CONTEMPT
OF COURT - VIOLATION OF THE ORDERS OF THE COMPANY LAW BOARD (CLB) - PRINCIPLES GOVERNING THE EXERCISE OF JURISDICTION TO PUNISH
FOR CONTEMPT - A CRITIQUE
By K P C Rao., LLB. FICWA., FCS
Practicing
Company Secretary
kpcrao.india@gmail.com
BACKGROUND
Contempt of court
is a court order which, in the context of a court trial or hearing, declares a
person or organization to have disobeyed or been disrespectful of the court's
authority. Often referred to simply as "contempt", such as a person
"held in contempt", it is the judge's strongest power to impose sanctions
for acts which disrupt the court's normal process.
A finding of
contempt of court may result from a failure to obey a lawful order of a court,
showing disrespect for the judge, disruption of the proceedings through poor
behaviour, or publication of material deemed likely to jeopardize a fair trial.
A judge may impose sanctions such as a fine or jail for someone found guilty of
contempt of court. Judges in common law systems usually have more extensive
power to declare someone in contempt than judges in civil law systems.
In civil
cases involving disputes between private citizens, the behaviour resulting in
the ruling is often directed at one of the parties involved rather than at the
court directly. A person found in contempt of court is called a
"contemnor." To prove contempt, the prosecutor or complainant must
prove the four elements of contempt:
a)
Existence
of a lawful order
b)
The
contemnor's knowledge of the order
c)
The contemnor's ability to comply
d)
The contemnor's
failure to comply
The jurisdiction to punish for contempt touches upon two
important fundamental rights of the citizens, namely, the right to personal
liberty and the right to freedom of expression. The basic principle in a democracy is that the people
are supreme. It follows that all authorities - whether judges, legislators,
Ministers, bureaucrats - are servants of the people. Once this concept of
popular sovereignty is kept firmly in mind, it becomes obvious that the people
are the masters and all authorities (including the courts) are their servants.
Surely, the master has the right to criticise the servant if the servant does
not act or behave properly.
CONTEMPT- LEGAL & CONSTITUTIONAL
FRAMEWORK
Article 19(1) (a) of the Constitution of India gives the right of freedom
of speech and expression to all citizens. Article 129
and 215 of the Constitution of India empowers the Supreme Court and High Court
respectively to punish people for their respective contempt. Section 10 of The
Contempt of Courts Act of 1971 defines the power of the High Court to punish
contempts of its subordinate courts. Power to punish for contempt of court
under Articles 129 and 215 is not subject to Article 19(1) (a).
Contempt
of court is a concept which is a legacy of Anglo-Saxon jurisprudence.
Continental jurisprudence is unaware of it. Unlike the Continental legal system
the Anglo-Saxon legal system has adopted the adversary system of adjudication
which we too have accepted and adopted.
In these days of repeated executive onslaughts on the judiciary and the
judicial system, it is absolutely necessary that the court should be armed with
the power to commit a person for contempt of court or otherwise, a court will
be helpless in the face of defiance of its orders by the executive, and with no
other means of enforcing its orders.
One
of the much misunderstood and controversial jurisdiction and powers of the
courts is the power to punish for contempt of court. The expression ‘contempt of court’ is an
archaic expression whose use is both unfortunate and misleading. To modern
liberal minds accustomed to think in terms of freedom of speech and expression,
it gives the impression that courts are concerned about upholding the dignity
of judges and protecting them from affront and insult. Nothing can be farther from the truth.
In a proceeding for contempt of court, the court is only concerned with
the actions of people who seek to sully, obstruct, or prevent the due
administration of justice. The court is
concerned with protecting the right of the public that the administration of
justice shall not be impeded. In a
democracy founded on the rule of law, public policy demands that nothing should
be allowed to be done to undermine the system of fearless administration of
justice by courts of law or to shake public confidence in it. No democratic institution can flourish in an
atmosphere of fear and suspicion
The Contempt of Courts Amendment Act, 2006 which has introduced a new
Section 13(b) that states: "The courts may permit, in any proceedings for
contempt of court, justification by truth as a valid defence if it is satisfied
that it is in public interest and the request for invoking the said defence is
bona fide."[1]
Thus, truth is now a defence in
contempt of court proceedings if it is in the public interest and is bona fide.
Broadly, civil contempt consists of
disobedience of the orders of the court while criminal contempt consists of all
other kinds of contempt such as scandalizing or lowering the authority of any
court, prejudicing or interfering with the course of a judicial proceeding, and
interfering or obstructing the administration of justice or tending to do
so. This is how civil contempt and
criminal contempt are defined by Section 2 of the Indian Contempt of Courts
Act, 1971.
CIVIL CONTEMPT
The Contempt of Courts
Act of 1971 defines contempt of court. Civil contempt is a willful disobedience
to any judgment, decree, direction, order, writ or other process of a court or willful
breach of an undertaking given to a court [section 2(b)]. All practicing lawyers know how necessary it
is that the court should have the power to commit for contempt to meet similar
situations which arise daily in court.
This branch of contempt is known as civil contempt and there cannot be
much controversy over the necessity of a court having power to commit for civil
contempt.
CRIMINAL CONTEMPT
Criminal contempt has
been defined vide sec 2(c) as 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 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.
COMPANY
LAW BOARD (CLB)
The Central Government
in terms of Section 10(E) of the Companies Act, 1956 constituted an independent
Company Law Board (CLB) vide Notification No. 364 dated the 31st May, 1991. The
CLB is a quasi-judicial body, exercising equitable jurisdiction, which was
earlier being exercised by the High Court or the Central Government. The Board
has powers to regulate its own procedures. The Company Law Board has framed “Company Law Board Regulations 1991”
prescribing the procedure for filing the applications/petitions before it. The
Central Government has also prescribed the fees for making
applications/petitions before the Company Law Board, under the “Company Law Board, (Fees on applications
and Petitions) Rules 1991”.
The Board has its
Principal Bench at New Delhi, and four Regional Benches located at New Delhi,
Mumbai, Kolkata and Chennai.
From 1st April 2008
onwards the matter falling under sections 247, 250, 269, 388B of the Companies
Act, 1956 are being dealt with by the Principal Bench. The matter falling under
sections 17, 18, 19, 58AA, 79/80A, 111/111A, 113/113A, 117, 117C, 118, 141,
144, 163, 167, 186, 196, 219, 235, 237(b),
247, 250, 269, 388B, 284, 304,
397/398, 408, 409, 614 and 621A of the Companies Act, 1956 and section 45QA of
the Reserve Bank of India Act, 1934 are being dealt with by Regional Benches,
namely New Delhi Bench, Kolkata Bench, Mumbai Bench and Chennai Bench
consisting of one or more member(s).
The matters pending before
the Principal Bench and Additional Principal Bench as on 1st April 2008 shall
continue to be disposed off in the name of Principal Bench and Additional
Principal Bench respectively. In case a company fails to comply with the
directions contained in the Orders so passed by the Company Law Board,
application under section 634A of the Companies Act, 1956 for enforcing the
orders are entertained.
In terms of Section 10F
of the Companies Act, any person aggrieved by any decision or order of the
Company Law Board may file an appeal to the High Court within sixty days from
the date of communication of the decision or order of the Company Law Board to
him on any question of law arising out of such order.
Amendments contemplated under Companies Bill, 2011
With the intention of establishing a Separate Tribunal to deal
with all issues or disputes under the Companies Act, 1956, a Special Tribunal
and Appellate Tribunal called National Company Law Tribunal and National
Company Law Appellate Tribunal were sought to be established through the
Companies (Second Amendment) Act, 2002. As per the said amendment, as soon as
the Tribunal and the Appellate Tribunal is constituted, almost all powers
exercised by the High Court under the Companies Act, 1956, powers exercised by
the Board for Industrial and Financial Reconstruction (BIFR) under the
provisions of the Sick Industrial Companies (Special Provisions) Act, 1985
(“SICA”),
and powers hither to exercised by the Company Law Board sought to be transferred
to the NCLT and NCLAT except the judicial review powers exercised under Article
226 and 227 of Constitution of India.
The
Companies Bill 2011 was presented to the Parliament on 14th December 2011 in
the Winter Session to replace the existing Companies Act of 1956. It was
immediately withdrawn following differences between the Congress and the
opposition BJP. The Parliamentary Standing Committee on Finance is likely to
meet to sort out the differences on the Bill, before it is presented to the
Parliament.
VIOLATION
OF CLB ORDER & CONTEMPT PROCEEDINGS
In the case of N. Venkata Swamy Naidu vs M/S. Sri
Surya Teja Constructions [2] the issue as to initiation of contempt proceeding against the
violation of the CLB Order was come up before the Andhra Pradesh High Court. The
Court has examined the following issues:
1) Whether the CLB is a Court under the Contempt of Courts Act, 1971?
2) Whether the CLB is a Subordinate Court?
3) Can the High Court exercise its jurisdiction under Section 10 of
the Contempt of Courts Act even in the absence of a reference to it by the CLB?
4) Would the existence of an alternative remedy bar exercise of
jurisdiction by the High Court under the Contempt of Courts Act, 1971?
5) Limitations for taking action for contempt.
6) Principles governing exercise of jurisdiction to punish for
contempt.
Brief facts of the case are:
The petitioner filed
the instant contempt case alleging that respondent Nos. 1, 2 and 4 to 9
wilfully disobeyed and grossly violated the CLB’s orders.
It was the petitioner’s
case that he filed a company petition under section 397/398, wherein he sought
for various interim reliefs including an order to prevent the sale of
dispossession of the company’s land and to prevent injury being caused to
persons who were allotted flats in the project; that when the said petition was
pending under consideration, the respondents demolished the superstructure of
the building necessitating his filing an application requesting the CLB to
interfere and grant necessary order with regard to the existing structure; that
the CLB granted status quo vide its order dated 18.7.2005 but despite that, the
respondents continued to demolish the building and when those violations were
brought to CLB’s notice on 20.7.2005, it appointed an Advocate Commissioner who after visiting/ inspecting the dispute
site, submitted his report dated 31.7.2005 confirming that one structure was
completely and the other was partially demolished; that, consequently, the CLB,
vide its order dated 4.10.2005 held, inter alia, that the respondents had
demolished the entire disputed structures in utter violation of its order. The CLB further held that the High Court,
being the CLB’s appellate authority, CLB must be deemed to be a subordinate
court within the ambit of the Act and, therefore, the High Court could exercise
powers of dealing with contempt of the CLB.
The CLB, therefore, granted liberty to the petitioner to move the High
Court by invoking its jurisdiction under section 10 of the Contempt of Courts
Act so as to prosecute the respondents for having willfully disobeyed CLB’s
order dated 18.7.2005.
The respondent’s case
was that the contempt case was liable to be dismissed inter alia, on the
grounds that since the CLB had merely left it open to the petitioner to
approach the High Court and had not made a reference itself, the High Court
would not take cognizance of contempt, and that the contempt case as filed was
even otherwise barred by limitation.
The Court has clarified the position as under:
1)
Whether the CLB is a
Court under the Contempt of Courts Act, 1971?
The Contempt of Courts
Act does not define what a Court under the Act is. To fall within ambit of the word
‘Court’ for the purposes of section 10.
(i)
the authority must be
enjoined to adjudicate upon the disputes between the parties;
(ii)
the authority’s source of
power must emanate from the statute and must not be based nearly on agreements
between the parties;
(iii)
the authority should have
the power to ascertain disputed question of facts and laws on consideration of
the legal arguments both oral and written and the evidence adduced by the
contesting parties;
(iv)
the authority should have
the power to enforce attendance of witnesses, production of documents to decide
disputes in a judicial manner and the end–result or product of the exercise are
such power by the authority must result in a binding decision between the
contesting parties concluding the lis between them; and
(v)
the decisions of such
authority disposing the whole matter, both on questions of facts and law, must
be definitive and must have finality and authoritativeness.
Since all the said
tests satisfied, the Company Law Board rightly held in its order dated
4.10.2005, that it was a court within the meaning of section 10.
2) Whether the CLB is a Subordinate Court?
High Courts, being Superior Courts of Record, enjoy inherent powers of
contempt to protect Subordinate Courts even in the absence of any express
provision in any Act. Article 227 confers supervisory jurisdiction on the High
Court and, in exercise of that power, the High Court may correct judicial
orders of subordinate courts. In addition, the High Court has administrative
control over subordinate courts. The jurisdiction and power of a Superior Court
of Record to punish contempt of subordinate courts is not founded on the
Court's administrative power of superintendence, instead the inherent
jurisdiction is conceded to Superior Courts of Record on the premise of its
judicial power to correct errors of subordinate courts.
The Inherent powers of a Superior Court of Record have remained
unaffected even after codification of the Contempt Law. The Contempt of Courts
Act, 1971 was enacted to define and limit the powers of courts in punishing
contempt of courts and to regulate their procedure in relation thereto. Section
10 relates to the power of the High Court to punish for contempt of subordinate
courts. Section 10, like Section 2 of the 1926 Act and Section 3 of the 1952
Act, does not confer any new jurisdiction instead it reiterates and reaffirms
the jurisdiction and power of a High Court in respect of its own contempt and
of subordinate courts.[3]
The phrase "courts subordinate to it", used in Section 10 is wide
enough to include all courts which are judicially subordinate to the High
Court, even though administrative control over them, under Article 235 of the
Constitution of India, does not vest in the High Court.[4]
Under Section 10(F) of the Companies Act 1956, any person aggrieved by any
decision or order of the Company Law Board may file an appeal to the High
Court, within sixty days from the date of communication of the decision or
order of the Company Law Board, on any question of law arising out of such an
order.
The Company Law Board is thus judicially subordinate to the High Court
and, even if its administrative control is held not to vest in the High Court
under Article 235 of the Constitution of India, it would nonetheless be a Court
subordinate to the High Court under Section 10 of the Contempt of Courts Act.
3)
Can the High Court
exercise its jurisdiction under Section 10 of the Contempt of Courts Act even
in the absence of a reference to it by the CLB?
It is true
that the Company Law Board, while holding that the respondents were guilty of
gross violation of its restraint order dated 18.07.2005 in demolishing the
entire structure in dispute, that the apologies offered were with the hope and
object of avoiding punishment for wilful disobedience of the orders of the
Bench and were not acceptable, held that the petitioner was at liberty to move
the High Court invoking its jurisdiction under Section 10 of the Contempt of
Courts Act. Short of making a reference, the Company Law Board has, in no
unmistaken terms, held that the respondents had wilfully and deliberately violated
its orders and had committed contempt.
Section 2(a)
of the Contempt of Courts, Act, 1971 defines "contempt of court" to
mean civil contempt or criminal contempt. Section 2(b) defines "Civil
Contempt" to mean wilful disobedience to, among others, decrees, orders,
or other process of a Court. Section 10 relates to the power of the High Court
to punish for contempt of subordinate courts and, thereunder, every High Court
shall have and exercise the same jurisdiction, power and authority, in
accordance with the same procedure and practice, in respect of contempt of
courts subordinate to it as it has and exercises in respect of contempt of
itself. Under the proviso to Section 10, no High Court shall take cognizance of
a contempt alleged to have been committed in respect of a court subordinate to
it where such contempt is an offence punishable under the Indian Penal Code.
The "Contempt of Court Rules, 1980" regulate proceedings for contempt
of Subordinate Courts and of the High Court under the Contempt of Courts Act,
1971. Under Rule 5, in case of contempt, other than the contempt referred to in
Rule 4, the High Court may take cognizance of Contempt and take action (a) Suo
motu or (b) on a petition made by the Advocate General of the State of Andhra
Pradesh or (c) on a petition made by any person and, in case of Criminal
Contempt, with the consent in writing of the Advocate General of the State of
Andhra Pradesh or (d) on a reference made to it by a Court Subordinate to it in
the case of contempt of such Subordinate Court or on a motion made by the
Advocate General of the State of Andhra Pradesh in that behalf. The modes
prescribed in Rule 5, for the High Court to take cognizance of contempt and
take action, are in the alternative. While the subordinate court may make a
reference in the case of a contempt of such Court or the Advocate General may
make a motion in that behalf, Rule 5 does not bar the High Court from taking
cognizance of contempt, or in taking action, either suo motu or on a petition made by any person. A case of contempt of
court is not strict sense a cause or a matter between parties inter-se. It is a
matter between the court and the contemnor. It is not, strictly speaking, tried
as an adversarial litigation. The party, which brings the contumacious conduct
of the contemnor to the notice of the court, whether a private person or the
subordinate court, is only an informant and does not have the status of a
litigant[5]
in the contempt of court case.[6].
Section 10 of the Contempt of Courts Act makes the powers of the High Court, to
punish for contempt of a subordinate court, coextensive and congruent with its
power to punish for contempt of itself not only in regard to the quantum or
prerequisites for punishment, but also in the matter of procedure and practice.
If the High Court is prima facie satisfied that the information received by it
regarding the commission of contempt of a subordinate court is not frivolous,
and the contempt alleged is not merely technical or trivial, it may, in its
discretion, act suo motu and commence the proceedings against the contemnor.
However, this mode of taking suo motu cognizance of contempt of a subordinate
court, should be resorted to sparingly where the contempt concerned is grave
and serious in nature. The power of the High Court under Section 10, to punish
for contempt of subordinate Courts, is in accordance with the same procedure
and practice as it has and exercises in respect of contempt of itself. It is
not, and cannot be, in dispute that the High Court can either suo motu or on a
petition made by any person exercise jurisdiction in respect of contempt of
itself. In view of Section 10 of the Contempt of Courts Act, the very same
procedure and practice would apply even in respect of contempt of subordinate
courts. Accepting the submission of learned Counsel appearing on behalf of
respondents 5 and 6, that the High Court can take cognizance of contempt of
subordinate Courts only on a reference made to it by the subordinate Court
itself or on a motion made by the Advocate General would render Rule 5 of the
Contempt of Courts Rules, 1980 ultravires Section 10 of the Contempt of Courts
Act. It would also fall foul of the inherent power of the High Court under
Article 215 of the Constitution of India.
The mode of exercise of jurisdiction, as prescribed under Rule 5, can
only be in the alternative and, as a result, the High Court can take action for
contempt of subordinate Courts under Section 10 of the Contempt of Courts Act
either suo motu or on a petition made by a party.
4)
Would the existance of
an alternative remedy bar exercise of jurisdiction by the High Court under the
Contempt of Courts Act, 1971?
Existance of an
alternative remedy does not bar exercise of jurisdiction by the High Court,
under article 215 of the Constitution, to punish for contempt of itself, and
that of courts subordinate to it. Further, the provisions of the Act, are in
addition to and not in derogation of any other law on contempt of courts. Even if regulations 44 and 47 of the Company
Law Board Regulations and Order 39 Rule 2A C.P.C are held to be a law relating
to contempt of courts, these provisions would not preclude the High Court, in
an appropriate case, from taking action for contempt of the orders of the
Company Law Board.
The Company Law Board
cannot be equated to an Administrative Tribunals under the Administrative
Tribunals Act, 1955 and since the Company Law Board is a court subordinate to
it, the High Court, in exercise of its jurisdiction under section 10, can
punish for any contempt such as wilful disobedience of the orders of the
Company Law Board.
5)
Limitations for taking
action for contempt.
Under Section 20 of the Contempt of Courts Act, no Court shall initiate
any proceedings for contempt, either on its own motion or otherwise, after the
expiry of a period of one year from the date on which the contempt is alleged
to have been committed. The order, violation of which is said to be in
contempt, is that of the Company Law Board dated 18.07.2005. While the contempt
application was filed before the Company Law Board on 20.07.2005, the Advocate
Commissioner, in compliance with the directions of the Company Law Board,
visited the site and submitted his report on 31.07.2005. Thereafter, by order
dated 04.10.2005, the Company Law Board, while holding that the respondents had
wilfully disobeyed its orders, gave liberty to the petitioner to approach the
High Court and invoke its jurisdiction under Section 10 of the Contempt of
Courts Act. The instant contempt case was filed on 21.11.2005 within two months
of the orders of the Company Law Board dated 04.10.2005. Thus the application,
in the instant contempt case, was filed within a period of one year even from
18.07.2005, when the order of status quo was passed by the Company Law Board, was
not in dispute. The contention, however, was that since this High Court had not
taken cognizance of contempt till date, and more than two years had elapsed
from the date on which the order of the status quo was passed, no proceedings
for contempt could then be initiated as the contempt case is barred by
limitation.
In view of the authoritative pronouncement of the Supreme Court in Pallav Sheth [7]
it must be held that if an
application to initiate contempt proceedings is filed within one year, from the
date on which contempt is committed, it would amount to initiation of contempt
proceedings within limitation under Section 20 of the Contempt of Courts Act.
The limitation under Section 20 has to be computed with reference to the date
of filing of the application for initiation of contempt and, since in the instant
case, such an application was filed on 21.11.2005, well within the period of
one year from the order of status quo dated 18.07.2005, violation of which is
said to be in contempt, the contempt case as filed cannot be said to be barred
by limitation.
6)
Principles governing
exercise of jurisdiction to punish for contempt.
There are certain well recognized principles which govern the exercise of
power and jurisdiction to punish for contempt. In its order dated 4.10.2005,
the Company Law Board observed that its earlier order dated 18.07.2005,
directing maintenance of status quo, had been deliberately violated and it was
evident from the Advocate Commissioner's report that the subject structure was
demolished even after the order of status quo was passed by it, and that respondents 1 to 9, in the Contempt Case
before the High Court, were respondents in Company application, wherein the
order of status quo was passed on 18.07.2005, and in Contempt application filed by the petitioner to punish the
respondents for wilfully disobeying the orders dated 18.07.2005, is not in
dispute. The High Court, in contempt proceedings, was not concerned with the
merits of the order of the Company Law Board dated 18.07.2005 directing
maintenance of status quo. The only question, which arose for consideration,
was as to whether the order had been
flouted and, if so, whether such violation was willful and deliberate. The
conclusion of the Company Law Board, that there had been wilful and deliberate
violation of its orders dated 18.07.2005, had, rightly, not been disputed by
the respondents. Some of them would contend that they were neither the
Directors nor were they associated with the first respondent company when the
order of status quo was passed. Some
others would content that, while they were Directors, they did not participate
in the day to day affairs of the company and that, in law, it was only the
Managing Director who could be held responsible for the day to day affairs of
the company and it was he alone who could be said to have violated the orders
of the Company Law Board.
A person, who has willfully and deliberately disobeyed or violated the
orders of Court, cannot be heard to say that, while he may well be guilty
thereof, he would, nonetheless, not be liable to be punished for contempt as he
is merely a director of the company; and that it is only the managing director
against whom action can be taken by contempt.
Under section303(2) of the Companies Act, 1956, the company shall,
within the period mentioned, send to the Registrar, a return in duplicate in
the prescribed form of any change among its directors, managing directors,
managers, secretaries, etc, specifying the date of change. Form 32 of the Companies (Central Government)
General Rules and Forms, 1956 is the notice giving particulars of
appointment of directors, managing
directors, managers, secretaries, etc., and changes among them. There under, the name of the person, the date
of change and the particulars of change are specifically provided for.
A certified copy of Form-32, as recorded by the Registrar of Companies on
23.04.2004, would show that respondent No.3, respondent No. 7, respondent No.8
and respondent No.9 had ceased to be the directors of the first respondent
company as early as on 29.09.2003 much prior to the status quo order passed by
the Company Law Board on 18.07.2005. Since the Respondents 3, 7, 8 and 9 were
not even the Directors of, and were not associated with, the first respondent
company when the order of status quo was passed, they could be said to have
violated the orders of the Company Law Board, much less willfully and
deliberately. The very same Form No.32, would show that the respondent No. 6 was
reappointed in the General Meeting as a Director on 29.09.2003. While the
respondent No. 6, in her counter affidavit, contended that she had resigned from the Company on
10.02.2004 and that her resignation was approved by the Board of Directors, no
evidence was placed in support of such a plea.
The application made to the Company Law Board in March, 2006, several
months after the status quo order dated
18.7.2005 was passed, was of no assistance to respondent No. 6. Her self-serving plea, in the absence of any
evidence in support thereof, did not merit acceptance. What was, however, of
relevance was that the Advocate Commissioner’s report made no mention of her
presence at the site of the demolished structure, when he made his visit. Since the degree of proof required, to establish contempt of court, is
proof beyond reasonable doubt, giving her the benefit of doubt, respondent No.
6 was also to be held not guilty or contempt.
The Advocate Commissioner's report dated 31.7.2005 specifically refers to
the fact that, when he visited the site, demolition was in progress and that
respondent No. 5, was present at the site. The respondent No. 5 had neither rebutted the
contention of the Advocate Commissioner that he was present at the site, nor
had he denied his presence at the site, when the Advocate Commissioner visited
and found demolition to be in progress.
It was established beyond reasonable doubt that the respondent No. 5 had
willfully disobeyed and deliberately violated the order of status quo passed by
the Company Law Board dated 18.7.2005, and had committed contempt of
court. He had not even tendered an
apology for his contumacious conduct in having willfully disobeyed the orders
of the Company Law Board. Such defiance
of the orders of the Company Law Board in continuing demolition of
superstructure even till 29.7.2005 more than 10 days after the restraint order
or status quo dated 18.7.2005, was a contempt of such a nature as to have
substantially interfered with the due course of justice for which imposition of
sentence of fine alone would not meet the ends of justice. Such flagrant violation of the orders of the
Company Law Board must be dealt with sternly.
The respondent No. 5 was to be sentenced, under section 12 (1), to undergo
simple imprisonment for a term of 2 months and with a fine of Rs. 200/-. The contempt case was to be allowed with
costs.
CONCLUSION
A court of law cannot function
freely and fairly if it is to be thwarted in the discharge of its duties by
contumacious and willful flouting or disobedience of its orders; or the parties
that come before it seeking justice, the advocates that appear before it or the
court itself are to be subjected to threat and abuse. Contempt of court is no
demon lurking in the background, ready to pounce upon an unwary citizen. Nor is
it a sword of Damocles ready to pierce his skull. Contempt of court is an
instrument which the people themselves have given the courts by recognizing and
vesting such power in the Supreme Court and the High Courts by Articles 129 and
215 respectively, and which the courts keep properly sheathed to be used rarely
but only when public interest demands it.
Anyone who takes the trouble of examining the applications make to the
courts to commit persons for contempt of court will at once realize that more
than 99 per cent of such applications arise out of attempts to disobey,
obstruct or defy judicial orders made under Article 226 or Article 32 of the
Constitution and hardly ever to vindicate the personal honour or integrity of
the judge. The protagonists of the demand for the abolition of the law of
contempt of court little realize that under the existing procedures the only
way a High Court or the Supreme Court may secure compliance with its judgments
or orders in writ proceedings under Article 226 or Article 32 of the
Constitution is by seeking recourse to proceedings for contempt of court. Even adjudication and execution may be
rendered difficult or ineffective without the power to commit for contempt of
court. For example, if the records in
the custody of a government official are necessary for the disposal of a writ
petition and if the official refuses or evades production of those documents in
court, the only way to compel him to produce them is to commit him for contempt
of court.
[This material is put online to further the educational goals of ‘Study in Law’. This material may be used freely for educational and academic purposes. It may not be used in any way for profit.]
[Published in Corporate Secretary, Monthly Journal of ICSI, Hyderabad during August, 2012]
[1] The Contempt of Courts Amendment Act, 2006
[2]
N.
Venkata Swamy Naidu vs. M/s Sri Sri Surya Teja Constructions Pvt. Ltd. &
Ors., reported in 2008 CRI.L.J. 227,
[3] Delhi Judicial
Service Association, Tis Hazari Court, Delhi Vs. State of Gujarat ; AIR 1991 SC 2176
[4] S.K. Sarkar, Member, Board of Revenue, U.P., Lucknow
Vs. Vinay Chandra Misra; AIR 1981SC
723
[5] Supreme Court Bar Association Vs. Union of India;
(1998)4 SCC 409
[6] Jaipur Municipal Corpn. Vs. C.L. Mishra; (2005) 8 SCC 423
[7] Pallav Sheth; AIR 2001 SC 2763
No comments:
Post a Comment