COURT ON ITS OWN MOTION vs STATE

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order: 26th April, 2024
+ CONT.CAS(C) 436/2010
COURT ON ITS OWN MOTION ….. Petitioner
Through: Ms. Zeba Khair, Advocate
versus
STATE ….. Respondent
Through: None
CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
CHANDRA DHARI SINGH, J (Oral)
1. The relevant facts of the present petition are as follows:
a) The Predecessor Bench of this Court, vide order dated 3rd November, 2003, allowed Criminal Misc.(M) 2194/2003, in favour of the present contemnors/petitioners therein holding that the contemnors are not liable for the offences alleged against them under the Price Chits and Money Circulation Scheme (Banning) Act, 1978.
b) Vide the above said order, it was held that the payment of the purchasers shall be made through the frozen account of company, i.e., M/s Maple Leaf Trading International Ltd. The relevant extract of the aforementioned order is reproduced herein below:
“…..22. In order to be fair to the petitioners as well as investors a letter of this intention shall be sent to all such subscribers besides being published atleast in five Daily National Newspapers. The payment of the money to the said purchasers who entered into the agreement for sale shall be made through the frozen account as the amount which was frozen was towards the bank account in which the money received from the purchasers was deposited. However at the first instance the petitioners shall make written request for making the refunds from the frozen account.………
23. In the result the petition is allowed. The impugned order framing the charges for the aforesaid offences is set aside with aforesaid direction…..”

c) Thereafter, in the year 2005, one Shri Jaipal Sharma (one of the respondents in Criminal Misc.(M) 2194/2003), filed an application under Section 482 of Code of Criminal Procedure, 1973, bearing no. Criminal M.C 1691-1701/2005, seeking initiation of contempt proceedings against the present contemnors alleging non-compliance of the directions passed in the order dated 3rd November, 2003.
d) The Predecessor Bench of this Court, while hearing the aforementioned application, passed an order dated 15th December, 2006, recording the undertaking given by the counsel appearing on behalf of the present contemnors/petitioners therein. As per the said undertaking the petitioners undertook to fully comply with the directions contained in the order dated 3rd November, 2003, within a period of two months. The relevant extracts from the said order are reproduced herein below:
“…..These Petitions are disposed of in view of the undertaking by the counsel for the non-applicants, that is the petitioners in Crl. M (M)No.219/2003, which was decided on 03.11.2003 that the directions given in the said judgment dated 03.11.2003 shall be complied with fully within a period of two months.
These Petitions are disposed of..”

e) Thereafter, on 19th December, 2006, the contemnors herein filed an application bearing no. 14583/2006, seeking recall of the order dated 15th December, 2006, on the ground that the undertaking given by the counsel for the petitioners was wrongfully tendered.
f) In the above said application, it was contended that the present contemnors/petitioners therein were incompetent to comply with the directions contained in the order dated 3rd November, 2003 due to passing of the order dated 20th February, 2006 by the Hon’ble Supreme Court in SLP (Crl.) 674/2006, wherein the Court stayed the operation of the order dated 3rd November, 2003 passed by the Predecessor Bench of this Court in Criminal Misc.(M) 2194/2003. The relevant portion of the order dated 20th February, 2006 is reproduced herein below:
“..There shall be stay of High court’s order so far as respondent No.1 is concerned, the stay shall only be on the entitlement for refund pursuant to the tribunal’s order. This order is being passed considering the statement made by learned counsel for respondent No.1 that there shall be no remittance by the Bank in the present case. So far as rest of the respondents are concerned, there shall be stay or High court’s order..”

g) Subsequently, the application bearing no. 14583/2006 was disposed of vide order dated 20th March, 2008, due to non-appearance of the counsel for the present contemnors/petitioners therein.
h) Pursuant to the same, the present contemnors/petitioner therein filed another application bearing no. Crl. M.A 6768/2008, seeking recall of the order dated 20th March, 2008.
i) Thereafter, vide order dated 22nd April, 2010, the Predecessor Bench of this Court dismissing the aforementioned application issued a show-cause notice to the present contemnors seeking an explanation as to why contempt proceedings shall not be initiated against the petitioner for violating the undertaking tendered on 15th December, 2006. The relevant extract from the said order is reproduced herein below:
“…..Since the proceedings of 15th December, 2006 record the presence of the counsel for the petitioners as well as the undertaking given on their behalf acting upon which the contempt petition filed by Mr. Jaipal Sharma came to be disposed of without going into the question of commission of contempt I am of the view that there is not scope whatsoever for recalling the order dated 15th December, 2006 on the ground that the counsel who had appeared on that date was a proxy counsel. This application is consequently dismissed.

While dismissing this application of the petitioners I am also of the view that whether or not there was any non-compliance of the directions dated 3rd November, 2003 there is definitely a non-compliance of the undertaking given to this Court by the petitioners on 15th December, 2006. Instead of honouring that undertaking given to the Court they have come forward to have that order recalled and undertaking withdrawn. At least this conduct of the petitioners of Crl.M(M) 2194/03 justifies initiation of fresh contempt proceedings against them for having violated undertaking given to this Court.

The petitioners are accordingly called upon to show cause as to why they be not prosecuted for their having violated the undertaking given to this Court on 15th December, 2006. Reply to this show cause notice be filed before the next date. The notice be served upon the petitioners/contemnors for 9th August, 2010.

Registry is directed to make a separate file of present contempt proceeding in which a copy of the present order be kept and it be listed as a “Suo moto contempt petition”……”

j) In view of the above findings and issuance of the show-cause, this Court on its own motion, initiated contempt proceedings against the contemners herein.
2. In response to the above show cause notice, the learned counsel appearing on behalf of the contemnors have filed their reply wherein, the instant contempt petition has been vehemently opposed and it has been submitted therein that the premise of the present petition is nothing but a bona fide error committed by the proxy counsel appearing on behalf of the contemnors.
3. It is submitted that the directions charted out by the Predecessor Bench of this Court vide order dated 3rd November, 2003, were conditional as the said order categorically stated that the release of funds in question to the purchasers who entered into the agreement for sale shall be made through the frozen account of the company.
4. It is submitted that the de-freezing of bank accounts was stayed by the Hon’ble Supreme Court vide order dated 20th February, 2006, passed in SLP (Crl.) 674/2006 hence, there was no question of complying with the directions contained in order dated 3rd November, 2003.
5. It is further submitted that the release of funds as sought by Shri Jaipal Sharma is not possible due to the fact that the Predecessor Bench of this Court vide order dated 3rd November, 2003, categorically directed the contemnors/petitioners therein to release the funds in question from the frozen accounts of the company, whereas the de-freezing of the accounts in question was stayed by virtue of the order dated 20th February, 2006 passed by the Hon’ble Supreme Court.
6. It is submitted that the undertaking tendered by the counsel for the contemnors was on account of a bona fide mistake and the said undertaking was given by the proxy counsel who was not well versed with the facts and circumstances of the case. It is further submitted that it was on account of his bona fide mistake that the application bearing no. 14583/2006, seeking recall of the order dated 15th December, 2006 was filed by the present contemnors.
7. It is submitted that it is a settled position of law that a party on whose behalf a statement is made by the counsel, the said party is at liberty to approach the Court at the earliest and rectify the bona fide mistake.
8. It is submitted that the undertaking given before this Court was neither intentional nor deliberate rather it was a bona fide error for which an unconditional and unquantified apology is tendered before this Court for causing such prolonged inconvenience.
9. In view of the foregoing submissions, the learned counsel for the contemnors submitted that the instant contempt petition being devoid of any merit may be dismissed.
10. Heard the learned counsel for the parties and perused the contents of the reply filed to the show cause dated 22nd April, 2010 as well as the relevant orders referred in the factual matrix.
11. Before delving into the facts of the matter in hand, this Court deems it appropriate to briefly explain the law regarding initiation of contempt proceedings for defiance of the orders of a Court.
12. The Civil Contempt has been defined under Section 2(b) of the Contempt of Courts Act, 1971 (“the Act” hereinafter) and reads as follows:
“2. Definitions (b) “civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.”

13. A bare perusal of the above said provision clearly indicates that the term ‘wilful disobedience’ used in the provision is a necessary condition for initiation of civil contempt against any party. The said principle is a settled law and has been discussed by the Courts in a catena of cases.
14. At this juncture, this Court deems it imperative to highlight the jurisprudence behind initiation of contempt proceedings and the factors that the Courts must bear in mind while adjudicating upon the same.
15. In Ram Kishan v. Tarun Bajaj, (2014) 16 SCC 204, the Hon’ble Supreme Court dealt with the nature and scope of the civil contempt where the Court emphasized on the word ‘wilful’, therefore, making it a necessary condition for initiation of the proceedings. The relevant part of the said judgment reads as follows:
“…..11. The contempt jurisdiction conferred on to the law courts power to punish an offender for his wilful disobedience/contumacious conduct or obstruction to the majesty of law, for the reason that respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen that his rights shall be protected and the entire democratic fabric of the society will crumble down if the respect of the judiciary is undermined. Undoubtedly, the contempt jurisdiction is a powerful weapon in the hands of the courts of law but that by itself operates as a string of caution and unless, thus, otherwise satisfied beyond reasonable doubt, it would neither be fair nor reasonable for the law courts to exercise jurisdiction under the Act. The proceedings are quasi-criminal in nature, and therefore, standard of proof required in these proceedings is beyond all reasonable doubt. It would rather be hazardous to impose sentence for contempt on the authorities in exercise of the contempt jurisdiction on mere probabilities. (Vide V.G. Nigam v. Kedar Nath Gupta [V.G. Nigam v. Kedar Nath Gupta, (1992) 4 SCC 697 : 1993 SCC (L&S) 202 : (1993) 23 ATC 400] , Chhotu Ram v. Urvashi Gulati [Chhotu Ram v. Urvashi Gulati, (2001) 7 SCC 530 : 2001 SCC (L&S) 1196] , Anil Ratan Sarkar v. Hirak Ghosh [Anil Ratan Sarkar v. Hirak Ghosh, (2002) 4 SCC 21] , Bank of Baroda v. Sadruddin Hasan Daya [Bank of Baroda v. Sadruddin Hasan Daya, (2004) 1 SCC 360] , Sahdeo v. State of U.P. [Sahdeo v. State of U.P., (2010) 3 SCC 705 : (2010) 2 SCC (Cri) 451] and National Fertilizers Ltd. v. Tuncay Alankus [National Fertilizers Ltd. v. Tuncay Alankus, (2013) 9 SCC 600 : (2013) 4 SCC (Civ) 481 : (2014) 1 SCC (Cri) 172] .)
12. Thus, in order to punish a contemnor, it has to be established that disobedience of the order is “wilful”. The word “wilful” introduces a mental element and hence, requires looking into the mind of a person/contemnor by gauging his actions, which is an indication of one’s state of mind. “Wilful” means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bona fide or unintentional acts or genuine inability. Wilful acts does not encompass involuntarily or negligent actions. The act has to be done with a “bad purpose or without justifiable excuse or stubbornly, obstinately or perversely”. Wilful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part. Even if there is a disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished. “Committal or sequestration will not be ordered unless contempt involves a degree of default or misconduct.” (Vide S. Sundaram Pillai v. V.R. Pattabiraman [S. Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC 591] , Rakapalli Raja Ram Gopala Rao v. Naragani Govinda Sehararao [Rakapalli Raja Ram Gopala Rao v. Naragani Govinda Sehararao, (1989) 4 SCC 255 : AIR 1989 SC 2185] , Niaz Mohammad v. State of Haryana [Niaz Mohammad v. State of Haryana, (1994) 6 SCC 332 : AIR 1995 SC 308] , Chordia Automobiles v. S. Moosa [Chordia Automobiles v. S. Moosa, (2000) 3 SCC 282] , Ashok Paper Kamgar Union v. Dharam Godha [Ashok Paper Kamgar Union v. Dharam Godha, (2003) 11 SCC 1] , State of Orissa v. Mohd. Illiyas [State of Orissa v. Mohd. Illiyas, (2006) 1 SCC 275 : 2006 SCC (L&S) 122 : AIR 2006 SC 258] and Uniworth Textiles Ltd. v. CCE [Uniworth Textiles Ltd. v. CCE, (2013) 9 SCC 753] .)…..”

16. Furthermore, the High Court of Gujarat in Hiralal Somabhai v. State of Gujarat, 2022 SCC OnLine Guj 2539, observed that mere disobedience of an order or undertaking given before a Court would not be sufficient to hold a person guilty of civil contempt and the element of willingness is an indispensable requirement to hold a person in contempt. The relevant extracts of the said judgment are reproduced herein below:
“…..49. The act of willfully disobedience is sin-qua-non for proceeding against the accused and mere disobedience of the order or undertaking would not be sufficient to hold a person guilty of civil contempt. The element of willingness is indispensable requirement as held by the Hon’ble Apex Court. At the sametime it requires to be noticed that plea regarding neither the Court which passed the order had no jurisdiction nor the final order has been passed would not wipe out the order which is alleged to have been violated. Punishing a person for contempt of court would indeed be a drastic step and normally such recourse would not be taken. However, at the sametime, it would be solemn duty of the Court to uphold and dignity of Court and majesty of Court which may call for extreme step for proper administration of justice and to ensure due compliance with the orders passed by the Court. Courts would be required to take strict view under the Act and it would not hesitate in wielding the potent weapon of contempt as observed by the Hon’ble Apex Court in Patel Rajnikant Dhulabhai’s case (supra). To drive home his contention that there is no willful disobedience of undertaking given to this Court by respondent Nos. 3.1 to 3.4, Mr. Mihir Joshi, learned Senior Advocate has relied upon the judgment of Hon’ble Apex Court in the case of Ram Kishan v. Tarun Bajaj, (2014) 16 SCC 204, whereunder it has been clearly held that it is a well settled principle of law that if two interpretations are possible, and if the action is not contumacious, a contempt proceeding would not be maintainable…..”

17. The Hon’ble Supreme Court in Patel Rajnikant Dhulabhai v. Patel Chandrakant Dhulabhai, (2008) 14 SCC 561, reiterated what yardstick must be followed by the Court in order to ascertain whether a case for contempt is made out or not. The relevant extract of the judgment is reproduced herein below:
“…..60. In Ashok Paper Kamgar Union v. Dharam Godha [(2003) 11 SCC 1] this Court had an occasion to consider the concept of “wilful disobedience” of an order of the Court. It was stated that “wilful” means an act or omission which is done voluntarily and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law. According to the Court, it signifies the act done with evil intent or with a bad motive for the purpose. It was observed that the act or omission has to be judged having regard to the facts and circumstances of each case.
61. In Kapildeo Prasad Sah v. State of Bihar [(1999) 7 SCC 569 : 1999 SCC (L&S) 1357] it was held that for holding a person to have committed contempt, it must be shown that there was wilful disobedience of the judgment or order of the court. But it was indicated that even negligence and carelessness may amount to contempt. It was further observed that issuance of notice for contempt of court and power to punish are having far-reaching consequences, and as such, they should be resorted to only when a clear case of wilful disobedience of the court’s order is made out. A petitioner who complains (sic of a) breach of court’s order must allege deliberate or contumacious disobedience of the court’s order and if such allegation is proved, contempt can be said to have been made out, not otherwise. The Court noted that power to punish for contempt is intended to maintain effective legal system. It is exercised to prevent perversion of the course of justice.
63. In Anil Ratan Sarkar v. Hirak Ghosh [(2002) 4 SCC 21] this Court held that the Contempt of Courts Act has been introduced in the statute book for securing confidence of people in the administration of justice. If an order passed by a competent court is clear and unambiguous and not capable of more than one interpretation, disobedience or breach of such order would amount to contempt of court. There can be no laxity in such a situation because otherwise the court orders would become the subject of mockery. Misunderstanding or own understanding of the court’s order would not be a permissible defence.
x x x
64. It was observed that power to punish a person for contempt is undoubtedly a powerful weapon in the hands of judiciary but that by itself operates as a string of caution and cannot be used unless the court is satisfied beyond doubt that the person has deliberately and intentionally violated the order of the court. The power under the Act must be exercised with utmost care and caution and sparingly in the larger interest of the society and for proper administration of justice-delivery system. Mere disobedience of an order is not enough to hold a person guilty of civil contempt. The element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act.
x x x
70. From the above decisions, it is clear that punishing a person for contempt of court is indeed a drastic step and normally such action should not be taken. At the same time, however, it is not only the power but the duty of the court to uphold and maintain the dignity of courts and majesty of law which may call for such extreme step. If for proper administration of justice and to ensure due compliance with the orders passed by a court, it is required to take strict view under the Act, it should not hesitate in wielding the potent weapon of contempt…..”

18. Upon perusal of the aforementioned judicial dictum, it can be inferred that the legislative intent behind the provisions of Contempt of Court is to establish a confidence of the society in the administration of justice. Although, the judiciary is bestowed upon the powers to issue contempt, which is undoubtedly a powerful weapon but the same must be used sparingly with utmost care and only when the Court is satisfied beyond doubt that the person against whom contempt has been sought to be initiated has deliberately and intentionally violated the order of the Court.
19. The Hon’ble Supreme Court as well as various High Courts have further established that mere disobedience of an order is not enough to hold a person guilty of civil contempt, rather the legislative intent behind prescribing a definition for civil contempt, have categorically provided that for the Court to establish non-compliance/disobedience of a Court order, there must exist an element of willingness i.e., such disobedience must be wilful and intentional. The term ‘wilful disobedience’ is not a mere formality which can be established by making certain assumptions, rather needs to be proven in toto.
20. Furthermore, if the Court, from the circumstances of a particular case, is satisfied that although there has been a disobedience but the same is due to some compelling circumstances under which it was not possible for the contemner to comply with the order, the Court may not punish the alleged contemnor. Tersely stated, the Courts need to be satisfied beyond doubt that the person wilfully disobeyed the orders of the Court and therefore, is liable to be punished under the Act.
21. In this backdrop, this Court deems it imperative to test the facts and circumstances of the present case in light of the judicial dictum discussed herein above.
22. The contemnors have strongly contended that the undertaking given by proxy counsel appearing on behalf of the petitioners was not well versed with the facts of the case and with the facts and circumstances of the case and thus, wrongfully submitted before the Predecessor Bench of this Court.
23. It has been further contended that in order to rectify the above said bona fide mistake committed by the proxy counsel for the contemnors/petitioners therein, an application bearing no. 14583/2006, seeking recall of the order dated 15th December, 2006 was filed at the earliest.
24. In the above said application, the applicants/contemnors had pleaded that the undertaking given by the proxy counsel for the petitioners was wrongfully tendered as the contemnors were incompetent to comply with the directions passed in the order dated 3rd November, 2003, in light of the order dated 20th February, 2006 passed by the Hon’ble Supreme Court in SLP (Crl.) 674/2006.
25. In view of the above, this Court is of the view that the non-compliance of the undertaking in question indeed seems to be a bona fide mistake as post rendering the above said undertaking, the contemnors moved an application bearing no. 14583/2006 seeking recall of the order dated 15th December, 2006.
26. The contemnors in the aforementioned application had contended that the proxy counsel appearing on behalf of the contemnors wrongfully gave the undertaking to comply with the directions passed in the order dated 3rd November, 2003. In regard to the same, this Court is of the considered view that the above said conduct of the contemnors shows that their intention was not to wilfully disobey the above said undertaking, rather was to rectify their bona fide mistake.
27. It is further observed by this Court that the Hon’ble Supreme Court vide order dated 20th February, 2006, stayed the de-freezing of the accounts in question which eventually resulted in operation of stay of the directions contained in order dated 3rd November, 2003.
28. Furthermore, the learned counsel for the contemnors, in the application seeking recall, had contended that the order dated 15th December, 2006, be recalled as the undertaking given by the proxy counsel appearing on behalf of the contemnors on 15th December, 2006 was nothing but a bona fide mistake since he was unaware of the aforementioned chain of events and that the undertaking given could not have been given since the same can’t be complied with.
29. Taking into account the observation made by this Court in the preceding paragraphs, this Court is further of the view that although the failure to comply with an undertaking given before a Court of law is an appropriate ground to initiate contempt proceedings, but since the premise of the undertaking given to the Predecessor Bench of this Court flows from the directions contained in the order dated 3rd November, 2003, this Court cannot overlook the fact that the Hon’ble Supreme Court vide order dated 20th February, 2006, had stayed the de-freezing of the accounts of the company and hence, the undertaking given before this Court is deemed to be redundant per se.
30. In view of the foregoing discussions, this Court is of the considered view that after a detailed perusal of the facts, circumstances and contents of the reply filed by the contemnors against the show-cause notice, no case of contempt is made out as non-compliance of the undertaking given to this Court on 15th December, 2006, does not amount to wilful disobedience rather was a bona fide mistake for which the contemnors have tendered an unconditional apology.
31. In view of the aforesaid terms, the instant petition stands dismissed along with pending applications, if any.
32. The order be uploaded on the website forthwith.

CHANDRA DHARI SINGH, J
APRIL 26, 2024
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