Saibal Kumar Gupta And Ors. v. B.K. Sen

1. The three petitioners before us have been found by a Division Beach to have committed contempt of this Court as also the Court of a Magistrate and have been sentenced to pay a fine of Rs. 500/-each. They are all Councilors of the Corporation of Calcutta and one of them, Mr. S. K. Gupta, is also the present Chairman of the Calcutta Improvement Trust. The finding against them is that they, as members of a Special Committee set up by the Corporation, took it upon themselves to investigate into and decide certain matters which were awaiting decision by this Court and the Court of the Magistrate in a criminal proceeding against one Mr. B. K. Sen. Mr. B. K. Sen, who is the Commissioner of the Corporation of Calcutta, was the petitioner before the learned Judges and is the sole respondent before us. The learned Judges have found that the petitioners before us embarked upon an enquiry as to Mr. Sen's conduct in relation to the litigation and thus embarked upon a course of conduct which was calculated to interfere with the administration of justice and thereby they committed contempt of the Courts before which the litigation was pending. The petitioners desire to appeal to the Supreme Court against that decision and have made the present application for a certificate under Article 134(1)(c) of the Constitution.

2. The first question is whether the application lies. Article 134(1)(c) provides that, subject to there being a certificate of fitness by the High Court concerned, an appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India. It is thus clear that in order that an order of a High Court, sought to be appealed from, may come under the Article, it is necessary that it should be an order made in a criminal proceeding. It has been contended on behalf of the respondent that proceedings taken against a person for contempt of Court are not criminal proceedings at all and, therefore, no certificate under Article 134(l)(c) could be asked for for the purposes of an appeal to the Supreme Court against an order made in such proceedings. That was the only ground on which the maintainability of the present application was questioned.

3. Broadly speaking, proceedings taken with respect to contempt of Court have been held to be neither civil nor criminal, but to be a class by them selves and thus sui generis. For the purposes of an appeal to the Supreme Court on a certificate granted by a High Court, the Constitution recognises three kinds of proceedings, namely, 'civil' proceedings which are dealt with in Article 133, 'criminal proceedings which are dealt with in Article 134 and 'other proceedings which are dealt with along with civil and criminal proceedings, in Article 132. The last-mentioned Article, however, is limited to cases which involve a substantial question of law as to the interpretation of the Constitution. Stated in terms of the Constitution, the respondent's objection before us is that proceedings taken against a person for contempt of Court are "other proceedings" and where, as here, there is no question as to the interpretation of the Constitution, no appeal from an order made in such proceedings lies to the Supreme Court on a certificate granted by a High Court. Necessarily, an application for a certificate in such a case does not come under Article 134(1)(c).

4. It is well settled that contempt of Court may be of two kinds, namely, civil contempt and criminal contempt. When an order made for the benefit of a party is disregarded or violated and the Court enforces the order by punishing the delinquent for contempt, it is said that such proceeding is a form of execution and the contempt concerned is of a civil nature. Where, however, the contempt consists in offering an affront to the court or in interfering Or tendering to interfere with the administration of justice, there is a public wrong and the contempt committed in such form is said to be criminal contempt. It may, however, be conceded, as indeed was urged on behalf of the respondent, that even criminal contempt is not an offence as defined in the Criminal Procedure Code and that the Code does not apply to proceedings taken by a superior Court for the punishment of such contempt. That is the view taken in a long series of decided cases and may now be taken as finally set-tied by the decision of the Supreme Court in Sukhdev Singh v. Teja Singh, 1954 SCR 454: (AIR 1954 SC 186) (A). But the mere fact that contempt of Court is not an offence as defined in the Criminal Procedure Code or in any statute or that the Code does not apply to proceedings for the punishment for such contempt, does not dispose of the question before us. The words used in Article 134(1)(c) are "criminal proceeding" and not "proceeding under the Criminal Procedure Code" or "proceeding with respect to an offence". If, without being an offence, as defined in the Code or some other statute, contempt of Court is still a crime or something in the nature of a crime and if a proceeding taken for the punishment of such contempt can be a criminal proceeding without being a proceeding governed by the Code, the terms of Article 134(1)(c) will nonetheless be satisfied, although contempt of Court may not be an offence and although the Code may not apply to proceedings for its punishment. It has been held in this Court that in punishing for criminal contempt of itself, this Court does not exercise ordinary original criminal jurisdiction: see In re, Tusharkanti. Ghosh, ILR 63 Cal 287 (B). But even that decision does not dispose of the question before us, because the proceedings for the punishment of contempt of itself had in this Court may be proceedings taken in exercise of criminal jurisdiction, although it may not be the ordinary original criminal jurisdiction.

5. The jurisdiction to punish for its own contempt which this Court exercises as a Court of Record is not derived from any statute, but arises out of the very fact that it is a Court of Record and that in the case of such a Court, jurisdiction to punish for its own contempt is an essential auxiliary to the administration of justice. So far as contempt of subordinate Courts is concerned, the jurisdiction to punish for it has always been held to be derived from the same source, but a question may arise as to whether such jurisdiction must now be taken as derived from a legislative grant and as conferred only by the Contempt of Courts Act, 1952, seeing that Article 215 of the Constitution speaks only of the jurisdiction of a High Court as a Court of Record to punish for contempt of itself, but does not mention jurisdiction to punish for contempt of the Subordinate Courts. I am mentioning the fact, because the learned Judges in the present case have field the petitioners guilty of contempt of the Court of a Magistrate as well, but the distinction need not detain us further, since contempt of this Court has also been found. The real matter for enquiry before us is whether the jurisdiction which a Court of Record exercises to punish for its own contempt can be said to be crimminal jurisdiction when the contempt concerned is criminal contempt, although it may be civil jurisdiction when the contempt punished is only of a civil nature.

6. In the old case of Surendranath Banerjea v. Chief Justice and the Judges of the High Court of Bengal, 10 Ind App 171 (PC) (C), the Judicial Committee observed that contempt of a High Court by a libel of one of its Judges was an offence which, by the common law of England, was punishable by the High Court in a summary manner by line or imprisonment or both.

"That part of the common law of England," observed their Lordships, "was introduced into the presidency towns when the late Supreme Courts were respectively established by the Charters or Justice. The High Courts in the Presidencies are Superior Courts of Record, and the offence of contempt and the powers of the High Court for punishing it, are the same there as in this country, not by virtue of the Penal Code for British India and the Code of Criminal Procedure, 1882, but by virtue of the common law of England."

Again in Legal Remembrancer v. Matilal Ghose, ILR 41 Cal 173: (AIR 1914 Cal 69) (D), it was observed that an offence in the nature of a contempt of an inferior Court within the limits of the High Court's original jurisdiction was punishable by the High Court in a summary proceeding, as being a misdemeanour under the common law. If criminal contempt was punishable by the common law of England as a misdemeanour, it is obvious that the delinquency is a crime or of the nature of a crime. We are, however, considering not so much whether criminal contempt of Court is a crime or of the nature of a crime as whether proceedings, taken for the punishment of such contempt, are criminal proceedings. On that question valuable assistance can be derived from the discussion of the matter in the standard work of Oswald. It is observed in the 3rd Edition of the book at page 8 that the usual criminal process to punish contempts was found to be cumbrous and slow and it was therefore that, at some uncertain date in the past, the superior Courts assumed the jurisdiction to punish the offence summarily, so that the administration of justice might not be interfered with long. It will thus be seen that the proceedings taken for the punishment of contempt were in their nature criminal, but formalities such as information and indictment and the calling in the aid of the jury were dispensed with in the interest of a speedy punishment of persons who, by their conduct, were obstructing the administration of justice. A similar view or the nature of proceedings taken for the punishment of contempt is to be found in the celebrated judgment of Brougham, L. C., in the case of Wellesley v. The Duke of Beaufort, (1831) 2 Russ. & M. 639; 39 ER 538 (E), one of the few authorities that I have been able to consult in the course of the argument. That case, as is well known, was concerned with the question as to whether a member of Parliament could claim any special protection against an attachment for criminal contempt. We are not concerned with the Court's decision on that question, but the judgment of Lord Chancellor contains a useful statement of the nature of proceedings taken for the punishment of contempt and of the penalty imposed.

"Now convictions," observed the Lord Chancellor, "and the sentences that follow upon them, are or two sorts; either formally, upon trial, by indictment or information and verdict, with the consequent judgment, or summarily, but as legally, as formally, by a commitment for contempt, where there is no other punishment provided, and no other mode of trying the offence."

It will thus appear that the finding of guilty on a charge of contempt was described as a conviction and the penalty imposed was described as a sentence and the difference between the procedure followed in ordinary cases and the summary procedure followed in cases of contempt was not taken as making any difference as to the nature of the delinquency or the nature of the proceedings taken for its punishment. Such proceedings were clearly held to be criminal proceedings.

7. The question appears to have arisen directly in the case of O'Shea v. O'Shea and Parnell, (1890) 15 PD 59 (F), which is another of the authorities which I have been able to consult. The case was an offshoot of the proceedings taken by Captain O'Shea against his wife for the dissolution of his marriage with her and one Tuohy was arraigned for contempt of Court for having published an article in a newspaper which was calculated to prejudice the plaintiff in the eye of the public and to discredit him in the assertion of his right in the King's Court. The trial Judge found Tuohy guilty and inflicted on him a fine, directing attachment of his person in default of payment. The contemner appealed and a preliminary objection was taken before the Appeal Court that in view of the provisions of Section 47 of the Judicature Act of 1873, no appeal lay in such a case. Section 47 provided that no appeal would lie from any judgment of the High Court "in any criminal cause or matter." I need not refer to the rest of the section which is not here material. The respondent before the Court of Appeal contended that the judgment appealed from was a judgment rendered in a criminal cause or matter and consequently the right of appeal conferred by section 47 of the judicature act was not available to the appellant. In upholding that contention Cotton, L. J., observed as follows:

"Is then this judgment in a criminal cause or matter'? I think it is.........The present proceeding is for a contempt of Court. Of course, there are many contempts of Court that are not to a criminal nature; for instance, when a man does not obey an order of the Court made in some civil proceedings, to do or to abstain from doing something--as where an injunction is granted in an action against a defendant, and he does not perform what he is ordered to perform, and then a motion is made to commit him for contempt--that is really only a procedure to get something done in the action, and has nothing of a criminal nature in it.

9. In this Court, the question whether proceedings taken for the punishment of a contempt of the Court itself are proceedings taken in exercise of criminal jurisdiction was dealt with directly and decided in the case of Shyam Sunder v. Jodharaj . It is true that the question arose not on an application for leave to op-peal to the Privy Council under Clause 41 of the Letters Patent, but in an appeal to the Appellate Division of this Court from an order made by a learned Judge, sitting with the Original Side. The facts were that the plaintiff in a suit, which was being tried by the learned Judge, fell upon a prospective witness for the defendant in the verandah of the Court and, in the Judge's view, after the case had been adjourned for the day, started assaulting him on seizing him by the throat. On a petition by the person assaulted, the learned Judge held that the assault had been committed on the complainant in order to intimidate him into not deposing for the defendant and on that finding he directed the plaintiff to be committed to prison for a period of two weeks and also to pay a fine of Rs. 400/-. An appeal was taken from that order and a question arose as to whether, in view of the provisions of Clause 15 of the Letters Patent, the appeal lay. Clause 15 of the Letters Patent provides for an appeal from judgment of Judges, sitting singly subject to certain exceptions, one of which is that no appeal shall lie if the judgment was passed in the exercise of criminal jurisdiction. As to whether the order of the learned Judge had been passed in exercise of criminal jurisdiction, the Appeal Court, consisting of Harries, C. J. and Mukherjea, J., as he then was, held that it had been passed in the exercise of such jurisdiction. Mukherjea, J., who delivered the main judgment, first dealt with a certain contention raised to the effect that the distinction made in English law between civil and criminal contempt led to certain anomalies which ought not to be imported into India and pointed out that the anomalies relied on were more apparent than real. His Lordship then proceeded as follows:

"But the broad distinction made in English law between civil and criminal contempt is, in our opinion, not grounded on any technical rule of English law, but on sound juridical principles, and, in the absence of any legislative enactment on the point, we do not think that we should hesitate to adopt that. The question whether the order for committal or attachment made in a contempt case has been or has not been made in the exercise of criminal jurisdiction would in our opinion have to be determined on the ground as to whether the penalty was imposed as a method of enforcing the order or processes of the civil Court or it was a summary punishment for a criminal act which tended to impede or obstruct the course of justice. On the view we have taken, it is clear that the order complained of must be deemed to have been made by the learned Judge in the exercise of criminal jurisdiction and consequently an appeal would not lie under Clause 15 of the Letters Patent."

Harries, C. J., who concurred with Mukherjea, J., in a separate judgment also observed as follows:

"If a contempt is criminal in its nature, it is difficult to resist the conclusion that a Judge dealing with such a contempt is exercising criminal jurisdiction, English Courts have now held that a sentence passed in respect of a criminal contempt is a sentence passed in the exercise of the Judge's criminal jurisdiction."

I may point out that the last observation of the learned Chief Justice has obviously reference to such cases as (1890) 15 PD 59 (F), to which I have already referred. The principle which both Mukherjea, J., as he then was, and Harries, C. J., laid down is that proceedings taken by a Court of Record for the punishment of criminal contempt are proceedings taken in the exercise of criminal jurisdiction and that whether or not the proceedings are civil or criminal depends upon whether the contempt concerned is itself civil or criminal. If the jurisdiction exercised in the case of criminal contempt is criminal jurisdiction, it appears to me that it needs no further argument to establish that the proceedings in which such jurisdiction is excreted are criminal proceedings.

10. The view taken by this Court that the proceedings taken for the punishment of contempt would be civil or criminal in their nature according as the contempt itself is civil or criminal, is amply supported by two decisions of the Privy Council where the question of the maintainability of an appeal to that body from orders of punishment for contempt directly arose. There may be other cases in which the same views are expressed, but I have been able to lay my hands, as the argument proceeded, on these two. The first case is that of Ambard v. Attorney-General for Trinidad and Tobago, (1936) AC 322 : (AIR 1936 PC 141) (H). There, the appellant to the Privy Council had been ordered by the Supreme Court of Trinidad and Tobago to pay a fine of 25/- or in default to be imprisoned for one month for contempt of Court. The question was, as stated by Lord Atkin who delivered the Judgment of the Board, whether the Privy Council was

"incompetent to entertain an appeal from an order of a Court of Record inflicting a penalty for contempt of Court."

This point was raised, because decisions of the Privy Council on the maintainability of an appeal to that body from orders made in cases of contempt of Court were conflicting. It had been held in certain cases that a Court of Record was the sole and the exclusive authority for deciding whether any contempt of it had been committed and for determining the punishment therefor, if the finding was in the affirmative, whereas in other cases an appeal had been entertained. The case then before the Privy Council was a case where criminal contempt had been found and the Judicial Committee held that even in such cases an appeal to the Judicial Committee would lie, subject to the principles applicable to appeals in criminal cases. Inevitably, the nature of proceedings taken for the punishment of criminal contempt had to be considered and a pronouncement made.

"It is sufficient to say", observed the Privy Council "that such interferences, when they amount to contempt of Court, are quasi-criminal acts, and orders punishing them should, generally speaking, be treated as orders in criminal cases, and leave to appeal against them should only be granted on the well-known principles on which leave to appeal in criminal cases is given."

The view of the Judicial Committee thus was that a case of criminal contempt was to be treated for the purposes of an appeal to the Privy Council, as a criminal case and although the well-known principles applicable to an appeal in a criminal case would be applied, an appeal would lie when those principles were satisfied.

11. By way of contrast to that decision of the Privy Council, I may refer to another where the contempt was held to be a civil contempt and leave to appeal to the Privy Council was held to have been rightly given under Section 109(c) of the Civil Procedure Code. The case went from Patna and the facts were that certain persons, including the Secretary of State, had been found guilty of contempt of the Patna High Court, because of having committed a breach of an injunction. The appeal went to the Privy Council on a certificate granted by the High Court under Section 109 of the Civil Procedure Code and a preliminary objection was taken to the effect that the contempt was of the nature of a criminal matter and consequently the leave granted under the Civil Procedure Code was not proper leave. The Privy Council repelled that contention and observed as follows :--

"The objection is purely technical and so far as the Secretary of State is concerned, their Lordships think it now sufficiently established that a committal for a finding of contempt for breach of an injunction is not criminal in its nature and is properly dealt with under the Civil Procedure Code."

As to certain other persons who had only aided the person inhibited by the injunction in breaking it, the Privy Council found it unnecessary to decide whether, in their case, the contempt was of a criminal nature, but they observed that if the High Court had treated the case as being a petition for a breach of the injunction and given a certificate as in a civil matter, the respondents could have no cause for complaint.

12. It appears to me that the two decisions of the Privy Council, to which I have just referred, illustrate the soundness of the view taken by this Court in , that proceedings taken for the punishment of a civil contempt are civil proceedings, whereas proceedings taken for the punishment of criminal contempt are proceedings of a criminal character. This principle would apply to proceedings taken by all the High Courts contemplated by Article 134(1)(c), which are all High Courts in the territory of India, whether established originally by a Charter or established by Letters Patent and whether established before or after the Constitution, because they are all Courts of Record.

13. On behalf of the respondent Mr. Banerjee drew our attention to the decision of the Judicial Committee in the case of Parashuram Detram v. King Emperor . That was also a case where, according to the finding of the Judge who had imposed the penalty, a criminal contempt had been committed. The Judicial Committee held, as the Division Bench certifying the case as a fit case for appeal had done, that there had been no contempt and allowed the appeal. The question as to the proper order for costs then fell to be considered by their Lordships.

"Where the Crown appears," observed Lord Goddard, "to uphold a conviction in a criminal case, it is not the practice to award costs to the appellant in the event of the appeal succeeding. Although this matter is one which is known as a criminal contempt, it obviously is in a different category from the ordinary criminal case."

Mr. Banerjee contended that, according to the Judicial Committee, a case of criminal contempt was in a different category from an ordinary criminal case and, therefore, the proceeding in which the order in the present case had been made was not a criminal proceeding. In my view, the observations of Lord Goddard point to quite the contrary conclusion. When his Lordship said that a criminal contempt was in a different category from an ordinary criminal case, he obviously said that the case of such contempt was also a criminal case, although it was not one of the ordinary kind. The reason why he said that the case was in a different category from an ordinary criminal case was not that it was not a criminal case at all, but that the conduct of the Crown had been peculiar.

"It is a matter of some surprise to their Lordships" he added, "that in spite of the emphatic opinion of the Chief Justice and another Judge of the Court of which the appellant was alleged to be in contempt that no contempt had been committed, the executive should have deemed it necessary not only to appear but to have endeavoured to uphold this order."

14. In the present care, the contempt found against the petitioners is criminal contempt and the learned Judges have themselves said so. I would, therefore, hold, for the reasons I have already given, that the proceedings in which the petitioners were found guilty of contempt were criminal proceedings and, accordingly, their application made under Article 134(1)(c) of the Constitution is maintainable in law. It was pointed out by the learned Advocate General that the case of Brajanandan Sinha v. Jyoti Narain, , which was a case of criminal contempt, went to the Supreme Court on a certificate granted by the Patna High Court under Article 134(1)(c) of the Constitution and that the Supreme Court entertained the appeal as a properly certified one. It is true that no question was raised before the Supreme Court as to the validity of the Certificate, but the learned Advocate General contended, in my view rightly, that the Supreme Court must have presumed to have entertained the appeal on being satisfied that it had come to them in a proper manner. The preliminary objection that the present application is not maintainable at all must, therefore, be overruled.

15. But although the application may be maintainable, it cannot succeed unless the petitioners can make out that the case is a fit case for an appeal to the Supreme Court, Their contention before us is that it is a fit case, because there was no legal evidence before the learned Judges at all of any contempt committed by them and that, in any event, what they had done as members of a private body set up by the Corporation for the domestic purposes of that body could in no event amount to contempt of the Court where the litigation against the respondent was pending, with which litigation they had nothing whatever to do. In order to examine these contentions, it is necessary to make a brief reference to the facts of the case.

16. It appears that on 19-3-1955, one Bimala Kanta Roy Choudhury filed a petition of complaint before a Magistrate at Alipore by which he charged Mr. B. K. Sen, the respondent before us, with having committed adultery with his wife. After a protracted hearing, the case terminated on 13-7-1957, in an order of discharge made by the learned Magistrate under Section 253 (1) of the Code of Criminal Procedure. He is said to have held that no reliance could be placed upon the evidence of the prosecution witnesses examined in the case. Against that order of discharge, the complainant then moved the Sessions Judge of 24-Parganas under sec. 436 of the Code of Criminal Procedure for a further enquiry and by an order made by the learned Judge on 22-11-1957, such enquiry was directed. The matter then went back to the Magistrate and on 3-1-1958, he is said to have made a certain order for the examination of some further witnesses and also for the 'cross-examination' of a certain witness, who had never been produced at all at the trial. The accused, Mr. B. K. Sen, then moved this Court under Section 439 of the Code of Criminal Procedure against both the order of the learned Sessions Judge directing further enquiry and the order of the learned Magistrate regarding the examination and cross-examination of witnesses and obtained a Rule. That Rule was issued on 3-2-1958 and is still pending.

17. It appears that on 16-2-1958, the Mayor of the Corporation of Calcutta made a certain statement regarding the desirability of taking some steps for looking into the administration of the Corporation and on the 14th of February next, the Corporation passed a resolution by which it appointed a Special Committee, consisting of the petitioners before us

"to enquire into the allegations levelled against certain officials of the Corporation who are alleged to have been taking advantage of their high offices in carrying on business in their own names."

The resolution also contained the following sentence :

"The Committee will take up only those matters that relate to the Corporation."

The next meeting of the Corporation was held on 26-3-1958 and, at that meeting, one Satyananda Bhattacharjee, a Councillor, made a complaint that he had made certain charges against some high officials at the earlier meeting and had been asked by the Mayor to submit his papers to the Special Committee, but the Special Committee had refused to take in the papers tendered by him. On that statement being made, the Mayor asked Mr. Bhattacharjee to hand over his papers to him and added that all the papers would be sent to the Special Committee. It does not appear that any formal resolution of the Corporation was passed on 26-3-1958, but it is at the same time clear that those additional papers were sent to the Special Committee with the concurrence of at least those members of the Corporation who were present at the meeting of the 26th of March.

18. After those papers had been sent to the Special Committee and received by them, the Special Committee addressed a communication to the respondent on the 15th of April; 1958, and sent along with that letter a "synopsis'" of the cases as to which they were going to hold an enquiry. The Committee asked the respondent to meet them sometime between 10 a.m. and 11 a.m. on the next day so that the members could get the facts from him. The synopsis contains three items with sub-items under two of them, but with the first two we are not here concerned. The third item contained three sub-items numbered as III(a), III(b) and III(c). Item III(a) was to the effect that about the time when the adultery case was being tried, the respondent had given appointments to five persons who were related to certain other persons cited as witnesses in the case. Item III(b) referred to an allegation that about the same time, he had given appointments to a number of persons, of whom four were named and also condoned the punishment previously inflicted on a fifth person, as they had been helping the respondent in conducting his defence in the case. Item III(c) referred to an allegation that the respondent had been instrumental in securing the appointment of a probable prosecution witness through a third party against whom a demolition case was pending.

19. In the petition to this Court for proceedings to be taken against the petitioners for contempt, the respondent referred to the resolution passed by the Corporation on the 14th of February, 1958, but made no reference to the proceedings of the 26th of March. He stated that the rider that the enquiry would be limited to matters which related to the Corporation was added, because some of the speeches made at the meeting had made references to matters connected with the criminal case pending against him. He also stated that on the 11th of April, 1958, the Committee had examined the complainant Bimala Kanta Roy Choudhury and later on Tarak Nath Dey. According to him, the complainant had stated to the Committee names of some of the witnesses cited by him and further stated that either they or their relatives had got appointments in the Corporation of Calcutta. Tarak Nath Dey who had been charged with being an agent of the complainant's wife and a tadbirkar of the respondent had, it was said, denied the charge. The respondent also referred to the letter of the 15th of April, 1958, together with its annexures, which he had received from the Special Committee and alleged that the Committee had enlarged the scope of the enquiry directed by the Corporation and started examining witnesses and getting documents produced before them which had a direct bearing on the case pending against the respondent in this Court. The main grievance of the respondent was contained in paragraphs 12, 13 and 14 of his petition. He submitted that in the course of the proceedings under Section 497 of the Indian Penal Code, it had been alleged by the prosecution that he being an influential man and in occupation of a high office, had been exercising an undue influence and abusing his official position for the purpose of scaring away witnesses and making it impossibly for the complainant to call them in support of his allegation. The trying Magistrate, it was said, had dealt with this aspect of the matter and the Sessions Judge also had dealt with it. The question whether the respondent had really exercised an undue influence and abused his power and, by doing so, made it impossible for the complainant to examine his witnesses was, it was said, a question that was directly in issue in the proceedings pending before this Court, but the complainant had managed to examine himself before the Special Committee and to repeat the allegations there and the petitioners before us had as members of the Special Committee, allowed him to do so. They had thus constituted themselves into a parallel Court of Enquiry and embarked upon an investigation into matters vitally concerning the respondent, which were the very matters awaiting decision in the criminal proceeding pending before this Court. On those allegations, he asked for steps to be taken against the present petitioners as also the complainant by way of proceedings for contempt of Court.

20. It appears that on the application being made on the 16th of April, 1958, the learned Judges did not issue a Rule straightway, but, on the other hand, issued a notice on the present petitioners and the complainant to show cause why a Rule should not be issued. At the same time, they directed the Secretary of the Corporation to produce or cause to be produced a copy of the resolution dated the 14th of February, 1958. The notice was made returnable by 3-30 p.m. on that very day. On the next day, a Rule was issued, requiring the opposite parties to the petition to show cause why they should not be dealt with for contempt of this Court and the Courts below and it was made returnable on the 23rd of April following. On the 23rd, the learned Judges directed the opposite parties before them to produce at the sitting of the Court at 10-30 a.m. on the next day the original records of the proceedings of the Special Committee had up to that time.

21. The petitioners before us did not produce the records of the Special Committee on the ground that they were in the position of an accused in a criminal case and, therefore, they could not be required to produce any documents for the benefit of the complainant and they were also entitled to claim the privilege conferred by Article 20(3) of the Constitution. Each of them, however, filed an affidavit in which he gave a factual account of the proceedings of the Corporation of the 14th of February, 1958, and the subsequent proceedings of the 26th of March following. They said that the Special Committee had started its enquiries in terms of the resolution of 14-2-1958 and denied all the allegations made against them by the respondent, particularly the allegation that they had set up a parallel Court of enquiry for investigating matters which were awaiting decision in Courts of law. The three affidavits were in identical language and to each was annexed a copy of- the resolution of 14-2-1958, the minutes of the relevant proceedings of the 26th of March following, a charge-sheet drawn up by Satyananda Bhattacharjee, consisting of sixteen items, which had been sent to them by the Mayor and also a copy of an application dated 31-5-1955, which the complainant had filed in the Court of the Sub-Divisional Officer of Alipore and in which he had alleged that one Dhiren Mondal, along with another man, called Mihir Mazumdar, had been trying to tamper and influence certain of the witnesses in order that they might not depose against the respondent- The respondent filed an affidavit-in-reply in which he made certain statements about the manner in which the sittings of the Special Committee were being held.

22. The above were all the materials before the learned Judges. On a consideration of the materials and the submissions of the parties, they held that the opposite parties before them had all been guilty of contempt of Court. The complainant and Taraknath Dey, they found, had been examined by the Committee, although the respondent's affidavit as to their examination was said to be based on information derived from the records of the proceedings of the Committee. The importance of this finding and the qualification added will appear later. The learned Judges also found that, as admitted before them by the Advocate for the complainant, the complainant's case had throughout been that he had been prevented from proving his case by reason of the respondent's interference with certain prosecution witnesses and that the trial Court had in fact found that several of the prosecution witnesses had been won over by the respondent. The conduct of the respondent in relation to the litigation pending against him was, they found, a very serious matter and having been questioned by the complainant, it not only required a decision of the trial Court, but also fell to be determined in connection with the question whether a further enquiry should be ordered and the whole case reopened. If that was so, the learned Judges thought that the Committee had been guilty of agitating a matter which was directly and substantially in issue in the pending litigation and that what was being done by them was not only calculated to interfere with the administration of justice by the Courts of law, but also to excite prejudice against the respondent.

"There could be no manner of doubt", they observed, "that the matters referred to under items III(a), (b) and (c) of the questionnaire, which are being enquired into by the Special Committee, are also matters of which this Court is in seisin and which have yet to be determined."

In those circumstances, they held that the case before them was a clear case of contempt and that whether or not there was any possibility of the administration of justice being actually affected or whether or not the opposite parties before them had any mens rea was perfectly immaterial.

23. It appears from the judgment that the learned Judges enquired several times whether the opposite parties before them were prepared to tender an apology to the Court. The complainant did ultimately tender an apology and we are informed that he did so as the judgment was being delivered. The petitioners before us were not prepared to tender an apology, because, in their view, they Lad been merely carrying out the directions of the Corporation and holding an enquiry which had a very different scope and a very different purpose from the criminal litigation and by which they had not intended and which could not possibly tend to affect the administration of justice. The learned Judges accepted the apology of the complainant and discharged him, but they convicted and sentenced the petitioners before us in a manner I have already stated.

24. The first point urged by the learned Advocate-General on the fitness of this case for an appeal to the Supreme Court is that there was no legal evidence at all on which contempt of Court could be found against the petitioners. That argument has special reference to the manner in which the respondent's application to this Court had been affirmed. He had stated in paragraph 17 of the application that the minutes of the proceedings of the Special Committee were not open to him and he had even asked this Court to direct a production of the minutes as also the papers said to have been delivered by Satyananda Bhattacharjee. Yet he had affirmed the facts stated in paragraphs 1 to 14 of the application, which covered all the material statements of fact, as

"true to my information based on records of the proceedings of the Corporation Special Committee and the case."

It was contended that so far as the proceedings before the Committee were concerned, there was obviously no legal evidence before the learned Judges at all, because if the respondent had no access to the minutes of the Committee's proceedings, as admitted by himself, he could not possibly have derived any information from the records of the Committee. The contradiction between these two statements is obvious and I was somewhat surprised to hear the explanation offered by Mr. Banerjee. He said that paragraph 17 of the application spoke only of the 'minutes' which meant the record of the actual sittings, but the minutes could not cover the records of the depositions and other incidental papers and, therefore, the latter documents were not hit by the admission contained in paragraph 17. Asked how the respondent could have had any access even to the papers which, according to Mr. Banerjee, constituted the records as distinct from the minutes, Mr. Banerjee gave the somewhat extraordinary reply that the respondent was the custodian of all the papers of the Corporation and that, in any event, the officers serving the Special Committee were under his administrative control. I do not really know what Mr. Banerjee meant, but I hope that he did not mean that the respondent had extracted information from the stenographers or other officers serving the Special Committee or had clandestinely looked into the records at the place where they were kept. In any event, I am unable to hold that there is any proper affirmation as regards what took place at the sittings of the Committee. It was held in the old case of R v. Stanger, ( 1871) 6 QB 352 (K), that a statement resting on information and belief was not legal evidence in a case of the present kind. If that be so, then even if the affirmation be taken at its face value, there would be no legal evidence of the examination of the complainant and Taraknath Dey by the Special Committee. I need not, however, pursue this matter further because, in my view, the case cannot be said to be so devoid of evidence that we can properly make absence of evidence a ground for certifying it as a fit case for appeal. In any event, the synopsis prepared by the members of the Special Committee containing the allegations against the respondent as to which they proposed to hold an investigation was there and the learned Judges have held that by proposing to undertake such investigation, which the petitioners were undoubtedly doing, they had trespassed upon ground which, for the time being, had become the special province of the Courts of law by reason of the pending litigation and thereby they had committed contempt. As to whether the acts, evidenced by the synopsis, proposed or done, amounts to contempt of Court is quite a different matter. In my view, while the examination of the complainant and Taraknath Dey may have to be excluded as not proved by legal evidence, there remain other materials on which the learned Judges relied and the question arising out of the use they made of those materials is not one of absence of evidence, but of its sufficiency.

25. Nor do I think that the mere fact that the members of the Special Committee were carrying out a task entrusted to them by the Corporation can by itself be a complete defence to the charge of contempt of Court, and that therefore we ought to grant the certificate prayed for on that ground. It cannot seriously be contended that if only one does a certain thing for the special purposes of a private or a public body and does it for an object quite different in character, one will be absolved of the charge of contempt of Court, even if his acts may tend to interfere with the administration of justice or to create an atmosphere of prejudice against a party to a pending litigation. All that can be properly said in connection with the second ground taken by the learned Advocate-General is--although whether it will be correct on the facts or not, I do not say--that the scope of the enquiry commenced and going to be made by the Special Committee is such that there could be no chance of its impinging upon the province of the Courts of law in the pending litigation. The enquiry by the Special Committee, it may be said, would be whether the appointments had been made in accordance with the Recruitment Rules and in the ordinary way or whether they had been given by the respondent for the purpose of securing some benefit. But whether the appointments, even if given with such an object, had had the effect of actually dissuading persons who had got them or their relatives from appearing as prosecution witnesses and thus prejudicing the complainant, would not, in any view, be within the scope of the enquiry by the Special Committee. I am suggesting this only as a possible argument, but I would not make even this a ground for certifying the case as a fit case for an appeal to the Supreme Court.

26. I do, however, think that there is a point in the case which makes it a fit case for a further appeal. As has been seen, the whole basis of the finding of the learned Judges is that the question whether the respondent had given certain appointments at his disposal to some of the prosecution witnesses or their relatives with a view to keeping such witnesses away from the witness-box and whether he had by those means succeeded in keeping them away, is a question which is awaiting decision, by this Court and which the petitioners before us are also going to consider and investigate. It appears, however, that the respondent nowhere alleged in the course of his lengthy petition that the petitioners before us knew that this point was involved in the pending criminal case and that the learned Judges also have not found that they did know. They may have become aware of the pendency of a case under Section 497 of the Indian Penal Code against the respondent, but, ordinarily, one would think that the question involved in such a case would be whether or not the accused had committed the offence charged against him and therefore knowledge of the mere pendency of such a case would be no notice to anyone that any question like the decoying of prosecution witnesses was involved in the case or was awaiting decision. This point was raised by the petitioners, but in a somewhat limited and inarticulate way, when they said that they had had no mens rea. In the absence of even any allegation by the respondent that the petitioners were aware what the questions involved in the pending litigation were and that with that knowledge they were embarking upon an examination of the very same questions and in the absence of any finding to that effect by the learned Judges, the position is that, according to the decision, a person will be guilty of contempt of Court, if he does something which involves a consideration of matters involved in a case pending before a Court even if he may not know that such matters are pending, quite apart from his intending to interfere with the administration of justice in any way. It is undoubtedly the well-settled law that if what is done by a person tends to interfere with the administration of justice, then, whether or not he intends such effect and whether or not the effect is actually caused, he will be guilty of contempt of Court, but no case, of which I am aware, has yet held that a person will be guilty of contempt of Court, if he does something which bears upon matters pending decision in a criminal OK other case, even if be does them in complete ignorance that the pending case involves such matters. On the facts appearing from the record, the decision of the learned Judges amounts, in my view, to holding that not only is mens rea immaterial in a case of contempt of Court, but knowledge of the pendency of a case with respect to which interference is supposed to have been caused, is also immaterial. Whether or not this is the correct position in law appears to me to be a matter which ought to be finally and authoritatively decided.

27. I have already stated what facts the learned Judges had before them. The respondent, as I have pointed out, never alleged that the petitioners before us were aware that the question whether he had decoyed certain prosecution witnesses in the criminal case by an undue use of his influence was involved in the litigation and the learned Judges also have not found any such knowledge. There is in fact nothing even on the record to show what the ground was on which the Sessions Judge directed a further enquiry, whether he directed it on the ground that certain material witnesses for the prosecution had been tampered with by the respondent by use of his influence and by means of rewards and whether the correctness of that finding, if there be any such finding at all, is really in issue in the Rule pending in this Court. In those circumstances, the question of the knowledge of the petitioners that the point whether the respondent had bought off prosecution witnesses by giving them appointments was involved in the pending litigation becomes all the more important. It is true that the petitioners have not denied such knowledge in their affidavits-in-opposition, but if there, was no allegation in the petition, there was nothing to deny. Indeed, as was pointed out by Sir Lawrence Jenkins in the case of ILR 41 Cal 173: (AIR 1914 Cal 69) (SB) (D) a man charged with criminal contempt need not deny that which is not legally proved against him: see page 199 (of ILR Cal): (page 100 of AIR). There is, however, the synopsis and there is also evidence of the manner in which the enquiry came to be initiated and as to what the scope of the enquiry is going to be, as indicated by the impugned items in the synopsis. It appears to me that apart from the question of the petitioners' knowledge of the matters pending decision before the Court, the question whether the above facts, coupled with the examination of two witnesses by the Committee, if such examination is also taken as legally proved, constitute contempt in law is also a matter which may be said to be sufficiently important for an authoritative decision. In the case of , the Judicial Committee considered the act alleged against the contemner and found that such act did not constitute contempt at all. I would, however, not take the responsibility of making this also a ground for granting a certificate and shall leave it to the petitioners to pray to the Supreme Court for allowing them to urge it, if they are so advised. If the appeal he entertained and this point allowed to be urged, it may have to be considered what the word 'tend' really means and in what manner comment on or consideration" of matters involved in a pending litigation tends to interfere with the administration of justice even when as has been frequently said, there is not the slightest chance of the Court or the Judge being actually influenced or affected.

28. I have already indicated the question involved in the case which appears to me to make the case a fit for an appeal to the Supreme Court and have given my reasons. For those reasons, this application is allowed. Let a certificate under Article 134(1)(c) of the Constitution be drawn up and issued.

S.C. Lahiri, J.

29. I agree.