Anil R. Dave, J.— Being aggrieved by the judgment dated 22-12-1997 delivered by the High Court of Judicature at Bombay in Sumermal Mishrimal Bafna v. Vilas V. Sanghai 1997 SCC OnLine Bom 558, (1998) 2 Mah LJ 1, Criminal Appeal No. 181 of 1998 has been filed by Vilas V. Sanghai against the order of punishment imposed upon him under the provisions of the Contempt of Courts Act, 1971 (hereinafter referred to as “the Act”) and Criminal Appeal No. 210 of 1998 has been filed by the State of Maharashtra for setting aside the said judgment.
2. The facts giving rise to the present litigation in a nutshell are as under.
3. As two appeals have been filed against the same judgment, for narration of the facts, we have referred to the facts from Criminal Appeal No. 181 of 1998, which has been filed by Vilas V. Sanghai, a Police Inspector, who was entrusted with the investigation of a case filed against Respondent 1, Sumermal Mishrimal Bafna, a Trustee of Bafna Charitable Trust. Respondent 1, who is aged about 64 years and is having some heart ailment, claims to be a man with good reputation. A private complaint was filed against Respondent 1 by Shri Umesh Karia to the effect that Respondent 1 had committed an offence punishable under the provisions of Section 420 read with Sections 120-B and 109 of the Penal Code, 1860. Investigation in relation to the said complaint had been entrusted to the appellant, who was attached to the Crime Branch at the relevant time.
4. Respondent 1 had an apprehension that he might be arrested in the course of investigation and therefore, he had filed an application for anticipatory bail. During the pendency of the said anticipatory bail application, the appellant used to remain present to brief the learned Public Prosecutor, who was opposing the said application. No interim order was passed in the said application when the application was being heard but in the presence of the appellant and in pursuance of the instructions given by the appellant, the learned Public Prosecutor had made a statement that during the pendency of the said application, Respondent 1 would not be arrested, provided Respondent 1 would cooperate with the police in the investigation.
5. In spite of the aforestated assurance given to the court by the learned Public Prosecutor in pursuance of the instructions given by the appellant, Respondent 1 was arrested on 21-9-1993, though hearing of the anticipatory bail application was fixed on 22-9-1993. The case made out against the appellant was that after the arrest, Respondent 1 was handcuffed and was photographed in handcuffed condition and the said photograph had been published in local newspapers. Publication of such a photograph adversely affected the reputation of Respondent 1.
6. In the aforestated circumstances, Respondent 1 had initiated contempt proceedings against the appellant as the appellant had committed breach of an assurance given to the court through the learned Public Prosecutor that Respondent 1 would not be arrested during the pendency of the anticipatory bail application.
7. In the aforestated contempt proceedings, defence of the appellant was that the assurance or undertaking which had been given to the court was conditional. The condition was that Respondent 1 would extend his cooperation in the investigation, but as Respondent 1 was not cooperative and was deliberately trying to create hurdles in the investigation, the appellant was constrained to arrest Respondent 1 on 21-9-1993.
8. After hearing the parties concerned and looking at the record, the High Court came to the conclusion that the appellant was guilty of committing contempt of court and was, therefore, sentenced to simple imprisonment for 7 days with a fine of Rs 2000.
9. The learned counsel appearing for the appellant submitted that the appellant had not committed criminal contempt, as alleged or otherwise. The main thrust of the argument of the learned counsel was that the provisions of Section 15 of the Act had not been complied with before passing the impugned order punishing the appellant for committing criminal contempt of court. He also submitted that there was no breach of any undertaking or assurance given to the court as the assurance given on behalf of the appellant was conditional. By not extending cooperation to the investigating agency, Respondent 1 had committed breach of his assurance and therefore, undertaking given by the appellant had also come to an end.
10. So far as the legal provisions are concerned, he submitted that the provisions of Section 15 of the Act ought to have been complied with for initiating proceedings for punishing the appellant for criminal contempt. In the instant case, the action was not initiated on a motion made by the Advocate General or on a reference made by the subordinate court concerned as per the provisions of Section 15 of the Act. For the aforestated reason, the entire proceedings were vitiated.
11. On the other hand, the learned counsel appearing for Respondent 1 supported the order passed by the High Court and submitted that there was clear violation of the undertaking given by the appellant to the court. He stressed on the fact that the application for anticipatory bail was to be heard on 22-9-1993 and Respondent 1 was arrested on 21-9-1993. There was no justifiable reason for arresting Respondent 1 a day before the date of hearing. The appellant could have very well waited for a day and could have made the grievance before the court that Respondent 1 was not cooperative and therefore, the investigation was adversely affected, if the averment with regard to non-cooperation of the appellant was correct. Instead of waiting for a day, in a hot haste, the appellant arrested Respondent 1 on 21-9-1993 and the said fact clearly denotes that the appellant had very scant respect for the assurance given by him to the court. He, therefore, submitted that the impugned order is just and proper and therefore, the appeal deserved dismissal.
12. We have heard the learned counsel and have recorded the facts of the case.
13. We find substance in what has been submitted by the learned counsel appearing for the appellant.
14. The impugned order is in violation of the provisions of Section 15 of the Act. The relevant portion of Section 15 reads as under:
“15. Cognizance of criminal contempt in other cases.—(1) In the case of a criminal contempt, other than a contempt referred to in Section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by—
(a) the Advocate General, or
(b) any other person, with the consent in writing to the Advocate General, or
(c) in relation to the High Court for the Union Territory of Delhi, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf, or any other person, with the consent in writing of such Law Officer.
(2) In the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate General or, in relation to a Union Territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.
(3)***”
15. In the instant case, the alleged criminal contempt was of a subordinate court and therefore, the action could have been taken on a reference made to the High Court by the subordinate court or on a motion made by the Advocate General, but the proceedings had been initiated in pursuance of an application submitted by Respondent 1. From the record, we do not find that the learned Advocate General had ever given his consent for initiation of the said proceedings.
16. Without going into the facts of the case, only on this limited ground that the criminal contempt proceedings had not been initiated as per the provisions of Section 15 of the Act, in our opinion, the proceedings are vitiated and therefore, the impugned order passed by the High Court is neither just nor legal and therefore, we set aside the impugned order 1997 SCC OnLine Bom 558, (1998) 2 Mah LJ 1.
17. The appeals are accordingly disposed of as allowed.