B.K. Kar vs The Chief Justice And His Companion

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 14 March, 1961

Coram: J.R. Mudholkar, K. Subba Rao, Raghubar Dayal

In this matter, the appellant who had been convicted of contempt of court by the High Court of Orissa filed a special leave appeal challenging that conviction. The same appeal, together with criminal appeal number two of 1960 in which another individual was contesting his own contempt conviction by the same High Court, named the Chief Justice and the other Judges of that High Court as respondents. The learned Additional Solicitor General, who appeared for a limited purpose, argued that it is unnecessary to make the Chief Justice and the Judges parties in such contempt matters. He observed that in England contempt proceedings are ordinarily styled “in re … (name of the alleged contemner)”, and that this convention is also followed in English appeals. The Court, however, noted that in appeals to the Privy Council arising from contempt convictions by Indian High Courts, as well as in appeals before this Court, the Chief Justice and the Judges of the relevant High Court have been joined as respondents. The Court also referred to Ambard v. Attorney‑General for Trinidad & Tobago [(1936) A.C. 322.] where the Attorney General was made a party to the appeal. The point raised by the learned Additional Solicitor General was considered significant, and the Court expressed a desire to resolve the issue.

In every suit or appeal, it is well established that persons who claim relief, against whom relief has been granted, or who assert a right to be heard must be made parties because they possess a direct interest in the outcome. By contrast, when Judges of a High Court try a person for contempt and impose a conviction, those Judges are merely adjudicating the matter and do not have a personal stake in the ultimate result in the manner in which a litigant does. Their decision in a contempt case is akin to any other decision they render in suits, petitions, appeals or references that come before them. Accordingly, the Court found that there is no justification for the long‑standing Indian practice of joining the Chief Justice and the other Judges of the High Court as parties to an appeal against a High Court decision in a contempt matter. The Court further observed that it is neither necessary nor appropriate to make the Chief Justice and the Judges parties to such proceedings unless a specific relief is sought against them. Consequently, the Court deemed that the existing practice should be discontinued and that the title of such proceedings should follow the English model, using the form “in re … (the alleged contemner)”.

In the Court’s view, a legal proceeding should involve a party only when some relief is sought against that party. In a contempt proceeding no relief is ever claimed against the Chief Justice or the Judges of a High Court, and therefore such officials should not be made parties to the appeal. The Court observed that the existing practice of naming the Chief Justice and High Court Judges as parties to a contempt appeal must be abandoned. Instead, following English practice, the title of such proceedings should be expressed as “in re … (the alleged contemner)”. The Court then turned to consider the substantive issues of the case.

The appellant had been serving as the Sub‑Divisional Magistrate at Dhenkanal in 1957. Earlier, a Magistrate of the third class in Dhenkanal had issued an order under section 522 of the Criminal Procedure Code, granting possession of certain property to the complainant, Golam Mohammed. That order was executed on 14 October 1955 and was subsequently confirmed by the Additional District Magistrate on appeal. However, the High Court set aside that order by revision on 27 August 1957. Thereafter, the opposite party, Sarif Beg, filed an application on 20 November 1957 before the appellant seeking redelivery of possession. Golam Mohammed opposed the application. The appellant heard the matter on 21 November 1957 and reserved his decision for 23 November 1957, but the order was not prepared and the matter was adjourned to 27 November 1957, when the application was allowed and compliance was ordered by 2 December 1957. While these proceedings were pending, the complainant filed an application in the High Court for a review of its earlier order. By an order dated 25 November 1957, Justice P. V. Balakrishna Rao admitted the review application and granted an interim stay of the proceedings before the Sub‑Divisional Magistrate, although he did not direct that the order be sent to the Magistrate by telegram. On 26 November 1957 an application bearing an illegible signature was presented to the Magistrate stating that the petition was not maintainable, that the opposite party had again approached the High Court, and that further proceedings were stayed pending disposal of the opposite party’s revision. The phrase “opposite party” referred to the applicant himself, and “revision” denoted his review application. Along with this, the complainant sent a telegram to Mr Neelakanth Misra, Pleader, Dhenkanal, reading “Golam Mohammad’s case further proceedings stayed, Ram”. The record does not show that Mr Misra represented the complainant before the Magistrate, but the Court assumed he did. The identity of “Ram” was not explained, nor was any suggestion made that he was the advocate who had appeared for the complainant before the High Court. It appeared that on 25 November 1957 the Sub‑Divisional Magistrate was away from headquarters, and consequently a second officer directed that the application be placed before the Sub‑Divisional Magistrate upon his return.

After the Sub‑Divisional Magistrate received the telegram, he declined to act upon it. Instead, on 27 November 1957, he entered an endorsement on the document that was said to be the complainant’s application, stating that no action could be taken on a telegram and that the file should be retained. He then proceeded to issue his order concerning the opposite party’s application for restitution. A copy of the High Court’s order reached Dhenkanal on 28 November 1957. On that same day the Sub‑Divisional Magistrate was not present, and the second officer made an entry in the order‑book indicating that he had seen Administrative Deputy Magistrate’s D.S. No. 326 dated 28‑11‑57, that in Criminal Miscellaneous Case No. 90/57 the Hon’ble High Court had stayed further proceedings, that the further proceedings should remain stayed, that the matter should be placed before the Sub‑Divisional Magistrate, and that the parties should be informed.

Because of that entry, no writ for re‑delivery of possession was issued, and consequently the existing situation remained unchanged. When the records were examined on 18 August 1957 in relation to the review application filed by the complainant, the High Court ordered that a notice be issued to the appellant on 25 August 1958, requiring him to show cause why he should not be committed for contempt. The appellant submitted a lengthy statement in which he explained all the facts. He asserted that he had not the slightest intention to disobey or go beyond the orders and directions of the High Court. He explained that he had passed the order dated 27 November 1957 because the complainant’s application for a stay was not accompanied by an affidavit and was neither signed by the complainant nor by his lawyer. He further contended that he should not be held liable for contempt because he had “no intention to prejudice or affect the course of justice in the disposal of the matter pending before the High Court,” and he maintained that he had acted in good faith while discharging his official duties.

In the final part of his statement, the appellant declared that if, after considering his explanation, the Court found him guilty of disobeying its order, he would express regret and tender an apology for his conduct. The Court regarded this apology as merely conditional and refused to accept it. After an extensive examination of the relevant case law on disobedience of orders by subordinate courts, the High Court concluded that the Sub‑Divisional Magistrate was guilty of contempt and imposed a fine of Rs 100. The same order also dismissed the complainant’s review application.

The Court further observed that, for a subordinate court to be held guilty of contempt for disobeying a superior court’s order, it must be shown that the disobedience was intentional. The Court emphasized that an intention to disobey cannot be inferred unless the person charged had actual knowledge of the order. If a subordinate court acted in complete ignorance of the superior court’s order, such conduct could not be characterized as intentional disobedience and therefore would not constitute contempt of court.

It was observed that an order from a higher court might be open to more than one reasonable interpretation, and a lower court could understand the order in a way that differs from the intention of the higher authority. However, such a mismatch in interpretation does not automatically constitute contempt of the superior court. The possibility also exists that a lower court might fail to comply with an order unintentionally. In circumstances where the non‑compliance is accidental, no contempt arises. Consequently, to establish contempt, it must be shown that the lower court was aware of the higher court’s order and, having that knowledge, deliberately chose to disregard it. That knowledge must be derived from a source that is either formally authorised or otherwise reliable. In the present case, the identity of the person who signed the application dated 27 November 1957 could not be determined because the signature was unreadable. The application had not been countersigned by any counsel, nor was there any indication that it had been presented in court by a lawyer authorised to represent the complainant. Moreover, the application was not supported by an affidavit, leaving the truth of the statements contained in it unverified. Although the application was accompanied by a telegram addressed to a pleader, there was no evidence that the pleader had authority to act for the complainant, nor was the capacity of the telegram’s sender established. Had the telegram originated from the court itself or from an advocate who was actively appearing before the High Court on behalf of the complainant, and had it been addressed either to the court or to that advocate, different considerations might have applied, potentially allowing the court to treat the information as bearing the necessary stamp of authenticity. The court expressly declined to prescribe a rule that every telegram appearing to be signed by an advocate or pleader automatically guarantees the truth of its contents or confirms that it was indeed sent by the person named. To satisfy the court on such matters, an affidavit from the concerned party would be required.

Having examined the material before it, the court concluded that the Sub‑Divisional Magistrate was justified in ignoring both the telegram and the application. Accordingly, the magistrate’s decision not to act on the telegram did not constitute contempt of court. It was further noted that, upon receipt of a copy of the High Court’s order through the Additional District Magistrate, subsequent proceedings were stayed and a writ for re‑delivery of possession was not allowed to be issued. This sequence of events demonstrated clearly that neither the Sub‑Divisional Magistrate nor the subsequent officer intended to defy the High Court’s order. As a result, the conviction and the fine imposed on the appellant were held to be erroneous and were set aside. The appeal was therefore allowed.

After reviewing the material presented before it, the Court concluded that the conviction recorded against the appellant, together with the monetary penalty that had been imposed, was mistaken. Accordingly, the Court set aside both the conviction and the fine, erasing the legal effect of those orders. On the basis of that determination, the Court then granted the relief sought by the appellant and allowed the appeal that had been filed against the earlier judgment.