Judgment:
1. The question of maintainability of L.P.A. S.R. No. 59802 of 1995, purported to have been filed against the order of the learned single Judge in C.C. No. 86 of 1995 refusing to proceed for contempt against the respondents, has been raised by the Registry. Since specific provision has been made in Section 19 of the Contempt of Courts Act, 1971 (for short 'the Act') prescribing for appeals in matters of orders or decisions relating to contempt, the objection is that Clause 15 of the Letters Patent would not enable preferring an appeal against the order of the learned single Judge refusing to punish for contempt.
2. Mr. K. V. Satyanarayana, learned counsel appearing for the petitioner/appellant, while fairly bringing to our notice that the question has been decided against the petitioner by two Division Bench's decision of this Court in S. Sammaiah v. A.P.S.E.B., : 1994(2)ALT729 and T. Vasanatha Lakshmi v. Prl. Apswar School, 1992 (2) An WR 1, yet urges for taking a fresh look at the question since according to him those cases were decided in the context of criminal contempt but that the present case being one of civil contempt, the provisions of Clause 15 of the Letters Patent would be applicable. Mr. C. N. Babu, learned counsel for the respondents on the other hand submits the two earlier decisions of this Court to have been correctly rendered and as entirely covering the field and that there is no scope of any re-consideration of the question.
3. Elaborating his submission, Mr. Satyanarayana has urged that the decision of the Supreme Court in D. N. Taneja v. Bhajan Lal, 1988 (3) SCJ 88 deciding that when the Court refuses to punish for contempt it does not exercise its jurisdiction or power to punish for contempt for which an appeal would not lie as Section 19 of the Act only provides for an appeal when the order or decision of the High Court is in the exercise of its jurisdiction to punish for contempt, is only applicable to criminal contempt as the Supreme Court itself clarified in the judgment that the scope and ambit of the judgment is confined to such criminal contempt alone. He further submits that not only the case before the Supreme Court was one of a Criminal contempt, but also Baradakanta Mishra v. Justice Gatikrushna Mishra, : 1975CriLJ1 , the case on which reliance was placed in the case was itself a case of criminal contempt. While conceding that an appeal does not lie in the matter of a criminal contempt where the Court discharges the rule, it is argued that so far as civil contempt is concerned, it is a matter of civil nature and hence an appeal would lie from the decision of a learned single Judge even if it is one in which cognizance of contempt is refused to he taken and award of punishment is declined. On these premises it is urged by him that as two Division Bench decisions of this Court did not consider the question in the light of difference between civil and criminal contempt and failed to notice that in Taneja's case supra the Supreme Court itself confined its decision to criminal contempt alone, it should be held that a Letters Patent Appeal in the matter of civil contempt, even though the learned single Judge refused to hold the respondents guilty for contempt, lies.
4. Repelling the argument, Mr. Babu, learned counsel appearing for the respondents contends of there being no difference between civil and criminal contempt so far as provision of appeal is concerned and Clause 15 of the Letters Patent as not being available to be invoked to maintain an appeal.
5. Section 19 of the Act stipulates that an appeal shall lie as of right from any order or decision of High Court in exercise of its jurisdiction to punish for contempt. When the order is of the learned single Judge the appeal lies to a Bench of not less than two Judges of the Court and when the order is of a Bench, it lies to the Supreme Court. Even though the Taneja's case the Court observed that the judgment is confined to criminal contempt, yet, while explaining the scope of Section 19(1) of the Act, the observation was made :
'The right of appeal will be available under sub-section(1) of Section 19 only against any decision or order of a High Court passed in the exercise of its jurisdiction to punish for contempt. In this connection, it is pertinent to refer to the provisions 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 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 on behalf of the respondent and, in our opinion rightly, that the High Court exercise 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 punishment on the alleged contemnor, the High Court does not exercise its jurisdiction or power to punish for contempt. The jurisdiction 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.' (Para 8)
It was further observed :
'........ The High Court can exercise its jurisdiction only by punishing for contempt. It is true that in considering a question whether the alleged contemnor is guilty of contempt or not, the Court hears the parties and considers the materials produced before it and, if necessary, examines witnesses and, thereafter, passes an order either acquitting or punishing him for contempt. When the High Court acquits the contemnor, the High Court does not exercise its jurisdiction for contempt, for such exercise will mean that the High Court should act in a particular manner, that is to say, by imposing punishment for contempt. So long as no punishment is imposed by the High Court, the High Court cannot be said to be exercising its jurisdiction or power to punish for contempt under Article 215 of the Constitution.' (Para 10)
While making these observations regarding the scope of Section 19 of the Act and the jurisdiction of the High Court to punish for contempt the Court was not making any distinction between civil or criminal contempt and the analysis made equally applies to both kinds of contempt. It is however the argument that even though an appeal does not lie under Section 19 of the Act, yet an appeal would lie under Clause 15 of the Letters Patent, the judgment of the learned single Judge in such a case being a civil one. It is the submission that an order passed for contempt in a civil contempt is only to force the contemnor to do something for the benefit of the other party, the principal object being to secure the enforcement of an order. Supporting the distinction between the two kinds of contempt, Mr. Satyanarayana places reliance on the State v. Dasrath, : AIR1951Pat443 and Vijai Pratap Singh v. Ajit Prasad, : AIR1966All305 .
6. Though the decisions of Patna and Allahabad High Courts spoke about the distinction between civil and criminal contempt, yet the question as to whether appeal lies under the Letters Patent when cognizance is refused to be taken of civil contempt was not dealt with in those cases. That question was addressed in Hem Bala Dassi v. Sunder Shaw, : AIR1953Cal627 : which was followed in Dulal Chandra v. Sukumar, : AIR1958Cal474 . In the former case contempt of Court was explained as to consist either in words or acts obstructing the administration of justice in which case it is criminal contempt, or in disobedience to orders or processes of the Court so as to cause private injury, in which case it is civil contempt or, in the language of English law, 'contempt in procedure'. It was observed that whether the contempt in a particular cast is civil or criminal or partakes of the nature of both is often a question of great refinement, but this atleast is well established that breach of an undertaking given to the Court to do or not to do a certain thing in the interest of private party is mainly and substantially contempt in procedure or civil contempt, and an order made in respect of such a breach is outside the exception contained in Clause 15 and accordingly whether an appeal lies from such an order must depend upon whether it amounts or does not amount to a 'judgment'. The Court held that if committal to prison for breach of an undertaking given to the Court is a form of execution which the party for whose benefit the undertaking was given is entitled to ask for, an order refusing to commit or to entertain an application for committal undoubtedly affects the merits of a question between the parties and is therefore a 'judgment' within the definition given by Sir Richard Couch in Justices of the peace of Calcutta v. Orientral Gas Co., 8 Beng LR 433 and that if so, an appeal against it lies under clause 15 of the Letter Patent.
7. Taking similar view, the later decision (cited at supra) held that where the only allegation made is that the private party, in whose favour the order was made, himself made an attempt to serve the order and was then abused and the only other complaint made is that the adverse party has not voluntarily restored possession or returned certain good, but nothing is said as to any contumaciousness to the Court itself, not as to any apprehension of the breach of the peace, there cannot be any question of any criminal contempt and in such case if the view of the Judge who has made the order for committal is based upon his opinion that certain acts or words of the adverse party (respondent) constitute violation of an order by which certain rights of the petitioner had been declared and that because such rights were even then still not being conceded by the alleged contemnor he should be punished, the order clearly deals with a matter touching the merits of the controversy between the parties and being thus a 'judgment', is appealable.
8. In both the cases (cited supra), the Court was considering the question as to whether an order passed in the matter of civil contempt either refusing to commit or of committing was a 'judgment' under clause 15 of Letter Patent so as to entitle one to appeal to a Division Bench in case the contempt was of civil nature.
9. Both these decisions were rendered prior to the Contempt of Court Act, 1971 which deals with both Civil and criminal contempt. The distinction between civil and criminal contempt is often remarkably thin, a classical exposition was made by Sir Asutosh Mookerjee in the Special Bench case of Tarit Kanti Bishwas, AIR 1918 Cal 988 of which I am tempted to quote portions in extenso, as was also done by the learned single Judge in Vijai Pratap Singh v. Ajit Prasad (supra).
'A criminal contempt is conduct that is directed against the dignity and authority of the Court. A civil contempt, on the other hand is failure to do something ordered to be done by a Court in a civil action for the benefit of the opposing party therein. Consequently, in the case of a criminal contempt, the proceeding is for punishment of an act committed against the majesty of the law and as the primary purpose of the punishment it the vindication of the public authority the proceeding conforms as nearly as possible to proceedings in criminal cases. In the case of a civil contempt on the other hand, the proceeding in its initial stages at least when the purpose is merely to secure compliance with a judicial order made for the benefit of a litigant, may be deemed instituted at the instance of the party interested and thus to possess a civil character. But, here also refusal to obey the order of the Court may render it necessary for the Court to adopt punitive measures against the person who has defied its authority; at that stage at least the proceedings may assume a criminal character. In this manner the dividing line between acts which constitute criminal and others which constituted civil contempt may become indistinct in those cases, where the two gradually merge into each other; see St. James Evening Post case Scott v. Scott (1913 AC 417 : 82 LJ 74), Lichmere Charlton's case (1837) 2 My & Cr 316 : 40 ER 661), Wallace In Re (1866) 1 PC 283 : 4 Moore PC (n.s. 140), Davies In Re (1888) 21 QBD 236), Onsalow's and Whalley's case (1873) 3 QB 219 and Skipworth's case (1873) 9 QB 230. A careful scrutiny of the cases in the books shows, however, that much confusion exists in the reported decisions as to whether or not contempt proceedings are civil or criminal where the contempt is committed in relation to a civil proceeding, and it is consequently desirable to investigate briefly the true test for differentiation.
The power to punish for contempt is inherent in the very nature and purpose of Court of Justice. It subserves at once a double purpose namely, as an aid to protect the dignity and authority of the tribunal and also as an aid in the enforcement of civil remedies. The power may consequently be exercised in civil or criminal cases or independently of both and either solely for the preservation of the authority of the Court or in aid of the rights of the litigant or for both these purposes combined. By reason of this two fold attribute, proceedings in contempt may be regarded as anomalous in their nature possessed of characteristics which render them more or less difficult of ready or definite classification in the realms of judicial power. Hence, such proceedings have some times been styled suigeneris. That they are largely of a criminal nature inasmuch as the Court has power to convict and punish for the wrong committed, cannot be disputed and yet it must be recognised that in some respects, by reason of the end subserved they partake of the nature of a civil remedy. This dual characteristic has given rise to many controversies, specially when questions have arisen as to right of appeal from the order passed as in Reg v. Barnardo 1889 (23) QBD 305 = 58 LJ QB 553, Barnardo v. Ford 1892 AC 326 - 61 LJQB 728 Helmore v. Smith 1886 35 Ch D 449 : 59 LJ Ch 145 A. G. v. Kissane 1893 (32) Ir LR 220, Hunt v. Clark, Reg. v. Staffordshire Country Court Judge (23), O'Shea v. O'shea 1890 (15) PD 59 = 59 LJP 47, Bessette v. Conkey Co. 1904 (194) US 324 : 48 Law ED 997, Christensen Engineering Co. In the Matter of 1904 194 US 458 : 48 Law Ed 1082, Warden v. Searls 1887 121 US 14 : 30 Law Ed 853, Bompers v. Buck's Stove Co. 1991 (221) US 418, the applicability of rules of evidence : Celluloid Co. v. Chrolithian Co. 1885 (24) Fed 585; Bullock Co. v. Westinghouse Co. 1904 63 CCA 607 : 194 US 636, Ex Parte Gould 1893 (99) Cali 360 = 21 LRA 751), the finality of the judgment; Fisher v. Hayes (1881 19 Blatch 13) and Re Mullee (1869) 7 Blatch 23 = 17 Fed Cas 9911; liability for payment of costs, Cornish, In re 1893 9 TLR 169, Martinfale In re (12) and Day v. Longhurst (1892 62 LJ Ch 334 : 2 R 234 right of trial by Jury, Tinsely v. Anderson 1898 (171) US 101 = 43 Law Ed 01; Re Deba (1895 158 US 564 : 39 Law Ed 1092) and Bilenbecker v. District Court of Plymouth Country, IOWA(1890 134 US 31 : 33 Law Ed 801 and other like matters. The difficulty in each case is to determine when a particular proceeding assumes the criminal rather than the civil aspect, or when of both, and if the latter which feature must control. The question has been repeatedly and elaborately discussed by the Supreme Court of the United States; Kearney Ex Parte 1882 (7) Wheat 38 : 5 Law Ed 391, New Orieans v. New York Mail Steamship Co. 1874 29 Wall 38 : 5 Law Ed 391) Chilles, In re 1875 (22) Wall 157 : 22 Law Ed 819 Hayes v. Fischer 1880 (102) US 121 : 26 Law Ed 95 Warden v. Searls (51) Ex. Debs In re(62) O'Neal v. Unites States 1903 US 36 : 47 Law Ed 945) Christensen Engineering Co., In the matter of (51) Bessette v. Conkey Co. (50), Doyle v. London Guarantee Co. 1907 (204) US 559 and Gompers v. Buck's Stove Co., (53)). The view deducible from these decisions is in general agreement with what is indicated above, namely a proceeding to punish for contempt has the essential qualities of a criminal proceeding, whether the proceeding is initiated primarily to vindicate the Court's authority or solely as a coercive and a remedial measure to enforce the rights of the litigant or for both these purposes combined. This must be so, since it necessarily results from the nature of the power to punish for contempt that whatever the primary purpose of such a proceeding may be, it is always within the power of the Court to make its judgment, in part, atleast, punitive or vindicatory in character; in other words where the sole purpose sought by initiating the proceeding is to secure the coercive and remedial action of the Court against a party, the Court may themselves, in its discretion, add a punishment by way of fine or imprisonment, for the failure of the person in contempt to obey its mandate. I think it undeniable that the proceeding must be regarded from its inception to the point of judgment as of a criminal nature.'
10. In Dulal Chandra v. Sukumar (supra), this position was acknowledged saying that line between the civil and criminal contempt can be broad as well as thin. It was said where the complaint is of more failure to comply with or carry out an order of a Court for the benefit of private party, it is plainly civil contempt and it has been said that when the party, in whose interest the order was made, moves the Court for action to be taken in contempt against the contemner with a view to the enforcement of his right, the proceeding is only a form of execution. But if the contemner adds defiance of the Court to disobedience of the order and conducts himself in a manner which amounts to obstruction or interference with the course of justice, the contempt committed is of a mixed character, partaking as between him and his opponent the nature of a civil contempt, and as between him and the Court or the State, the nature of a criminal contempt. In cases of this type, no clear distinction between civil and criminal contempt can be drawn and the contempt cannot be classified either as civil or criminal. The Court however explained, as has been seen earlier, that there can be purely civil contempt where the conduct alleged against the contemner is not of contumacious conduct, but one purely of violation of the direction of the Court or of the undertaking given. In considering the question, the Court did not deal with the earlier decision cited at supra which was decided by a special Bench.
11. Whatever the distinction might have been existing between civil and criminal contempt as to whether appeal lies under the Letters Patent or not, yet on introduction of the codified law in the shape of the 1971 Act and specific provision being made therein in S. 19 for appeal the distinction must be taken to have been wiped out. The Act was being enacted to define and limit the powers of certain Courts in punishing contempts of Courts and to regulate their procedure in relation thereto. With such objective in view, it could not be said that while the Act was making specific provisions for appeal, it would leave scope for provisions of appeal under other laws. Though, the Act defines civil and criminal contempt separately, yet S. 19 does not make any distinction between the two kinds of contempt. In both kinds, the jurisdiction of the High Court is to punish for contempt. If the punishment is imposed, in whatever form, it is a matter of exercise of the jurisdiction and an appeal would lie assailing it. If the jurisdiction is not exercised, inasmuch as punishment is not imposed or cognizance is not taken, it is an absence of the exercise of jurisdiction because of which the provisions of S. 19 would not be applicable. The further argument that even if S. 19 is not applicable, yet an appeal would lie under clause 15 of the Letters Patent, only because the contempt is alleged to be civil one, would in effect be going against the spirit and tenor of S. 19 and supplanting the provisions by additional provision. It has hence to be held that decision in Taneja's case cited at supra equally applies to civil as well as criminal contempt. In making the observation that the scope and ambit of the judgment is confined to criminal contempt, their Lordships were only stressing the fact that the judgment was not directed to decide questions about civil contempt. But since it is found that S. 19 does not make any distinction between civil and criminal contempt, it has to be held that the exposition made in the judgment is fully applicable to civil contempts also and appeal which is not otherwise maintainable, would not be appealable because of clause 15 of the Letters Patent. I am fortified in this view by the two decisions of this Court cited at (1) and (2) which arrived at the same conclusion. The conclusion was rightly reached in the decision (supra) that in enacting S. 19(1), the Parliament intended to provide appeal only in cases of exercise of jurisdiction by the High Court for punishing for contempt and right of appeal is restricted to the contemner only. When once competent legislature restricted the right of appeal, that restriction applies and prevails over Clause 15 of the Letters Patent as the said clause is subject to the provisions prescribing right of appeal provided under the Act.
12. In a decision R. P. Bharadwaj v. Kiran Agarwal, 1989 Crl LJ 481, the Punjab and Haryana High Court took the view that appeal is maintainable only against the order punishing contemner.
13. A Division Bench of the Madras High Court in the decision Shantha v. Pai v. Vasanth Builders 1991 Cri LJ 3026, Justice (Dr.) A. S. Anand, C.J. (as he then was) while examining the question at depth, pointed out that contempt proceedings are a matter between the Court and the alleged contemner and the person who moves the machinery of the Court for punishing an alleged contemner is only in the position of an informer and cannot be treated as a party-juris. For such reason, when the Court finds its order not to have been disobeyed and refuses to punish the alleged contemner, it would not be determining any right of the applicant nor imposing any liability on him and hence such an order cannot be said to be a 'judgment' within the meaning of Clause 15 of the Letters Patent. The informer hence could not be an aggrieved party and would not be entitled to maintain an appeal. It is the Court which is the sole and exclusive Judge of what amounts to a contempt of Court and in case the Court finds that nothing has been done which necessiates the exercise of its contempt jurisdiction, it is not open to any party to insist that the alleged contemner must be punished. In saying so, the Court approved the Full Bench judgment in Collector of Bombay v. Issac Penhas AIR 1948 Bom 103 which in turn was relying upon an earlier Division Bench decision of that Court in Narendhra Bhai v. Chinubhai, AIR 1936 Bom 314.
14. In this view of the exposition of the law, the Office objection is upheld and L.P.A. S.R. No. 59802 of 1995 is held as not maintainable. There shall be no costs.
15. Order accordingly.