# In Re v. Shri Chandan Kumar, Investigating Officer

- **Citation:** (2022) 8 ILRA 1033
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-18
- **Case number:** Contempt Application (Criminal) No. 5 of 2022
- **Bench:** Suneet Kumar, Syed Waiz Mian
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/in-re-v-shri-chandan-kumar-investigating-officer-48700
- **Pages:** 3

## Headnote

Courts Act, 1971 - Section 2(a), (c) -
Cognizance of criminal contempt, on a
reference made to High court , by the
subordinate court - Section 15 (2) - I.O.
mechanically arrested the accused on the
ground
that:
(i)
the
accused
refused/declined to comply the terms and
conditions of the notice under Section41(A) (ii) the matter involves two rival
communities, may adversely affect the
communal harmony - however, the
reason
for
arrest
failed
to
inspire
confidence
with
the
Magistrate
-
Magistrate
made
contempt
reference
before High court against Investigating
Officer, as I.O. did not follow the direction
of Supreme Court rendered in Arnesh
Kumar Vs State of Bihar, . 2014(6) S.C.J.
219 - On notice being issued contemnor
tendered unconditional apology - Held -
taking
advantage
that
the
accused
belongs
to
a
different
community,
comtemnor mechanically, without reasons
to believe, made an entry in the G.D. that
accused failed to comply the conditions of
the notice, to justify the arrest - conduct
of
the
contemnor
being
willful
and
deliberate to defy the authority of law by
assigning non existing reason - contemnor
being a member of the disciplined force is
bound to comply the mandate of law,
breach thereof would entail civil and
criminal consequence - apology tendered
is qualified and guarded to escape the
proceedings - contemnor is held guilty of
the charge. (17, 19)

Allowed. (E-5)

List of Cases cited:

## Text

8 All. In Re Vs. Shri Chandan Kumar, Investigating Officer
1033

33. Again, in the context of the exemption
granted under Section 4-A, in M/S Atul Gases
Vs. Commissioner of Commercial Taxes, U.P.
Lucknow & Anr., 2018 UPTC 198, with
respect to requirement of ownership of land, it
was found, acquisition of land was not a
condition that may be inferred so long as its
ownership derived from open market was not
doubted. Accordingly, a co-ordinate bench of
this Court observed as under:

"20. The construction sought to be
culled out finds support from the exemption
notification also. The last notification dated
22.12.2000 eliminates the mode of acquisition
for the purposes of grant of exemption entirely.
This clearly reflects that mode of acquisition was
not of relevance, rather, it was possessing of land
which alone had relevance for the context.

21. Any other construction, as is
suggested by the learned Standing Counsel, may
be open to challenge as being arbitrary. If it is
allowed, a person who establishes new unit upon
land owned by him or upon land purchased from
the open market would not be disentitled to
exemption, even if all other conditions are met.
Such a classification would be impermissible in
law. Mode of acquisition of land is not shown to
have any relevance for the object sought to be
achieved by promulgating Section 4-A of the Act
or the exemption notification. Any distinction
drawn based upon mode of acquisition of land
would have no nexus with the object sought to be
achieved, and thus would be violative of Article
14 of the Constitution of India."

34. In the present case, it is found - though
the 'Explanation' appended to the Restrictive
Notification would apply to the reading of
Clause 2 of the Exemption Notification, at the
same time, it would remain a directory provision
of law. Where the figure of employment to be
computed under the Restrictive Notification
remained indeterminate, the same would be read
as 'total employment' granted otherwise.

35. As noted above, there is no dispute to
the fact, considering that figure, the percentage of
employment granted by the assessee to the
members of Scheduled Castes, Scheduled Tribes
and Other Backward Classes and minorities was
met, satisfactorily. Thus, substantial compliance
of the directory provision had been made by the
assessee.

36. Therefore, the proviso (ii) to Clause 2
of the Exemption Notification wholly applied to
the assessee's case. Consequently, the restrictive
Clause 2 of the Exemption Notification did not
apply to it. Still, consequentially, the assessee
was entitled to full exemption under the
Exemption Notification, as provided under
Annexure No. I thereto.

37. In view of the above, the question of
law is answered in the negative i.e., in favour of
the assessee and against the revenue.

38. The revision is allowed. No order as to
costs. Any amount of tax deposited by the
petitioner, may be refunded in accordance with
law, subject to exclusion of the rule of unjust
enrichment.
----------
(2022) 8 ILRA 1033
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.08.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE SYED WAIZ MIAN, J.

Contempt Application (Criminal) No. 5 of
2022

In Re ...Applicant
Versus
Shri Chandan Kumar, Investigating Officer
 ...Opposite Party

Counsel for the Applicant:
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Sudhir Mehrotra

Counsel for the Opposite Party:
Sri R.V. Pandey, Sri Abhishek Mishra, Sri
Ashutosh Kumar Pandey, Sri R.V. Pandey

Criminal Contempt- The Contempt Of
Courts Act, 1971 - Section 2(a), (c) -
Cognizance of criminal contempt, on a
reference made to High court , by the
subordinate court - Section 15 (2) - I.O.
mechanically arrested the accused on the
ground
that:
(i)
the
accused
refused/declined to comply the terms and
conditions of the notice under Section41(A) (ii) the matter involves two rival
communities, may adversely affect the
communal harmony - however, the
reason
for
arrest
failed
to
inspire
confidence
with
the
Magistrate
-
Magistrate
made
contempt
reference
before High court against Investigating
Officer, as I.O. did not follow the direction
of Supreme Court rendered in Arnesh
Kumar Vs State of Bihar, . 2014(6) S.C.J.
219 - On notice being issued contemnor
tendered unconditional apology - Held -
taking
advantage
that
the
accused
belongs
to
a
different
community,
comtemnor mechanically, without reasons
to believe, made an entry in the G.D. that
accused failed to comply the conditions of
the notice, to justify the arrest - conduct
of
the
contemnor
being
willful
and
deliberate to defy the authority of law by
assigning non existing reason - contemnor
being a member of the disciplined force is
bound to comply the mandate of law,
breach thereof would entail civil and
criminal consequence - apology tendered
is qualified and guarded to escape the
proceedings - contemnor is held guilty of
the charge. (17, 19)

Allowed. (E-5)

List of Cases cited:

1. Arnesh Kumar Vs St. of Bihar 2014(6) S.C.J.
219

(Delivered by Hon'ble Suneet Kumar, J.
&
Hon'ble Syed Waiz Mian, J.)

1. Heard learned counsel for the
parties.

2.

Pursuant
to
order
dated
04.08.2022, contemnor is present in the
Court.

3. Contemnor vide order dated
04.08.2022, was held guilty for committing
contempt for breach of the mandate
pronounced by the Supreme Court in Arnesh
Kumar Vs. State of Bihar reported in 2014
(6) SCJ 219.

4. In the affidavit, the contemnor
pleads for taking a sympathetic view on the
quantum of punishment, for the reason, that
he is a young officer and his wife is
expecting. Further, it is pleaded that he is the
sole bread earner of his family, including,
four brothers and one sister; he further pleads
that punishment would adversely affect his
career. The contemnor, therefore, tenders an
unconditional apology.

5. We have considered the
averments made in the affidavit and
submissions of the learned counsel for the
contemnor.

6. This Court would not lose sight of
the fact that the contemnor, being a member
of disciplined Force, in exercise of his powers
of arrest, has willfully and deliberately
bypassed the mandate of the Supreme Court
in Arnesh Kumar (supra), which is binding
on
all
the
authorities,
including,
the
Magistrate, in view of Article 141 of the
Constitution of India.

7. 'Apology' means regretful
acknowledgement or an excuse for failure.
8 All. Vikram Prasad Vs. State of U.P.
1035
It is an explanation offered to a person
affected by one's action that no offence was
intended. Further, held 'apology' should be
unquestionable in sincerity and tempered
with sense of genuine remorse and
repentance, and not a calculated strategy to
avoid punishment. The apology tendered
by the contemnor is a matter of last resort,
therefore, it cannot be accepted.

8. It has been noted by the Court
in the order dated 04.08.2022, that the
contemnor, though, has served a notice
under Section 41-A Cr.P.C. on the accused,
but, to bypass the mandate of the Supreme
Court,
he
willfully
and
deliberately
recorded in the GD that accused declined to
accept the terms and condition of the
notice. Further, communal colour was
attempted to be given by the contemnor
taking advantage that the accused belongs
to a muslim community, by stating that
there was an apprehension of communal
riots. It is noted in the order that no such
apprehension did exist as admittedly, the
FIR was not lodged at the police station
until intervention by the higher authorities.
There is no entry in the GD that there was
any such apprehension of communal flare
up in the event of the accused not being
arrested. The misleading entry in the GD
was made willfully and deliberately with
sole purpose to bypass the mandate in
Arnesh Kumar (supra), in order to arrest
the accused. The contemnor, in the
circumstances, has circumvent the mandate
which was binding upon him.

9. In the event of the Court taking
a sympathetic view, it would not sub-serve
public interest and the administration of
justice. In order to secure public respect
and confidence in the judicial process, the
Court
is
constrained
in
awarding
punishment to the contemnor, Investigating
Officer, Shri Chandan Kumar, Incharge of
Police
Station,
Kanth,
District
Shahjahanpur, for committing contempt.

10. In the circumstances, Shri
Chandan
Kumar,
Incharge
of Police
Station, Kanth, District Shahjahanpur, is
sentenced to undergo simple imprisonment
for 14 days and fine is imposed at Rs.
1000/-. On default, the contemnor shall
undergo
one
week
further
simple
imprisonment.

11. The sentence shall be kept in
abeyance for 60 days from today as the
learned counsel for the contemnor pleads
that the contemnor would like to prefer an
appeal under Section 19 of Contempt of
Court Act, 1971.

12. In view thereof, the contempt
petition and pending application, if any,
stands disposed of.
----------
(2022) 8 ILRA 1035
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.07.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 289 of 2015

Vikram Prasad ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Pradeep Kumar VI, Sri Bhaju Ram
Prasad Sharma, Sri Dinesh Kumar Pandey,
Sri Manu Sharma, Sri Rajrshi Gupta

Counsel for the Opposite Party: