B. K. KAR vs THE CHIEF JUSTICE AND HIS COMPANION JUDGES OF THE HIGH COURT

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 58 of 1959

Decision Date: 14 March, 1961

Coram: J.R. Mudholkar, Raghubar Dayal

In the matter titled B. K. Kar versus the Chief Justice and his companion Judges of the High Court, the Supreme Court of India rendered its judgment on 14 March 1961. The opinion was authored by Justice J. R. Mudholkar, who sat on the bench together with Justice Raghubar Dayal. The judgment is reported in the 1961 volume of the All India Reporter at page 1367 and also in the 1962 Supreme Court Reports (first series) at page 319, and it is cited in the legal research compendium as R 1988 SC 1208 (40). The central question before the Court involved an allegation of contempt of court arising from an order of a superior court that had not been properly communicated to a subordinate court, and whether the Chief Justice and the other Judges of the High Court should be joined as parties to the appeal.

The factual backdrop began when, on 14 October 1955, a magistrate identified only as G was placed in possession of certain property by an order issued by the appellant. This order was later set aside by the High Court on 27 August 1957 in a revision proceeding. The opposite party, referred to as S, subsequently filed an application on 20 November 1957 before the appellant seeking the redelivery of possession. In response, G applied to the High Court on 25 November 1957 for a review of the earlier order, and the High Court admitted the application and granted an interim stay of the proceedings pending before the appellant. The following day, 26 November 1957, an application bearing an illegible signature and lacking an accompanying affidavit was filed before the appellant, asserting that the High Court had stayed the proceedings. Along with this application a telegram was submitted; the telegram was addressed to a pleader rather than to G’s counsel. The appellant declined to act upon the application and the telegram. Nevertheless, on 27 November 1957 the appellant issued an order that permitted S’s application for restitution to proceed. The next day, 28 November 1957, a copy of the High Court’s order was received by the appellant, after which the writ for redelivery of possession was not issued. The High Court thereafter convicted the appellant of contempt of court, holding that the order dated 27 November 1957 was passed in contravention of the stay that had been effected by the High Court.

The appellant challenged the conviction by filing an appeal before the Supreme Court and, in doing so, impleaded the Chief Justice and the other Judges of the High Court as respondents. The Supreme Court held that the appellant was not guilty of contempt of court. The Court explained that for a subordinate court to be deemed guilty of contempt, it must be established that the court had actual knowledge of the higher court’s order and that it intentionally disobeyed that order. Such knowledge must be derived from a source that is either authorized or otherwise authentic. In the present case, the Court found that the appellant was justified in disregarding both the application with the illegible signature and the telegram, as neither constituted a proper communication of the High Court’s stay. Consequently, the appellant could not be said to have willfully violated the higher court’s directive. Moreover, the Court ruled that the Chief Justice and the Judges of the High Court should not be made parties to a contempt proceeding; the appropriate style for the proceeding should be “In re … the alleged contemnor.” The judgment was issued in Criminal Appeal No. 58 of 1959, an appeal by special leave from the judgment and order dated 7 November 1958 of the Orissa High Court in the original criminal matter.

The appeal arose under special leave and was filed by the appellant who had been convicted of contempt of court by the High Court of Orissa. The appellant’s counsel consisted of A.V. Viswanatha Sastri, H. B. Khanna and T. M. Sea. The respondents were represented by H. N. Sanual, the Additional Solicitor‑General of India, together with B. M. Patnaik, S. N. Andley, J. B. Dadachanji and Ramewar Nath on behalf of respondent No. 1. The judgment was delivered on 14 March 1961 by Justice Mudholkar.

The appellant challenged the conviction for contempt of court, arguing that the High Court’s judgment was erroneous. In the same procedural context, another criminal appeal, identified as criminal appeal 2 of 1960, also contested a conviction for contempt rendered by the same High Court. In both matters the Chief Justice and the other judges of the High Court of Orissa had been joined as respondents.

The Additional Solicitor‑General, who appeared for a limited purpose, raised the issue of whether it was necessary to make the Chief Justice and the other judges parties to an appeal that questioned a contempt conviction. He observed that the practice in England was to title contempt proceedings simply “in re …” followed by the name of the alleged contemnor, and that this convention was also followed in appeals arising from contempt matters in that jurisdiction.

The Court noted that, although Indian practice in appeals to the Privy Council from contempt convictions of High Courts, as well as earlier decisions of this Court, had traditionally named the Chief Justice and the judges of the concerned High Court as respondents, the British authority in Ambard v. Attorney‑General for Trinidad and Tobago demonstrated that the Attorney‑General could be made a party to an appeal. The Court therefore recognized that the question raised by the Additional Solicitor‑General was of some importance and warranted a definitive answer.

In addressing the procedural principle, the Court explained that every suit or appeal must include as parties those persons who claim relief, those against whom relief has been granted, or any individuals who have a right to be heard because they possess a direct interest in the outcome. The Court emphasized that judges who, acting in their judicial capacity, try a person for contempt and impose a conviction are not parties with a personal stake in the ultimate result; they are merely decision‑makers, similar to judges who adjudicate ordinary suits, petitions, appeals or references.

Having clarified the role of judges in contempt proceedings, the Court concluded that there is no justification for the long‑standing Indian practice of rendering the Chief Justice and the other judges of a High Court parties to an appeal challenging a contempt conviction. The Court observed that this practice is neither necessary nor appropriate, and it diverges from the approach followed in England, where the title of such appeals is “in re … (the alleged contemnor).” Consequently, the Court recommended that the existing practice be discontinued and that future appeals of this nature should adopt the English convention.

The Court observed that individuals should be made parties to a legal proceeding only when some relief is claimed against them, and noted that in a contempt matter no relief is sought against the Chief Justice or the Judges of the High Court. Accordingly, the Court urged that the existing practice of joining the Chief Justice and the Judges as parties to an appeal against a contempt decision be discontinued, and suggested that, following the practice in England, such proceedings be titled “in re ……… (the alleged contemner)”. Turning to the merits, the appellant was then the Sub‑Divisional Magistrate at Dhenkanal in the year 1957. In a criminal case reported as (1)(1936) A.C. 322, a Magistrate of the third class at Dhenkanal had passed an order under section 522 of the Criminal Procedure Code placing the complainant, one Golam Mohammed, in possession of certain property. 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 in a revision dated 27 August 1957. The opposite party, Sarif Beg, then filed an application on 20 November 1957 before the appellant seeking the 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 ready, so the case was adjourned to 27 November 1957. On that date the appellant allowed the application and directed compliance by 2 December 1957. While these proceedings continued, the complainant filed an application before the High Court for a review of its earlier order. By an order dated 25 November 1957, Justice P. V. Balakrishna Rao admitted the application and granted an interim stay of the proceedings before the Sub‑Divisional Magistrate, although he did not order that the stay be communicated to the magistrate by telegram. On 26 November 1957 an application bearing an illegible signature was filed with the magistrate, stating that the petition was not maintainable, that the opposite party had again approached the Hon’ble High Court, and that further proceedings should be stayed pending disposal of the opposite party’s revision. The phrase “opposite party” evidently referred to the applicant himself, and “revision” referred to his review application. Along with this application the complainant sent a telegram to the pleader at Dhenkanal stating “Golam Mohammed’s case further proceedings stayed, Ram”. The order sheet of the magistrate did not show that the pleader represented the complainant, but the Court assumed he did. No clarification was provided about the identity of “Ram”, nor was there any indication that he was the counsel who had appeared for the complainant before the High Court. It appeared that on 25 November 1957 the Sub‑Divisional Magistrate was away from the headquarters, and a second officer directed that the application be placed before the magistrate upon his return.

Before the Sub‑Divisional Magistrate returned to his post, the telegram urging that the further proceedings be stayed was presented to him. The Sub‑Divisional Magistrate declined to act upon the telegram and, on 27 November 1957, entered an endorsement on the document identified as the complainant’s application, stating that no action could be taken on the telegram and that the file should be kept. Following this endorsement, he issued his order concerning the opposite party’s application for restitution. On the next day, 28 November 1957, a copy of the High Court’s order was received at Dhenkanal. At that time the Sub‑Divisional Magistrate was absent, and the second officer made an entry in the order‑book noting that he had seen Administrative District Magistrate’s D.S. No. 326 dated 28‑11‑57 and that, in Criminal Miscellaneous Case No. 90/57, the Hon’ble High Court had stayed further proceedings. The entry directed that the stay be observed, that the matter be placed before the Sub‑Divisional Magistrate, and that the parties be informed. As a result of this endorsement, no writ for re‑delivery of possession was issued and the status quo was thereby preserved.

When the High Court later examined the records on 18 August 1957 in connection with the complainant’s review application, it 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 responded with a lengthened statement in which he recounted the facts and asserted that he had no intention whatsoever to disobey or go beyond the orders and directions of the High Court. He explained that his order of 27 November 1957 was issued because the complainant’s application for a stay was not accompanied by an affidavit and was not signed by either the complainant or his counsel. He further pleaded that he should not be held liable for contempt, emphasizing that he had “no intention to prejudice or affect the course of justice in the disposal of the matter pending before the High Court,” and that he had acted in good faith while performing his official duties. He concluded by expressing that, should the Court, after considering his explanation, deem him guilty of disobeying its order, he would regret the act and tendered an apology for his conduct. The Court treated this apology as merely conditional and refused to accept it.

After a detailed consideration of the relevant case law on the disobedience of superior‑court orders by subordinate courts, the High Court held the Sub‑Divisional Magistrate guilty of contempt and imposed a fine of one hundred rupees. The same order also dismissed the complainant’s review application. The Court explained that, for a subordinate court to be deemed contemptuous for disobeying a superior court’s order, it must be shown that the disobedience was intentional. An intention to defy the order cannot be inferred unless the person charged had actual knowledge of the order. If a subordinate court acts in complete ignorance of the superior court’s directive, such conduct does not constitute intentional disobedience and therefore does not amount to contempt of court.

It may be possible that an order which was disobeyed could be understood in two reasonable ways and that the subordinate court adopted one of those understandings, even though that understanding differed from that intended by the superior court. In such a circumstance it cannot be said that the subordinate court’s failure to follow the order amounted to contempt of the superior court. There could also be a situation where the failure to obey was accidental; if the disobedience was accidental, contempt would not arise. Consequently, to establish contempt in a case of this type it is essential to prove that the subordinate court was aware of the High Court’s order and that, with that knowledge, it deliberately chose to disregard it. That knowledge must be derived from a source that is either authorised or otherwise trustworthy. In the present matter the identity of the person who signed the application dated 27 November 1957 is uncertain because the signature cannot be read. The application was not countersigned by a pleader, nor is there any indication that it was presented in court by a pleader who had authority to appear for the complainant. Moreover, the application was not accompanied by an affidavit. Therefore, there could be no assurance that the facts stated in the application were true – the in. Although the application was accompanied by a telegram addressed to a pleader, there is no evidence that the pleader was authorised to represent the complainant. It is also impossible to determine the capacity in which the sender of the telegram acted. Had the telegram been received directly from the court or from an advocate who was appearing for the complainant before the High Court, and had it been addressed to the court or to the complainant’s pleader, different considerations would have arisen and the Court might have been able to treat the contents of the telegram as authentic. The Court does not intend to declare that every telegram signed by an advocate or a pleader automatically guarantees the truth of its contents or confirms that it was actually sent by the person named.

To satisfy the Court on these points an affidavit from the party would be required. After examining the material before it, the Court is satisfied that the Sub‑Divisional Magistrate was justified in disregarding both the telegram and the application. Accordingly, the Court holds that the magistrate’s refusal to act on the telegram did not constitute contempt of court. The Court further notes that when a copy of the High Court’s order was received through the Additional District Magistrate, not only were the further proceedings stayed, but a writ for re‑delivery of possession was also refused. This clearly indicates that neither the Sub‑Divisional Magistrate nor the second officer intended to defy the High Court’s order. As a result, the conviction and the fine imposed on the magistrate are erroneous and are hereby set aside.

The Court observed that the appellant’s submission was mistaken and therefore the order on which the appellant relied was declared erroneous. In light of that finding, the Court set aside the impugned order. Consequently, the Court granted the relief sought by the appellant and entered a judgment allowing the appeal. The effect of the judgment was that the earlier determination, which had been challenged by the appellant, was annulled, and the appellant’s case was approved. The Court’s decision thus reversed the prior ruling and affirmed the appellant’s position by permitting the appeal to succeed.