# Vinod Kumar & Anr v. Sri Veer Bahadur Yadav & Anr

- **Citation:** (2023) 6 ILRA 948
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-09
- **Case number:** Special Appeal No. 234 of 2023
- **Bench:** Mrs. Sunita Agarwal, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-anr-v-sri-veer-bahadur-yadav-anr-50481
- **Pages:** 21

## Headnote

Civil Law - The Contempt of Courts Act,
1926 - The Contempt of Courts Act, 1971-
Sections
12
&
19-maintainability
of
special appeal-against the order of single
6 All. Vinod Kumar & Anr. Vs. Sri Veer Bahadur Yadav & Anr.
949
judge
declining
to
initiate
contempt
proceedings-historical evolution of law of
contempt-
-The
Contempt
of
Courts
(Amendment) Act, 1937-The Contempt of
Courts
Act,
1952-Sanyal
Committee
submitted
its
report
on
28.02.1963Contempt
of
Courts
Bill,
1963-the
Contempt of Courts Act, 1971- Sections 12
and 19-appeal- Chapter VIII Rule 5 of the
Allahabad High Court Rules, 1952- Special
Appeal against the order of single judge-
various judicial pronouncements- intracourt special appeal-against single judge
order
declining
to
initiate
contempt
proceedings-not
maintainable-special
appeal dismissed. (Paras 12, 15, 25, 26
and 33)

HELD:
A perusal of Section 19 of the Contempt of
Courts Act of 1971 reveals that under subsection (1) of Section 19 of 1971 Act, an appeal
shall lie as of right from any order or decision of
a High Court in the exercise of its jurisdiction to
punish for contempt where the order or decision
is that of a single judge, to a Bench of not less
than two Judges of the Court and where the
order or decision is that of a Bench to the
Supreme Court. (Para 12)

Chapter VIII Rule 5 of the Rules of the Court
provides that an appeal shall lie to the Court
from a judgment not being a judgment passed
in exercise of appellate jurisdiction in respect of
a decree or order made by the Court subject to
the superintendence of the Court and not being
an order made in exercise of revisional
jurisdiction or in the exercise of its power of
superintendence or in the exercise of criminal
jurisdiction or in the exercise of jurisdiction
conferred by Article 226 or Article 227 of the
Constitution in respect of any judgment, order
or award of a Tribunal, Court or Statutory
Arbitrator made or purported to be made in the
exercise or purported exercise of jurisdiction
under any Uttar Pradesh Act or any Central Act
with respect to any of the matters enumerated
in the St. List or the Concurrent List in the 7th
Schedule
of
the
Constitution
or
of
a
Government, any officer or authority made or
purported to be made in exercise or purported
exercise of appellate or revisional jurisdiction
under such Act of one Judge. (Para 15)
The proposition of law so culled out in the
above noted decision clearly spells out that no
appeal is maintainable against dropping of
contempt proceedings against the contemnor
under Section 19 of the Contempt of Courts Act,
1971, as the remedy lies under Article 136 of
the Constitution of India before the Hon'ble
Supreme Court. (Para 25)

So far as the issue with regard to maintainability
of a Special Appeal under Chapter VIII Rule 5 of
the Allahabad High Court Rules is concerned, an
appeal
is
maintainable
only
on
those
contingencies wherein the Contempt jurisdiction
has been exercised while touching the merit of
the controvercy or dispute between the parties
for the purposes of implementation of the
judgment or order and the same has been held
to be deemed to have been issued in exercise of
power
conferred
by
Article
226
of
the
Constitution. (Para 26)

As noticed above, the Hon'ble Apex Court and
this Court has consistently held that an intracourt appeal is not maintainable against the
order of the learned Single Judge exercising
contempt jurisdiction in a contingency, when the
contempt proceedings are not being initiated.
The reliance placed upon the judgment in the
case of Durga Nagpal (supra) is misconceived
and misplaced as in the said case, the Hon'ble
Judges while exercising appellate jurisdiction
were confronted with the situation where the
contempt court reviewed its own order after
entertaining
miscellaneous
application
for
modification of the final judgment. The Division
Bench opined that when accused are discharged
and proceedings are closed, miscellaneous
application for

## Text

_Characters 0–39,900 of 71,369. This is a partial read: ask again with offset=39900 for what follows._

948 INDIAN LAW REPORTS ALLAHABAD SERIES

2. The instant writ petition seeks
quashing of the FIR dated 17.11.2022
giving rise to FIR No. 513 of 2022, under
Sections 419, 420, 467, 468, 471, 409 IPC,
Police Station- Kotwali Mau, District-
Mau.

3. The main contention of learned
counsel for the petitioner is that petitioner
is the proprietor of M/s Singh Construction,
Nizamuddinpura, Mau and was awarded
work order as a contractor from theNagar
Palika Parishad, Maunath Bhanjan, Mau for
the
purposes
of
cleaning
14 wards
including Urban Poor settlements and slum
areas from the period 01.04.2017 to
31.03.2018 for which about 275 Safai
Karmcharis were employed.

4. It has further been contended that
the petitioner has been falsely implicated
with the mala fide intention. Adding to the
above, it has been contended that the civil
litigation is already sub-judice before the
Provident Fund Commissioner, Varanasi.

5. Per contra, learned AGA for the
State
has
opposed
the
aforesaid
submissions and has stated that the
petitioner has not deposited the provident
fund amount of Safai Karmcharis and has
produced fake copies of challans/receipts,
resulting in embezzlement of EPF amount
of Rs. 285 employees.

6. Considering the aforesaid facts, it
cannot be denied that there is no express
bar to the simultaneous continuance of a
criminal proceeding as well as civil
proceedings. Citing the decision rendered
by Hon'ble Supreme Court in (1999) 8
SCC 686 (Trisuns Chemical Industry Vs.
Rajesh Agarwal & Others). It has been
held that criminal prosecution cannot be
thwarted merely because civil proceedings
are also maintainable. Merely because an
act has a civil profile is not sufficient to
denude it of its criminal outfit.

7. Thus, even if the civil proceedings
are subjudice before the Provident Fund
Commissioner,
Varanasi,
the
criminal
prosecution can still proceed against the
petitioner.

8. Having considered the submissions
advanced by learned counsel for the parties
and from the perusal of records, it is
apparent that the allegations in the FIR do
constitute ingredients of a cognizable
offence.

9. No interference is required.

10. The writ petition is, therefore,
dismissed.
----------
(2023) 6 ILRA 948
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.05.2023

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE VIKAS BUDHWAR, J.

Special Appeal No. 234 of 2023

Vinod Kumar & Anr. ...Appellants
Versus
Sri Veer Bahadur Yadav & Anr.
 ...Respondents

Counsel for the Appellants:
Sri Shashi Kant

Counsel for the Respondents:

Civil Law - The Contempt of Courts Act,
1926 - The Contempt of Courts Act, 1971-
Sections
12
&
19-maintainability
of
special appeal-against the order of single
6 All. Vinod Kumar & Anr. Vs. Sri Veer Bahadur Yadav & Anr.
949
judge
declining
to
initiate
contempt
proceedings-historical evolution of law of
contempt-
-The
Contempt
of
Courts
(Amendment) Act, 1937-The Contempt of
Courts
Act,
1952-Sanyal
Committee
submitted
its
report
on
28.02.1963Contempt
of
Courts
Bill,
1963-the
Contempt of Courts Act, 1971- Sections 12
and 19-appeal- Chapter VIII Rule 5 of the
Allahabad High Court Rules, 1952- Special
Appeal against the order of single judge-
various judicial pronouncements- intracourt special appeal-against single judge
order
declining
to
initiate
contempt
proceedings-not
maintainable-special
appeal dismissed. (Paras 12, 15, 25, 26
and 33)

HELD:
A perusal of Section 19 of the Contempt of
Courts Act of 1971 reveals that under subsection (1) of Section 19 of 1971 Act, an appeal
shall lie as of right from any order or decision of
a High Court in the exercise of its jurisdiction to
punish for contempt where the order or decision
is that of a single judge, to a Bench of not less
than two Judges of the Court and where the
order or decision is that of a Bench to the
Supreme Court. (Para 12)

Chapter VIII Rule 5 of the Rules of the Court
provides that an appeal shall lie to the Court
from a judgment not being a judgment passed
in exercise of appellate jurisdiction in respect of
a decree or order made by the Court subject to
the superintendence of the Court and not being
an order made in exercise of revisional
jurisdiction or in the exercise of its power of
superintendence or in the exercise of criminal
jurisdiction or in the exercise of jurisdiction
conferred by Article 226 or Article 227 of the
Constitution in respect of any judgment, order
or award of a Tribunal, Court or Statutory
Arbitrator made or purported to be made in the
exercise or purported exercise of jurisdiction
under any Uttar Pradesh Act or any Central Act
with respect to any of the matters enumerated
in the St. List or the Concurrent List in the 7th
Schedule
of
the
Constitution
or
of
a
Government, any officer or authority made or
purported to be made in exercise or purported
exercise of appellate or revisional jurisdiction
under such Act of one Judge. (Para 15)
The proposition of law so culled out in the
above noted decision clearly spells out that no
appeal is maintainable against dropping of
contempt proceedings against the contemnor
under Section 19 of the Contempt of Courts Act,
1971, as the remedy lies under Article 136 of
the Constitution of India before the Hon'ble
Supreme Court. (Para 25)

So far as the issue with regard to maintainability
of a Special Appeal under Chapter VIII Rule 5 of
the Allahabad High Court Rules is concerned, an
appeal
is
maintainable
only
on
those
contingencies wherein the Contempt jurisdiction
has been exercised while touching the merit of
the controvercy or dispute between the parties
for the purposes of implementation of the
judgment or order and the same has been held
to be deemed to have been issued in exercise of
power
conferred
by
Article
226
of
the
Constitution. (Para 26)

As noticed above, the Hon'ble Apex Court and
this Court has consistently held that an intracourt appeal is not maintainable against the
order of the learned Single Judge exercising
contempt jurisdiction in a contingency, when the
contempt proceedings are not being initiated.
The reliance placed upon the judgment in the
case of Durga Nagpal (supra) is misconceived
and misplaced as in the said case, the Hon'ble
Judges while exercising appellate jurisdiction
were confronted with the situation where the
contempt court reviewed its own order after
entertaining
miscellaneous
application
for
modification of the final judgment. The Division
Bench opined that when accused are discharged
and proceedings are closed, miscellaneous
application for modification is not maintainable.
In the said perspective, the Special Appeal was
held to be maintainable. Since the present case
originates from a judgment and order of the
contempt court declining to exercise contempt
jurisdiction, thus, the said judgment is of no aid
to the appellants. (Para 33)

Appeal dismissed. (E-14)

List of Cases cited:

1. Durga Nagpal Vs Committee of Management,
Patronage Institute of Management Studies,
reported in 2013 (7) ADJ 223
950 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Baradakant Mishra Vs Justice Gatikrushna
Misra reported in (1975) 3 SCC 535

3. Bombay High Court held in Narendrabhai
Sarabhai Hatheesing Vs Chinubhai Manibhai
Seth ILR 60 Bom 894

4. D.N. Taneja Vs Bhajan Lal reported in 1988
(3) SCC 26

5. St. of Maharashtra Vs Mahboob S. Allibhoy &
anr. reported in (1996) 4 SCC 411

6. Sujitendra Nath Singh Roy Vs St. of West
Bengal & ors. reported in (2015) 12 SCC 514

7. A.P. Verma Vs U.P. Laboratory Technicians
Association & ors., in C.M. Contempt Appeal No.
102 of 1997, reported in Manu/UP/0553/1998

8. Maheshwari Prasad Mishra Vs Smt. Achala
Khanna reported in (2006) 64 ALR 627 (All)

9.
Mrs.
Manju
Sree
Robinson
Vs
Mrs.
Chirkumarithva Yadav ACJ (J.D.) reported in
(2014) 86 ACC 181

10. Sheo Charan Vs Nawal & ors., 1997(3)
A.W.C. 1909

11. Hemendra Swaroop Bhatnagar Vs Sri P.S.
Gosain reported in 2007 (1) AWC 1045

12. Ashwani Kumar Vs Mahendra Pratap Singh
in Special Appeal No. 400 of 2021

(Delivered by Hon'ble Vikas Budhwar, J.)

1. This intra-court appeal is against
the judgment and order dated 17.03.2023
passed by the learned Single Judge
exercising
contempt
jurisdiction
in
Contempt Application (Civil) No.1894 of
2023, by which the learned Single Judge
upon finding that the opposite party has not
committed contempt, has declined to
initiate proceedings for contempt.

2. The case of the writ petitioner
before the Contempt Court was that on
07.09.2022 in Public Interest Litigation
(PIL) No. 1686 of 2022 (Vinod Kumar
Gupta and others vs. State of U.P. and 3
others), liberty was accorded to the
appellant-petitioner
to
approach
the
appropriate forum under Section 67 of the
U.P. Revenue Code, 2006 for removal of
encroachments on the public land, however,
despite the fact that the appellant-writ
petitioner represented his cause before the
competent
authority
on
21.09.2022,
01.10.2022 and 15.02.2023, no action was
taken at the level of the opposite parties,
which
occasioned
the
appellant-writ
petitioner to institute contempt petition
alleging disobedience of the orders of the
Writ-Court.

3. Submission is that a clear cut case
of contempt is made out against the
opposite parties, but the learned Single
Judge has erred in law in decling to
exercise its jurisdiction vested under
Section 12 of the Contempt of Courts Act,
1971.

4. The appellant-writ petitioner has
relied upon the judgment in the case of
Durga
Nagpal
Vs.
Committee
of
Management,
Patronage
Institute
of
Management Studies, reported in 2013 (7)
ADJ 223, so as to contend that the present
intra-court appeal against the order of
learned Single Judge declining to initiate
contempt proceedings, is maintainable.

5. Before delving into the issue
regarding the maintainability of the present
proceedings at the behest of the appellant,
this Court finds appropriate to give a brief
outline
of
the
statutory
enactments
governing law of contempt.

6. Historically, Pre-Independence, the
Contempt of Courts Act, 1926 (Act No.
6 All. Vinod Kumar & Anr. Vs. Sri Veer Bahadur Yadav & Anr.
951
XII of 1926), was notified on 8.3.1926 by
the Governor General of the Council. The
Contempt of Courts Act, 1926 is extracted
in extenso:

"The Contempt of Courts Act, 1926

ACT NO. XII OF 1926

[8th March, 1926]

An Act to define and limit the powers
of certain Courts in punishing contempts of
Courts.

WHEREAS doubts have arisen as to
the powers of a High Court of Judicature to
punish contempts of subordinate Courts:

And whereas it is expedient to resolve
these doubts and to define and limit the
powers exercisable by High Courts and
Chief Courts in punishing contempts of
Courts. It is hereby enacted as follows:

1. (1) This Act may be called the
Contempt of Courts Act, 1926.

(2) It shall extend to the whole of
British India.

(3) It shall come into force on such
date as the Governor General in Council
may, by notification in the Gazette of India,
appoint.

2. (1) Subject to the provisions of subsection (3), the High Courts of Judicature
established by Letters Patent shall have
and exercise the same jurisdiction, powers
and authority, in accordance with the same
procedure and practice, in respect of
contempt of courts sub-ordinate to them as
they have and exercise in respect of
contempts of themselves.

(2) Subject to the provisions of subsection (3), a Chief Court shall have and
exercise the same jurisdiction, powers and
authority, in accordance with the same
procedure and practice, in respect of
contempt of itself as a High Court referred
to in sub-section (1).

(3)
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.

3.
Save
as
otherwise
expressly
provided by any law for the time being in
force, a contempt of court may be punished
with simple imprisonment for a term which
may extend to six months, or with fine,
which may extend to two thousand rupees,
or with both:

Provided that the accused may be
discharged or the punishment awarded may
be remitted on apology being made to the
satisfaction of the Court."

7. Thereafter the Governor General on
10.3.1937 amended the Contempt of Courts
Act, 1926 by virtue of Act No. XII of 1937
being
the
Contempt
of
Courts
(Amendment)
Act,
1937.
For
the
convenience of this Court, the same is
quoted hereinbelow:

"The Contempt of Courts
(Amendment) Act, 1937*

ACT NO. XII OF 1937

An Act to amend the Contempt of
Courts Act, 1926, for a certain purpose.
WHEREAS it is expedient to amend the
Contempt of Courts Act, 1926, for the
purpose hereinafter appearing; it is hereby
enacted as follows:

1. Short title. This Act may be called
the Contempt of Courts Amendment Act,
1937.

2. Amendment of preamble to Act XII
of 1926. In the preamble to the Contempt of
Courts Act, 1926 (hereinafter referred to as
the said Act), the word "subordinate" shall
be omitted.
952 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Amendment of section 3, Act XII of
1926. To section 3 of the said Act the
following proviso shall be added, namely:

"Provided further that notwithstanding
anything elsewhere contained in any law no
High Court shall impose a sentence in
excess of that specified in this section for
any contempt either in respect of itself or of
a Court subordinate to it."

8. Post Independence, another Act by
the name and the nomenclature of the
Contempt of Courts Act, 1952 (Act No.
XXXII), 1952 was notified which received
the assent of President on 14.3.1952. The
same reads as under: -

"The Contempt of Courts Act, 1952*

ACT NO. XXXII OF 1952

An Act to define and limit the powers
of certain Courts in punishing Contempts
of Courts:

1. Short title and extent. (i) This Act
may be called the Contempt of Courts Act,
1952.

(ii) It extends to the whole of India
except the State of Jammu and Kashmir. 2.
Definition. In this Act, "High Court" means
the High Court for a State and includes the
Court of the Judicial Commissioner in a
Union Territory.

3. Power of High Court to punish
contempts of subordinate courts. (i) Subject
to the provisions of sub-section (ii) 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 exercise in
respect of contempts of itself.

(ii)
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 (Act XLV of 1860).

4. Limit of punishment for contempt of
court. Save as otherwise expressly provided
by any law for the time being in force, a
contempt of court may be punished with
simple imprisonment for a term which may
extend to six months, or with fine which
may extend to two thousand rupees, or with
both:

Provided that the accused may be
discharged or the punishment awarded may
be remitted on apology being made to the
satisfaction of the Court:

Provided further that notwithstanding
anything elsewhere contained in any law
for the time being in force, no High Court
shall impose a sentence in excess of that
specified in this section for any contempt
either in respect of itself or of a court
subordinate to it.

*Received the assent of the President
on 14th March 1952

5. Power of High Court to try offences
committed or offenders found outside
jurisdiction. A High Court shall have
jurisdiction to inquire into or try a
contempt of itself or of any court
subordinate to it whether the contempt is
alleged to have been committed within or
outside the local limits of its jurisdiction
and whether the person alleged to be guilty
of the contempt is within or outside such
limits.

6. Repeal and Savings. (i) The
Contempt of Courts Act, 1926 (XII of
1926), and the enactment specified in the
Schedule are hereby repealed.
(ii) Section 6 of the General Clauses Act,
1897 (X of 1897), shall apply to the repeal
of any of the laws specified in the Schedule
as it applies to the repeal of the Contempt
of Courts Act, 1926 (XII of 1926).

The Schedule
6 All. Vinod Kumar & Anr. Vs. Sri Veer Bahadur Yadav & Anr.
953

[Repealed]."

9. As there was certain areas, which
were not covered under Contempt of
Courts Act, 1952, thus a Sanyal Committee
was constituted which in turn submitted its
report on 28.2.1963 proposing certain
amendments and additions in the Contempt
of Courts Act. The Sanyal Committee
under Chapter XI for the very first time
recommended introduction of a provision
of "right of appeal". For the convenience,
Chapter XI and XII in extenso are quoted
hereinunder:

"Chapter XI

Right of Appeal

1. The feature of the law of contempt
which has given rise to considerable
criticism relates to the non-appealability as
of right of a sentence passed for criminal
contempt. It is urged that much of the
criticism against the large powers of the
court to punish contemners will disappear
if a right of appeal is provided. In an
earlier Chapter, we have pointed out how
Judges, like other human beings, are not
infallible and inasmuch as any sentence of
imprisonment for contempt involves a
fundamental question of a personal liberty,
it is only proper that there should be
provision for appeal as a matter of course.
As the Shawcross Committee observed:
"..... in every system of law of any civilized
State there is always a right of appeal
against sentence of imprisonment." There is
no justification whatsoever for making any
exception to this universally recognized
principle in the case of sentences for
contempt.

2.1 The present state of the law
relating to appeal in cases of criminal
contempt appears to be more the result of
accidents of legal history than a matte of
policy. That this is so, is clearly evident
from the fact that in these cases of contempt
for which specific provision is made in the
Indian Penal Code and the Code of
Criminal Procedure, a right of appeal is
provided for under Section 486 of the Code
of Criminal Procedure. In the case of
contempt falling within the purview of
inherent powers of the High Courts no
specific provision has been made in the
Letters Patent of the High Courts and the
only explanation for this seems to be that
no such provision was made in England in
regard to the English superior courts.
Further, under the provisions of the Letters
patent, no appeal is ordinarily permissible
where the order of the court is made in the
exercise of the criminal jurisdiction. It has
also been held that section 411-A of Code
of Criminal Procedure does not afford any
remedy by way of appeal in contempt cases.
2 The result has been that before the
Constitution came into force, an appeal in
contempt cases from the decision of a High
Court could lie only on special cases to the
Judicial Committee. 3 The Constitution did
not alter this position very much for the
effect of Articles 134 an 136 of the
Constitution is merely to substitute the
Supreme Court for the Privy Council. In
short, there is only a discretionary right of
appeal available at present in cases of
criminal contempt.

2.2 The discretionary right of appeal
in contempt cases so far as it goes has
served a very useful purpose both in the
direction
of
setting
aside
erroneous
decisions as also in the direction of
bringing about some degree of uniformity
and certainty in regard to the principles of
law relating to contempt. The Shawcross
Committee has referred to eight reported
cases in which convictions for criminal
contempt were considered by the Judicial
Committee of the Privy Council on merits,
954 INDIAN LAW REPORTS ALLAHABAD SERIES
those being the only cases of the type which
thy could discover. They have pointed out
that it is noteworthy that in every case
except one (in which the fine was reduced),
the appeal was allowed and the conviction
quashed. The story of the cases which have
come up on appeal before our Supreme
Court is not very much different. In a
considerable majority of the cases the
Supreme Court has found it necessary
either to modify or reverse the decision of
the High Court. Mention may be made in
this connection of the following:

(1) Rizwan-ul-Hasan v State of Uttar
Pradesh, 1953 SCR 581

(Judgment of High Court set aside).

(2) Brahma Prakash v State of Uttar
Pradesh, 1953 SCR 1169

(Judgment of High Court set aside).

(3) Shareef v Hon'ble Judges of the
High Court of Nagpur, (1955) 1 SCR 757

(opportunity given to the High Court
to accept the apology by contemners and
on failure by the High Court, sentence of
fine passed by the High Court set aside).

(4) State of Madhya Pradesh v
Revashankar, 1959 SCR 1367

(High Court's interpretation of Section
3(2) of the Contempt of Courts Act, 1952,
held erroneous).

(5) S.S. Roy v State of Orissa, AIR
1960 S.C. 190

(Judgment of High Court set aside).

(6) B.K. Kar v Chief Justice and his
companion Justices of the Orissa High
Court. A.I.R. 1961 S.C. 1367

(Judgment of High Court set aside).

3.1
It
may
be
said
that
the
discretionary right of appeal as it exists at
present is adequate as in most of the cases
the High Court itself may grant the
appropriate certificate under Article 134 in
fit cases and where the High Court refuses,
the Supreme Court may intervene by
granting special leave under Art. 136.
There is, no doubt, some force in this
argument and it is perhaps for this reason
that in one or two of the suggestions
received we have been told that it I not
necessary to provide for appeals as a
matter of right or that the right may be
allowed only if the sentence exceeds a
certain limit. But considering the uncertain
state of the law and the fact that an appeal
should be provided as a matter of course in
all criminal cases, we are of the opinion
that a right of appeal should be available
in all cases and we accordingly recommend
that against an order of a single judge,
punishing for contempt, the appeal should
lie, in the High Court to a Bench of Judges
and against a similar order of a Bench of
Judges of a High Court, the appeal should
lie as of right to the Supreme Court.

3.2 The recommendation we have
made in regard to allowing appeals in
contempt matters as a matter of right will
bring our law in line with the developments
that have taken place in English law in
recent years. We do not mean to suggest
that we should give effect in our land to
every change which has taken place in
England. But there can be no doubt that if
in the system from which our law is derived
a change has been felt necessary, that
would be a strong argument for reviewing
the position in our law also with a view to
finding out whether a parallel change is
necessary or not. The reasons for which
English law has been changed may be best
stated in the words of the Shawcross Report
10:

"First, there is the special difficulty of
defining the law of contempt. We have
indicated in this Report the difficulty of
defining the law of contempt in its
application
to
particular
instances.
Further, where definition is not so difficult
(as in the case of reports of proceedings in
6 All. Vinod Kumar & Anr. Vs. Sri Veer Bahadur Yadav & Anr.
955
chambers) the fact that there is no right of
appeals and the divergence of judicial
views has sometimes meant that it cannot
be said at all with any confidence what the
law is; the result in any particular case
must then depend on the view which the
particular court before whom it comes
chooses to take. Thus we consider to be a
serious defect but one which can be cured
by granting a right of appeal. Secondly, an
issue of fact does not usually arise in
contempt cases--the question being whether
what was done amounted to a contempt or
not.
Thirdly,
the
danger
to
the
administration of justice of the conduct
complained of has often to be weighed
against other matters of public concern
such as the liberty of free discussion. Thus
the
issue
of
contempt
is
not
only
particularly suitable for determination by
an appellate court, but it is particularly
where an affront to a Judge is charged, the
experience of the Privy Council appears to
show that the right of appeal does rectify
wrong."

It would be clear from what has been
stated earlier that these reasons apply with
equal force in the case of our system also
and it is for these reasons that we have
made the recommendation that a provision
should be made for appeal as of right in the
case of contempt.

3.3 The Shawcross Committee in its
Report, adverted to an alleged insuperable
difficulty about appeal in the case of a
contempt committed in facie the court,
namely that if the case were disputed it
would involve the committing judge being a
witness on appeal and pointed out that such
a difficulty arises but rarely and that in the
only case in which it arose-Rainy's case-the
Privy Council was able to overcome it. Be
that as it may, so far as our country is
concerned such a situation cannot possibly
arise after the decision of the Supreme
Court in the recent case of B.K. Kar v
Chief Justice of Orissa, AIR 1961 SC
1367. In this case the Supreme Court
considered the question whether in cases of
appeals in contempt cases the Chief Justice
and Judges of the High Court which
decided the case originally should be made
parties. Madholkar J., holding that they
ought not to be made parties, observed:

" ...Where judges of a High Court try
a person for contempt and convict him they
merely decide a matter and cannot be said
to be interested in any way the ultimate
result in the sense in which a litigant is
interested. The decision of judges given in a
contempt matter is like any other decision
of those judges that is, in matters which
come up before them by way of suit,
petition, appeal or reference."

Once this position is established, it
follows that the presence of the judges as
witnesses is as much uncalled for in
appeals in contempt cases as in appeals in
other cases decided by them. We may also
add that in view of the recommendation, we
have made as to procedure in contempt
cases, all the material required by an
appellate court would be available in
writing and there would then be little need
for the judges being summoned to appear
as witnesses.

4.
Purge
of
contempt.
In
this
connection we would also like to refer to
the rule of practice observed by Court that
a person in contempt cannot be heard in
prosecution of his appeal until he purges
himself of the contempt. 13 This rule, no
doubt, I based on sound reasons but in the
light of the discussions preceding it would
not be difficult to conceive that it may work
hardship in many cases. In our opinion, the
law should contain suitable provisions for
meeting such a contingency. For this
purpose, we recommend that both the
appellate court and the court from whose
956 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment the appeal is being preferred
should have the power to stay execution of
the sentence to release the alleged
contemner on bail and to hear the appeal
or allow it to be heard, notwithstanding the
fact the appellant has not purged himself of
the contempt.

Chapter XII Conclusion

1.
Our
main
conclusions
and
recommendations may be summarized as
follows:--

(1) Confidence in the administration
or justice is essential for the preservation
of our liberty and nothing should be done
which may
tend
to undermine
that
confidence.

(2) At the same time, as the
jurisdiction to punish for contempt trenches
upon two important fundamental rights,
namely the right of personal liberty and
freedom of speech and expression-rights
which are of the vital importance in any
democratic system the law of contempt of
court should be viewed mainly from the
standpoint of these rights rather than on
the basis of its origin or its present position
in other countries.

(3) The contempt of Courts Act, 1952,
though sound so far as it goes, touches only
the fringes of the subject. While its existing
provisions should be continued, there is
need for widening considerably the scope
of the Act.

(4)
Under
the
Constitution,
Parliament is competent to legislate on
contempt of courts subject only to the
limitations that it cannot (i) abrogate,
nullify or transfer to some other authority,
the power of the superior courts to punish
for contempt, (ii) exercise its power so as to
stultify the status and dignity of the
superior courts, and (iii) impose any
unreasonable
restrictions
on
the
fundamental right of the citizen to freedom
of speech and expression.

(5) Contempt cannot be defined except
by enumerating the heads under which it
may be classified-heads which can never be
exhaustive-and
a
definition
merely
incorporating such heads under which
criminal contempt or even contempt as a
whole is generally classified, would be
useless as a definition and is totally
unnecessary.

(6) Delimitation of the concept of
contempt by the exclusion of any particular
head is not possible as none of the
recognized heads become obsolete. The
assumption once made that contempt by
scandalizing has become obsolete has been
proved to be erroneous.

(7) Want of knowledge of a pending
proceeding, whether civil or criminal,
should afford a complete defence to a
person accused of contempt.

(8) The rule of contempt in relation to
imminent proceedings may be abolished so
far as civil cases are concerned. As regards
criminal cases, want of knowledge should
be a complete defence as in the case of
pending proceedings. Further, where in
respect of an offence, no arrest has taken
place, a presumption should be drawn in
favour of the alleged contemner, that
proceedings are not imminent.

(9) A case which has reached the stage
of execution shall not be deemed to be a
pending case for the purpose of the law of
contempt.

(10) An innocent distributor of a
newspaper or other publication, that is to say,
a person who had no reasonable ground for
believing that a publication distributed by
him contained any offending matter, shall not
be guilty of contempt of court.

(11) The burden of establishing any of
the defences aforesaid shall be on the
alleged contemner.
6 All. Vinod Kumar & Anr. Vs. Sri Veer Bahadur Yadav & Anr.
957

(12) No contempt proceeding in
respect of the publication of the text or a
fair and accurate summary of the whole or
any part of an order made by a court sitting
in chambers or in camera shall not be
competent unless the court has expressly
prohibited the same in exercise of any
power conferred by any enactment for the
time being in force.
(13) Cases of contempt in violation of
secrecy should be confined within clearly
defined limits and secrecy may be enjoined
with regard to judicial proceedings only in
exceptional cases mentioned in paragraph
51 of Chapter VIII. Contempt proceedings
in relation to cases of secrecy should be
initiated only when no other punishment is
prescribed.

(14) Some of the existing defences
open to an alleged contemner may be given
express statutory recognition. These are:

(i) that a person shall not be guilty of
contempt for publishing a fair and accurate
report of a judicial proceeding or any stage
thereof;

(ii) that a person shall not be guilty of
contempt for publishing any fair comments
on the merit of any case which has been
heard and finally decided or on the conduct
of any judge, if it be for the public good,
the question of public good being in each
case a question of fact;

(iii) that a person shall not be guilty of
contempt in respect of any statement made
by him in good faith concerning the
presiding officer of any court subordinate
to a High Court, say, to the Chief Justice of
that High Court.

(15) As a matter of caution, it may be
provided that the provisions recommended
for inclusion in the Bill shall not be
construed as in any way enlarging the
scope of contempt as otherwise understood
or as affecting any other defence which
may be open to an alleged contemner.

(16) The general rule of procedure
applicable in contempt cases should be
formulated clearly.

(17)
In
the
case
of
contempts
committed in the face of the court, the
present summary powers of court have to
be continued and a simple procedure
consisting of oral appraisal of the charge
to the contemner, the giving of an
opportunity to him, to make his defence and
provisions as to bail and custody, on the
lines suggested in paragraph 4 of Chapter
X may be adopted.

(18) Applications for transfer of
proceedings for contempt committed in the
face of the court may be entertained by the
judge in whose presence the contempt is
committed and if he feels that in the
interests of proper administration of justice
the application should be allowed, and that
it is practicable to do so, he should cause
the matter to be placed before the Chief
Justice for his directions.

(19) A criminal contempt (other than a
contempt committed in the face of the
court) should be heard only by a Bench of
not less than two judges except in cases
where the court consists of one judge, e.g.,
Court of the Judicial Commissioner. That
contempt may be taken cognizance of only
on a motion or on a reference made by
some other agency. That is to say, in the
case of the Supreme Court, the motion may
be mad by the Attorney-General or a
person authorized by him, and, in case of
High Court by the Advocate-General or a
person authorized by him. Such motion may
be either on the initiative of the AttorneyGeneral or the Advocate General, as the
case may be, or at the instance of the court
concerned. Where the contempt is that of a
subordinate court, action may be taken on
a reference made by that court.

(20) The motion or reference should
specify the act constituting the contempt
958 INDIAN LAW REPORTS ALLAHABAD SERIES
and the law should embody provisions as to
service of notice of the proceedings and as
to the defence of the person charged on the
lines indicated in paragraph 6 of Chapter
X.

(21) A provision may be made that no
court shall punish anyone for contempt
unless the contempt is of such a nature as
substantially to interfere with the due
course of justice.

(22) The provisions of the Contempt of
Courts Act, 1952, as to punishment and
apology may be continued but it may be
made clear that in cases of civil contempt,
where fine is not an adequate punishment,
the punishment of simple imprisonment to
be awarded should consist of detention in a
civil prison for a term not exceeding the
prescribed statutory period.

(23) It may also be provided that in
cases where the person found guilty of
contempt in respect of any undertaking
given to a court is a corporation, the
punishment may be enforced, with the leave
of the court, by the detention in a civil
prison of the directors or principal officer
of the corporation.

(24) Every order of punishment for
contempt shall state the facts consisting the
contempt, the defence of the person
charged, the substance of the evidence
taken, if any, as well as the finding and the
punishment awarded.

(25) Provision may be made for an
appeal as of right from any order or
decision of a High Court in the exercise of
its jurisdiction to punish for contempt. The
appeal should lie to a Bench of Judges of
the High Court where the order or decision
is of a single Judge. Where the order or
decision is of a Bench the appeal should lie
to the Supreme Court.

(26) The rule of practice as to 'purge'
of contempt may work hardship in many
cases and, therefore, both the appellate
court and the court from whose judgment
or order an appeal is being preferred
should have the power to stay execution of
the sentence, to release the alleged
contemner on bail and to hear the appeal
or allow it to be heard, notwithstanding the
fact that the appellant has not purged
himself of the contempt.
(27) The Supreme Court may, in the interest
of uniformity, be conferred power to make
rules to supplement, where necessary, the
rules of procedure recommended by us. It
may also be provided that the Supreme
Court may make rules in relation to High
Courts only after consulting the High
Courts."

10. Consequently, the Contempt of Court
Bill 1963 containing the heading "A BILL TO
DEFINE AND LIMIT THE POWERS OF
CERTAIN COURTS IN PUNISHING
CONTEMPT OF COURTS AND TO
REGULATE THEIR PROCEDURE IN
RELATION THERETO" was placed before
the Appropriate Legislature. Paragraphs 19
and 20 of the said Bill are quoted hereinunder:

"19. Appeals. (1) An appeal shall lie
as of right from any order or decision of a
High Court
in
the
exercise
of
its
jurisdiction to punish for contempt-

(a) where the order or decision is that
of 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.

(2) Pending any appeal, the appellate
Court may order that-

(a) the execution of the punishment or
order appealed against be suspended;

(b) if the appellant is in confinement,
he be relased on bail, and

(c)
the
appeal
be
heard
notwithstanding that the appellant ha not
purged himself of the contempt.
6 All. Vinod Kumar & Anr. Vs. Sri Veer Bahadur Yadav & Anr.
959

(3) Where any person aggrieved by
any order against which an appeal may be
filed satisfies the High Court that he
intends to prefer an appeal, the High Court
may also exercise all or any of the powers
conferred by in sub-section (2).

(4) An appeal under sub-section (1)
shall be filed:

a) in the case of an appeal to a Bench
of the High Court, within twenty days; and

(b) in the case of an appeal to the
Supreme Court, within a period of sixty
days;

from the date of the order appealed
against.

20. Punishment how to be carried in
certain cases. (1) Notwithstanding anything
contained in Section 12, where a person is
found guilty of a civil contempt, the court,
if it considers that a fine will not meet the
ends of justice and that a sentence of
imprisonment is necessary, shall, instead of
sentencing him to simple imprisonment,
direct that he be detained in a civil prison
for such period, not exceeding six months,
as it may think fit.

(2) Where the person found guilty of
contempt of court in respect of any
undertaking given to a Court is a
Corporation, the punishment may be
enforced with the leave of the Court, by the
detention in civil prison of the Directors or
principal officers of the Corporation."

11. Eventually the Contempt of
Courts Act, 1971 being Act No. 70 of 1971
came to be notified on 24.12.1971.
Relevant extract of Section 19 of the
Contempt of Courts Act, 1971 is quoted
hereinunder:

"19. Appeals. (1) An appeal shall lie
as of right from any order or decision of a
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 (2) Pending any appeal,
the appellate Court may order that

Supreme Court: Provided that where
the order or decision is that of the Court of
the Judicial Commissioner in any Union
territory, such appeal shall lie to the
Supreme Court.

(a) the execution of the punishment or
order appealed against be suspended;

(b) if the appellant is in confinement,
he be released on bail; and (c) the appeal
be heard notwithstanding that the appellant
has not purged his contempt.

(3) Where any person aggrieved by any
order against which an appeal may be filed
satisfies the High Court that he intends to
prefer an appeal, the High Court may also
exercise all or any of the powers conferred by
sub-section (2).