GOURI SHANKER SHAW Vs. BISWANATH NANDY

JUDGEMENT

(1.) This is a proceeding for contempt of Court. A preliminary contention has been raised by Mr. Biren Mitter the learned Public Prosecutor claiming the right of the State Government to intervene in a contempt proceeding pending before this Court and the right of the Public Prosecutor to appear in such proceeding without filing any vakalatnama or other authority in that behalf.

(2.) It may be necessary to narrate a few facts giving rise to the instant contempt proceeding against Biswanath Nandy a Sub inspector of Police in the Enforcement Branch of the West Bengal Police Force. Certain quantities of mobil oil were seized by the Police Authorities belonging to the petitioner Gouri Shanker Shaw, and in connection therewith there were various proceedings both in this court and in the court of the Sub-divisional Judicial Magistrate, Barrackpore (hereinafter referred to as S.D.J.M. Barrackpore). Ultimately an application under Sections 397 and 401 read with Sec. 482 of the Code of Criminal Procedure 1973 was made by the petitioner in this court which was heard by me on the 14th Oct. 1978. Miss Uma Banerjee the learned Advocate for the Slate appeared at the hearing. After hearing the learned Advocates for the parties issued a rule calling upon the State to show cause why the order complained of by the petitioner should not be set aside and further directed that upon the petitioner executing a bond to the satisfaction of the S.D.J.M., Barrackpore the goods seized in connection with the Kharda P.S. Case No. 98(8) of 1977 be made over to the petitioner and the petitioner was directed not to sell, dispose of or otherwise encumber the said goods until the disposal of the rule. The rule was made returnable one week after the long vacation. Subsequently on the prayer of the petitioner directed that the petitioner be furnished with a plain copy of my said order counter-signed by the Assistant Registrar of this Court. Thereafter on the application of the petitioner the S.D.J.M., Barrackpore made an order on the 19th Oct. 1978 directing return of the seized goods to the petitioner on his executing a bond for Rs. 10,000.00 and the petitioner in accordance with my order dated 14th Oct. 1978 was again directed not to sell, dispose of or otherwise encumber the seized goods until the disposal of the said rule pending in this court. It appears that on the 19th Oct. 1978 the petitioner executed a bond for Rs. 10,000.00 which was accepted by the S.D.J.M., Barrackpore. It further appears that in spite of my said order dated 14th October 1978 and the said order dated 19th Oct. 1978 passed by the S D.J.M , Barrackpore the alleged contemner as an investigating officer in the said Kharda P.S. Case No. 98(8) of 1977 in whose custody the said seized goods were lying, did not return the said goods to the petitioner on the ground that he had not received the order of the S.D.J.M., Barrackpore. Thereafter the petitioner obtained a certified copy of the order dated 19th Oct. 1978 passed by the S.D.J.M, Barrackpore and is said to have handed over the same to the alleged contemner, but the alleged contemner refused to deliver the said goods to the petitioner on the plea that the number of the premises wherefrom the said goods were seized was not mentioned in my order dated 14th Oct. 1978 and unless my said order was modified or clarified specifying the number of the said premises the said goods could not be delivered to the petitioner. On the 3rd Nov., 1978 the petitioner moved before me the instant application for contempt of court against the alleged contemner inter alia for violation of and disobedience to my said order dated 14th Oct. 1978 when issued a rule and directed the alleged contemner to deliver the seized goods to the petitioner on the bond furnished by the petitioner as directed by the S.D.J.M, Barrackpore by his order dated 19th Oct. 1978 on the said terms and condition as contained in my said order dated 14th Oct. 1978 and the alleged contemner was further directed to deliver the said goods to the petitioner from the premises wherefrom the same were seized and to act on a plain copy of my order counter-signed by the Assistant Registrar of this Court. On the 17th Nov. 1978 the present contempt application appeared before me when the petitioner was represented by Mr. Sekhar K. Basu Advocate and the alleged contemner was represented by Mr. Biren Mitter the learned Public Prosecutor and Mr. N. A. Chowdhury, Advocate, and at the instance of the parties gave directions for filling of affidavits. Thereafter on the 13th Dec. 1978 the matter again appeared before me when Mr. Mitter claimed to intervene in the proceeding as the Public Prosecutor. Mr. Panja the learned counsel for the petitioner objected to the appearance of Mr. Mitter on the grounds that the State is not a party to the present proceeding and no power or vakalatnama has been filed by Mr. Mitter or on his behalf. Mr. Mitter, however, contended that as the Public Prosecutor he was entitled to appear before all courts in all criminal proceedings and that also without filing any vakalatnama or power. Mr. Mitter urged that the State was interested in the present proceeding inasmuch as by reason of issue of the rule for contempt of court against the alleged contemner the investigation in the main criminal case was being hampered. In the main criminal case before this court out of which the present contempt proceeding arises was with regard to large quantities of oil which are sought to be taken away by the petitioner and the State is a party of the said criminal proceeding and therefore the State should have been made a party by the petitioner in this contempt proceeding. The present contempt proceeding being an offshoot of the main criminal case and the petitioner by this contempt proceeding is trying to stifle the investigation and his prosecution in the said criminal case. The petitioner has no option but to make the State a party to this contempt proceeding which is of a quasi-criminal nature and in this particular case the contempt alleged by the petitioner is a criminal contempt and therefore the State has both the right to intervene and of audience Under Sec. 301 of the Code of Criminal Procedure the Public Prosecutor is entitled to appear without being required to file any warrant or vakalatnama

(3.) In support of his contentions that the contempt alleged by the petitioner in the instant proceeding is a criminal contempt, Mr Mitter referred to Sec. 2 of the Contempt of Courts Act 1971. To appreciate the arguments of Mr. Mitter the relevant portions of Sec. 2 of the Act are set out below:-