# Islamuddin v. Sri Umesh Chandra Tiwari and another

- **Citation:** (2009) 2 ILRA 587
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-07-06
- **Case number:** Civil Misc. Contempt Application No. 4969 of 2006
- **Bench:** S.Rafat Alam, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/islamuddin-v-sri-umesh-chandra-tiwari-and-another-41662
- **Pages:** 25

## Headnote

Contempt of Courts Act 1971-read with
Section 5 of Limitation Act-contempt
proceeding initiated after one yearreference made before the Division
Bench-whether
the
provisions
of
limitation Act applicable in proceeding of
contempt Act? Held-"No" except Section
17 of no other provision of limitation Act
applicable.

Held: Para 76

We,
therefore,
answer
both
the
questions referred by the Hon'ble Single
Judge in negative and hold that for the
purpose of Section 20 of Act 1971, the
Act 1963 and its provisions (exceptSection
17)
have
no
application
whatsoever. The law laid down by the
Apex Court in Pallav Sheth (supra) does
588 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
not
make
Section
5
of
Act
1963
applicable and would not confer power
upon the Court to condone or waive
delay where proceedings of contempt
are sought to be initiated under Act 1971
after one year from the date when the
contempt
is
alleged
to
have
been
committed.
Case law discussed:
2001 (7) SCC 549, (1996) 5 SCC 342, (1976) 1
SCC 392, 1991 Supp (2) SCC 631, 1995
Supp(4) SCC 578, (1995) 5 SCC 5, (2002) 3
SCC 130, (2006) 6 SCC 239, AIR 1922 Bom.
52, 17 C.W.N. 1285; AIR 1914 Cal. 69, AIR
1935 Nag. 46, AIR 1972 SC 858, AIR 1931 Cal.
257 Rankin, C.J., AIR 1974 SC 2255, JT 2008
(6) SC 177, JT 2007 (12) SC 27, 2000 (4) SCC
400, 2005 8 SCC 423; 2004 (1) SCC 360; 1998
(1) SCC 349, 1988 (3) SCC 26, (1976) 2 SCC
174, (1974) 2 SCC, JT 2004 (9) SC 265, AIR
2000 SC 1136, 1995 Cri LJ 3830 (FB), AIR
2007 Kerala 153, 2004 (17) AIC 684, AIR 1968
SC 647, 1996 (6) SC 44, JT 2005 (10) SC 64),
2000 Cri. L.J. 3619.

## Text

_Characters 0–39,632 of 83,307. This is a partial read: ask again with offset=39632 for what follows._

2 All] Islamuddin V. Sri Umesh Chandra Tiwari and another
587

21. Moreover, the appeals before us
have been filed alleging that the issues
decided by Hon'ble Single Judge never
arose in the matter and the respondents
before us also agree so far as this aspect is
concerned.
The
intervenor
has
categorically said in the application in
para 5 that all the parties are colluding for
the said purpose. Para 5 of the application
is reproduced as under:

"5. That it appears that both State
of
U.P.
and
the
Committee
of
Management and Anjuman Madarsa
Noorul Islam Dehra Kalan, have filed
appeals, from the grounds of appeal and
the contents of appeals it appears that the
both State of U.P. and the committee of
Management
Anjuman
Madarsa
are
colluding with each other on main
question decided. This is a question of
national importance and is likely to affect
the whole country. In such State of affairs
is necessary and the intervener who has
filed the application on the very date the
special appeal No. 322 of 2007 was listed
for admission. The intervener must be
heard, it appears that no order has been
passed on the intervener application it
appears no application came before the
court and it not listed for orders."

22. It is thus evident that the
applicant intervenor neither proposes to
support any of the parties in the writ
petition nor the issues raised by the
parties. We, therefore, do not find that this
application as an intervenor can be
allowed and the applicant can be
permitted
to
advance
submissions
opposing all the parties in the writ
petition.
In
fact,
the
remedy
lies
elsewhere. The intervenor-applicant, if so
advised, may avail such remedy as
admissible in law before the appropriate
forum
with
appropriate
pleadings,
grounds, reliefs, etc.

23. In view of the above discussion,
we are clearly of the view that this
application is not maintainable.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.07.2009

BEFORE
THE HON'BLE S.RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Contempt Application No. 4969
of 2006

Islamuddin

...Applicant
Versus
Sri Umesh Chandrara Tiwari and another

 ...Respondents

Counsel for the Applicant:
Sri Arvind Srivastava
Sri Zuber Ahmad Siddique

Counsel for the Respondents:
A.G.A.

Contempt of Courts Act 1971-read with
Section 5 of Limitation Act-contempt
proceeding initiated after one yearreference made before the Division
Bench-whether
the
provisions
of
limitation Act applicable in proceeding of
contempt Act? Held-"No" except Section
17 of no other provision of limitation Act
applicable.

Held: Para 76

We,
therefore,
answer
both
the
questions referred by the Hon'ble Single
Judge in negative and hold that for the
purpose of Section 20 of Act 1971, the
Act 1963 and its provisions (exceptSection
17)
have
no
application
whatsoever. The law laid down by the
Apex Court in Pallav Sheth (supra) does
588 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
not
make
Section
5
of
Act
1963
applicable and would not confer power
upon the Court to condone or waive
delay where proceedings of contempt
are sought to be initiated under Act 1971
after one year from the date when the
contempt
is
alleged
to
have
been
committed.
Case law discussed:
2001 (7) SCC 549, (1996) 5 SCC 342, (1976) 1
SCC 392, 1991 Supp (2) SCC 631, 1995
Supp(4) SCC 578, (1995) 5 SCC 5, (2002) 3
SCC 130, (2006) 6 SCC 239, AIR 1922 Bom.
52, 17 C.W.N. 1285; AIR 1914 Cal. 69, AIR
1935 Nag. 46, AIR 1972 SC 858, AIR 1931 Cal.
257 Rankin, C.J., AIR 1974 SC 2255, JT 2008
(6) SC 177, JT 2007 (12) SC 27, 2000 (4) SCC
400, 2005 8 SCC 423; 2004 (1) SCC 360; 1998
(1) SCC 349, 1988 (3) SCC 26, (1976) 2 SCC
174, (1974) 2 SCC, JT 2004 (9) SC 265, AIR
2000 SC 1136, 1995 Cri LJ 3830 (FB), AIR
2007 Kerala 153, 2004 (17) AIC 684, AIR 1968
SC 647, 1996 (6) SC 44, JT 2005 (10) SC 64),
2000 Cri. L.J. 3619.

(Delivered by Hon'ble S. Rafat Alam, J.)

1. This matter has come come up
before us pursuant to the reference made
by Hon'ble Single judge vide order dated
18.12.2006, formulating the following
two questions to be answered by a larger
Bench:

(i). Whether the decision in Pallav Sheth
case, (2001) 7 SCC 549, can be construed
so as to apply all the principles enshrined
in the provisions of the Indian Limitation
Act (except Section 17 thereof) and as to
whether the same can be made applicable
to proceedings to be initiated under
Section 12 of the Contempt of Courts Act,
1971.
(ii). Whether the High Court in exercise
of its powers for initiating contempt of its
Court or the contempt of its subordinate
court or Tribunal, as the case may be, has
the power to condone and waive the delay
in initiation of contempt proceedings
under Section 12 of the Courts Act.

2. The two questions appear to have
been formulated following the arguments
advanced by the learned counsel for the
applicant based on certain observations of
the Apex Court in Pallav Sheth Vs.
Custodian and others 2001 (7) SCC 549
relying whereof the learned counsel for
the applicant has sought to apply Section
5 of the Limitation Act, 1963 (hereinafter
referred to as the Act, 1963) to the
limitation prescribed under Section 20 of
the Contempt of Courts Act, 1971
(hereinafter referred to as Act, 1971) so
that if the contempt proceedings are
sought to be initiated after one year's
delay, the same may be condoned by the
Court and proceedings may be initiated
even after the above prescribed period.

3. Sri Arvind Srivastava, learned
counsel for the applicant submitted that in
State of West Bengal Vs. Kartik
Chandra Das and others (1996) 5 SCC
342 the Apex Court held that Section 5 of
Act, 1963 would be applicable to the
appeals filed under Section 19 of Act,
1971 beyond the period prescribed
therein, empowering the Court to condone
the delay. Based thereon he submitted that
it cannot be said that Act, 1971 is a
complete code in all respect, inasmuch as,
if for the purpose of appeal under Section
19 power to condone delay under Section
5 of Act, 1963 can be validly applied,
there is no reason to exclude the same for
the purpose of condoning delay if
contempt proceedings are initiated after
the period of limitation prescribed under
Section 20 of Act, 1971. Further relying
on Section 29 of Act, 1963 he submitted
that unless the application of Act, 1963 is
expressly excluded, it will apply to all the
2 All] Islamuddin V. Sri Umesh Chandra Tiwari and another
589
Courts which includes the High Court
also. In support of the above submission,
reliance is placed on Mangu Ram Vs.
Municipal Corporation of Delhi (1976)
1 SCC 392, Competent Authority,
Tarana District, Ujjain (M.P) Vs. Vijay
Gupta and others 1991 Supp (2) SCC
631, Shantilal M. Bhayani Vs. Shanti
Bai 1995 Supp(4) SCC 578, Mukri
Gopalan Vs. Cheppilat Puthanpurayil
Aboobacker (1995) 5 SCC 5, Shaik
Saidulu @ Saida Vs. Chukka Yesu
Ratnam and others (2002) 3 SCC 130,
State of Goa Vs. Western Builders
(2006) 6 SCC 239.

4. Learned counsel for the applicant
has also filed written submissions in
support of his contention that Section 5 of
Act, 1963 ipso facto would be applicable
to Act, 1971 enabling this Court to
entertain a contempt application filed
beyond the period of limitation prescribed
under Section 20 provided the applicant
satisfy the Court about the reasons beyond
his control in the occurrence of delay.

5.

Having
heard
the
above
submissions and perusing the reference
order of the learned single judge, the
provisions of the statute and the relevant
authorities on the subject applicable on
the aforesaid questions, we find that
though the questions are simple but has
far reaching consequences and therefore
need to be answered after careful
consideration of the entire law on the
subject.

6. The genesis of the argument
advanced by learned counsel for the
applicant is the judgment of the Apex
Court in Pallav Sheth (Supra) and
therefore before coming to other aspects
of the matter it would be appropriate to
have a perusal of the above judgment as
to the dispute raised therein and the
exposition of law laid down therein.

7. One M/s Fair Growth Finances
Services Ltd. was notified on 2nd July,
1992 under the provisions of Special
Courts (Trial of Offences Relating to
Transaction
Insecurities)
Act
1992,
(hereinafter preferred to as the "Special
Courts Act"). All properties belonging to
it
stood
automatically
attached
by
operation
of
law
due
to
above
notification. The custodian appointed
under the Special Courts Act filed Misc.
Application No. 193 of 1993 and sought a
decree for Rs. Fifty Crores on behalf of
the notified party against Pallav Sheth. On
24.02.1994, Sri Pallav Sheth submitted a
consent decree for Rs. 51.49 crores which
was to be paid in instalments. Shri Sheth
paid Rs. Two Crores but thereafter
committed default in payment of further
instalments. The Custodian then moved
an Execution Application No. 343 of
1994 and the Special Court thereupon
required the appellant Sri Sheth to
disclose all his assets and at the same time
by an interim order dated 03.08.1994
restrained
him
from
alienating,
encumbering and selling off or parting
with possession or transferring in any
manner whatsoever any of his assets,
movable or immovable, including bank
accounts.
The
Special
Court
on
24.08.1994, after receiving an affidavit
from Pallav Seth wherein he disclosed his
assets, passed further interim order of
attachment
of
some
of
the
assets
mentioned therein.

8. On 11th November, 1997 the
Income Tax Department conducted raids
on Pallav Sheth and taken note of the
News Paper reports containing the details
590 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
of the assets detected by the Income Tax
Department, the Special Court directed
the custodian to ascertain from the
Income Tax Department complete details
of all the assets of Sri Sheth. The Income
Tax Department in reply to the query
made by the custodian, vide letter dated
5th May, 1998 informed that during
search operations, Pallav Sheth was
detected being de-facto owner of five
companies, namely Anzug Plastics (P)
Ltd., Magan Hotels (P) Ltd, Klar
Chemicals (P) Ltd., Malika Foods (P) Ltd.
and Jainam Securities (P) Ltd.. He had
further reported to admit in the statements
before the Income Tax Authorities that
several cash deposits amounting to Rs.
2.81 crores made in the bank accounts of
the aforesaid five companies were his
undisclosed income. Thus according to
the Income Tax Authorities the assets of
the above 5 companies belong to Pallav
Sheth and these companies were also to
receive substantial amount from other
companies/individuals.
Besides,
the
Income Tax Department also informed
about some further assets of Pallav Sheth.
The custodian on 18th June 1998 filed
Misc. Application no. 276 of 1998 before
the Special Court with the prayer that the
appellant
should
be
punished
for
committing contempt of the Special
Court's order dated 24th August, 1994,
whereupon the Special Court issued
notices on 9th April 1999 to Pallav Sheth
to show cause for contempt. The
allegations of defiance of the order of
Special Court were denied by Pallav
Sheth in his reply. The Special Court on
29th October, 1999 allowed amendment
of Misc. Application No. 276 of 1998
permitting substitution of reference to the
order dated 24th August, 1994 with order
dated 3rd August, 1994. By order dated
31st January, 2001, the Special Court held
Pallav Sheth guilty of contempt of Court
and
sentenced
him
to
one
month
imprisonment and imposed a fine of Rs.
2,000/-. By a separate order dated 7th
February, 2001 the Special Court dealt
with the contention with respect to
limitation and held that the contempt
application was not barred by limitation
prescribed under Section 20 of Act, 1971
on the ground that it was a case of
continuing wrong.

9. In appeal before the Apex Court,
the arguments on behalf of Pallav Sheth
were restricted only to the issue of
limitation under Section 20 of Act, 1971.
The appellant before the Apex Court
chose not to advance any submission on
the
merits
of
the
issue.
In
the
circumstances, the question formulated by
the Apex Court, which it required to
decide in that case was as under, as
mentioned in para 8 of the judgment:

"The only question which survives
for consideration in this appeal is whether
in view of the provisions of Section 20 of
the Contempt of Courts Act, 1971, the
Special Court was prohibited from taking
any
action
as,
according
to
Mr.
Venugopal, the Court had initiated
proceedings of contempt after the expiry
of a period of one year from the date on
which the contempt was alleged to have
been committed".

10. The Apex Court initially
examined the provisions of Special Courts
Act and with reference to Section 11(A)
thereof, found that the Special Court was
constituted under Section 5 of the said
Act, consisting of one or more sitting
judges of the High Court and has the same
power as the High Court in respect of
contempt of itself. This power could be
2 All] Islamuddin V. Sri Umesh Chandra Tiwari and another
591
exercised in addition to the exercise of
power under the provisions of the Act,
1971. In the circumstances it was noticed
by the Apex Court that just as the High
Court, being the Court of record, has the
power
under
Article
215
of
the
Constitution of India to punish for
contempt of Court itself, similarly, the
Special Court consisting of a Judge of the
High Court can also exercise that power
available under Article 215.

11. Shri Venugopal, counsel for
Pallav Sheth, appellant before Apex
Court, for the purpose of attracting
Section 20 relied on the date of the order
which was said to be violated that is 3rd
August, 1994 and 22nd August, 1994 and
and the date on which show cause notice
was issued by the Special Court for
contempt that is 9th April, 1999 and
submitted that the limitation having
expired
long
back,
the
contempt
proceedings were barred by Section 20.
He also contended that the provision of
Section
20
will
be
attracted
for
determining the period of one year on the
date when the Court applied its mind and
not on the date on which the application
was filed and since the limitation had
expired long back, the entire proceedings
were barred by limitation. To answer the
above question, the Apex Court firstly
considered as to what would be the date
on which the Court can be said to have
initiated proceedings, i.e, the date when
notice is issued by the Court or from the
date when an application is filed by the
informant bringing to the notice of the
Court the wilful disobedience or violation
of order by the alleged contemnor and
secondly as to when the period would
commence i.e. from the date of the order
of the Court or the date when the violation
thereof takes place or when it comes to
the knowledge of the informant.

12. Answering the first part about
the date of initiation of proceedings , it
was held that Section 20 has to be
construed in a manner which would avoid
an anomaly and hardship to both the
litigants so as not to suffer for inaction on
the part of the Court to punish for its
contempt in taking up the application and
apply its mind as to whether the notice is
to be issued or not and also the
harmonious construction of the various
provisions of the statute so that a
mischievous person may not take undue
advantage of any avoidable lacuna in the
language of the statute. The Court held
that for the purpose of taking cognizance
of a criminal contempt under Section 15,
beginning of the action would be the date
when the proceedings were initiated for
contempt that is when the application is
filed before the Advocate General or this
Court. Similarly for civil contempt, filing
of an application drawing the attention of
the Court for further steps to be taken
under Act, 1971 would be the date of
commencement of the period prescribed
in Section 20 and not when the Court
issued notice. Therefore 18.06.1998 was
held to be the date on which the Apex
Court held that the proceedings for
contempt were initiated under Section 20
for the purpose of considering the period
of limitation or the period for taking
cognizance. If an application is moved
within one year thereafter it would be
well within the time and cannot be said to
be barred by Section 20. The Apex Court
in para 44 of the judgment held as under:

44. "Action for contempt is divisible into
two categories, namely, that initiated suo
motu by the Court and that instituted
592 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
otherwise than on the Court's own
motion. The mode of initiation in each
case would necessarily be different, while
in the case of suo motu proceedings, it is
the Court itself which must initiate by
issuing a notice, in the other cases
initiation can only be by a party filing an
application. In our opinion, therefore, the
proper construction to be placed on
Section 20 must be that action must be
initiated,
either
by
filing
of
an
application or by the Court issuing
notice suo motu, within a period of one
year from the date on which the
contempt is alleged to have been
committed".
(emphasis added)

13. The Apex Court also took into
consideration that where the alleged
contemnor had been successfully hiding
the facts by practising fraud etc., the delay
caused thereof would not render the
proceedings barred by limitation but in
such case, date on which such facts came
to the notice of the informant would be
the date of commencement of violation of
Court's order. The Court considered the
submissions
of
the
appellant
that
application itself having been filed after
almost four years when the order was
passed, it was barred by time & repelling
the same, in para 46 and 48 of the
judgement observed as under:

"The record disclosed that the
Custodian received information of the
appellant having committed contempt by
taking
over
benami
concerns,
transferring funds to these concerns and
operating their accounts clandestinely
only from a letter dated 05.05.1998 from
the Income Tac Authorities. It is soon
thereafter that on 18.06.1998, a petition
was filed for initiating action in
contempt and notice issued by the
Special Court on 09.04.1999...."(para
46.)
"The fraud perpetuated by the
appellant was unearthed only on the
Custodian receiving information from
the Income Tax Department, vide their
letter dated 05.05.1998. On becoming
aware of the fraud, application for
initiating contempt proceedings was filed
on 18.06.1998, well within the period of
limitation prescribed by Section 20. It is
on this application that the Special Court
by its order of 09.04.1999 directed the
application to be treated as a show-cause
notice to the appellant to punish him for
contempt. In view of the above stated
facts and in the light of the discussion
regarding the correct interpretation of
Section 20 of the Contempt of Courts
Act, it follows that the action taken by
the special Court to punish the appellant
for contempt was valid..." (para 48).

14. Since the Apex Court in Pallav
Sheth (supra) held that the application
was filed within time, it did not consider
the further aspect of the matter as to
whether there was a continuing wrong or
not.

15. If we consider the question in
the facts and circumstances of the case in
which it cropped up before the Apex
Court, we find that though the Interim
Orders were passed by the Special Court
on 3rd August, 1994 and 24th August,
1994 but their defiance came to the notice
to the Custodian only when he received a
letter dated 5th May, 1998 from the
Income Tax Department and within one
and a half month thereof he filed an
application, i.e., on 18th June 1998 for
contempt
before
the
Special
Court
requesting
for
initiating
contempt
proceedings
against
Pallav
Sheth
2 All] Islamuddin V. Sri Umesh Chandra Tiwari and another
593
(Supra). For determining the period of
one year, the Apex Court found that the
defiance having commenced on 5th May,
1998 the application was well within
time.

16. We do not find that the Apex
Court has relied on either Section 29 of
Act 1963 or has held that Section 5 would
be applicable for enabling the Court to
initiate the contempt proceedings even
after expiry of period of one year
provided under Section 20 of 1971 Act.

17. Sri Srivastava learned counsel
for the appellant, however, placing
reliance on later part of para 46 and 47 of
the judgement in Pallav Sheth (supra)
vehemently contended that there from the
applicability of Section 5 of 1963 Act is
very clear and is evident. The aforesaid
extract of the judgement which has been
heavily relied by Sri Srivastava, would be
useful to be referred as under:

"Section 29(2) of the Limitation Act,
1963 provides that where any special or
local law prescribes for any suit, appeal
or application a period of limitation
different from the period prescribed by
the Schedule, the provisions of Section 3
shall apply as if such period were the
period prescribed by the Schedule and for
the purpose of determining any period of
limitation prescribed for any suit, appeal
or application by any special or local law,
the provisions contained in Section 4 and
24 (inclusive) shall apply insofar as, and
to the extent to which, they are not
expressly excluded by such special or
local law. This Court in the case of
Kartick Chandrara Das has held that by
virtue of Section 29(2) read with Section 3
of the Limitation Act, limitation stands
prescribed as a special law under Section
19 of the Contempt of Courts Act, 1971
and in consequence thereof the provisions
of Sections 4 and 24 of the Limitation Act
stand attracted".(para 46)
"Section 17 of the Limitation Act,
inter alia, provides that where, in the case
of any suit or application for which a
period of limitation is prescribed by the
Act, the knowledge of the right or title on
which a suit or application is founded is
concealed by the fraud of the defendant or
his agent Section 17(1)(b) or where any
document necessary to establish the right
of the plaintiff or the applicant has been
fraudulently concealed form his Section
17(1)(d), the period of limitation shall not
begin to run until the plaintiff or the
applicant has discovered the fraud or the
mistake
or
could,
with
reasonable
diligence, have discovered it; or in the
case of a concealed document, until the
plaintiff or the applicant first had the
means
of
producing
the
concealed
document or compelling its production.
These provisions embody fundamental
principles of justice and equity Viz. That a
party should not be penalized for failing
to adopt legal proceedings when the facts
or material necessary for him to do so
have been willfully concealed from him
ans also that a party who has acted
fraudulently should not gain the benefit of
limitation running in his favour by virtue
of such fraud". (para-47)

18. Having given our considerable
thoughts, we find that this submission is
also plainly misconceived. The Hon'ble
Single Judge himself has noticed the
judgment of Apex Court in Pallav Sheth
(supra) at length and also various
authorities cited before him, and has
observed that Section 20 leaves no room
for doubt that the words used therein are
almost prohibitory in nature to the effect
594 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
that
no
Court
shall
initiate
any
proceedings after expiry of one year from
the date on which the contempt is alleged
to have been committed. He has further
observed that Section 20 takes away
jurisdiction of the Court for initiation of
contempt proceedings and as such the
Court shall not punish such person if
initiation has not taken place within a
period of one year. The Hon'ble Single
Judge is also of the view that application
of Section 5 of Act 1963 would make
Section 20 and the prohibition therein
nugatory which cannot be the intention of
the legislature. By judicial process of
interpretation the Court's cannot find such
a course. But, then, referring to some
further observations of the Apex Court,
his Lordship with a view to have a clear
authority on the subject, as to whether
Section 5 would be applicable to
contempt proceedings under Section 12 of
Act, 1971, particularly in view of the fact
that the Apex Court in Pallav Sheth
(supra) has taken note of Section 17 of
the 1963, Act; has formulated the above
two questions and referred the matter to
the larger Bench though the judgment
itself contain reply to the above questions
on page 9 and 10.

19. Now we proceed to reply the
above two questions in the light of the
various authorities cited at the bar as also
the submission that Section 17 has been
taken note by the Apex Court in Pallav
Sheth (supra) would also make all other
provisions applicable including Sec 5 of
1963 Act.

20. The law in respect to contempt
of Court has been considered time and
again in the last more than a century. We
do not propose to deal in the matter at
length, but it would be useful to have a
brief reference of the relevant aspect of
the matter. During pre-independence era
the High Courts of Judicature were
established by Letters Patent and were
made superior Courts of record. As such
they had power to attach and commit for
acts amounting to contempt of their own
proceedings
as
Contempt
of
Court
without reference to whether the acts
alleged constituted an offence under the
Indian Penal Code. However, there
appears to be conflict between High
Courts as to the jurisdiction of the High
Court
to
punish
for
contempt
of
subordinate courts. The Madras High
Court in the case of Venkata Rao, 12
I.C. 293 and the Hon'ble Bombay High
Court in the case of King Emperor Vs.
P.G. Kurkarni, AIR 1922 Bom. 52 held
that they possess power to protect their
subordinate courts against such contempt.
The Calcutta High Court in King
Emperor Vs. Girindra Mohan Das and
others, 17 C.W.N. 1285; and Legal
Remembrancer Vs. Matilal Ghose and
others, AIR 1914 Cal. 69 took a contrary
view. Further it was also not clear as to
whether
the
Court
of
Judicial
Commissioners of the Central Provinces,
Oudh and Sind have these general powers
either in regard to contempt of their own
proceedings or of the proceedings of
Courts subordinate to them. It is in these
circumstances that the Contempt of
Courts Act (XII of 1926) (hereinafter
referred to as the "Act, 1926") was
enacted. Though the statement of objects
and reasons included that the Act is being
enacted considering that the Court of
Judicial Commissioner whether would
have power of contempt or not but the
Act, 1926 as enacted, in fact, did not
provide anything in respect to Judicial
Commissioner. This was pointed out by
Nagpur Judicial Commissioner's Court in
2 All] Islamuddin V. Sri Umesh Chandra Tiwari and another
595
the case of Mst. Hira Bai Vs. Mangal
Chand, AIR 1935 Nag. 46. It was a short
Act containing only three sections.

21. After independence in the
Constitution specific provisions were
made with respect to powers of Contempt
of Supreme Court and High Courts under
Articles 129 and 215 of the Constitution
of India. Article 215 of the Constitution
makes every High Court, a Court of
record having power to punish for its
contempt. It reads as under :

"215. High Courts to be Courts of
record.- Every High Court shall be a
Court of record and shall have all the
powers of such a Court including the
power to punish for contempt of itself."

22. Courts of record are not defined
either in the Constitution or in General
Clauses Act. However, the Courts of
record are those, whose acts and judicial
proceedings are enrolled for a perpetual
memorial testimony. Their proceedings
are kept on record and are conclusive
evidence of that which is recorded
therein. Whether a Court is Court of
record or not would depend on the fact as
to whether it has jurisdiction to punish for
contempt of itself or or other substantial
offences. In respect to the statutory
enactments, Article 246 (1) of the
Constitution provides that the Parliament
has exclusive power to make laws in
respect to such matters as are enumerated
in List I in Seventh Schedule. Article 246
(3) empowers the Legislature of the State
to make law with respect to the subjects
mentioned in List II in the Seventh
Schedule subject to Article 246 (1) and
(2). Article 246 (2) provides that
notwithstanding anything in Clause 3
Parliament and subject to Clause 1 the
legislature of any State shall have power
to make laws with respect to any of the
matters enumerated in List III Seventh
Schedule of the Constitution. In respect to
Courts, Entry 77 List-I VII Schedule
provides as under :

"77.
Constitution,
organisation,
jurisdiction and powers of the Supreme
Court (including contempt of such Court),
and the fees taken therein; persons
entitled to practice before the Supreme
Court."

23. Similarly, in respect to Contempt
of Courts other than that of Supreme
Court, entry 14 List III Schedule Seventh
provides as under :

"14. Contempt of Court, but not
including contempt of the Supreme
Court."

24. Therefore, the Constitution
clearly provides for a law to be made by
the Parliament or State legislature to the
extent mentioned in Entry 77, List I and
Entry 14 List III. The Parliament stepped
in by enacting "Contempt of Court Act,
1952" (Act 33 of 1952) (hereinafter
referred to as "Act, 1952") after the
commencement
of
Constitution
and
replaced the Act, 1926. The aforesaid Act
was a short one and basically provided the
extent of punishment which could be
imposed by the High Courts in the matter
of contempt. The Act, 1952 vide Section
6 thereof repealed not only Act, 1926 but
some
other
provincial
enactments
enforced in pre-independent States which
were mentioned in the schedule. The said
enactments were as under:
596 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
"(a) The Contempt of Courts Act, IV of
1855, as in force in the State of
Hyderabad. The whole
(b) The Indore Contempt of Courts Act,
No. V of 1930, as in force in the State of
Madhya Bharat.
The whole
(c) The Contempt of Courts Act, Gwalior
State, Samwat 2001, as in force in the
State of Madhya Bharat.
The whole
(d) The Contempt of Courts Act, 1930 (XI
of 1930), as in force in the State of
Mysore. The whole
(e) The Contempt of Courts Act, S. 1991
(V of S. 1991), as in force in the Patiala
and East Punjab States Union.

The whole
(f) The Patiala and East Punjab States
Unior Judicature Ordinate, S. 2005 (X of
S. 2005) Section 33
(g) The Contempt of Courts Act, 1926 (XII
of 1926) as in force in the State of
Rajasthan before the commencement of
the Act. The whole
(h) The Contempt of Courts Act, 1926 (XII
of 1926) as in force in the State of
Saurashtra before the commencement of
this Act. The whole
(i) The High Court of Judicature
Saurashtra
State
Ordinate,
1948
(Saurashtra Ordinance II of 1948)
Section 31
(j) the Cochin Contempt of Courts Act
(XXXII of 111), as in force in the State of
Travancore-Cochin.
The whole"

25.

The
aforesaid
Act
was
substituted by the Act, 1971 which is a
detailed
enactment
covering
various
aspects of the matter pertaining to
contempt. The Act, 1971 came into force
on 24.12.1971. A question in respect to
earlier enactment of 1952 relating to
contempt of High Court came to be
considered before Apex Court. Fine was
imposed on 25.2.1964 but was not paid
and an amount of Rs.500/- earlier
deposited as security for appearance
remained unattached till 1971. One R.L.
Kapur filed application for refund of the
security amount while the State filed
another application for attachment of the
said amount towards the unpaid fine. Sri
Kapur contended that under Section 17 of
Indian Penal Code, six years having
elapsed since imposition of fine, the
application of the State was barred by
time. The Apex Court in R. L. Kapur Vs.
State of T.N. AIR 1972 SC 858 held that
the power to punish for contempt of the
High Court as a Court of record is a
substantial one. Whether it was inherent
or conferred by Article 215 of the
Constitution,
but
certainly
was
not
derived from Act, 1971, and, therefore,
not within the purview of the Indian Penal
Code or the Code of Criminal Procedure.
However, the jurisdiction of contempt is
of a special nature and should be used
sparingly. In Ananta Lal Vs. A.H.
Watson AIR 1931 Cal. 257 Rankin, C.J.
observed that
"The Court's jurisdiction in contempt
is not to be invoked unless there is real
prejudice which can be regarded as a
substantial interference with the due
course of justice. It is not every
theoretical tendency that will attract the
action of the Court in its very special
jurisdiction. The purpose of the Court's
action is a practical purpose and it is
reasonably clear on the authorities that
this Court will not exercise its jurisdiction
upon a mere question of propriety."

26. Oswald, in its book 'Contempt
of Court' 3rd Edn. Page 17 said that it is
an offence purely sui generis and that its
punishment involves in most cases an
exceptional interference with the liberty
of the subject, and that too by a method or
2 All] Islamuddin V. Sri Umesh Chandra Tiwari and another
597
process which would in no other case be
permissible or even tolerated. It is highly
necessary therefore in all questions of that
nature where the functions of the Court
have to be exercised in a summery
manner that the Judge in dealing with the
alleged offence should not proceed
otherwise than with greater caution and
deliberation and only in cases where the
administration
of
justice
would
be
hampered by the delay in proceeding in
the ordinary course of law; and that when
any antecedent process has to be put in
motion, every prescribed step and rule,
however technical should be carefully
taken, observed and insisted upon.

27. In Baradakanta Mishra Vs.
Mr. Justice Gatikrushna Mishra AIR
1974 SC 2255, the Apex Court observed
"Even if the Court is prima facie satisfied
that a contempt has been committed, the
Court may choose to ignore it and decline
to take action. There is no right in any
one to compel the Court to initiate a
proceeding for contempt even where a
prima facie case appears to have been
made out. The same position obtains even
after a proceeding for contempt is
initiated by the Court on a motion made
to it for the purpose." We do not propose
to burden this judgment by a catena of
other decision on this aspect but suffice is
to mention at this stage that these are the
general principles in the light whereof, we
have to consider whether vigour of
Section 20 of Act, 1971 can be whittled
down by applying Section 5 of Act, 1963.

28. The period of limitation prior to
Act, 1971 was not prescribed in the Act of
1952 or 1926. For the first time it was
introduced in Act, 1971.

29. The vires of Section 20 was
challenged time and again before various
High Courts and the matter also went to
the Apex Court. While upholding the
same, it has been said that the power of
contempt conferred by the Constitution
cannot be abrogated by an ordinary law
but can be regulated by making a
procedural enactment. It was therefore
held that the procedural restrictions
regarding quantum of punishment or the
period within which proceedings are to be
initiated cannot be said to be ultra vires of
Article 215 of the Constitution.

30. At this stage, we find it
appropriate to quote Section 20 of Act
1971 to find out as to what has been said
therein:

"No
Court
shall
initiate
any
proceedings of 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." (emphasis added)

31. A perusal of the above provision
shows that it restrain the Court from
initiating 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
mandate is that the Court would have no
jurisdiction
whatsoever
to
initiate
proceedings under Act 1971 if the period
as prescribed therein has expired. The
period of one year would commence on
the date when the contempt that is
defiance or disobedience of the Court's
order alleged to have been committed.
Therefore, the date of commencement is
the deliberate disobedience or defiance of
the
Court's
order
by
the
alleged
598 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
contemnor. This complaint that the
alleged contemnor has disobeyed or
defied deliberately order of the Court can
be brought to the notice of the Court
either by the informant or the Court can
take cognizance on its own motion when
such fact comes to its notice suo-motu or
otherwise. If the defiance or disobedience
remains hidden for a longer time, in our
view that would not make the period
under Section 20 to commence since
defiance or disobedience is directly
connected with the knowledge of such
defiance to the informant or the Court as
the case may be and therefore, we have to
apply Section 20 in a manner that it may
be
functional
and
workable
in
a
reasonable
and
appropriate
manner
meaning thereby it is not the mere date of
defiance or disobedience but the date on
which such defiance or disobedience
comes to the notice of the informant or
the Court as the case may be. If the
application therefore is filed within one
year from the date when such defiance or
disobedience come to the notice of the
informant or the cognizance is taken by
the Court on its own motion within one
year from the date this fact is brought to
its notice that the alleged contemnor has
defied or disobeyed deliberately an order
of the Court, the proceedings would not
be barred by Section 20 of Act 1971.

32. Section 20 of the Act is
mandatory in the sense that if the
proceedings are sought to be initiated
after expiry of one year form the date the
alleged contempt has been committed, it
would be beyond the jurisdiction of the
Court to initiate such proceedings, but the
said proposition has to be considered in a
reasonable manner, in the light of the
purpose and objective for which the above
provision has been made. It applied to
both the situations where the Court
proceeds on its own motion suo motu or
on the application made by a person
aggrieved. This provision appears to have
been enacted pursuant to the Sanyal
Committee Report. The Act, 1971 lays
down a different Scheme with regard to
contempt of Courts than prevalent before.
The preamble to the Act says, "an Act to
define and limit the powers of certain
Court in punishing for contempt of Courts
and to regulate their procedure in relation
thereto". This is an exhaustive Act
providing for the procedure in relation to
the contempt of Courts.

33. With reference to the application
of Section 5 of Act 1963, it appears that
entire emphasis has been placed on the
observation of the Apex Court in Pallav
Sheth (supra) whereby in paras 46,47
and 48 of the judgment, it has referred to
Section 29(2) of Act 1963 and thereby has
observed that Section 17 of the Act 1963
would be applicable in the case in hand
and therefore the fraud perpetuated by the
appellant Pallav Sheth would not give him
any benefit to claim the benefit of
limitation running in his favour by virtue
of such fraud. We have to consider
whether
the
effect
of
the
above
observation is that Section 5 of Act 1963
can be said to be applicable so as to take
away the effect and mandate of Section
20 of Act 1971.