Anil Kumar, J. - (1.) HEARD Shri Alok Kumar Shukla, learned counsel for the applicant, learned Standing Counsel and perused the record.
(2.) THE present contempt petition has been filed under Section 12 of the Contempt of Courts Act alleging for willful and disobedience of order dated 20.12.2010 passed by Additional Commissioner (Judicial) Lucknow Division Lucknow in Sale Objection No. 8 of 2010 under Rule 285 of Z.A. Rules "Arjun Prasad and another vs. State and Suman". The question which is to be considered in the present case is that whether against alleged willful and disobedience of order dated 20.12.2010 passed by Additional Commissioner (Judicial) Lucknow Division Lucknow, the present contempt petition lies before this Court or not under Section 12 of the Act.
(3.) ANSWER to the question finds place in a judgment passed by this Court dated 13.9.2010 in Crl. Misc. Case No. 1945 (C) of 2010 "Virendra Kumar vs. Sri Sunil Chaudhary & Another", the relevant portion of the same reproduced herein below: Mr. Lalit Shukla, learned Additional Chief Standing Counsel raised objection against the maintainability of petition and invited the attention of this Court towards the provision of Section 10 of the Contempt of Courts Act which is reproduced herein under: - 10. Power of High Court to punish contempts of subordinate courts -Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself : Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code, 1860 (45 of 1860). In light of the aforesaid provision he submits that in exercise of power under Section 10 of the Act, this Court can exercise the jurisdiction in respect of contempts of itself as well as in respect of contempt of Courts subordinate to it but it shall not take cognizance of contempt of court subordinate to it where such contempt is an offence punishable under the Indian Penal Code, 1860. He further invited the attention of this Court towards the Chapter X of the Indian Penal Code which deals with contempts of the lawful authority of Section 188 deals with the disobedience to order duly promulgated by public servant Section 188 of the Indian Penal Code is reproduced herein under: - Disobedience to order duly promulgated by public servant -Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both. Explanation: - It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. and if such disobedience causes or tends to cause danger to human life, healthy or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. He further placed the provisions of Section 195 of the Code of Criminal Procedure which deals with the prosecution for contempt of lawful authority of public servants for offences against public justice and for offences relating to documents given in evidence. Section 195 of Code of Criminal Procedure is reproduced hereinunder: (1) No Court shall take cognizance (a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub -clause (i) or sub -clause (ii), [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate.] (2) Where a complaint has been made by a public servant under clause (a) of sub -section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub -section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a Tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of sub -section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appeasable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: Provided that (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed. In light of the aforesaid provisions he submits that since the petitioners claim the disobedience of order passed by the Divisional Commissioner who is a public servant and is governed under the term of "Court", the petitioner has a remedy to move an appropriate application for prosecution of a person under the Code of Criminal Procedure read with Indian Penal Code which is a proper efficacious remedy for the petitioner and thus he submits that the present contempt petition is not maintainable on the ground of the availability of the alternative remedy as aforesaid. In reply Mr. V.R. Singh, learned counsel for the petitioner submits that the Hon'ble Supreme Court in the case of S.K. Sarkar Member, Board of Revenue U.P. Lucknow, V. Vinay Chandra Misra, : 1981 Cri. L.J. 283 has held that the revenue Court comes under the definition of subordinate Court and accordingly the Revenue Commissioner who has power to exercise the criminal court is a subordinate Court therefore, this Court can take cognizance of contempt committed of the order passed by the Divisional Commissioner. The relevant paragraph 18 of the aforesaid judgment is reproduced herein under: 18. It is, however, to be noted that Section 15 does not specify the basis or the source of information on which the High Court can act on its own motion. If the High Court acts on information derived from its own sources, such as from a perusal of the records of a subordinate court or on reading a report in a newspaper or hearing a public speech, without there being any reference from the subordinate court or the Advocate -General, it can be said to have taken cognizance on its own motion. But if the High Court is directly moved by a petition by a private person feeling aggrieved, not being the Advocate -General, can the High Court refuse to entertain the same on the ground that it has been made without the consent in writing of the Advocate -General? It appears to us that the High Court, has, in such a situation, a discretion to refuse to entertain the petition or to take cognizance on its own motion on the basis of the information supplied to it in that petition. If the petitioner is a responsible member of the legal profession, it may act suo motu, more so, if the petitioner -advocate, as in the instant case, prays that the Court should act suo motu. The whole object of prescribing these procedural modes of taking cognizance in Section 15 is to safeguard the valuable time of the High Court or the Supreme Court from being wasted by frivolous complaints of contempt of court. If the High Court is prima facie satisfied that the information received by it regarding the commission of contempt of a subordinate court is not frivolous, and the contempt alleged is not merely technical or trivial, it may, in its discretion, act suo motu and commence the proceedings against the condemner. However, this mode of taking suo motu cognizance of contempt of a subordinate court, should be resorted to sparingly where the contempt concerned is of a grave and serious nature. Frequent use of this suo motu power on the information furnished by an incompetent petition, may render these procedural safeguards provided in sub -section (2), otiose. In such cases, the High Court may be well advised to avail of the advice and assistance of the Advocate -general before initiating proceedings. The advice and opinion, in this connection, expressed by the Sanyal Committee is a pertinent reminder: "In the case of criminal contempt, not being contempt committed in the face of the court, we are of the opinion that it would lighten the burden of the court, without in any way interfering with the sanctity of the administration of justice, if action is taken on a motion by some other agency. Such a course of action would give considerable assurance to the individual charged and the public at large. Indeed, some High Courts have already made rules for the association of the Advocate -general in some categories of cases at least........the Advocate -General may, also, move the court not only on his own motion but also at the instance of the court concerned.... After going through the above interpretation of the Hon'ble Supreme Court I am of the view that undoubtedly the Divisional Commissioner is a subordinate Court under the Contempt of Courts Act to entertain the application but on the eventuality of remedy available under the Indian Penal Code. I am not inclined to entertain the application, therefore, the application/petition is rejected with liberty to the petitioner to adopt a proper recourse as has been observed hereinabove;