Court. It is well settled law that the judgment which is acceptable to us out of the two Supreme Court judgments can be followed by us, and the same is the ratio of the this High Courts Full Bench Judgment in the matter of Kamleshkumar Ishwardas Patel v/s. Union of India & others, reported in 1994 Mh. L.J. 166915. Next, coming to the main controversy, namely, the direction given by the learned Single Judge to the appellant to disclose the names of the officers who have disposed of the machinery on or about 15th October 2007, within a period of two weeks from the date of order, so that the learned Single Judge can consider as to whether to proceed against those officers for contempt of court. It is to be noted that those officers of the appellant who have allegedly disposed of the machinery contrary to the stay orders of this Court, were located in Australia. As they were the officers of the appellant, their names, particulars are only known to the appellant. Thus, while the machinery in dispute which was the subject matter of the contract between the appellant and the respondent, was stationed in Australia, the appellant being a party to the said proceeding was allegedly prohibited from disposing of the said machinery. The learned Single Judge of this Court has ultimately found that the contempt action will proceed as against the original respondent nos. 1 and 4. Thus the original respondent nos. 2 & 3 being the directors of the appellantcompany were discharged by the learned Single Judge. Learned Single Judge has also noted that if the machinery has been disposed of or sold by the officers of the appellant in Australia, then appellant will be liable for the contempt for the acts done by its officers in Australia, as the prohibitory orders passed by this court were binding as against the appellantcompany, similarly those orders were equally binding on the officers of the appellantcompany. Therefore the act of contempt which the Single Judge has to consider is a composite act of the officers of the appellant and that of the appellant. However, the names of those officers who have disposed of the machinery contrary to the alleged directions of this Court and have allegedly committed the contempt are not known either to the Court and/or to the respondent who has filed the contempt petition. However, the duty of the respondentcomplainant is to point out the contempt to the Court and thereafter it is for the Court to take a cognizance and deal with the contemnor. Once the contempt has been pointed out by the complainantrespondent, it is for the Court to find out who are the contemnors and to punish them for the contempt. No doubt, if the complainantrespondent possesses the information in respect of the names of the contemnor and other particulars which is required to punish, he can provide and supply it to the Court. But in the peculiar facts of this case that the names of the officers of the appellant who were located in Australia and their internal record as a result of which they have disposed the machinery in question contrary to the alleged directions of this Court is a material not accessible to the respondentcomplainant. The said information is exclusive in the custody and possession of the appellant. No doubt, the appellantcompany can be punished for the contempt of court, but if the officers are not dealt with then in that circumstances the real contemnors may go free and thereby in the matters of the company the officers will commit the contempt, the company will suffer the punishment for the contempt, but the real contemnors will be free from the action of the contempt of Court. The companies are ultimately governed by the persons and therefore the persons who committed the contempt must be dealt with by the Court while dealing with the contempt action, and therefore in the present case it was necessary for the learned Single Judge to know the names of the real contemnors, namely, the names of the officers of the appellant who are located in AustraliaThus, what we find is that that the Apex Court has held that contempt proceeding is a quasi criminal and standard of proof is of the criminal proceeding, that the breach has to be established beyond reasonable doubt. Therefore, the appellant stands at par or in a row of alleged contemnors and the directions given to the appellant to disclose the names of the officers of they against whom the alleged contempt action may be initiated, may lead ton of appellant. As the appellant is a company, thereby for the acts which have been committed by its officers, the company will be held liable for the contempt. Therefore the appellant and its officers, are the persons who have allegedly committed the offence of contempt of court. Therefore, the question is whether one of the alleged contemnors can be directed to disclose the names of the other alleged contemnors. Because as a result of the disclosure of those names, and if those officers are found to be contemnor, the appellant will also be declared as contemnor. Therefore, the learned counsel for the appellant submitted that the act of disclosure of the names of officers of they is not a simplicitor an act of disclosure of the names of the contemnors with which the appellant had no concern, but as a result of the said disclosure the appellant gets involved in contempt of court. Not only that but appellant produces the evidence as against the company that is against appellant. Thus, according to the learned counsel for the appellant, the appellant is asked to give the evidence against appellant against appellants will by giving such directions. We find substance in the contention. Therefore, what we find that even though we have ample powers to find out a proper procedure for punishing the persons for committing the contempt of Court, yet the procedure which we invent shall not be contrary to Article 20(3) of the Constitution. However, in the present matter, what we find is that the directions given by the learned Single Judge to respondent no.3 to disclose the names of its officers is a direction which ultimately resulted into producing and procuring the evidence as against the appellant also and thereby it violates Article 20(3) of the Constitution, and therefore the said direction is not sustainable in law. Therefore we are inclined to quash the said directions20. However, the question before this Court is that is this Court helpless under these circumstances Because whenever this Court finds and/or it has been brought to the notice of this Court that someone has committed contempt of Court, in order to maintain the discipline, dignity and to deter the contemnor from indulging into the acts of contempt, this Court is expected to take appropriate steps to book the contemnors and punish for the contempt of Court. How to do this when the names of the contemnors are not known and especially under the circumstances the directions cannot be given to the party on record to disclose the names of the contemnors. What is interesting to be noted is that in the matter of Zahira (supra) when the Apex Court has noted that the various statements have been made by Zahira and it was rather difficult to hold whether she is responsible for the contempt or not, the Court directed investigation of the facts through the Registrar of the Court and after getting a report, further actions were taken as against the contemnor. However, in that case the contemnor was known but what was the material as against the contemnor was necessary to be ascertained and the Apex Court ascertained it by appointing the officer of the Court to investigate into the facts and get the factual report. This is how the Apex Court has followed its own procedure to deal with the contempt action. In the present matter the appellant is a multinational company and its officers may be either in this country or out of this country. If the officers of appellant are in this country the required information, namely, the names of the officers of appellant and record pertaining to the sale or disposal of machinery would have been investigated either giving directions to police officers. But such course cannot be adopted in this case because the officers allegedly committing contempt and record is located outside the country. Now as a result of the globalization of the business and market, multinational companies are coming to this country along with their officers, they carry on business and/or undertake certain contracts here. When litigation starts in this country and thereby they are under the orders of this Court. But if the officers of said company who are outside the country commit breach of the orders of this court, unless their names have been found or brought before this Court, it will not be possible for this court to deal with the officers of these multinational companies who have flouted the orders passed by this CourtTherefore, this Court cannot be a silent spectator to the fact that the information regarding the names of the alleged contemnorofficers is exclusively with the multinational company and as the company is also one of the contemnors along with them, cannot be forced to disclose the names of its officers. Therefore, even though we find that directly the directions cannot be given to the company probably in view of Article 20(3) of the Constitution, yet it cannot be said that this Court is helpless. On the contrary in view of the inherent powers to punish for the contempt, this Court can provide for its own procedure and machinery to find out the names of the contemnors and to deal with themIn Zahiras case (supra) the Apex Court found the appointment of the Registrar to investigate into the facts under what circumstances Zahira made various statements and after getting report Supreme Court proceeded to deal with contempt. In the similar matter what we have noticed is that the contempt of court is a quasi criminal proceeding and ultimately it resulted into punishment for the offence of contempt of court. Here, the alleged contemnorappellant, is a corporate body and is before this Court, however the officers of this company are outside India, namely, they are in Australia, and their names are not known to the Court. This is a case wherein the information in respect of the offence of contempt of court is outside India and the said information is required for punishing the contemnors. What we find is that the Code of Criminal Procedure, 1973, SectionA deals with a situation in respect of crimes or offences where the evidence is available outside India. We quote the said section:Letter of request to competent authority for investigation in a country or place outside India.(1) Notwithstanding anything contained in this Code, if , in the course of an investigation into an offence, an application is made by the investigating officer or any officer superior in rank to the investigating officer that evidence may be available in a country or place outside India, any Criminal Court may issue a letter of request to a Court or an authority or place competent to deal with such request to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to record his statement made in the course of such examination and also to require such person or any other person to produce any document or thing which may be in his possession pertaining to the case and to forward all the evidence so taken or collected or the authenticated copies thereof or the thing so collected to the Court issuing such letter.21. Thus, what we find is that the information in respect of the names of the persons who alleged to have committed the contempt of court, the manner in which the machinery was disposed of and the record prepared by those officers for disposing of those machineries can be investigated by invoking the powers as provided in sectionA of the Cr.P.C. or on the line of the procedure provided in this section. We therefore find it appropriate to direct the Chief Metropolitan Magistrate, Mumbai to issue a letter of request to a Court or an authority in Australia where the office of appellant was located and where the sale transaction of disputed machinery has taken place on 15/10/2007, who is competent to deal with the request to examine orally any person employed by the appellantcompany, who is supposed to be acquainted with the facts and circumstances of the present case and to record their statements made in the course of the case. The Chief Metropolitan Magistrate, Mumbai shall also issue a letter of request to the said Court or Authority requesting to investigate and find out as to who are the officers of the appellantcompany who are responsible for the disposal of the machinery on 15th October 200722. The Prothonotary & Sr. Master of this Court is directed to forward the copies of the contempt petition, original arbitration petition from which the contempt proceeding arose and this order to the Chief Metropolitan Magistrate, Mumbai so that he can forward the necessary copies of the proceedings to the Court or Authority in Australia to investigate into this aspect of the matter. After a receipt of information from the Court or Authority in Australia as directed above, the same shall be transmitted to the learned Single Judge of this Court so that he can take further steps in the matter.