# Mili Nigam v. Kalanaidhi Naithani, S.S.P. Lko & Ors - **Citation:** (2020) 2 ILRA 23 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2020-02-10 - **Case number:** Contempt Appeal No. 89 of 2019 - **Bench:** Abdul Moin - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mili-nigam-v-kalanaidhi-naithani-s-s-p-lko-ors-45582 - **Pages:** 4 ## Headnote A. Contempt of Courts Act, 1971 - Sections 10, 11 and 12 - alleging - noncompliance of the orders issued by the learned Chief Judicial Magistrate - exercise of power by the High Court under Section 10 of the Act of 1971 - where there is no provision under the Criminal Procedure Code or the Code of Civil Procedure for execution of the orders or for compliance of such orders - Where there is an effective remedy for enforcing the order then the High Court would be justified in declining to entertain the contempt petition - contempt petition not maintainable under Section 10 read with Sections 11 and 12 of the Act of 1971.(Para-4,10,15) An order issued by the learned Chief Judicial Magistrate requiring the officials concerned to send a report and thus Section 10 of the Act of 1971 has been invoked for punishing the officials for not responding to the orders passed by the learned Chief Judicial Magistrate for sending a report. (Para-6) HELD:- Learned Chief Judicial Magistrate has got the power under the Criminal Procedure Code to have his own orders complied with.(Para- 10) Contempt petition dismissed. (E-7) List of cases cited:- ## Text 4 All. Mili Nigam Vs. Kalanaidhi Naithani, S.S.P. Lko & Ors. 23 Conciliation Act, 1996, to appoint an Arbitrator. 81. In view of the above, it is a fit case for the Court to appoint an Arbitrator. This Court further finds that in both the petitions, the parties are also similar, the controversy and points of fact and law are the same hence it will be expedient to appoint the same Arbitrator in both the cases. Accordingly, this Court proposes the name of Justice D.B Bhosle (Retd. Chief Justice) of this Court 6, Bhagyoday behind Kandil Restaurant, Near State Exchange, Fort, Mumbai-400001, Mob. Nos.9494940122, 9833300555, Land Line Nos.22675858, 22675959 to act as an Arbitrator in both the cases. The learned counsel for the petitioner shall provide a complete set of the paper book, in both of cases, to the office to be forwarded to the proposed Arbitrator to seek his consent in terms of Section 12(1) of the Arbitration & Conciliation Act, 1996 to conduct the arbitration proceedings at Lucknow. 82. Put up this matter in the week commencing 23rd of March, 2020. ---------- (2020)02ILR A23 APPELLATE JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 10.02.2020 BEFORE THE HON'BLE ABDUL MOIN, J. Contempt Appeal No. 89 of 2019 Mili Nigam ...Applicant Versus Kalanaidhi Naithani, S.S.P. Lko & Ors. ...Opposite Parties Counsel for the Applicant: Shiv Raj Mohan Nigam Counsel for the Opposite Parties: ------------- A. Contempt of Courts Act, 1971 - Sections 10, 11 and 12 - alleging - noncompliance of the orders issued by the learned Chief Judicial Magistrate - exercise of power by the High Court under Section 10 of the Act of 1971 - where there is no provision under the Criminal Procedure Code or the Code of Civil Procedure for execution of the orders or for compliance of such orders - Where there is an effective remedy for enforcing the order then the High Court would be justified in declining to entertain the contempt petition - contempt petition not maintainable under Section 10 read with Sections 11 and 12 of the Act of 1971.(Para-4,10,15) An order issued by the learned Chief Judicial Magistrate requiring the officials concerned to send a report and thus Section 10 of the Act of 1971 has been invoked for punishing the officials for not responding to the orders passed by the learned Chief Judicial Magistrate for sending a report. (Para-6) HELD:- Learned Chief Judicial Magistrate has got the power under the Criminal Procedure Code to have his own orders complied with.(Para- 10) Contempt petition dismissed. (E-7) List of cases cited:- 1. E. Bapanaiah vs. K.S. Raju , (2015) 1 SCC 451 (Delivered by Hon'ble Abdul Moin, J.) 1. Heard. At the very outset, Sri Shiv Raj Mohan Nigam, learned counsel for the petitioner, made a request that he is unable to see clearly as such his friend,colleague and Advocate Sri H.M. Mathur be permitted to argue the matter on his behalf. 24 INDIAN LAW REPORTS ALLAHABAD SERIES 2. Accordingly, seeing the personal difficulty of Sri Nigam, this Court permitted Sri H.M. Mathur, Advocate, to argue the matter. 3. Heard Sri Shiv Raj Mohan Nigam, learned counsel for the petitioner, and Sri H.M. Mathur, Advocate, who has assisted the learned counsel for the petitioner. 4. Present contempt petition has been filed under Sections 10, 11 and 12 of the Contempt of Courts Act, 1971 (hereinafter referred to as the Act of 1971) alleging non-compliance of the orders issued by the learned Chief Judicial Magistrate, Lucknow, as per the order sheet, a copy of which has been filed as Annexure-1 to the contempt petition. 5. It is contended by learned counsel for the petitioner that learned Chief Judicial Magistrate, Lucknow, through various orders had required the officials concerned to submit a report but despite sending various letters, as would be apparent from perusal of the order sheet, on 20.07.2018, 24.09.2018, 29.10.2018, 27.11.2018 and 11.12.2018 the said report has not been sent and consequently the respondents run in contempt of the orders passed by the learned Chief Judicial Magistrate, Lucknow. 6. From perusal of the record, it is clearly apparent that it is not the order of a writ Court against which contempt is alleged but an order which has been issued by the learned Chief Judicial Magistrate, Lucknow requiring the officials concerned to send a report and thus Section 10 of the Act of 1971 has been invoked for punishing the officials for not responding to the orders passed by the learned Chief Judicial Magistrate, Lucknow for sending a report. 7. Heard learned counsel for the petitioner and perused the records. From the pleadings on record, it is apparent that the petitioner seeks initiation of contempt proceedings of non-compliance of the orders issued by the learned Chief Judicial Magistrate, Lucknow to the officials concerned for sending a report which has not been sent by them. 8. Whether this Court while exercising power under Section 10 of Act of 1971 would have jurisdiction to entertain the present contempt petition alleging contempt of orders passed by a subordinate court is an issue which has to be considered by this Court. 9. This aspect of the matter has been considered by the Apex Court in the case of E. Bapanaiah vs. K.S. Raju reported in (2015) 1 SCC 451 wherein it has been held as under:- "25. Powers of the High Courts to punish for contempt including the powers to punish for contempt of itself flow from Article 215 of the Constitution of India. Section 10 of the Contempt of Courts Act, 1971 empowers the High Courts to punish contempts of its subordinate courts which reads as under: - "10. Power of High Court to punish contempts of subordinate courts. - Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself: 4 All. Mili Nigam Vs. Kalanaidhi Naithani, S.S.P. Lko & Ors. 25 Provided that 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 (45 of 1860). 27. The present case relates to a civil contempt wherein an undertaking given to Company Law Board is breached. Normally, the general provisions made under the Contempt of Courts Act are not invoked by the High Courts for forcing a party to obey orders passed by its subordinate courts for the simple reason that there are provisions contained in Code of Civil Procedure, 1908 to get executed its orders and decrees. It is settled principle of law that where there are special law and general law, the provisions of special law would prevail over general law. As such, in normal circumstances a decree holder cannot take recourse of Contempt of Courts Act else it is sure to throw open a floodgate of litigation under contempt jurisdiction. It is not the object of the Contempt of Courts Act to make decree holders rush to the High Courts simply for the reason that the decree passed by the subordinate court is not obeyed." 10. From perusal of the aforesaid judgment in the case of K.S. Raju (supra), it is apparent that the power exercised by the High Court under Section 10 of the Act of 1971 can be exercised where there is no provision under the Criminal Procedure Code or the Code of Civil Procedure for execution of the orders or for compliance of such orders meaning thereby that where there is an effective remedy for enforcing the order then the High Court would be justified in declining to entertain the contempt petition. 11. Being armed with the aforesaid proposition of law the Court now sets out to see whether there is a remedy available to the petitioner of having the orders passed by the learned Magistrate complied with? 12. For the aforesaid purpose, Section 345 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') would be relevant. Section 345 of the Cr.P.C. provides as under:- "345. Procedure in certain cases of contempt. (1) When any such offence as is described in section 175, section 178, section 179, section 180 or section 228 of the Indian Penal Code (45 of 1860 ), is committed in the view or presence of any Civil, Criminal or Revenue Court, the Court may cause the offender to be detained in custody and may, at any time before the rising of the Court on the same day, take cognizance of the offence and, after giving the offender a reasonable opportunity of showing cause why he should not be punished under this section, sentence the offender to fine not exceeding two hundred rupees, and, in default of payment of fine, to simple imprisonment for a term which may extend to one month, unless such fine be sooner paid. (2) In every such case the Court shall record the facts constituting the offence, with the statement (if any) made by the offender, as well as the finding and sentence. (3) If the offence is under section 228 of the Indian Penal Code (45 of 1860 ), the record shall show the nature and stage of the judicial proceeding in which the Court interrupted or insulted was sitting, and the nature of the interruption or insult." 26 INDIAN LAW REPORTS ALLAHABAD SERIES 13. From perusal of Section 345 of the Cr.P.C., it is apparent that where any offence as is described in section 175, section 178, section 179, section 180 or section 228 of the Indian Penal Code is committed, the Court may cause the offender to be detained in custody and may take cognizance of the offence and, after giving an opportunity may also impose penalty upon him. 14. Section 175 of the Indian Penal Code (for short, 'IPC') reads as follows:- "175. Omission to produce [document or electronic record] to public servant by person legally bound to produce it.--Whoever, being legally bound to produce or deliver up any [document or electronic record] of any public servant, as such, intentionally omits so to produce or deliver up the same, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both, or, if the [document or electronic record] is to be produced or delivered up to a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both." 15. From perusal of Section 175 of IPC, it is apparent that omission to produce document or electronic record by person legally bound to produce up to a Court of justice is an offence punishable with simple imprisonment for a term which may extend to one month or with fine which may extend to five hundred rupees or with both. Thus, in case learned Magistrate is of the view that the officials concerned have not produced the document/report deliberately as were directed by him to be produced it is always open for the learned Magistrate to proceed against the officials concerned under the powers vested with him under the aforesaid provisions of law. However, this Court records that it has not gone into the merits of the orders passed by the learned Magistrate but has only considered as to whether learned Magistrate has got the power to have his own orders complied with whereby not requiring this Court to interfere and invoke its jurisdiction under the Act of 1971. 16. Taking into consideration the aforesaid, no case for entertaining of the present contempt petition under Section 10 read with Sections 11 and 12 of the Act of 1971 is made out. The contempt petition is accordingly dismissed. However, it would be open to the petitioner to pursue other remedies that are available to her. ---------- (2020)02ILR A26 APPELLATE JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 26.02.2020 BEFORE THE HON'BLE ANANT KUMAR, J. Criminal Appeal No. 783 of 2019 Hari Bhajan & Ors. ...Appellants Versus State of U.P. ...Respondent Counsel for the Appellants: Devendra Pratap Counsel for the Respondent: Govt. Advocate A. Criminal Law-Indian Penal CodeSection 304 (Part 2)/34, 323/34 - Appeal against conviction.