Brijvallabh vs A.R. Khan

K.N. Wanchoo, C.J.—This is an application for contempt of court by ''Brijvallabh against Shri Abdul Rashid Khan, Superintendent of Police, Special Police Establishment, Government of India, Jaipur.

The facts of the case are not in dispute. It appears that one Sub-Inspector Lalchand is working under the opposite party. The applicant filed a complaint u/s 500 of the Indian Penal Code against Sub-Inspector Lalchand in the court of Magistrate First Class, Kanod. Summons was issued by that court for the appearance of Sub-Inspector Lalchand and the date fixed was 21-11-1957.

The summons was sent in accordance with section 72 (i) of the Code of Criminal Procedure to the opposite party for service on his subordinate. The opposite party returned the summons unserved on the ground mat Sub-Inspector Lalchand was busy with investigation of some important case and, therefore, service could not be effected on him on account of his preoccupation. It was also requested that some other date in January 1958 be kindly fixed for the appearance of Sub-inspector Lalchand.

The applicant contends that this amounted to contempt or court inasmuch as it obstructed the administration of justice, as the opposite party did not serve the summons as he should have done on his subordinate.

The opposite party has filed a reply and has said that he had no intention whatsoever to commit contempt of court and has tendered unconditional apology, in case this Court is of the view that his action in making that endorsement on the summons amounted to contempt of court.

We have given the matter our earnest consideration and are of opinion that when a summons is received by a superior officer u/s 72, it is his duty to serve that summons. If for any reason his subordinate cannot appear on the date fixed for his appearance in court, an application may be made after service of summons either by the superior officer or by the subordinate himself requesting the court to adjourn the case and we have no doubt that if the application is bona fide, courts will accom-''modate Government servants in ''the matter.

But it would be contempt of court in our opinion for a superior officer to whom summons is sent u/s 72 Cr. P. C. to refuse to serve it on any ground other than that the subordinate officer was not available to the superior officer for service of summons as for example when he is on leave.

In this particular case, we are satisfied that the opposite party had no intention of committing any contempt of court, and that it was only a mistake on his part that he did not follow the course we have indicated above, namely serving the summons and then requesting the court for an adjournment. In the circumstances, we accept the apology and pass no further orders in the matter. Parties will bear their own costs.