- (1.) HEARD Sri Sant Saran Upadhyay, leaned Advocate appearing for the appellant.
(2.) THIS appeal has been filed by the appellant against the order dated 23. 10. 2008, passed by learned Single Judge of this Court on Misc. Application No. 254864 of 2008 in Contempt case No. 21 of 2007. Brief facts of the case necessary to be noted for deciding the issues raised in the appeal are; a learned Single Judge of this Court vide order dated 10. 12. 2007 initiated proceedings of contempt against the appellant who is an Advocate of this Court. Learned Single Judge took cognizance of the contempt and directed the Court Officer to send her to jail and framed charges by the same order. The order mentions that cognizance of the contempt is being taken under Section 15 of the Contempt of Courts Act, 1971. Learned Single Judge further directed that the order passed, be sent before the contempt Bench dealing with the criminal contempt. The appellant filed a contempt appeal No. 25 of 2007 against the order dated 10. 12. 2007 in which appeal, the Division Bench granted stay of the arrest and further restrained the appellant from appearing in the Court except in her own contempt case. The order recorded the statement of the appellant that she will submit an apology before the learned Single Judge. On 11. 12. 2007, the appellant filed an application along with affidavit before the learned Single Judge. On 11. 12. 2007, the learned Single Judge disposed of the application for apology taking the view that the criminal contempt proceedings were drawn on 10. 12. 2007 and the matter having been sent before the Bench dealing with the criminal contempt, her application for apology can be better adjudicated by the Division Bench which is seized of the matter. Learned Single Judge observed that sitting singly, he cannot have jurisdiction to entertain the alleged qualified apology which has to be pleaded before the appropriate Bench. The Division Bench hearing the appeal made a reference to Hon'ble the Chief Justice for constituting a larger Bench to hear both the contempt appeal and the contempt petition No. 21 of 2007. An application was filed by the appellant to withdraw the contempt Appeal No. 25 of 2007. By order dated 2. 4. 2008, Hon'ble the Chief Justice referred the entire matter to a Full Bench of five Hon'ble Judges as requested by Division Bench vide order dated 11. 12. 2007. Full Bench vide its order dated 22. 8. 2008 held that contempt appeal No. 25 of 2007 is maintainable under Section 19 of the Contempt of Courts Act, 1971 and the appellant was given an option to intimate as to whether she wants to press the withdrawal application filed for withdrawal of the appeal. On 22. 9. 2008, the Full Bench dismissed the Contempt appeal No. 25 of 2007 as withdrawn. The Full Bench again took the matter on 13. 10. 2008 and adjourned the same noticing the submissions of the appellant that apology of the appellant could still be considered and appropriate order could be passed by learned Single Judge himself on the footing that the case is one under Section 14 and not under Section 15 of the Contempt of Courts Act, 1971. The appellant again filed an application along with affidavit before the learned Single Judge praying for considering her apology. Learned Single Judge by the impugned order dated 23. 10. 2008 again took the view that the apology application has to be considered by the Full Bench which is seized of the whole case. Learned Single Judge by order dated 23. 10. 2008 directed the apology application to be placed before the concerned Full Bench, against which order this contempt appeal under Section 19 of the Act has been filed. Learned Counsel for the appellant in support of the appeal contended that this appeal is fully entertainable under Section 19 of the Contempt of Courts Act, 1971. Learned Counsel for the appellant placed reliance on the order of the Full Bench dated 22. 8. 2008 referred above to buttress his submissions regarding maintainability of the appeal. Learned Counsel for the appellant has referred to several paragraphs of the judgment dated 22. 8. 2008 to demonstrate that in view of the observations made by the Full Bench, the present appeal is fully maintainable under Section 19. Apart from the judgment of the Full Bench, learned Counsel for the appellant has also placed reliance on the judgment of the apex Court in the case of Purshotam Dass Goel v. Hon 'ble Mr. Justice B. S. Dhillon and others, Al R 1978 SC 1014 and the judgment of the Apex Court in the case of R. N. Dey and others v. Bhagyabati Pramanik and others, (2000) 4 S. C. C. 400.
(3.) THE submission of learned Counsel for the appellant is that although the proceedings which were initiated by learned Single Judge for criminal contempt are the proceedings of ex-facie contempt under Section 14 of the Contempt of Courts Act, 1971 but it mentions taking the cognizance under Section 15 of the Contempt of Courts Act, 1971. Learned Counsel of the appellant contends that under Section 15 of the Contempt of Courts Act, 1971, learned Single Judge has no jurisdiction to take cognizance of the Criminal contempt since under the roaster fixed by Hon'ble the Chief Justice, the criminal contempt was. cognizable only by a Division Bench. THE learned Counsel for the appellant submits that ex-fade contempt under Section 14 is to be tried by the same Hon'ble Judge, who had taken cognizance of ex- facie contempt and same learned Single Judge is fully entitled to consider the application for apology. Learned Counsel for the appellant submits that it is due to this reason that Full Bench vide its order dated 13. 10. 2008 permitted the appellant to file an application of apology before the learned Single Judge again. Learned Counsel for the appellant submits that non-consideration of application of apology by learned Single Judge has resulted into hanging of contempt proceedings on the appellant and amounts refusal to exercise the jurisdiction by the learned Single Judge, which is liable to be corrected in this contempt appeal. We have considered the submissions of the learned Counsel for the appellant and have perused the record.;