# ABDUL KARIM v. M. K. PRAKASH AND ORS

- **Citation:** [1976] 3 S.C.R. 276
- **Court:** Supreme Court of India
- **Decided:** 1976-01-30
- **Case number:** Criminal Appeal No. 118 of 1971
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/abdul-karim-v-m-k-prakash-and-ors-6772
- **Pages:** 11

## Headnote

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276
ABDUL KARIM
v.
M. K. PRAKASH AND ORS.
January 30, 1976
fM. H. BEG, P. N. BHAGWATI AND R. S. SARKARIA, JJ.]
Contempt of Court's Act 1971-Sec. 2(c)-Standard of proof for Criminal
contempt-Contempt by a iudicial officer-Assumption-If should be wilful of
jurisdiction erroneously or passing a wrong order.
The appellants in Criminal Appeals 195 and 196 are the owner and Manager
of a timber depot respectively (hereinafter referred to as appellants).
Appellants complained to the Police that Respondent No. 1 had collected a
large
number of persons with deadly \.veapons and that the sheds constructed by the
appellants were attacked and that there was apprehe_nsion that the shed would
be demolished.
The Police seized the- disputed timber.
The appellants made
an application praying that the seized logs may be handed over to them.
Respondent No. 1 also made an application claiming the timber to be his property.
After perusing the Police Report and bearing the counsel for the claimants,
the Magistrate directed the Forest Range Officer to keep the timber in
his
custody pending the further investigation by the Police.
Respondent No. l
filed a Revision in the High Court against the said order of the Magistrate.
The High Court did not grant stay of the order of the Magistrate.
The High
Court, however, observed that as the rainy season was approaching it 'vas
necessary that the timber should be removed from the place as early as possible.
Thereafter, the Police Officer submitted the final report stating that the
earlier Police report was biased and that thi appellants were the owners of the
disputed timber and that the timber might be relensed to them.
On that the
Magistrate passed an order directing that the timber should be returned to the
appellants.
The Magistrate also issued a letter to the Forest Range Officer
directing him to hand over the seized timber to the appellants, urgently.
Respondent No. 1 filed a contempt petition in the High Court against the
appellants, as well as against the appellant in Appeal No. 118 of 1971, the
Magistrate.
The charge against the Magistrate was that he passed the second
order without giving notice to respondent No. 1 and directed the Forest Range
Officer to release the timber urgently and thereby defeated whatever order the
High Court might have finally passed in revision and that he permitted process
of the court to be abused and that he impeded the course of justice. The
Magistrate filed his affidavit and stated that the High Court had not stayed
his order and that he ordered the delivery of the disputed timber in the bona
fide discharge of his official duty after accepting in good faith the final report
made by the Police in which it was indicated that its notice had been given to
the complainant and a copy of such notice was also enclosed.
The High Court did not find the appellants guilty of contempt. The High
Court, however, found the Magistrate guilty of 'Criminal contempt' on the folG
lowing grounds :
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1. The case between the parties had gained notoriety in the State and
attracted a good deal of public attention.
2. The certified copy of the order was taken only by appellant No. 1, and
since the case was not posted in the open court, appellant No. 1 must
have shown the order to the Magistrate at a place other than the open
court.
3. The Magistrate passed the order in spite of the fact that he was aware
that the revision application was pending in the High Court which was
seized of the matter of determining the question of the custody of the
timber.
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ABDUL KARIM V. M. K. PRAKASH
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4. The Magistrate did not give notice to the other side before passing the
order. The procedure adopted by the Magistrate in writing the letter
to the Forest Range Officer asking him to release the timber urgently
is very strange and reveals an anxiety on the part of the Magistrate t~
help the appellants.
The urgency can only be to circumvent any poss1~
ble orders of stay that might be passed by the

## Text

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276
ABDUL KARIM
v.
M. K. PRAKASH AND ORS.
January 30, 1976
fM. H. BEG, P. N. BHAGWATI AND R. S. SARKARIA, JJ.]
Contempt of Court's Act 1971-Sec. 2(c)-Standard of proof for Criminal
contempt-Contempt by a iudicial officer-Assumption-If should be wilful of
jurisdiction erroneously or passing a wrong order.
The appellants in Criminal Appeals 195 and 196 are the owner and Manager
of a timber depot respectively (hereinafter referred to as appellants).
Appellants complained to the Police that Respondent No. 1 had collected a
large
number of persons with deadly \.veapons and that the sheds constructed by the
appellants were attacked and that there was apprehe_nsion that the shed would
be demolished.
The Police seized the- disputed timber.
The appellants made
an application praying that the seized logs may be handed over to them.
Respondent No. 1 also made an application claiming the timber to be his property.
After perusing the Police Report and bearing the counsel for the claimants,
the Magistrate directed the Forest Range Officer to keep the timber in
his
custody pending the further investigation by the Police.
Respondent No. l
filed a Revision in the High Court against the said order of the Magistrate.
The High Court did not grant stay of the order of the Magistrate.
The High
Court, however, observed that as the rainy season was approaching it 'vas
necessary that the timber should be removed from the place as early as possible.
Thereafter, the Police Officer submitted the final report stating that the
earlier Police report was biased and that thi appellants were the owners of the
disputed timber and that the timber might be relensed to them.
On that the
Magistrate passed an order directing that the timber should be returned to the
appellants.
The Magistrate also issued a letter to the Forest Range Officer
directing him to hand over the seized timber to the appellants, urgently.
Respondent No. 1 filed a contempt petition in the High Court against the
appellants, as well as against the appellant in Appeal No. 118 of 1971, the
Magistrate.
The charge against the Magistrate was that he passed the second
order without giving notice to respondent No. 1 and directed the Forest Range
Officer to release the timber urgently and thereby defeated whatever order the
High Court might have finally passed in revision and that he permitted process
of the court to be abused and that he impeded the course of justice. The
Magistrate filed his affidavit and stated that the High Court had not stayed
his order and that he ordered the delivery of the disputed timber in the bona
fide discharge of his official duty after accepting in good faith the final report
made by the Police in which it was indicated that its notice had been given to
the complainant and a copy of such notice was also enclosed.
The High Court did not find the appellants guilty of contempt. The High
Court, however, found the Magistrate guilty of 'Criminal contempt' on the folG
lowing grounds :
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1. The case between the parties had gained notoriety in the State and
attracted a good deal of public attention.
2. The certified copy of the order was taken only by appellant No. 1, and
since the case was not posted in the open court, appellant No. 1 must
have shown the order to the Magistrate at a place other than the open
court.
3. The Magistrate passed the order in spite of the fact that he was aware
that the revision application was pending in the High Court which was
seized of the matter of determining the question of the custody of the
timber.
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ABDUL KARIM V. M. K. PRAKASH
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4. The Magistrate did not give notice to the other side before passing the
order. The procedure adopted by the Magistrate in writing the letter
to the Forest Range Officer asking him to release the timber urgently
is very strange and reveals an anxiety on the part of the Magistrate t~
help the appellants.
The urgency can only be to circumvent any poss1~
ble orders of stay that might be passed by the High Court.
In appeal filed by the Magistrate.
HELD: (!) Section 2(c) of the Contempt of Courts Act 1971 codifies the
definition of criminal contempt which had previously been crystalized by judicial
decisions.
The broad test to be applied in such cases is whether the act com~
plained of \Vas calculated to obstruct or had an intrinsic tendency to interfere
with the course of justice and the due administration of law.
The standard of
proof required to establish a charge of criminal contempt is the same as in
any other criminal proceeding. It is all the more necessary to insist on strict
proof of such charge when the act or omission complained of is committed
by the respondent under colour of his office as a Judicial Officer.
Wrong order
or usurpation of jurisdiction by a Judicial Officer owing to an error of judgment or to a misapprehension of the legal position, docs not fall within the
mischief of 'criminal contempt'. Human judgment is fallible and a judicial
officer is no exception. Consequently, so long as a Judicial Officer in the discharge of his official duties acts in good faith and without any motive to defeat,
obstruct or interfere with the due course of justice, the court \Vill not, as a rule,
punish him for a criminal contempt. Even if it could be urged that mens rea
as such is not an indispensable ingredient of the offence of contempt, the courts
are loath to punish a contemner if the act or omission complained of was not
wilful. [203B D-G]
(Case of Debabrata Bandopadh_yay A.LR. 1969 S.C. 189, cited with approval.)
(2) The main ground which influenced the High Court was that the case
had gained certain amount of notoriety. This was a very vague, indefinite and
nebulous circumstance. In the instant case, the prejudice generated by
this
creeping circumstance has unmistakably vitiated the approach of the High
Court.
[284 C-D]
(3) The explanation given by the Magistrate was at least sufficient to dispel
the suspicion that the Magistrate while passing the order ¥.'as actuated by a
motive to impede or obstruct or defeat the course of justice. It was immaterial
as to who sho\ved the certified CODY of the order of the High Court to the
Magistrate.
On reading the final report of the Police and the order of the
HigC. Court the Magistrate might have honestly formed the opinion that there
was no need to give the notice to the other party and that it was necessary to
direct the Forest Officer to deliver the timber urgently to the appellants.
It
is true that under the circumstances, the prudent course for the Magistrate
would have been to postpone the making of any final order in regard to the
delivery of the timber till the final disposal of the revision petition by the
High Court.
It would have been also proper for him to have given opportunity of being heard to the other side before making any order. Nevertheless it
was evident from the stark circumstances of the case, that in failing to do so,
the
Magistrate was not actuated by any improper motive ur deliberate design
to impede, obstruct or interfere with the course of justice or to curcumvent or
defeat the proceedings in the Revision pending before the High Court.
Consequently the penal action taken by the High Court was not justified.
[284 H,
285A, B, F, 286A-D]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 118
of 1971.
From the Judgment and Order dated 15th October, 1970 of the
Kerala High Court at Ernakulam in O.P. No. 4879 of 1969 and
Criminal Appeals Nos. 195 and 196 of 1971.
Appeals by special leave from the jndgment and Order dated the
15th October, 1970 of the Kerala High Court at Ernakulam in 0.P.
No. 4879 of 1969.
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SUPREME COURT REPORTS
( 197 6] 3 S.C.R.
A. S. Nambiar for the Appellant in Cr!. A.118/71.
Kunhiraman Menon and A. S. Nambiar for the Appellants in Crl.
A. Nos. 195 and 196 of 1971.
For the respondents in all the appeals : Nemo.
Ihe Judgment of 1he Court was delivered bySARKARIA, J_.-These three appeals arise out of a common judgment of the High Court of Kerala holding the appellants guilty of
contempt of court.
S. Abdul Karim, the appellant in Criminal Appeal 118 of 1971.
was, at the material time, a Munsif-Magistrate posted at Perambra.
He was Respondent No. 3 in the contempt petition filed in the High
Court and will hereafter be referred to as R. 3.
A. P. Parukutty Mooppilamma and
A. P. Achuthankutty Nair
appellants in Cr. Appeal No. 195 of 1971 were respondents 1 and i
in the original petition before the High Court, and will be hereafter
be called R. 1 and R. 2. The appellant K. P. Ramaswami in Criminal
Appeal No. 195 of 1971 was Respondent 4 before the High Court.
He will, for short, be called R. 4.
M. K. Prakash, Respondent No. 1 in all these appeals before us,
was the petitioner in the contempt petition before the High Court. He
will hereafter be called as 'P'.
The facts are these :
R-1 is the owner of the Olathooki Ariyalakkan Malavaram in
Kayanna Amsom which is managed for and on her behalf by her son,
R-2.
On March 28, 1969 R-1 presented a petition through R-2, to
the Superintendent of Po.[icc, Kozhikode alleging that the accused persons (P and his men) were likely to trespass into the Olathilkki
Arialakkan Malavaram to remove her timber.
It was alleged that
'P' had collected a large number of persons and equipped them with
dangerous weapons, unlicensed guns. swords etc.; that the sheds constructed by the petitioner and occupied by l11s workers and watchmen
were being attacked and there was an apprehension that P and his
men would demolish the sheds. The Superintendent of Police appears
to have forwarded this petition to the Police Station Kayanna where,
on its basis, a case under ss. 143, 147 and 506, Penal Code was
registered against 'P' and others.
The Sub-Inspector in-charge of the Police Station, went to the spot
and took into possession the disputed timber comprising of 587 logs
and entrusted the same on a kychet to two strangers. On April 22,
1969, R-1 made an application, Ex. P-3, before the Magistrate (R-3)
praying that the seized logs be handed over to him.
Thereafter, 'P'
also made an application to the Magistrate claiming the timber to be
his property and prayed for delivery of its possession to him.
The
Magistrate thereupon issued notice to the Police who made a report.
After hearing the Counsel of the rival claimants and perusing the
police report (Ex. P-17) and other material, the Magistrate on April
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ABDUL KARIM v. M. K. PRAKASH (Sarkaria, J.)
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28, 1969, passed an order, directing the Forest Range Officer to keep
the logs in his custody pending further investigation by the Police.
Against this order 'P' filed Cr. Revision Petition No. 176 of 1969 m
the High Court.
No interim order directing the Magistrate to stay
further proceedings or defer further action regarding the delivery of the
disputed timber was issued by the High Court.
While P's Revision applicafion was pending in the High Court,
the Police Officer, R-4, after completing the investigation, obtained
the opinion of the Assistant Public Prosecutor on September 20, 1969
and submitted a Final Report on September 24, 1969 to the Magistrate (R-3). The material part of this Final Report runs as under :
'"On 16-7-69 a petitiOn from the complainant was received alleging that the investigation conducted by my predecessor was one-sided and biased against him and he had
produced certain documents to support his contention that
the property belongs to him and which were not considered
by my predecessor.
Based on this petition I continued the
investigation and in the course of my investigation, I questioned the Divisional Forest Officer, Calicut and the Forest
Range Officer, Knttiady. ·They stated that the permit issned
to M. K. Prakash in Kalpaidiyan Thirumudiyan Malavaram
was stayed by the Government and hence not
operated
upon till now.
They also stated that the 587 logs of timber
seized by my predecessor we.I!' from Olathukku Arialakkan
Malavaram in the possession and ownership of the mother
of the complainant and those logs were cut by Smt. A. R.
Parukutty Amma's workmen and for which proceedings have
been taken against them under the M.P.P.F. Act.
To the
same effect the Range Officer Kuttiadv had fifed an affidavit
before the High Court in O.P. 2045/69 filed by the accused
in this case.
In the said O.P. the accused had questioned
1he validity of the Government Order ·allowing Smt. Paruk utty Amma to remove timber· cut from the permitted and
non-permitted area of Olakhukki Arialakkan
Malavaram
and the High Court had upheld the order of the Government
and the complainant's mother was allowed to transport all
timber cut from the Malavaram, both from the permitted and
non-permitted area.
According to the
Divisional
Forest
Officer there is no Malavaram known as Kalpaidiyan Thirumudivan Malavaram in Pilliperuvanna Amsom as per the
Regi>tration Manual.
T also questioned the complainant
and his workmen and thev stated that there was no trespass
as such bv the accused or his henchmen. They did not enter
the Malavaram, nor have they intimidated anv of them and
as s11ch no offence has been made out. u/s 447 or 506 (1)
IPC.
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Under the above circumsfances, it is clear that Shri M. K.
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Prakash accused in this case was not allowed to operate
his permit and the 587 logs of timber seized by mv predecessor were cut by the complainant's mother and the same
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belong to her.
These logs are now in the custody of the
Range Officer,
Kuttiady as per the order of the -Munsiff
Magistrate Perarnbra and the same may be ordered to be
released to the mother of the complainant and the case is
referred as mistake of fact."
Upon this report the Magistrate (R-3) passed this order :
"Notice given Case referred as mistake of fact. Further
action dropped. Return timber logs· to complainant."
Sd/- M. M. 26-9-1969.
In pursuance of this order, the Magistrate issued a letter (Ex.
P-10) dated September 26, 196'!1, to the Forest !{unge Officer Kuttiady,
directing him that 5 8 7 logs seized by the Ins.e_ector of Police, Quilandy,
then in his custody, be urgently released to R-1 (the mother of the
complainant).
In compliance with the order of the Magistrate, the Range Officer
symbolically handed over the charge of the timber to R. 1.
On the preceding facts, 'P' on November 26, 1969, made a petition in the High Court complaining that R-1, R-2, R-3, R-4 and
R-5 (Sri P. K. Appa Nair, Advocate) had committed centempt of
the High Court within the meaning of s. 3 of the Contempt of Court~
Act, 1952 and prayeol that the respondents be ;>Unisbed for committing that contempt. The High Court issued notice to R-1 to R-5 who
filed affidavits in reply.
The Magistrate (R-3) stated that he had passed the order directing delivery of possession of the disputed t;mbcr to R-1 in the bona
fide discharge of his official duty, after accepting in good faith, the
final report made by the police in which it was indicated that its notice
had been given to the complainant,___ and a copy of such notice was
also enclosed.
He further averred : ·
"The purchase of the petitioner's rights by the l st Respondent referred to in the F.I.R. and Ex. P-3 petition was
not denied by the petitioner. On the other hand, his counsel
durillg the hearing of Exts. P-3 and P-4 petitions had admitted the same even though he had· a case that the petitioner
was duped to sign the same and receive part of the consideration.
Under the circumstances, I had no reason to reject
P-6 report, it was accepted in its entirety and final orilers
were passed bona fide directing
return of the logs to the
complainant.
The criminal revision 176 of 1969 itself is
only against Ext. R order directing entrustments of the loogs
to the Forest Range Officer pending further investigation.
The order in revision that may be ultimately passed by the
Hon'ble Court can have reference only to What should be
done with the logs pendin.Q invcstigati,on.
The order in revision would not and cannot relate to the disposal of the logs
after the completion of the
investigation. It is
therefore
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ABDUL KARIM v. M. K. PRAKASH (Sarkaria, l.)
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wrong to suggest that the final order is calculated to overreach the possible
orders in the
pending Cr. Revision
Petition."
In his affidavit, the Magistrate emphasised that in Cr. Revision
176 of 1969, the High Court had not issued any interim order staying
further proceedings.
R-1, R-2, R-4 and R-5, also, in their reply affidavits denied the
allegations made against them by 'P' in the -contempt petition.
The Advocate-General assisted the High Court and filed a statement of facts on February 16, 1970.
After considering the replies, a memoranda of charges was drawn
up against R-1 to R-5 on February 10, 1970. The material part of
the charges served on R-3 ran as under :
"That you, on receipt of the final report, even without
giving notice to the petitioner, not only passed an order on
26-9-69 on the final report directing the return of the timber
logs to the complainant but also wrote a letter
(copy of
which is Ext. P-10) to the Forest Range Officer, Kuttiadi,
directing him urgently to release the timber logs to the 1st
respondent-thereby effectively defeating whatever oroer the
Honourable High Court may finally pass in Criminal Revision Petition 176 of 1969 and
Criminal
Miscellaneous
Petition 309/69, and that in consequences of your order the
timber logs were actually handed over to the 1st respondent;
That in so doing :
(a) you have acted unjustly, oppressively and irregularly
in the execution of your duties, under colour of judicial proceedings, wholly
unwarranted by law and
procedure;
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(b) you have also permitted the process of your court to
be abused by the other respondents and thereby diverted the dne course of justice and
(c) you have also impeded the course of justice by defeating the final orders that are liable to be passed
by the High Court in Criminal Revision
Petition
176/69 and Cr. Misc. Petition 309/69; thereby committing gross contempt of the
Honourable
High
Court, to which you are subordinate."
The Magistrate (R-3) submitted a further counter-affidavit denying the charges.
The High Court rejected the Magistrate's explanation and found
him guilty of contempt on grounds which may be summarisid as
below
(1) "The case between the Petitioner and the 1st and the
second respondent had gained certain
amount of
notoriety not only in the area but also in the State".
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SUPREME COURT REPORTS
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Allegations were being made "that
even the then
Minister of Forests was unjustly favouring R-1 and
R-2.
The case before the Munsif!-Magistrate would
naturally have attracted quite a good deal of public
attention."
(2) R-3 permitted R-1 and R-2 to approach and influence him. This irifercnce was available from the circumstance that in his affidavit, R-3 has said that an
order dated May 2, 1969, passed by the High Court
in C.M.P. 5869/69 in O.P. 2405/o9 v1as 'rown to
him and the certified copy of this order was obtained
from the High Court only by R-1. The copy must
therefore have been shown to the Magistrate by R-1
or her Advocate or by R-2 or
his
agents.
""This
could not have been in the open court. There was
no posting of the case to 26-4-1969".
(3) (a) R-3 was aware that Criminal Revision 176/69
and Cr. M.P. 309/69 against his earlier order, was
pending in the Higli Court which was "seized of the
matter of determining the question of custody of the
timber. His explanation that he felt that ho "'" free
to pass an order because only the qnestion of interim
custody was involved in Cr. Rev. Petition No. 1 '76
of 1 969 .......... was puerile".
(3) (b) R-3 passed the
order on the
Final
Report.
directing the release of the logs, without caring to
issue notice to the petitioner (P).
( 4) In the letter Ex. P-10, dated 26-9-1969, the Magistrate wrote to the Range Officer thai the logs should
be released to R-1, urgently. "This is a very strange
procedure, unhearil of, and reveals an anxiety on the
part of the Munsif!-Magistrate to help R-1 and R-2.
The urgency can only be to. circumvent any possible
orders of sfay that may be passed by
(the High)
Court".
We have heard R-1 and the Counsel for the other appellants.
R-1 has argued his case in person becanse, according to him he has
no funds to engage a Connsel.
His
submissions are
straight and
simple. He has reiterated what he had stated in his further affidavit
filed in reply to the memorandum of charge in t~e High Court.
In sum, his defence is that in all the proceedings relating to the
disposal of the disputed timber, including the making of the order
dated- September 26, 1969, the issuing of the letter, Ex.-10, of the
same date, and in failing to issue notice to 'P', he acted in the bona
fide discharge of his duties; that even if what be did or omitfed, was
wrot1g, it was no more than an honest error of judgment on· his part.
In particular, it is submitted that Ground No. 1 ( 1) is not based on
any cogent or legal evidence but on mere rumours and hearsay and
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it is too vague and general; that even so, it was not
incorporated
in the charges against him. It is further maintained that the inferences
of ulterior motives on the part of the appellant vide Grounds (2) and
( 4) drawn by the High Coiirt were wholly unjustllied.
It is
contended that the approach of !lie High Court, is n©t in consonance with
the Jaw laid down by this Court in Debabrata Bandopadhyay and ors.
v. State of West Bengal and anr.( 1)
Before dealing with the contentions canvassed by the appellant, it
will be useful to recall the law on the point.
Clause (c) of s. 2 of the Contempt of Court Act, I\)71 merely
codifies the definition of "criminal contempt" which had previously
been crystalised by judicial decisions. It defines 'criminal contempt'
to m~an publication of any matter, or the doing of any other act
which-
"(i) scandalises or tends to
scandalise, ur
lowers or
tends to lower the authority of any court; or
(ii) prejudices, or interferes or tends to interfere
with,
the due course of any judicial proceedings;
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(iii) interferes or tends to interfere, or obstructs or tends
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to obstruct, the administration of justice in any other
mannei."
The broad test to be applied in such cases is, whether the act
complained of was calculated to obstruct or had an intrinsic tendency
to interfere with the course of justice and the due· adn1inistration of
law.
The standard of proof required to establish a charge of 'criminal contempt' is the same as in any other criminal proceeding. It is
all the more necessary to insist upon. strict proof of such charge when
the act or omission complained of is committed by the
respondent
under colour of his office as a judicial officer. Wrong order or even
an act of usurpation of jurisdiction committed by a judicial Officer,
owing to an error of judgment or to a misapprehension of the correct
legal position, does not fall within the misc1iief of "criminal contempt".
Human judgment is fallible and a judicial Officer is no
exception.
Consequently, so long as a judicial Officer in the discharge of his
official duties, acts in good faith and without any motive to defeat,
obstruct or interfere with the due course of justice, the courts will not,
as a rule, punish him for a "criminal contempt".
Even if it could
be urged that mens rea, as such, is not an indispensable ingredient of
the offence of contempt, the courts are loath to punish a contemner,
if the act or omission complained of, was not wilful.
In Debabrata Bandopadhyaya's case (supra), Hidayatullah
speaking for the Court elucidated the position, thus :
"A question whether there is contempt of court or not
is a serious one.
The court is both the accuser as well as
the judge of the accusation. It behoves the court to act with
as great circumspection as possible making all
allowances
for errors of judgment and difficulties arising froni inveterate
(1) (A.T.R. 1969 S.C. !89.)
C.J.
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practices in c_ourts and tribunals.
It is only when a clear
case of contum~cious conduct not explainable otherwise,
arises jhat the· contemner must be punished. It must be realised that our system of courts often resnlts in delay of one
kind or another.
The remedy for "it is reform and punishment departmentally.
Punishment under the law of
C<>lltempt is called for when the lapse is deliberate and is in disregard of on·e's duty and in defiance of authority. To take
action in an unclear case is to make the law of contempt do
dnty for other measures and is not to be encouraged."
The judgment of the High Court is to be tested in the light of the
above enunciation.
The main ground, as already noticed, which greatly influenced the
decision of the High Court, was that this·case between the parties had
gained a certain amount of notoriety and allegations were being openly made that the then Minister for Forests was out to favour R-1 and
R-2 against 'P'.
This was a very vague, indefinite and nebulous
circumstance which had no better status than any other general
rumour, gossip or talk in the town.
Courts have to guard against cognizance of such rumours and general allegations as they prejudice an
objective treatment and a fair determination of the problems before
them. In the instant case, the prejudice generated by this creeping
circumstance has unmistakably vitiated the approach of the High
Court. It has hindered a correct appreciation of the submissions made
by R-3 in reply to the charges. In his cou11ter-~ffidavit R-3 stated
"In the final report filed by the 4th respondent which is
marked in these proceedings as P-6, there is reference to an
order passed by this Honourable Court allowing the 1st
respondent to remove the cut timber.
The order aforesaid
is the order dated 2-5-1969 in C.M.P. 5869/1969 in O.P.
2405/1969, wherein it is said that it is necessary that the
timber should be removed from the place as early as possible.
A certified copy of this order was also shown to me·
and that was the reason why I wrote Ext. P-10 letter to release the cut logs without delay. The reason that promptea
me to pass the final orders are therefore (I) there was no·
stay of further proceedings pending Crl.R.P. 176/1969 (2)
the Crl.R.P. itself related only to Ex.R. order for custody
pending further investigation, and can have no reference t0
the ultimate result of investigation (3) it was admitted before me that the 1st respondent had purchased the alleged
rights of the petitioner and part of the consideration was
already paid, even though he had the case that the assig•-
ment is not valid, and ( 4) this Honourable Court had in
C.M.P. 5869 /1969 aforesaid directed the speedy removal
of the timber from the place by the 1st respondent."
In ou.r .. opinion, the above reply given by the Magistrate was at
least, sufficient to dispel the suspicion that in making _the order dated·
September 26, 1969, in regard to the delivery of the timber to R-1
he was actuated by a motive to impede or obstruct o~ defeat the-
\
I
ABDUL KARIM v. M. K. PRAKASH (Sarkaria, !.)
28 5
course of justice.
The notoriety of the case looming large in their
minds, the learned Judges of the High Court without due consideration rather hastily rejected the explanation of the Magistrate that he
had directed (vide his letter Ex.P-10), urgent delivery of the timber
to R-1 because on seeing the copy of the High Court's order, dated
May 2, 1969, which was shown to him, he was of the opinion that
such a course was indicated therein.
The point of substance was,
whether such an order was made by the High Court and had been
shown to the Magistrate before he made the order for urgent delivery
of the timber. It was immaterial if certified copy of that order was
shown to the Magistrate by R-1 or her Counsel or her agent.
Ex.R-1 is a certified copy of that order dated May 2, 1969 which
was passed by the High Court in C.M.P. 5869/1969 in O.P. 2405/
1969, M. K. Prakash v. R-1 to R-4, C.M.P. 5869/69 was a petition
made by 'P' before the High Court praying that the operation of the
order of the then Respondent 1 be stayed am! the other respondents,
inclnding the Magistrate, be directed not to cause the removal of the
felled trees pending disposal of the original petition.
After hearing arguments of the Counsel for the parties, the High
Court made an order, the material part of which reads as under :
"As the rainy season is fast approaching it is necessary
that the timber should be removed from the place as early
as possible.
Otherwise, the same would be lost to all concerned. It is seen from the counter affidavit of the 4th
respondent that she had already given an undertaking to
the Government to pay the compounding fee, if any that
may be fixed by the Forest Authorities.
In the circumtanccs it appears to be only just to vacate the order of interim injunction passed on this petition.
Accordingly the
order of interim injunction passed on this petition is vacated
and this petition
is dismissed
but in the circumstances
without costs.
On reading a copy of this order, and hearing the persuasive
arguments of the party or her Counsel, the Magistrate might have
honestly, albiet wrongly, formed the opinion that there was no need
to give notice to the other party ('P') and that it was necessary to
direct the Forest Officer to deliver the timber in question urgently
to R-1.
We are therefore unable to agree with the High Court that
by his letter Ex.P-10, the Magistrate directed urgent delivery of the
logs to R-1 because "there was an anxiety on his part to help R-1
and R-2 and to circumvent any possible orders of stay that may be
passed by the High Court". If the Magistrate had read the High
Court's order, dated May 2, 1969, before making this order of urgent
delivery and this fact has not been disputed then his explanation cannot be dubbed as wholly puerile".
Rather, the order dated May 2, 1969, whereby P's request for
ad-interim stay or injunctio1' with regard to these logs was declined
by the High Court, could have induced the Magistrate to go ahead
with the making of the ex-parte final order in regard to the delivery
of the logs to R-1.
3-L522SCI/76
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
286
SUPREME COURT REPORTS
[1976] 3 S.C.R.
It is true that the Magistrate was aware that P's criminal revision
petition against his interim order, dated April 28, 1969, was then
pending in the High Court. In such a situation, the prudent course
for him was to postpone the making of any final order in regard to
the delivery of this timber till the final disposal of the revision petition by the High Court. It would also have been proper for him to
issue notice to 'P' and give an opportunity of being heard before making any order.
That would have been the ideal. But the point for
consideration is whether the Magistrate deliberately did not follow
this prudent course or whether he misdirected himself owing to an
error of judgment.
The stark circumstances viz.-that the High Court
had declined to issue any interim injunction or stay order in favour
of 'P' in the criminal revision pending before it; that there was an
observation in the High Court's order, dated May 2, 1969, stressing
the need for speedy removal of the cut timber and the possibility of
its being damaged by the in-coming rainy season; that he was labouring under the impression, though wrongly, that the order, dated April
28, 1969, was merely an interim order which had exhausted itself on
the completion of the police investigation and the presentation of the
Final Report by the police in which there was a positive finding that
the timber belonged to R-1 and R-2 and they were entitled to its restoration-taken in their totality, go to show that in making the wrong
order regarding delivery of the timber, the Magistrate was not actuated by any improper motive or deliberate design to thwart, impede,
obstruct or interfere with the course of justice or to circumvent or
defeat the proceedings in revision pendin!l before the High Court.
In the absence of any mens rea, the Magistrate had at the most
committed only a technical contempt of the High Court, in such a
case, as was pointed out by this Court in Debabrata Bandhopadhyay's
case (supra), penal action was not called for.
We therefore allow R-3's appeal and set aside his conviction and
sentence.
No conviction for contempt of court has been recorded against
the appellants in the companion appeals by the High Court. All that
we would observe in their (R-1 and R-2) case is that the High Court
has made sweeping observations with
regard to their civil rights,
which might prejudice them in establishing their claims by a regular
suit.
They shall therefore not be taken into account by any court
before which the dispute with regard to this timber may come up for
adjudication in due. course.
Similarly any adverse remarks made
against the Police Officer (R-4) will not by themselves be taken conclusive as tQ his conduct in handling this case. Subject to these observations we dismiss Criminal Appeals Nos. 195 and 196 of 1971.
P.H.P
Criminal appeal 118 of 1971 al/owed.
Criminal appeals 195 & 196 dismissed.