STATE OF MAHARASHTRAversusMAHBOOB S. ALLIBHOY AND ANR.

A                      STATE OF MAHARASHTRA
                                  v.'
                     MAHBOOB S. ALLIBHOY AND ANR.

                                    APRIL 10, 1996

B                [N.P. SINGH AND S. SAGHIR AHMAD, JJ.]

          Contempt of Courts Act, 1971 :

            S. 19-Appea/ against order dropping proceedings for contempt or refus-
C   ing to initiate proceedings for contempt-Held, not maintainab/e--But person
    initiating contempt proceedings is not without any remedy-Jn appropriate
    cases he can invoke jurisdiction of Court under Article 136 of the Constitu-
    tion-However, the instant case does not merit inteiference.

          Constitution of India :
D          A1ticle 136-Proceedings under Contempt of Courts Act, 1971 dropped
    or petition for initiating contempt proceedings dismissed-Remedy to person
    initiating contempt proceedings-Held, in suitable cases Court can exercise
    jurisdiction under Article 136 in larger interest of administration of jus-
    tice-However, in present case order requires no inteiference,
E
          Baradakanta Mishra v. Mr. Justice Gatikrushna Mi,sra, C.J. of the
    Orissa H.C., AIR (1974) SC 2255 = [19751 1 SCR 524 &! D.N. Taneja v.
    Bhajan Lal, [1988) 3 SCC 26 relied on.

          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
F   42 of 1992.

         From the Judgment and Order dated 12.7.88 of the Bombay High
    Court in Crl.A. No. 368 of 1988.

          S.M. Jadhav for the Appellant.
G
          Y as hank Adhyaru, Mrs. Manik Karanjawala and Ms. Nandini Gore
    for the Respondents.

          The following Order of the Court was delivered :

H         This appeal has been filed on behalf of the State of Maharashtra for
                                       166
                       STATE v. M.S.ALLIBHOY                            167

setting aside an order dated 12th July, 1988 passed by the High Court of A
Bombay dropping the contempt proceeding which had been initiated
against the respondents.

      It appears that respondents had filed a writ petition before the High
Court claiming refund of Rs. 2,60,144-70 paid as counter- vailing/additional B
duty. The Customs Department filed an affidavit stating that a false claim
had been made before the Court for obtaining refund because in fact the
writ petitioners - respondents had not paid any duty at all and had claimed
the refund on basis of forged documents. In connection with the said
dispute, a notice was issued to the respondents as to why a complaint be
not filed against them under Sections 191, 192, 209 and 210 of the Indian C
Penal Code. A notice was also issued to the respondents directing them to
show cause why proceedings for contempt be not initiated against chem.
After taking into consideration the show cause filed on behalf of the
respondents an order was passed directing that a complaint be filed against
them. The learned Judges having passed the aforesaid order directed that D
no action be taken under Contempt of Courts Act, 1971 (hereinafter
referred to as the 'Act'). This part of the order is being challenged in this
appeal. According to the appellant-State in the facts and circumstances of
the present case the contempt proceeding should not have been dropped.

       The preliminary question which has to be examined as to whether in E
the facts and circumstances of the case an appeal is maintainable against
an order dropping the proceeding for contempt. It is well settled that .an·
appeal-is a creature of a statute. Unless a statute provides for an appeal
and specifies the order against which an appeal can be filed no appeal can
be filed or entertained as a matter or right or course. Section 19 of the Act F
says :

        "Appeals - (1) An appeal shall lie as of right from any order
        decision of High Court in the exercise of its jurisdiction to punish
        for contempt -
                                                                               G
        (a) where the order or decision is ·that of a single Judge, to a
            Bench of not less than two Judges of the Court;

        (b) where the order or decision is that of a Bench, to the Supreme
            Court:                                                         H
    168                    SUPREME COURT REPORTS [1996[ SUPP. 1 S.C.R.

A                Provided that where the order or decision is that of the Court
             of the Judicial Commissioner in any Union Territory, such appeal
             shall lie to the Supreme Court.

             (2) Pending any appeal, the appellate Court may order that -

B            (a) the execution of the punishment or order appealed against
                 be suspended;

             (b) if the appellant is in confinement, he be released on bail; and

             (c) the appeal be heard notwithstanding that the appellant has
c                not purged his contempt.

             (3) Where any person aggrieved by any order against which an
             appeal rnay be filed satisfied the High Court tha~ he intends to
             prefer an appeal the High Court may also exercise all or any or
             the powers conferred by sub-section (2).
D
             (4) An appeal under sub-section (1) shall be filed -

             (a) in the case of an appeal to a Bench of the High Court, within
                 thirty days.

E            (b) in the case of an appeal to the Supreme Court within Sixty
                  days from the date of the order appealed against.''.

           On a plain reading Section 19 provides that an appeal shall lie as of
    right from any order or decision of the High Court in exercise of its jurisdiction
    to punish for contempt. In other words, if the High Court pa~ses an order in
F   exercise of its jurisdiction to punish any person for contempt of court, then
    only an appeal shall be maintainable under sub-section (1) of Section 19 of
    the Act. As sub-section (1) of Section 19 provides that an appeal shall lie as
    of right form any order, an impression is created that an appeal has been
    provided under the said sub-section against any order passed by the High
G   Court while exercising the jurisdiction of contempt proceedings. The words
    'any order' has to be read with the expression 'decision' used in said sub-sec-
    tion which the High Court passes in exercise of its jurisdiction to punish for
    contempt. 'Any order' is not independent of the expression 'decision. They
    have been put in an alternative from saying 'order' or 'decision. In either case,
    it must be in the nature of punishment for contempt. If the expression 'any
H   order' is read independently of the 'decision' then an appeal shall lie under
                       STATE v. M.S.ALLIBHOY                            169

sub-section (1) of Section 19 even against any interlocutory order passed A
in a proceeding for contempt by the High Court which shall lead to a
ridiculous result.

      It is well known that contempt proceeding is not a dispute between
two parties, the proceeding is pritnarily between the court and the person
who is alleged to have committed the contempt of court. The person who         B
informs the court or brings to the notice of the court that anyone has
committed the contempt of such court is not in the position of a prosecutor,
he is simply assisting the court so that the dignity and the majesty of the
court is maintained and upheld. It is for the court, which initiates the
proceeding to decide whether the person against whom such proceeding
has been initiated should be punished or discharged taking into considera-     C
tion the facts and circumstances of the particular case. This Court in the
case of Baradakanta Mishra v. Mr. Justice Gatiklllshna Misra, CJ. of the
Olissa H.C., AIR (1974) SC 2255 = [1975] 1 SCR 524 said :

        ".......... Where the Court rejects a motion or a reference and D
        declines to initiate a proceeding for contempt, it refuses to assume
        or exercise jurisdiction to punish for contempt and such a decision
        cannot be regarded as a decision in the exercise of its jurisdiction
        to punish for contempt. Such a decision would not, therefore, fall
        within the opening words of Section 19, sub-section ( 1) and no
        appeal would lie against it as of right under that provision."         E
Again in the case of D.N. Taneja v. Bhajan Lal, [1988] 3 SCC 26 it was
said:

            "The right of appeal will be available under sub- section (1) of
        Section 19 only against any decision or order of a High Court F
        passed in the exercise of its jurisdiction to punish for contempt. In
        this connection, it is pertinent to refer to the provision of Article
        215 of the Constitution which provides that every High Court shall
        be a court of record and shall have all the powers of such a court
        including the power to punish for contempt of itself. Article 215 G
        confers on the High Court the power to punish for contempt of
        itself. In other words, the High Court derives its jurisdiction to
        punish for contempt from Article 215 of the Constitution. As has
        been noticed earlier, an appeal will lie under Section 19(1) of the
        Act only when the High Court makes an order or decision in
        exercise of its jurisdiction to punish for contempt. It is submitted H
                  '
    170                   SUPREME COURT REPORTS [1996) SUPP. 1 S.C.R.

A           on behalf of the respondent and, in our opinion rightly, that the
            High Court exercises its jurisdiction or power as conferred on it
            by Article 215 of the Constitution when it imposes a punishment
            for contempt. When the High Court does not impose any punish-
            ment on the alleged contemnor, the High Court does not exercise
            its jurisdiction or power to punish for contempt. The jurisdiction
B           of the High Court is to punish. When no punishment is imposed
            by the High Court, it is difficult to say that the High Court has
            exercised its jurisdiction or power as conferred on it by Article 215
            of the Constitution."

    No appeal is maintainable against an order dropping proc~eding for con-
c   tempt or refusing to initiate a proceeding for contempt is apparent not only
    from sub-section (1) of Section 19 but also from sub-section (2) of Section
    19 which provides that pending any appeal the appellate Court may order
    that··

D         (a) the execution of the punishment or the order appealed against
    be suspended;

          (b) if the appellant is in confinement, he be released on bail; and

E        (c) the appeal be heard notwithstanding that the appellant has not
    purged his contempt.

    Sub-section (2) of Section 19 indicates that the reliefs provided under
    clauses (a) to (c) can be claimed at the instance of the person who has
    been proceeded against for contempt of court.
F
          But even if no appeal is maintainable on behalf of the person at
    whose instance a proceeding for contempt had been initiated and later
    dropped or whose petition for initiating contempt proceedings has been
    dismissed, is not without any remedy. Jn appropriate cases he can invoke
G   the jurisdiction of this Court under Article 136 of the Constitution and this
    Court on being satisfied that it was a fit case where proceeding for
    contempt should have been initiated, can set aside the order passed by the
    High Court. In suitable cases, this Court has to exercise its jurisdiction
    under Article 136 of the Constitution in the larger interest of the ad-
H   ministration of justice.
                       STATE v_ M.S.ALLIBHOY                         171

      So far the facts of the present case are concerned, the learned Judges A
having passed an order directing that a complaint be lodged against the
respondents, thought it proper not to pursue the proceeding for contempt
against them. No appeal under Section 19(1) of the Act is maintainable. In
the facts and circumstances of the case it cannot be said that such an order
requires to be interfered with by this Court in exercise of its jurisdiction B
under Article 136. The appeal is dismissed. No costs.

R.P.                                                   Appeal dismissed.