# Sri Anil Kumar Gupta & Anr v. Pawan Kumar Singh & Ors

- **Citation:** (2015) 3 ILRA 1155
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-09
- **Case number:** Contempt Appeal No. 4 of 2014
- **Bench:** Bala Krishna Narayana, Mrs. Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-anil-kumar-gupta-anr-v-pawan-kumar-singh-ors-43369
- **Pages:** 10

## Headnote

Contempt of Court Act 1971-Section 19Contempt Appeal-maintainability against
order-requiring appellant to appear in
person-without indication that charge
shall be framed-held-being interlocutory
order-appeal not maintainable.
Held: Para-18
By the impugned order, the appellants
have merely been summoned in the Court.
The impugned order does not even say
anything that on the date fixed, charges
would be framed against them. Even if
assuming that their personal appearance
was required for framing of charges
against them in the contempt proceeding,
but there is absolutely no indication that
by the impugned order, the learned Single
Judge has imposed any punishment on the
appellants for contempt. Hence, in view of
the well settled legal position as discussed
above, we have no doubt in holding that
the impugned order is an interlocutory
order against which an appeal under
Section 19 of the Contempt of Courts Act,
1971 is not maintainable. Therefore, the
present appeal is liable to be dismissed as
not maintainable. However, the appellants
are not remediless and they are at liberty
to avail any other remedy available to
them under law, if so advised, in wake of
the law laid down by the Apex Court in
Midnapore's case (supra), wherein it has
been held that if the High Court, in a
contempt proceeding, decides an issue or
makes any direction, relating to the merits
of the dispute between the parties, the
aggrieved person is not without remedy
and he can challenge it by means of intra
court appeal if the order is of Single Judge
and by seeking special leave to appeal
under Article 136 of the Constitution of
India in other cases, but not by way of
filing an appeal under Section 19 of the
Contempt of Courts Act.
Case Law discussed:
(2000) 4 Supreme Court Cases 400; (2006) 5
SCC 399; (2006) 2 SCC 282; 2014 STPL (Web)
70 SC; (2005) 3 UPLBEC 2415; (2011) 12 SCC
736; (2005) 7 SCC 406; (2002) 5 SCC 406;
(2002) 5 SCC 352; Contempt No. 1782 of
2013; 1996 (4) SCC 411; (2006) 5 SCC 399;
(2005) 3 UPLBEC 2415; (2000) 4 Supreme
Court Cases 400; (1988) 3 SCC 26; (1996) 4
SCC 411; (1978) 2 SCC 370; (2009) 2 SCC
641; Contempt Appeal No. 7 of 2009.

## Text

3 All]
 Sri Anil Kumar Gupta & Anr. Vs. Pawan Kumar Singh & Ors.
1155
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.09.2015
BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE MRS. VIJAY LAKSHMI, J.
Contempt Appeal No. 4 of 2014
Sri Anil Kumar Gupta & Anr. ...Appellants
Versus
Pawan Kumar Singh & Ors. Respondents
Counsel for the Appellants:
Sri Neeraj Upadhyay, Sri Piyush Shukla,
Sri Ramesh Upadhyay, C.S.C.
Counsel for the Respondents:
Sri V.K. Singh, Sri G.K. Singh, Sri H.P.
Sahi
Contempt of Court Act 1971-Section 19Contempt Appeal-maintainability against
order-requiring appellant to appear in
person-without indication that charge
shall be framed-held-being interlocutory
order-appeal not maintainable.
Held: Para-18
By the impugned order, the appellants
have merely been summoned in the Court.
The impugned order does not even say
anything that on the date fixed, charges
would be framed against them. Even if
assuming that their personal appearance
was required for framing of charges
against them in the contempt proceeding,
but there is absolutely no indication that
by the impugned order, the learned Single
Judge has imposed any punishment on the
appellants for contempt. Hence, in view of
the well settled legal position as discussed
above, we have no doubt in holding that
the impugned order is an interlocutory
order against which an appeal under
Section 19 of the Contempt of Courts Act,
1971 is not maintainable. Therefore, the
present appeal is liable to be dismissed as
not maintainable. However, the appellants
are not remediless and they are at liberty
to avail any other remedy available to
them under law, if so advised, in wake of
the law laid down by the Apex Court in
Midnapore's case (supra), wherein it has
been held that if the High Court, in a
contempt proceeding, decides an issue or
makes any direction, relating to the merits
of the dispute between the parties, the
aggrieved person is not without remedy
and he can challenge it by means of intra
court appeal if the order is of Single Judge
and by seeking special leave to appeal
under Article 136 of the Constitution of
India in other cases, but not by way of
filing an appeal under Section 19 of the
Contempt of Courts Act.
Case Law discussed:
(2000) 4 Supreme Court Cases 400; (2006) 5
SCC 399; (2006) 2 SCC 282; 2014 STPL (Web)
70 SC; (2005) 3 UPLBEC 2415; (2011) 12 SCC
736; (2005) 7 SCC 406; (2002) 5 SCC 406;
(2002) 5 SCC 352; Contempt No. 1782 of
2013; 1996 (4) SCC 411; (2006) 5 SCC 399;
(2005) 3 UPLBEC 2415; (2000) 4 Supreme
Court Cases 400; (1988) 3 SCC 26; (1996) 4
SCC 411; (1978) 2 SCC 370; (2009) 2 SCC
641; Contempt Appeal No. 7 of 2009.
(Delivered by Hon'ble Mrs. Vijay
Lakshmi, J.)
1. The present appeal, under Section
19 of the Contempt of Courts Act, 1971,
has been filed by Principal Secretary
Home, Government of U.P. Lucknow and
Director General of Police, U.P. Lucknow,
questioning the legality and correctness of
the order dated 05.03.2014, passed by
learned Single Judge of this Court in Civil
Misc. Contempt Petition No. 1140 of 2009;
Pawan Kumar Singh & others Vs. Kunwar
Fateh Bahadur Singh, Principal Secretary,
Lucknow & others, whereby the learned
Single Judge, while observing that a prima
facie case of non compliance of the
judgment of the writ Court is made out,
has directed both the appellants to remain
present before the Court on the date fixed.
1156
 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Heard Sri Ramesh Upadhyay,
learned Chief Standing Counsel, assisted
by
Sri
Neeraj
Upadhyay,
learned
Additional Chief Standing Counsel and
Sri Piyush Shukla, learned Standing
Counsel, for the appellants and Sri G.K.
Singh, assisted by Sri H.P. Sahi, learned
counsel for the respondents. Perused the
record.
3. The order assailed in this appeal,
for convenience, is quoted below:-
"Heard learned counsel for the
applicants and Sri Ramesh Upadhyay,
learned
Chief
Standing
Counsel,
representing
the Principal Secretary
(Home), U. P. Government, Lucknow and
the Director General of Police, U.P.,
Lucknow.
Services of about 20,000 constables
of civil police (including the applicants)
were terminated enmass in the year 2007
by a couple of Government orders. The
Government orders were challenged by
way of large number of writ petitions
which were clubbed together and the writ
Court vide order dated 8th December,
2008 allowed the writ petitions and
quashed the Government orders whereby
the termination had been directed. The
State Government preferred intra court
appeals which were also dismissed by the
Division Bench on 4th March, 2009.
Thereafter contempt proceedings were
initiated. In the meantime the State
Government filed Special Leave Petition
before the Apex Court and ultimately
under interim order of the Apex Court
dated 25.5.2009 the terminated constables
were given appointment letters and were
allowed
to
join
on
27.05.2009.
Subsequently the Special Leave Petition
has been got dismissed as withdrawn by
the State on 3.3.2013. The effect of the
dismissal of the Special Leave Petition as
withdrawn is that the judgement of the
writ Court stands affirmed and its
implementation is to be considered.
The effect of the termination orders
being quashed would be that there was no
termination order in the eye of law and
the terminated employees would be
deemed to be in continuous service and
entitled to all consequential benefits. It is
not an issue that all the terminated
constables have been reinstated w.e.f.
27.5.2009 and they are receiving their
salary ever since then. The only issue
which remains to be considered is as to
whether they would be entitled to
uninterrupted service benefits from the
date of entering into service and also with
regard to their entitlement to payment of
salary / back wages for the period they
have remained under termination i.e.
from the date of termination till the date
of reinstatement.
According to Sri Upadhyay the
judgement of the writ Court has been fully
complied
with
and
nothing
further
remains to be implemented. Learned
Chief Standing Counsel has relied upon
large number of decisions of the Apex
Court and this Court in support of his
argument that until and unless the Court
while allowing the writ petition had also
directed for award of back wages and
consequential benefits, there can be no
claim or justification for payment of back
wages. Further according to him this is
also the stand taken by the State as is
apparent
from
the
affidavit
dated
03.03.2014 duly sworn by the Special
Secretary (Home).
On the other hand learned counsel
for the applicants submitted that once
termination had been quashed all the
terminated employees were entitled to full
back wages and consequential benefits as
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 Sri Anil Kumar Gupta & Anr. Vs. Pawan Kumar Singh & Ors.
1157
the writ Court had not given any direction
for reducing their back wages on the
principle of no work no pay. It is also
case of the applicants that writ Court had
found that the termination enmass by the
Government
was
illegal
and
once
termination was held to be illegal,
applicants would be entitled to all the
benefits. It has also been submitted that
the applicants and all other constables in
any case would be entitled to their salary
from the date of judgement of the writ
Court. The Division Bench as also the
Supreme Court had dismissed the intra
Court appeal and the Special Leave
Petition.
It may be an arguable case that
applicants may not be entitled to back wages
for the period when the orders for
termination were in force but there can be no
issue that applicants would not be entitled to
the salary from the date of judgement of the
writ Court. Thus, prima facie case of non
compliance of the judgement of the writ
Court is made out. Accordingly, the
Principal Secretary (Home), U.P. Lucknow
and the Director of General of Police, U.P.
Lucknow need to be summoned. Since this
matter
is
engaging
attention
of
the
Government for quite some time, learned
Advocate General and learned Chief
Standing Counsel have already appeared on
a number of occasions and the stand taken
by them has already come on record it is not
necessary to issue formal notices to the
present Principal Secretary (Home) and the
Director General of Police.
Sri Anil Kumar Gupta, present
Principal Secretary (Home) has already
been arrayed as opposite party no.7.
Upon oral request learned counsel for the
applicant is permitted to implead Sri
Anand Lal Banerjee, Director General of
Police, U.P. Lucknow, as opposite party
no.8 during the course of the day.
Sri
Upadhyay,
learned
Chief
Standing Counsel accepts the notices on
their behalf and shall communicate them
of this order.
List this case on 13th March, 2014.
On the said date the Principal
Secretary (Home) and the Director
General of Police, U.P. Lucknow would
remain present before this Court.
A copy of this order may be provided to
Sri Ramesh Kumar Upadhyay, learned Chief
Standing Counsel, free of costs within 24
hours for necessary compliance."
4. At the very outset, learned counsel
for the respondents Sri G.K. Singh has
raised a preliminary objection with regard to
the maintainability of this contempt appeal.
In this respect, learned counsel for the
respondents has drawn our attention to the
report of Stamp Reporter dated 10th March,
2014, according to which this contempt
appeal is not maintainable. Apart from this,
learned counsel for the respondents has
placed before us the following judgments of
Hon'ble Supreme Court in support of his
contention:-
Midnapore Peoples' Co-op. Bank
Ltd. and others Vs. Chunilal Nanda and
others (2006) 5 SCC 399.
Nand Lal Yadav v. Raja Ram and
others (Contempt Appeal (Criminal) No.
1 of 2010).
S.M.A. Abdi, the Principal Secretary
(Law) Government of Uttar Pradesh and
another
v.
Private
Secretaries
Brotherhood and another 2009 (4) AWC
4026.
Dr. Lalji Singh & others v. Dr. Anil
Kumar Chauhan (Contempt Appeal No. 6
of 2014).
5. Sri Ramesh Upadhyay, learned
Chief Standing Counsel on the other hand
1158
 INDIAN LAW REPORTS ALLAHABAD SERIES
has
submitted
that
the
appeal
is
maintainable in view of the law laid down
by the Apex Court in case of R.N. Dey
and others v. Bhagyabati Pramanik and
others, (2000) 4 Supreme Court Cases
400. He has also placed reliance on the
judgment rendered in Midnapore Peoples'
Coop Bank Ltd and others Vs. Chunilal
Nanda and others (2006)5 SCC 399,
wherein the Apex Court has carved out an
exception by holding that appeal is
maintainable where such direction is
incidental to or inextricably connected
with the order punishing for contempt.
Learned Chief Standing Counsel has
drawn our attention to the earlier order of
this Court passed in this appeal on
12.3.2014, which is reproduced below:-
"On the matter being taken up today,
preliminary objection has been raised in
regard to maintainability of appeal in
question.
Sri. R.N. Singh, Senior Advocate has
contended that as per settled law in the
case of Midnapore Peoples' Coop Bank
Ltd and others Vs. Chunilal Nanda and
others (2006)5 SCC 399, appeal can be
filed only when jurisdiction to punish for
contempt has been exercised and only
exception that has been carved out where
such direction is incidental to or
inextricably connected with the order
punishing for contempt only then appeal
under Section 19 of the Contempt of
Courts Act, 1971 an encompass such a
situation, and the case in hand is not at
all falling under such an exception.
Sri V.C. Mishra, Senior Advocate/
Advocate General, assisted by Sri Ramesh
Upadhya, Chief Standing Counsel on the
other hand contended that case in hand
falls within the exception that has been
carved out by Supreme Court as here in
spite of precise submission having been
made qua entitlement, same has not been
adverted to in its correct perspective and
what has not been provided for in the
judgment, in the threat of contempt
proceeding same is being sought to be
awarded, and ignoring the stand of State,
opinion has been formed for awarding
salary and Officers of State, for its
implementation are being summoned in
Court for framing of the charges whereas
there is an application moved by the
appellants for discharge taking stand that
order stands complied with in its words
and spirit. Summoning of incumbents in
person is nothing but arm twisting device.
Specific query has been raised to
both the counsels, as to whether, Hon'ble
Apex Court on any subsequent occasion
has clarified the situation, as to in what
contingency, case in question would fall
within the category of incidental to or
inextricably connected with the order
punishing for contempt. The answer has
been in negative.
Issue requires consideration by this
Court as to whether case in hand falls
within the category of incidental to or
inextricably connected with the order
punishing for contempt.
In view of the same, it is necessary to
answer this question, as such list this case
for final hearing on 4.4.2014. Record of
single judge be summoned and no further
action be taken till that date."
6. Sri Upadhyay has further
submitted that the impugned order clearly
comes
within
the
purview
of
the
exception carved out by the Apex Court
in Midnapore's case (supra) because a
definite opinion has been formed by
learned Single Judge that contempt of
court has been committed by the State and
the officers of the State have been
summoned in the Court for framing of
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1159
charges against them. Learned Chief
Standing Counsel has also placed reliance
on the following judgments in support of
the his contention.
A.P. SRTC & another vs. B.S. David
Paul; (2006) 2 SCC 282.
Sudhir Vasudeva vs. M. George
Ravishekaran & others; 2014 STPL
(Web) 70 SC.
Director of Education, Uttaranchal
and others vs. Ved Prakash Joshi &
others; (2005) 3 UPLBEC 2415.
Abdul Gani Bhat Vs. Chairman,
Islamia College Governing Board and
others; (2011) 12 SCC 736.
Rajasthan State Road Transport
Corporation vs. Shyam Bihari Lal Gupta;
(2005) 7 SCC 406.
Jhareswar Prasad Paul and another
vs. Tarak Nath Ganguly and others;
(2002) 5 SCC 352.
Harendra Maurya and 79 others vs.
Shri R.M. Srivastava (Contempt No. 1782
of 2013).
State of Maharastra vs. Mahboob S.
Allibhoy and others; 1996 (4) SCC 411.
Midnapore Peoples' Co-op. Bank
Ltd. And others vs. Chuni Lal Nanda and
others; (2006) 5 SCC 399.
7. The appellants have challenged
the validity of the impugned order mainly
on the ground that the contempt Court
cannot traverse beyond the order or
cannot test the correctness or otherwise of
the order giving additional directions or
delete any direction as it would amount to
exercising review jurisdiction. Placing
reliance on the law laid down by the
Hon'ble Supreme Court in the case of
Director of Education, Uttaranchal v. Ved
Prakash Joshi (2005) 3 UPLBEC 2415,
learned Chief Standing Counsel has
vehemently argued that the judgment
dated 8.12.2008, passed by the writ Court
is totally silent on the issue whether the
terminated Constables, who have been
reinstated, are entitled for back wages or
not. He has submitted that the contempt
court is not entitled to decide this issue by
reviewing the judgment of writ Court. He
has drawn our attention to the following
paragraphs
of the
impugned
order,
wherein the learned Single Judge has
observed as under:
"......It is not an issue that all the
terminated
constables
have
been
reinstated w.e.f. 27.5.2009 and they are
receiving their salary ever since then. The
only issue which remains to be considered
is as to whether they would be entitled to
uninterrupted service benefits from the
date of entering into service and also with
regard to their entitlement to payment of
salary / back wages for the period they
have remained under termination i.e.
from the date of termination till the date
of reinstatement.
It may be an arguable case that
applicants may not be entitled to back
wages for the period when the orders for
termination were in force but there can be
no issue that applicants would not be
entitled to the salary from the date of
judgement of the writ Court. Thus, prima
facie case of non compliance of the
judgement of the writ Court is made out.
Accordingly, the Principal Secretary
(Home), U.P. Lucknow and the Director
of General of Police, U.P. Lucknow need
to be summoned....."
8. Relying on the judgment rendered
in Ved Prakash Joshi's case (supra) Sri
Upadhyay has contended that if the writ
Court is silent on the issue of payment of
back wages to the reinstated employees,
1160
 INDIAN LAW REPORTS ALLAHABAD SERIES
the contempt Court has no jurisdiction to
decide this issue by reviewing the
judgment of the writ Court.
9. In Ved Prakash Joshi's case
(supra), the Hon'ble Supreme Court, while
setting
aside
the
order
passed
by
Allahabad High Court in Civil Misc.
Contempt Application No. 3797 of 1998
held as under:-
".......The Court exercising contempt
jurisdiction cannot take upon itself power
to decide the original proceedings in a
manner not dealt with by the Court
passing the judgment or order. Right or
wrong the order has to be obeyed.
Flouting an order of the Court would
render the party liable for contempt.
While dealing with an application for
contempt the Court cannot traverse
beyond the order, non-compliance of
which is alleged. In other words, it cannot
say what should not have been done or
what should have been done. It cannot
traverse beyond the order. It cannot test
correctness or otherwise of the order or
give additional direction or delete any
direction. That would be exercising
review jurisdiction while dealing with an
application for initiation of contempt
proceedings.
The
same
would
be
impermissible and indefensible. In that
view of the matter, the order of the High
Court is set aside."
10. Learned Chief Standing Counsel
has submitted that the appeal against the
impugned order is maintainable in view of
the law laid down by Supreme Court in
case of R.N. Dey and others v.
Bhagyabati Pramanik and others, (2000) 4
Supreme Court Cases 400, in which the
Apex Court has held that when the court
either suo motu or on a motion or a
reference, decides to take action and
initiate proceedings for contempt and if
the order is passed not discharging the
rule issued in contempt proceedings, it
would be an order or decision in exercise
of its jurisdiction to punish for contempt.
Against such order appeal would be
maintainable.
11. We have given our thoughtful
consideration to various pleas advanced
by learned counsel for the parties.
12. The present contempt appeal has
arisen in the backdrop of the facts that
services of about 20,000 Constables of
Civil Police (including the appellants)
were terminated en-mass in the year 2007
by a couple of Government Orders. Those
Government Orders were challenged by
way of large number of writ petitions,
which were clubbed together and the writ
Court vide order dated 8.12.2008 allowed
the writ petitions and quashed the
Government
Orders,
whereby
the
termination had been directed. The State
Government preferred intra court appeals
against the order of Single Judge, which
were also dismissed by the Division
Bench
on
4.3.2009.
The
State
Government filed Special Leave Petition
before the Apex Court and under interim
order of the Apex Court dated 25.5.2009,
the terminated Constables were given
appointment letters and were allowed to
join
their
services
on
27.5.2009.
Subsequently, the Special Leave Petition
got dismissed as withdrawn by the State
on 3.3.2013. The effect of the dismissal of
the Special Leave Petition as withdrawn
was that the judgment of the writ Court
stood affirmed. However, when the
judgment of writ Court was not complied
by the State in its letters and spirit,
contempt
proceedings
were
initiated
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 Sri Anil Kumar Gupta & Anr. Vs. Pawan Kumar Singh & Ors.
1161
before this Court by means of filing Civil
Misc. Contempt Petition No. 1140 of
2009. In the aforesaid contempt petition,
the learned Single Judge on 20.5.2009
after a detailed discussion of the matter,
held as under:
"The Court is left with no option but
to record its satisfaction that a prima
facie case for willful disobedience and
total non-compliance of the judgment of
this Court is made out. The opposite
parties no. 2 to 6 are directed to remain
present before this Court on the next date
which is being fixed as 27.5.2009 for
framing of the charges.
At this stage on the request of the
learned Advocate General one more
opportunity is given to the opposite
parties to make compliance of the
judgment of this Court by the next date
fixed failing which they shall appear
before this Court. In case of compliance
having been made and an affidavit to that
effect being filed by the Principal
Secretary,
Department
of
Home,
Government of U.P. their personal
appearance would not be necessary.
List on 27.5.2009.
A copy of the order may be provided
to Sri M.C. Chaturvedi, learned Chief
Standing Counsel free of cost within 48
hours for necessary compliance and to the
other parties on payment of usual charges
within the same time."
13. The record shows that despite
having ample time and opportunity, when
the State did not comply the order dated
8.12.2008, passed in Civil Misc. Writ
Petition No. 45645 of 2007, the learned
Single Judge of this Court, finding that
prima facie case of non compliance of
judgment of the writ Court was made out,
summoned the Principal Secretary Home,
Government of U.P. Lucknow and
Director General of Police, U.P. Lucknow
in Court on 13.3.2014 personally vide
impugned order.
14. As the respondents have raised a
preliminary
objection
on
the
maintainability of this contempt appeal,
the issue regarding the maintainability of
the appeal is to be decided at the first
instance.
15. Section 19 of the Contempt of
Courts Act, 1971 provides that an appeal
shall lie as of right from any order or
decision of High Court in the exercise of
its jurisdiction to punish for contempt.
Section 19 of the Contempt of Courts Act,
1971 read thus:-
"19. Appeals.--(1) An appeal shall lie
as of right from any order or decision of
High Court in the exercise of its
jurisdiction to punish for contempt--
(a) where the order or decision is
that of a single Judge, to a Bench of not
less than two Judges of the Court;
(b) where the order or decision is
that of a Bench, to the Supreme Court:"
16. There is a plethora of judgments
of Hon'ble Supreme Court on the law
regarding maintainability of contempt
appeal.
1. In D.N. Taneja v. Bhajan Lal
(1988) 3 SCC 26, the three judge bench of
Hon'ble Supreme Court has held that "an
appeal will lie under Section 19(1) of the
Act only when the High Court makes an
order or decision in exercise of its
jurisdiction to punish for contempt. The
High Court exercises its jurisdiction or
power as conferred on it by Article 215 of
the
Constitution when it imposes a
1162
 INDIAN LAW REPORTS ALLAHABAD SERIES
punishment for contempt. When the High
Court does not impose any punishment on
the alleged contemnor, it does not
exercise its jurisdiction or power to
punish for contempt under Article 215."
2. In State of Maharashtra vs.
Mahboob S. Alibhoy (1996) 4 SCC 411,
the Hon'ble Apex Court has held that
"words 'any order' must be read with
'decision'
so
as
to
exclude
any
interlocutory order of the High Court
from scope of appeal. Unless by the order
High Court imposes punishment in
exercise of its jurisdiction to punish for
contempt, no appeal will lie against it."
3. In Purshotam Dass Goel v. B.S.
Dhillon (1978) 2 SCC 370, the Hon'ble
Apex Court has held that "the order or
decision appealed against under section
19 must be such that it decides some bone
of contention raised before the High Court
affecting the right of the party aggrieved.
Mere initiation of a proceeding for
contempt by the issuance of the notice on
the prima facie view that the case is a fit
one for drawing up the proceeding, does
not decide any question."
4. In Parents Assn. of Students' v.
M.A. Khan (2009) 2 SCC 641, it has been
held by Hon'ble Apex Court that special
appeal from interim order passed by
Single Judge in exercise of contempt
jurisdiction if, in view of provisions of
Section 19 of the Contempt of Courts Act,
is not maintainable. (Allahabad High
Court Rules, 1952, Ch. VIII Section B).
5. In S.M.A. Abdi's case (supra), this
Court has held as follows:-
"It is not to be emphasised that right
of appeal is a creature of statute and
unless the law specifically provides for
filing the appeal, that cannot be permitted.
Any order or decision as referred in
Section 19 of the Act cannot be read
independently from an order of punishing
for contempt."
6. In Smt. Sudha Shukla v. Ausan
and others, Contempt Appeal No. 7 of
2009, decided on 26.05.2009, this Court
has observed as under:-
"....unless any adverse order having
immediate effect causing injury is passed,
that cannot be appealed either by filing
contempt appeal or even by filing Special
Appeal if it is not so provided."
7. In Tamilnad Mercantile Bank
Shareholders Welfare Association's case
(supra), the Apex Court has approved the
judgments of the Calcutta High Court
rendered in the case of Ashoke Kumar
Rai v. Ashoke Arora and another (96
CWN 278), wherein it has been held as
under:-
"The right of appeal will be available
under Sub- section (1) of Section 19 only
against any decision or order of a High
Court passed in the exercise of its
jurisdiction to punish for contempt. In this
connection, it is pertinent to refer to the
provision
of
Article
215
of
the
Constitution which provides that 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. Article 215 confers on
the High Court the power to punish for
contempt of itself. In other words, the
High Court derives its jurisdiction to
punish for contempt from Article 215 of
the Constitution. As has been noticed
earlier, an appeal will lie under Section
19(1) of the Act only when the High Court
makes an order or decision in exercise of
its jurisdiction to punish for contempt. It
is submitted on behalf of the respondent
and, in our opinion rightly, that the High
Court exercises its jurisdiction or power
as conferred on it by Article 215 of the
Constitution
when
it
imposes
a
3 All]
 Sri Anil Kumar Gupta & Anr. Vs. Pawan Kumar Singh & Ors.
1163
punishment for contempt. When the High
Court does not impose any punishment on
the alleged contemner, the High Court
does not exercise its jurisdiction or power
to punish for contempt. The jurisdiction of
the High Court is to punish. When no
punishment is imposed by the High Court,
it is difficult to say that the High Court
has exercised its jurisdiction or power as
conferred on it by Article 215 of the
Constitution....."
8. In Midnapore's case (supra)
Hon'ble Supreme Court, after a detailed
discussion of its several earlier judgments
has summed up the matter with the
following observations:-
"The position emerging from these
decisions, in regard to appeals against
orders in contempt proceedings may be
summarized thus:-
"I. An appeal under Section 19 is
maintainable only against an order or
decision of the High Court passed in
exercise of its jurisdiction to punish for
contempt, that is, an order imposing
punishment for contempt.
II. Neither an order declining to
initiate proceedings for contempt, nor an
order initiating proceedings for contempt
nor an order dropping the proceedings
for contempt nor an order acquitting or
exonerating the contemnor, is appealable
under Section 19 of the CC Act. In special
circumstances, they may be open to
challenge under Article 136 of the
Constitution.
III. In a proceeding for contempt, the
High Court can decide whether any
contempt of court has been committed,
and if so, what should be the punishment
and matters incidental thereto. In such a
proceeding, it is not appropriate to
adjudicate or decide any issue relating to
the merits of the dispute between the
parties.
IV. Any direction issued or decision
made by the High Court on the merits of a
dispute between the parties, will not be in
the exercise of "jurisdiction to punish for
contempt" and, therefore, not appealable
under Section 19 of the CC Act. The only
exception is where such direction or
decision is incidental to or inextricably
connected with the order punishing for
contempt, in which event the appeal under
Section 19 of the Act, can also encompass
the incidental or inextricably connected
directions.
V. If the High Court, for whatsoever
reason, decides an issue or makes any
direction, relating to the merits of the
dispute between the parties, in a contempt
proceedings, the aggrieved person is not
without remedy. Such an order is open to
challenge in an intra-court appeal (if the
order was of a learned Single Judge and
there is a provision for an intra-court
appeal), or by seeking special leave to
appeal
under
Article
136
of
the
Constitution of India (in other cases)."
17. In wake of the several
pronouncements of Hon'ble Supreme
Court and also of this Court, cited above
and
considering
the
facts
and
circumstances of the present case, in our
considered opinion, it cannot be said that
by the order impugned, any punishment
has been imposed on the appellants.
18.
By the impugned order, the
appellants have merely been summoned in
the Court. The impugned order does not even
say anything that on the date fixed, charges
would be framed against them. Even if
assuming that their personal appearance was
required for framing of charges against them
in the contempt proceeding, but there is
absolutely no indication that by the
impugned order, the learned Single Judge has
1164
 INDIAN LAW REPORTS ALLAHABAD SERIES
imposed any punishment on the appellants for
contempt. Hence, in view of the well settled
legal position as discussed above, we have no
doubt in holding that the impugned order is an
interlocutory order against which an appeal
under Section 19 of the Contempt of Courts
Act, 1971 is not maintainable. Therefore, the
present appeal is liable to be dismissed as not
maintainable. However, the appellants are not
remediless and they are at liberty to avail any
other remedy available to them under law, if
so advised, in wake of the law laid down by
the Apex Court in Midnapore's case (supra),
wherein it has been held that if the High
Court, in a contempt proceeding, decides an
issue or makes any direction, relating to the
merits of the dispute between the parties, the
aggrieved person is not without remedy and
he can challenge it by means of intra court
appeal if the order is of Single Judge and by
seeking special leave to appeal under Article
136 of the Constitution of India in other cases,
but not by way of filing an appeal under
Section 19 of the Contempt of Courts Act.
19. Accordingly, the appeal is
dismissed.
20. No order as to costs.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.09.2015
BEFORE
THE HON'BLE SURENDRA VIKRAM SINGH
RATHORE, J.
THE HON'BLE RAGHVENDRA KUMAR, J.
Criminal Appeal No. 552 of 2009
along with
Criminal Appeal No. 550 of 2009, No. 551
of 2009, No. 611 of 2009; No. 282 of
2009, No. 327 of 2009 and 4596 of 2013
Santosh alias Neta Khatik ...Applicant
Versus
State of U.P.
...Opp. Parties
Counsel for the Applicant:
Sri Sanjay Mishra, Sri I.M. Khan, Sri
Neeraj Singh, Sri Upendra Kumar Singh
Counsel for the Respondents:
A.G.A.
Criminal Appeal-conviction based upon
confession of co-accused-held-not properreasons discussed.
Held: Para-35 & 3735. Perusal of the aforementioned case
laws makes it abundantly clear that the
confession of co-accused cannot be
made basis for conviction. The reason
behind is that the said confession was
recorded by the police officer while the
maker was in police custody. The second
reason is that the accused has no
opportunity to test the same through
cross-examination nor evidence of such
maker of the confession is recorded in
his presence. Thus so far as the five
appellants (from whom or on whose
pointing out no recovery has been made)
are concerned, the trial court was
swayed away by the seriousness of the
offence and also by the fact that the
appellants have a very strong criminal
background. But this, by itself, cannot be
a ground to hold a person guilty. If the
independent
witnesses
would
have
cooperated the prosecution and would
have
supported
the
case
of
the
prosecution then the position would
have been different. The apathy of the
public in cooperating the prosecution is a
great
hurdle
in
the
effective
administration of criminal justice and
because of this apathy of the public, the
courts are left with no option but to
acquit the hardened criminals accused of
heinous offences.
37. Law is settled on the point that no
person can be convicted unless and until
the prosecution succeeds in proving its
case beyond reasonable doubt against
the accsued
persons. Since the only