S.A. Bobde, J.
1. Heard Shri Ramesh Darda, the learned counsel for the Petitioner, and Shri Khubalkar, learned A.G.P. for the State.
2. This is an application for setting aside the earlier order of this Court by which this Court dropped the contempt proceedings initiated at the instance of the petitioner against the respondent-secretary, Ministry of Cooperation, Government of Maharashtra, Mantralaya.
3. The petitioner had alleged in the contempt proceedings that the respondents are guilty of disobedience of the order of this Court in that the respondent has not complied with the order of this Court dated 3rd September, 1999 in Writ Petition No. 1488/1999 directing the respondent to hear the petitioner and then decide the matter. The contempt with which the respondent was charged for civil contempt as defined under the Contempt of Courts Act. The definition reads as follows :--
'2(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.'
4. The petitioner, who had moved this Court for taking action under the Contempt of Courts Act did not appear before this Court on 6-2-2003 when the Court passed the following order, which reads as follows :--
'None for the petitioner, AGP for Respondent-State. It appears that the petitioner is not interested in prosecuting the matter. Contempt proceedings are dropped. Petition dismissed.'
5. Now, after the proceedings have been dropped, the petitioner has applied by a Misc. Civil Application for restoration of contempt petition. The question is whether once the contempt proceedings have been dropped by this Court, they can be restored to file, like any other proceedings before this Court.
6. Having heard the learned counsel for both the sides, I am of view that the proceedings for contempt once dropped cannot be restored, in view of the following position.
7. In the first place, it must be seen that the proceedings for contempt as to whether in respect of a civil contempt or a criminal contempt are none the less proceedings quasi criminal in character. The contempt of Courts Act defines what is a civil contempt and what is a criminal contempt. The two kinds of contempt are defined as follows (b) and (c) :--
'2(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.'
'2(c) 'criminal contempt' means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which-(i) Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any Court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
8. However, a civil or a criminal contempt is punishable in the same manner. Section 12(1) reads as follows :
'12. Punishment for contempt of Court -- (1) Save as otherwise expressly provided in this Act or in any other law, 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 :
Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court.
Explanation -- An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.'
9. This section does not make any difference between the punishment for a civil contempt and punishment for a criminal contempt. In regard to both kinds of contempt, the person charged is described as an accused. In the matter of punishment the distinction which the Contempt of Courts Act, 1971 draws in Sub-section (3) of Section 12 is as follows :--
'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.'
10. The difference being that a person convicted of a civil contempt is liable to be sent to civil prison and not what is known as a criminal prison. None the less in both the cases, the punishment is by way of incarceration. Therefore; the submission made by Mr. Darda, the learned counsel for the petitioner that the contempt with which the respondent is charged was not a criminal contempt but a civil contempt therefore, contempt petition is liable to be restored cannot be accepted. There is no difference between two kinds of contempt qua the administration of justice. There is no difference in the matter of punishment qua the administration of justice. Both kinds of contempt adversely affect and interfere with the administration of justice.
11. The question that remains to be considered is whether contempt proceedings when dropped are liable to be restored like ordinary proceedings.
12. Mr. Khubalkar, the learned Assistant Government Pleader referred to Rule 17 framed by this Court under Section 23 of Contempt of Courts Act, which confers the power of this Court to frame Rules. Rule 17 of the Contempt of Courts Act (Bombay High Court Rules): 'The orders passed in the proceedings under the Act shall be carried out, enforced and executed as if they were orders passed by the High Court under the Code of Criminal Procedure, 1973.'
13. It is clear that the order passed by this Court on 6-2-2003 is an order in proceedings under of Contempt of Courts Act. Rule 17 provides that it shall be carried out, enforced and executed as if they were an orders passed by the High Court under Code of Civil Procedure. It is clear that the method contemplated by the Rules for carrying out an order of dropping proceedings of contempt would be liable to be enforced under the Code of Criminal Procedure. The word 'enforced' in Rule 17 must be read here as giving force to the order though normally it connotes execution of an order. Once the matter is made liable to be dealt with under the Code of Criminal Procedure, it must be dealt with under that Code. Section 300 of Code of Criminal Procedure reads as follows :--
'300. Person once convicted or acquitted not to be tried for same offence.-- (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence; nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Sub-section (1) of Section 221, or for which he might have been convicted under Sub-section (2) thereof.'
'300. (2) -- A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government for any distinct offence for which a separate charge might have been made against him at the former trial under Sub-section (1) of Section 220.'
'300(5) -- A person discharged under Section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate.'
14. It is therefore, clear that applying Section 300(2) and (5) of Code of Criminal Procedure to an order dropping proceedings must be treated on the same footing as an order of acquittal. In the present case, the proceedings have been clearly dropped because of non-appearance of petitioner which the Court held as a lack of interest on the part of the petitioner in prosecuting the contempt petition. The proceedings were therefore, dropped as if under Section 256 of Code of Criminal Procedure, which reads as follows :--
'Non-appearance or death of complainant. -- (1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day :
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with the attendance and proceed with the case.
(2) The provisions of Sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.'
15. Now, there is no reason to differentiate between an acquittal as a result of non-appearance of the complainant or the contempt petitioner, and an acquittal for any other reason. In Rasik Tatma v. Bhagwat Tanti reported in : AIR1958Pat239 , the High Court relied on several earlier decisions observed as follows :--
'(4) In Ram Mahto v. Emperor, 2 Pat LT 170 : AIR 1921 Pat 311 (2) (A), Kiran Sarkar v. Emperor : AIR1924Pat140 (B) and Jaikaran Jha v. Dukhan Paswan, Cri, Revn. No. 637 of 1953, D/- 8-4-1954 (Pat)(C) (unreported), this Court has held that an order under Section 247 of the Code of Criminal Procedure is a final order of acquittal which operates as a bar under Section 403 of the Code of Criminal Procedure to the trial of the accused for the same offence.'
Section 247 of Code of Criminal Procedure and Section 403 is equivalent to Section 300 of present new Code.
16. Similarly, in Suchana Roy and Ors. v. Paresh Kr. Ray reported in 1975 Cri.L.J. 555 Calcutta High Court treated an acquittal under Section 256 on the ground of non-appearance of the complainant. That acquittal was 'good enough to constitute an acquittal under Section 300'. It may be noted further that Sub-section (5) of Section 300 provides that even a person discharged under Section 258 shall not be tried again for the same offence except with the consent of the Court.
17. It is some consequence to note that the legislative policy is that an order discharging a person charged with contempt of Court is not appealable. It has been so held by the Supreme Court in case of State of Maharashtra v. Mahboob S. Alibay and Company reported in : 1996CriLJ2879 . While the present application is certainly not by way of an appeal. I am of view that the legislative policy in providing for an appeal only against the order of conviction and not against an order of discharge is an indication that once the contempt proceedings are dropped in any reason whatsoever, they ought not to be restored.
18. In the circumstances, this Misc. Civil Application for restoration is hereby dismissed. There shall be no order as to costs.