Ab.Razak Bhat vs Abdul Rehman Bhat and Ors.

Through the medium of this Civil 1st. Appeal (CIA), order dated 06.08.1999 passed by learned Single Judge in civil reference No. 7/1998

made by Additional District Judge, Srinagar with the following observations.

.... that in the facts and circumstances of the case Abdul Razaq Bhat has primafacie committed 'civil contempt' within the meaning of section 2(b)

of the Jammu and Kashmir Contempt of Courts Act, 1997 by having made wilful breach of the undertaking given in this court and apart from that

has also made wilful disobedience of several orders given in the judicial proceedings passed by this court and the Hon'ble High Court, as referred

to above"".

In recommending suitable punishment for the contemner has been challenged.

The appellant, in the impugned order has been held guilty to have been infracted Section 94 of the Jammu and Kashmir Constitution and Section

2(b) and 12 of the Contempt of Courts Act., convicted and sentenced to undergo simple imprisonment for 6 months and a fine of Rs. 2000/

indefault of payment of fine to further suffer simple imprisonment for one month.

The correctness and the validity of the order has been challenged on twin grounds: Firstly, that the contempt proceedings are time barred.

Secondly, where the procedure as contemplated under Jammu and Kashmir Contempt of Courts Act 1997 has not been followed by the leaned

Single Judge and thus, the orders suffer from legal infirmity.

Basic Facts may be noted: Appellant/contemner had executed a bond in the trial court on 08.11.1986, in undertaking to repay the decretal

amount with interest, but did not fulfil the undertaking and frustrated the proceedings.

While deciding Civil First Appeal No. 95/1986 on 3rd. Oct. 1996 a direction was given to the contemner to deposit an amount of Rs.

1,76,432.99 alongwith interest at the rate of 4% per annum within a period of six weeks, failing which he was required to pay the interest at the

Bank rate. L.P. A. No. 02/1996 preferred to impugned its correctness by the contemner stood also dismissed on 03.03.1998. The noncompliance

of this order by the contemner lead the trial court to initiate execution proceedings. The land of the contemner, however, prior to it had been

attached by the Additional District Judge, Srinagar vide his order dated 07.12.1996, which was challenged before the High Court in revision and

the Learned Single Judge disposed of the revision on 10.07.1997, with the following order:

The net result of all the orders as I feel is that money must be recovered and the reference must be decided after recovering the money the interse

claims and apportionment of amount of compensation can be decided.

The contemner did not comply with the said order and instead canvassed its correctness before the High Court in Revision Petition No. 70 of

1987. This revision came to be decided by the High Court on 26.09.1997 with the following observations:

Learned Additional District Judge is directed that he shall go ahead with the recovery proceedings and sale proceeds/auction of the properties,

both moveable and immovable whatever has been attached to recover the amount alongwith interest at the Bank rate from 11.08.1996 and in case

any amount is left out, the other properties be also attached and put to auction and sale till the amount alongwith prevalent bank rate is realized as

per orders passed by the learned Single Judge dated 03.10.1996"".

The property of the contemner was also stood attached by the Additional District Judge, Srinagar and order its sale by way of public auction,

but on account of impediment created by the contemner in one way or the other and succeeded in persistent disobedience of the court orders

deliberately and wilfully. The petitioner was found himself helpless by repeated disobedience of the court orders by Abdul Razaq Bhat contemner,

commenced an application before the Additional District Judge, Srinagar for initiating contempt proceedings against the contemner under the

provisions of Jammu and Kashmir contempt of Courts Act 1997 (hereinafter referred as ACT) and punishing the contemner for noncompliance of

the Court directions from time to time for refund/depositing of Rs. 1,76,432.99 alongwith the interest. The Additional District Judge, Srinagar

proceeded on the contempt petition dated 18.04.1998 filed by the petitioner for punishing the contemner and was of the considered opinion on the

basis of facts and circumstances of the case, that the contemner has shown scant respect for the court orders and law by his contumacious conduct

in willful disobeying the directions of the court and made a wilful breach of undertaking given to the court and should be punished for contempt of

Court by awarding suitable punishment which became the subject matter of the reference before the Learned Single Judge.

After inviting objections from the contemner, and hearing the learned counsel appearing for the parties, held the contemner guilty to have

flagrantly violated the court orders and convicted and sentenced under the 'Act' accordingly vide order dated 06.08.1999, and appealed against,

before us, by the contemner who felt aggrieved.

Heard and considered the rival contention of the parties.

The factual matrix of the case explicitly delineated in the order of reference which constituting the gravemen of the alleged contempt have not

been disputed by Mr. Z.A. Shah learned advocate appearing for the appellant. We are concerned only with the question whether the bar created

by Section 20 of the Act was attracted to the facts of the case or not as vouched by the petitioners's advocate. It is significant to point out that the

source of initiation of contempt proceedings may be suo motu, on a reference being made by the Advocate General or on Reference made by a

subordinate Court, even a litigant may also invite the attention of the court to such facts as may persuade the court, in initiating proceedings for

contempt. Such initiation of proceedings for contempt based on application of mind by the Court to the facts of the case and the material before it

must take place within a period of one year from the date on which contempt is alleged to have been committed.

The expression initiation for proceedings for contempt was dealt with by the Apex Court in Baradakanta Mishra vs. Mr. Justice Gatikrushna

Mishra, CJ of the Orissa High Court, AIR 1974 SC 2255 and also reiterated in AIR 2000 SC 1136 and held :

It is only when the Court decides to take action and initiate a proceeding for contempt that it assumes jurisdiction to punish for contempt. The

exercise of the jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt, whether suo moto or on a motion or

a reference. That is why the terminus a quo for the period limitation provided in Section 20 is the date when a proceeding for contempt is initiated

by the court"".

This question has now been settled by the Apex Court in Om Prakash Jaiswal vs. O.K. Mittal AIR 2000 SC 1136, by holding that:

It is only when the court has formed an opinion that a prima facie case for initiating proceedings for contempt is made out and that the respondents

or the alleged contemners should be called upon to show cause why they should not be punished, then the court can be said to have initiated

proceedings for contempt"".

Applying the principles, thus, initiated to the case at hand, the contemner wilfully did not fulfill the undertaking given by him in the trial court as

well as flouted the orders and directions of the High Court by not making the payment of the requisite amount, being the last order of the court

dated 26.09.1997. the contemnor did not refund/deposit the decretal amount of Rs. 1,76,432.99 alongwith interest at the rate of 4 % per annum,

incompliance to the court directions and even was not hesitant to get the land of 3rd party attached to frustrate the execution proceedings.

The petitioner/respondent invited the attention of the court to such facts pertaining to the non compliance of the directions issued by this court

from time to time and last one on 26.09.1997, by making an application dated 18.04.1998 as may persuade the court to initiate proceedings for

the contempt.

In these circumstances, we hold, that the period of limitation in this case would start from 26.09.1997 when the con tempt is alleged to have

been committed by the contemner and the initiation of proceedings for contempt based on application of mind by the Additional District Judge, to

the facts of the case and material before him had taken place on the application of the petitioner dated 18.04.1998 arid thus, the contempt is not

barred by limitation under section 20 the Act.

The contention of appellant's counsel Mr. Z.A. Shah cannot be accepted, being devoid of merit. It was next, contended by Mr. Shah,

appellants counsel that the learned Single Judge has not followed the procedure prescribed under the contempt of court Act 1997, hereinafter

referred as the (Act).

Under Section 94 of the Constitution of Jammu and Kashmir, the High Court is a court of record and it has all the powers of such court,

including the powers to punish for contempt itself or of the court subordinate to it. Where no procedure is prescribed, the High Court can

formulate its own procedure in 'contempt matters' to do substantial justice. The contemner has been found to have committed wilful dis obedience

of the directions of the Court, besides, willful breach of undertaking given to the court in revolting manner to frustrate the due process of law. To

protect the administration of justice from being maligned, it is imperative that the authority of Courts should not be imperiled and there should be

unjustifiable interference in the administration of justice, No such act can be permitted which may have the tendency to shake the public confidence

in the fairness and impartiality of the administration of justice.

The contamner in our opinion has rightly been held guilty to have wilfully infracted the directions of the court, and convicted under the

Contempt of Courts Act by the learned Single Judge, does not invite any interference in appeal.

This bring us to the question of sentence. We have reminded ourselves that in a proceeding for contempt, the court does not sentence the

contemner with any spirit of revenge, we have, therefore, no doubt whatsoever, a substantive sentence is called for, in looking to the contumacious

conduct of the contemner demonstrated in repeated disobedience to the Court directions with impunity, in this case. But even then as in a case like

this, we impose punishment, more to vindicate the dignity of the court of Justice than to punish the contemner and reduce the sentence awarded by

the Learned Single Judge to three months simple imprisonment and to pay fine of Rs. 1000/ only, in default, to suffer simple imprisonment for one

month more. With modification in the quantum of sentence, the appeal stands disposed of.