C. SHAKUNTHALA & ORS.versusH.P. UDAYAKUMAR & ANR.

                      [2012] 2 S.C.R. 1056


A                  C. SHAKUNTHALA & ORS.
                                v.
                    H.P. UDAYAKUMAR & ANR.
                (Criminal Appeal No. 158 of 2012)

                       JANUARY 16, 2012
B
        [P. SATHASIVAM AND J. CHELAMESWAR, JJ.]

       Contempt of Courts Act, 1971 - Criminal contempt -
  Pursuant to a contempt petition, Division Bench of the High
C Court by order dated 9-6-2006 held that there was a prima
  facie case against the accused-respondents to proceed
  further and frame charge and try them for criminal contempt
  for ,;ibuse of the process of the law - However, by final
  impugned judgment dated 18-6-2008, another Co-ordinate .
o Bench of the High Court dismissed the contempt petition and
  acquitted the respondents - Propriety - Held: The
  subsequent coordinate Bench without adverting to the
  relevant materials relied on by the earlier coordinate Bench
  passed a cryptic order by dismissing the contempt petition -
E Prima facie conclusion arrived by the earlier Bench in the year
  2006, based on the acceptable materials, could not be
  ignored by the subsequent co-ordinate Bench at the time of
  the passing the final order as if it was an appellate Court -
  Order dated 18-6-2008 set aside and matter remitted to High
F Court for fresh disposal.
       Pursuant to a petition by the predecessor-interest of
  the appellants under Section 11 (2) of the Contempt of
  Courts Act, 1971, the Division Bench of the High C:ourt
  by order dated 9-6-2006 held that there was a prima ifacie
G case against the accused-respondents to proc:eed
  furtlher and frame charge and try them for criminal
  contempt for abuse of the process of the law. However,
  by final impu.gned judgment dated 18-6-2008, another Co-
  ordinate Bench of the High Court dismissed the
H                             1056
 C. SHAKUNTHALA & ORS. v. H.P. UDAYAKUMAR & ·1 OS7
                   ANR.

  contempt petition and acquitted the respondents,              A
  allegedly without adverting to the plea of the parties and
· the evidence on record.

     Allowing the appeal, the Court

      HELD: Keeping in view the stand of complainant, his       B
 specific assertion with reference to earlier orders and the
 defence of the respondents/accused as well as the prima
 facie conclusion by the Division Bench that the
 complainant has made out a case against the accused
 to proceed further and adjou.rned the matter for two           C
 weeks for framing charges, it is not understandable how
 another coordinate Bench after two years without any
 discussion and adverting to the relevant materials relied
 on by earlier coordinate Bench passed a cryptic order by
 dismissing the contempt petition. When the coordinate          D
 Bench on earlier occasion, that is, on 09.06.2006, based
 on the acceptable materials prima facie concluded that
 charges have to be framed, it was but proper by the
 present Bench to arrive and take a final decision in the
 light of the materials formulated by the earlier Bench. It     E
 is not that the complainant has made out a case for guilty
 of contempt of courts but the prima facie conclusion
 arrived by the earlier Bench in the year 2006, based on
 the acceptable materials, cannot be ignored by another
 Bench at the time of the passing the final order as if it is   F
 an appellate Court. In view of the same, there is no other
 option except setting aside the impugned order dated 18-
 6-2008 and remitting the matter to the High Court for
 passing fresh order. [Para 8] [1064-B-F]
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal           G
 No. 158 of 2012.
     From the Judgment & Order dated' 18.06.2008 of the High
 Court of Karnataka at Bangalore in Criminal CCC No. 32 of
 2005.                                          .
                                                                H
    1058    SUPREME COURT REPORTS                   [2012] 2 S.C.R.


A        Basava Prabhu, S. Patil, B. Subrahmanya Prasad,
    Anirudh Sanganeria, V.N. Raghupathy for the Appellants.
        Abha Jain for the Respondents.
        The Judgment of the Court was delivered by
B       P. SATHASIVAM, J. 1. Leave granted.
         2. This appeal is directed against the final judgment and
    order dated 18.06.2008 passed by the Division Bench of the
    High Court of Karnataka at Bangalore in Criminal CCC No. 32
c   of 2005 whereby the High Court dismissed the petition of .the
    appellants herein.
      . 3. Brief facts:
       (a) The appellants herein are the children and legal
0 representatives of late M. Channappa, who was the original
  complainant/landlord before the High Court. Laite M.
  Channappa was the owner of the property bearing Old Survey
  No. 39/2A, Yediur Village, Bangalore South Taluk. He let out
  the eastern half portion of the said property to one Kachu
  Krishna Achari and western portion to one P.V. Lingaiah on
E rent. In view of the extension of the City, the property f1ell into
  the Bangalore City limits and is presently situated on the K.R.
  Road and bears No. 2038/A.
       (b) Late M. Channappa initiated eviction proceedings
F against both the said tenants and Kachu Krishna Achari came
  to be evicted pursuant to the decree granted by the competent
  court. The order of eviction was challenged by P.V. Lingaiah
  in HRRP No. 559 of 1996 before the High Court of Karnataka
  which came to be dismissed on 29.02.2000 granting two years
G time to vacate the tenanted premises subject to filing an
  undertaking by him. ·
      (c) Pursuant to the said order, Lingaiah filed an
  undertaking to vacate the tenanted premises and deliver vacant
  possession to late M. Channappa. In the meantime, Lilngaiah
H approached this Court by way of a special leave petition which
C. SHAKUNTHALA & ORS. v. H.P. UDAYAKUMAR & 1059
          ANR. [P. SATHASIVAM, J.]

also came to be dismissed.                                           A
     (d) Mr. Lingaiah failed to adhere to the undertaking given
by him to vacate the premises within two years, instead in
collusion with his son L. Suresh and H.P. Udayakumar,
respondent ·No.1 herein, he created a sale deed dated
22.02.2001 whereby respondent No.1 is purported to have              B
acquired a portion of the tenanted premises. Significantly,
respondent No.1 is the business partner of L. Suresh, son of
Lingaiah.
     (e) Thereafter, late M. Channappa initiated contempt            c
proceedings against Lingaiah, his son Suresh and H.P.
Udayakumar, respondent No.1 herein. Since respondent No.1
and Suresh were not parties to the earlier petition, contempt
proceedings were dropped against them and the High Court
by its order dated 06.02.2004 convicted and sentenced Mr.
                                                                     0
Lingaiah to undergo simple imprisonment for three days. Being
aggrieved with the order of the High Court, late Channappa filed
an appeal before this Court for enhancement of the sentence
awarded to Mr. Lingaiah which is still pending.
     (f) As Mr. Lingaiah failed to vacate the tenanted premises,     E
late Channappa also filed execution proceedings before the
Court of Small Causes, Bangalore under Order 21 of CPC. The
Court of Small Causes issued delivery warrant for delivery of
possession of the tenanted premises.
     (g) While the matter was pending, on 18.12.2004, the            F
respondent No.1 herein filed an application under Order 21 Rule
97 to 101 read with Section 151 CPC in Execution Petition No.
2658 of 2004 seeking adjudication of his right, title and interest
in respect of the property in question contending that he was
the absolute owner of the said property in terms of the sale         G
deed dated 22.02.2001 and that late M. Channappa had no
interest in the said property. He also contended that as late M.
Channappa attempted to interfere with the property, he filed
O.S.No. 15265 of 2002 before the Civil Court for permanent
injunction wherein the court had granted an ad interim order of      H
    1060     SUPREME COURT REPORTS                   [2012] 2 S.C.R.


A status quo.
         (h) It is evident that respondent No.1 is the business partner
    of the son of Lingaiah and he has been set up to file application
    to protract the proceedings.
B       ·(i) In the light of the stand taken by respondent l\lo.1,
    Channappa filed O.S. No. 3814 of 2005 against respondent
    No.1 for delivery of the vacant possession of the property.
      U) The Executing Court vide judgment dated 08.06 . 2005
  dismissed the application filed by respondent No.1 after
C adverting to the material on record. Respondent No.1
  questioned the said order before the High Court by filing HRRP
  No. 285 of 2005.
         (k) The High Court by judgment dated 30.06 . 2005
    dismissed the said petition on the ground that eviction order
0
    having passed in the year 1996, respondent No.1 who was
    obstructing the execution of the decree having purchasi~d the
    property subsequently in the year 2001 interfered with thei order
  · of the Executing Court which is not warranted.
E        (I) On 26.09.2005, respondent No.1 and his brothe!r H.P.
    Ashok Kumar, respondent No.2 filed another application in the
    said Execution Petition opposing the same.
         (m) In the circumstances, late M. Channappa filed a petition
   under Section 11 (2) of the Contempt of Courts Act, 1971 before
F the High Court. After hearing both the parties, the High Court
  .by its order dated 09.06.2006 held that there was a prim a facie
   case against the respondents to proceed further and frame
   charge and try them for criminal contempt for abuse of the
   process of the law. On 17.01.2008 M. Channappa passed
G away and the High Court permitted the petitioners thmein to
   come on record.
       (n) The High Court, by final impugned judgment dated
  18.06.2008 dismissed Crl. CCC No. 32 of 2005 and ac;quitted
H the respondents by holding that the grounds made out in the
  C. SHAKUNTHALA & ORS. v. H.P. UDAYAKUMAR & 1061
            ANR. [P. SATHASIVAM, J.]

 second application is under different circumstances, the identity    A
 of the property is disputed and that the respondents cannot be
 attributed with unlawful intention for abuse of the process of the
 court.
     (o) Being aggrieved, the appellants herein preferred this
 appeal by way of special leave.
                                                                      B

     4. Heard Mr. Basava Prabhu S. Patil, learned senior
 counsel for the petitioners and none appeared for the
 respondents.
       5. The point for consideration is whether the impugned         C
  judgment of the High Court dismissing Crl. CCC No. 32 of 2005
· after recording that prima facie case was made agair:ist the
  respondents, thereafter framing charges and recording
  evidence of the parties, without adverting to the plea of the
  parties and evidence on record, by concluding that the second       D
  application was under different circumstance being contrary to
  Rule 13 of the High Court of Karnataka (Contempt of Court
  Proceedings) Rules 1981 (in short 'the Rules') r-ead with Section
  264 occurring in Chapter XXI of the Code of Criminal
  Procedure, 1973 (in short 'the Code) is legally sustainable.        E
      6. Since we have already narrated the facts of the case,
there is no need to refer the same once again. Mr. Basava
Prabhu S. Patil. learned senior counsel for the appellants
submitted that even as early as on 09.06.2006, the Division
Bench of the High Court based on the materials placed                 F
concluded that a prima facie case against the respondents/
accused have been made out for proceeding further and
directed framing of charge to try them for criminal contempt for
abuse of process of law, another coordinate Bench while
passing the impugned order dated 18.06.2008, without                  G
reference to any of the materials, simply dismissed the petition
filed by the petitioners therein-appellants herein. Perusal of the
initial order dated 09.06.2006 shows that the Division Bench
considered the contempt petition filed against the accused after
obtaining the consent of the learned Advocate General in writing      H
    1062     SUPREME COURT REPORTS                   [2012] 2 S . C.R.


A under Section 15-1 (a) of Contempt of Courts Act, 1971.
  Pursuant to service of notice on the respondents, they
  submitted their objections along with ·certain documents in
  support of their defence. It was contended that the action
  complained of do not constitute abuse of process of the Court
B for taking cognizance in the matter and to proceed further for
  framing the charge.
         7. As rightly pointed out by the Division Bench in the order
    dated 09.06.2006 in terms of Rule 8(ii)(a) of Contempt of
    Courts Rules, 1981, the matter was heard initially to find out
C   whether there is a prima facie case to frame the charge against
    the accused persons. The complainant placed strong reliance
    on the. allegations made in the complaint and also the order
    passed by the trial Court in the earlier application filed by the
    first accused-Udaya Kumar in respect of property against which
D   a decree is sought to be executed by the complainant in the
    execution proceedings. In the preliminary order, the Court h:::1d
    also referred to the observation of the Executing Court dated
    08.01.2005. Ultimately, the Executing Court has convicted the
    judgment debtor and others. The matter is still pending before
E   this Court. The complainant has also alleged that after the order
    passed on the application filed by the first accused becam1:i
    final, a decree was sought to be executed to take thE~
    possession of the premises. At this juncture, the second
    accused has filed another application taking another plea andl
F   according to his counsel, the subject matter covered in the
    application is different from the earlier one and that the identity
    covered in the eviction petition and the claim made in the
    application filed by the first accused before the Executing Court
    is entirely different. In other words, it is the defence that the
G   order passed on the earlier application filed by the first accused
    does not come in the way of Executing Court to independently
    consider the application of the second accused in order to
    determine the rights of the parties. In the preliminary order, the
    Division Bench rejected the said contention and prima facie
H   found that it is untenable in law in view of the earlier application
 C. SHAKUNTHALA & ORS. v. H.P. UDAYAKUMAR & 1063
           ANR. [P. SATHASIVAM, J.]

filed under Order XXI Rule 9 of Civil Procedure Code, 1908          A
by the first accused and concluded that the earlier application
and the present application have to be treated as one and the
same. After adverting to the respective stand of the parties,
various decisions of this Court, in the preliminary order dated
09.06.2006, the Division Bench has concluded thus:                  B
    "10. We have carefully perused the record and the
    documents produced by the complainant and also the
    accused persons. After careful perusal of the averments
    made in the complaint and the statement of objections and
    the orders passed by this court in the eviction proceedings     C
    and also the order passed in the proceedings and the law
    laid down by the Supreme Court in the cases referred to
    supra, upon which strong reliance is rightly placed by the
    complainant, we feel that there is prima facie case against
    the accused to proceed further, frame charge and to try         D
    them for criminal contempt for abuse of the process of law.
    11. Call after two weeks for framing charges against the
    accused."
That was the position on 09.06.2006. Meanwhile, Mr. M.              E
Channappa, who was the complainant in CCC No. 32 of 2005
passed away and his children were brought on record as his
legal representatives. Inasmuch as the impugned order does
not contain adequate reasons and materials as found in the
preliminary order by another coordinate Bench dated                 F
09.06.2006, it is useful to extract the exact impugned order of
the Division Bench which is as follows:
    "Without reference to merit of the contents taken in the
    second application, we hold to suffice that the grounds
    made out in the second application is under different           G
    circumstances. The identity of the property is disputed.
    Factually, we find that the accused cannot be attributed with
    unlawful intention of abuse of process of the court. In the
    view of the matter we do not find any good ground to hold
    the contempt u/s 2(e) of the Contempt of Courts Act.            H
    1064    SUPREME COURT REPORTS                    [2012] 2 S.C.R.


A      · Accordingly, petition is dismissed and the accused is
         acquitted:"
        . 8. We have already referred to the stand of the
    complainant, his specific assertion with reference to earlier
    orders and the defence of the respondents/accused as well as
B   the prima facie conclusion by the Division Bench thait the
    complainant has made out a case against the accust:ld to
    proceed further and adjourned the matter for two weeks for
    framing charges. When such is the position, it is not
    understandable how another coordinate Bench after two years
C   without any discussion and adverting to the relevant materials
    relied on by earlier coordinate Bench passed a cryptic order
    by dismissing the contempt petition. We are satisfied that when
    the coordinate Bench on earlier occasion, that is., on
    09.06.2006, based on the acceptable materials prima facie
D   concluded that charges have to be framed, it is but proper by
    the present Bench to arrive and take a final decision in the light
    of the materials formulated by the earlier Bench. We are not
    saying that the complainant has made out a case for guilty of
    contempt of courts but the prima facie conclusion arrived by the
E   earlier Bench in the year 2006, based on the acceptable
    materials, cannot be ignored by another Bench at the timE! of
    the passing the final order as if it is an Appellate Court. In view
    of the same, we have no other option except setting aside the
    impugned order and remitting the matter to the High Court for
F   passing fresh order.
        9. In the light of what is stated above, the impugned order
  of the High Court dated 18.06.2008 made in Crl. CCC No. 32
  of 2005 is set aside and the matter is remitted to it for fresh
  disposal. We request the High Court to restore Crl. CCC No.
G 32 of 2005 on its file and dispose of the same on merits in
  accordance with law by passing a speaking order after
  affording opportunity to both the parties. The appeal is allov.md
  to this extent.

H B.B.B.                                             Appeal allowed