B.L. Yadav and S.K. Singh, JJ.
1. Whether these analogous contempt applications have been properly presented/filed without specifying the names of the persons who have committed contempt; in other words whether a contempt can be issued against the authorities or it must be against the persons by name who halve committed contempt, is short question which falls for our determination the present applications filed under Article 215 of the Constitution of India read with Section 12 of Contempt of Courts Act, 1971 (compendiously 'the Act').
2. As these two analogous applications involve similar questions for our determination, hence they are being disposed of by this common order/judgment.
3. M.J.C No. 753/95 will be referred as first case whereas M.J.C. No. 2160/94 will be as second case.
4. The first case has been filed by Sri Badri Singh against (1) State of Bihar, through its Chief Secretary; (2) Secretary to Government, Building Construction and Housing Department, (3) Deputy Secretary to Government, Building Construction and Housing Department (4) Bihar State Housing Board, (5) Managing Director, Bihar State Housing Board. The prayer is to initiate a proceeding against the opposite parties and punish them for having committed contempt for violating the order of this Court dated 26.4.1994 passed in C.W.J.C. No. 7451 of 1993. On 5.9.1995 this case was taken up and an order was passed that a contempt proceeding be initiated against the opposite parties requiring them to show cause as to why shall not be suitably punished under the provisions of the Act. But as t he opposite parties are not by name but by authority, can the notices be served and can the punishment be awarded to the actual contemners.
5. In the second case the petitioners are Audhesh Singh and Chandra Shekhar Singh who have filed this application for contempt against (1) State of Bihar, (2) Director, Revenue Administration-cum-Joint Secretary, irrigation Department, (3) Deputy Collector, Revenue Division, Gaya, (4) Deputy Collector, Revenue Division, Biharsharif and (5) Deputy Collector, Revenue Division Aurangabad. The prayer is same as in the first case. In this case also no person by name has been made party; rather the opposite parties (contemners) have been made opposite parties as officers/authority and not by name.
6. A preliminary objection was raised by the learned Counsel for the Opposite parties that whether these contempt applications are maintainable and whether notices can be issued and punishment can be awarded upon the opposite parties, no person has been made party by name, nor it has been indicated as to whether the private individual has committed contempt or the authorities, i.e., the State of Bihar, or the Director of Revenue Administration have committed contempt. These applications have not been filed in accordance Witt Rules 3 and 7 of the Contempt of Court (Patna High Court) Rules, 1985 (Compendiously the Rules).
7. On behalf of the applicants it was urged, though half-heartedly, that the contempt applications can be presented against the authorities themselves without specifying the names of the individual persons who have-committed contempt and a prayer to make necessary amendment was also made. The learned Counsel for the opposite parties on the other hand, submitted that the applications must indicate the opposite parties by person or individual names, who have committed contempt and not by officers or authorities. The applications must be in view of Rules 3 and 7 etc. of the Rules be served in absence of the name of the persons holding authority or officer.
8. The short question, therefore, for our determination is whether these M.J.C. (applications) are maintainable even though filed against authorities and officer without specifying as to through whom the State of Bihar is to be represented, and similarly the Director, Revenue Administration and Deputy Collector, Revenue Division, Gaya etc. Notices were issued in that case also on 5.9.1995 against the opposite parties as to why they shall not be punished, for having committed contempt of this Court. But the difficulty is posed by the fact that the opposite parties have been alleged in the case by authority and not by person of private individual upon whom notices can be served.
9. The nature of contempt indicates that it is to maintain the dignity of the Court. The founding fathers of the Constitution were also conscious in providing that even though the Supreme Court and the High Courts all shall be Courts of records and shall have all the powers of such Courts including the powers to punish for contempt of itself. But it has been clearly indicated under Article 129 of the Constitution of India that the Supreme Court shall be a. court of record and shall have all the powers including the power to punish for contempt of itself. Similarly under Article 215 similar provision has been made for the High Court that it shall be Court of record and shall have the powers of such Court including the power to punish for contempt of itself. It is thus obvious that the authority on whom punishment has to be imposed must be sent to jail. In case the State of Bihar has been made party or the Director, Revenue Administration or the Deputy Collector, Revenue Division, Gaya etc., have been made parties, how they can be punished and can be sent to jail, For this purpose, it is imperative that Sections 2 and 3 of the Act along with Section 12 of the Act and Rules 3 and 7 etc., have to be read conjointly.
10. In Halsbury's Laws of England (4th Edition). Vol. 9, paragraph 52 may be noticed defining civil Contempt as follows:
52. Disobedience to process.--It is civil contempt of Court to refuse or neglect to do an act required by a judgment of order of the Court within the time specified in the judgment or order, or to disobey a judgment or order, requiring a person to abstain from doing a specified act in breach of an undertaking given to the court by a person, on the faith of which the Court sanctions a particular course of action or inaction.
In such a case, a judgment or order against an individual or an undertaking given by an individual may, subject to certain exceptions, be in forced by an order of committal or a writ of sequestration against the individual's property....
As a matter of precaution the provisions of para 61 indicating the procedure in contempt may be noticed:
61. Necessity of personal service,--As a general rule no order of Court requiring a person to do or abstain from doing any act may be enforced unless a copy of the order has been served personally on the person required to do or abstain from doing the act in question. In the case of an order requiring a person to do an act, the copy must be so served before the expiration of time within which he required to do the Act.
Where the order has been made against a company, the order may only be enforced against an officer of the Company, if the particular officer has been served personally with a copy of the order.
11. In American Jurisprudence 2nd, Vol. 17, para 3, contempt of Court has been defined 'as despising of the authority of justice or dignity of the Court. Generally speaking he whose conduct tends to bring the authority and administration of law into disrespect or disregard, interferes, prejudices parties of their witnesses during a litigation or otherwise tends to impede, or obstruct the Court in discharge of its duties, is guilty of contempt.'
12. The aforesaid definition under the English Law (vide para 52) would indicate that one who refused or neglects to do an act as required by a judgment or order requiring a person to abstain from doing a specified act, or to act breach of an undertaking given to the Court would indicate that a contempt can be committed by a person in his individual capacity, although he held an office or authority. The procedure to file an application under para 61. Similarly commission of contempt of Court in para 3 Volume 17 of America Jurisprudence (2nd) would also indicate that generally speaking he whose conduct tends to bring the authority and administration of law into disrespect or disregard reflecting upon a Judge in performance of ministerial duries as distinguished from the judicial duties does not constitute contempt of Court. Para 61, referred to above (Volume 9 of Halsbury's laws of England, 4th Ed.) indicates that application has to be filed against the person as an individual and notices must be served upon him personally.
13. The expression 'person' is noun according to Grammar and it means a character represented, as on the stage a human being, a self-conscious personally. It is, therefore, crystal clear that it must be a human being and he must be made party and only a, human being can commit contempt or disobey an order or bring the authority or the Court into disrespect.
14. With a new to ascertain as to who can be sent to jail or who can be punished for having committed Contempt of Court or who can be retained in civil prison or sentenced to simple imprisonment, we have to look to the provisions of Section 12 of the Act. Sub-section (1) of Section 12 of the Act indicates that a contempt of Court may be punished with simple imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees or with both, the proviso enacts that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court. Who can be an accused or who can tender apology, it is only an individual or a living human being, in other words it must be a man or animate and not inanimate. This fact is also clear by the expression used in Section 12(3) of the Act, where provision is that notwithstanding anything contained in this section where a person is found guilty of a civil contempt, the Court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary, shall instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit. The use of the expression 'person' and 'him' sentencing him) and that he may be detained in civil prison indicate that it is private individual or a living humban being or animate who can be made party.
15. Rule 3 of the Rules of 1985 (Patna High Court) indicates that a proceeding for civil contempt within the meaning of, the Act shall be registered as Miscellaneous Judicial Case (M.J.C.) Under Rule 3(iii)(a);every such petition shall contain name, description and place of residence the petitioner or petitioners and of person or persons charged. This also indicates that the person charge have to be made parties and the 'person' means a living human being and not an authority of office of the Government. Under Rule 7 of the Rules the provisions that the notice to the person charged shall be issued in Form-I, and Rule 7(ii) provides that the person charged may file his reply/show cause duly supported by an affidavit or affidavits. Rule 7(iii) provides that the person charged shall, unless otherwise ordered, appear in person before the Court as directed on the date fixed for hearing of the proceeding, and shall continue to remain present during the hearing till the proceeding is finally disposed of by the order of the Court. This rule also indicates that the notice has to be issued to the person charged and not to the authority of the State of Bihar as inanimate. Similarly the show cause has to be filed by the person charged and the person charged has to appear in person, if directed by the Court. Under Rule 11 of the Rules the Court may, if it has reason to believe that the person charged is absconding or is otherwise evading service of notice or if he fails to appear in person or to continue to remain present in person in pursuance of the notices direct a warrant bailable or non-bailable for his arrest, addressed to one or more police officers may order attachment of property, and the warrant writ of attachment shall be issued under the signature of Registrar and that the warrant shall be in Form-II and shall be executed, as far as may be in the manner provided for execution of warrants under Code of Criminal Procedure. Sub-rule (iii) of Rule 11 of the Rules provides that every person who is arrested and detained shall be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place or arrest to the Court of the Magistrate, who shall authorise detention for the period till such person is produced before the High Court. This also indicates that it is only individual person or a living human being and certainly not inanimate or authority or the State of Bihar, which can be arrested and detained. How can the State of Bihar be arrested when it is not a human being. Similarly how can the Director, Revenue Administration etc., be arrested or can be Secretary of Building Construction Department be arrested? It is only the human being who can be arrested or detained or sent to jail or appear in person and file show cause.
16. Analysis of all these relevant provisions would make it amply clear that the names of the contemners, the Opposite parties, must be indicated as he or she, or a human being, a living human being and by the authority or office one holds. This is the only intention of the legislature or Parliament in enacting the Contempt of Courts Act, 1971. This Court by framing Patna High Court Rules, has made it manifest that only private individual or the human being must be made either applicant or an Opposite party, as it is inavidual human being who wilfully disobey the order or commit criminal contempt and only the private individual can appear in person and can be arrested by order of the Court and sent to civil prison.
17. The aforesaid discussion would make it evident that the present applications where the opposite parties have been described by officer or designation and not as a person of an individual human being, cannot be said to be maintainable, as the officer or authority cannot commit contempt of Court, it is human being, he or she, who commits contempt or wilfully disobeys in order.
18. In view of the aforesaid premises, we are constrained to say that these applications are not maintainable and they are accordingly dismissed, as they are not in accordance with the Act and the Rules. It is, however, made clear that it shall be open to the applicants to file another application specify the names of the contemners-opposite parties in accordance with the Act and the Rules.