S S ROY Vs. STATE

JUDGEMENT

(1.) This is an application for leave to appeal to the Supreme Court against the judgment and order of this Court in Original Criminal Misc. Cases Nos. 11/51 and 14/51 both of which were dealt with by this Court by a common order. By the said order the two petitioners, viz., Sri S. S. Roy, then Magistrate, 1st Class, Cuttack, and Sri Sankar Charan Sahu, then Sub-Inspector of Police, Cuttack, were adjudged guilty of contempt of Court and sentenced to pay a fine of Rs. 100/-and Rs. 50/- respectively. An objection was taken in the course of the argument that as against the order of the High Court adjudging any person to have committed contempt and sentencing him to punishment, no appeal lies or at any rate that the High Court has no power to grant leave to appeal. This objection will be dealt with towards the close of this order and after dealing with the other contentions that have been raised on the merits of the application. To understand those contentions correctly, it is necessary to state a few facts as shortly as possible.

(2.) One Hrudananda Sahu was the judgment-debtor in a money-decree obtained against him in the year 1935. A warrant of personal arrest was issued against him by the Additional Munsif of Cuttack, and was handed over on 15-4-1950 to a process-server, one Brundaban Mohanty, for execution. The said Hrudananda Sahu happened on that day to attend the Court of Sri B. Pal, Magistrate, 1st Class. Cuttack, as an accused in a criminal case. He appears to have been ordered to be released on bail. After the lapse of about four hours thereafter and while he was still near about the precincts of that Court, he came to know that the process-server of the Munsif's court was preparing to arrest him in execution of the warrant, obtained against him by the decree-holder. He then appears to have moved from one Magistrate to the other for protection from arrest and ultimately petitioner 1 herein Sri S. S. Roy, Magistrate, 1st Class, Cuttack, passed an order purporting to be under Section 144, Criminal P. C. restraining the Civil Court process-server from arresting the judgment-debtor iu execution of the warrant of arrest, till he reached his home, and directed the notice of the said restraint order to be served on him at once. It would appear that no formal copy of this order for service was prepared in the office of the Magistrate, nor sealed or signed by him, nor, was it in fact served bn the Civil Court process-server through the usual channel. It was also not endorsed for service through the police. But it would appear that the second petitioner herein the Sub-Inspector of police, received some intimation about a possible disturbance and came on the spot, at the time when the process-server was either about to arrest the judgment-debtor, or had in law, already just arrested him. The second petitioner on the strength of the order of the Magistrate, the original of which was somehow brought to the spot and shown to him by the judgment-debtor's lawyer, directed the process-server not to interfere with the liberty of the judgment-debtor and brought about the escape of the judgmentdebtor, thereby either preventing his arrest by the process-server or releasing him from his custody. The Munsif who issued the warrant of arrest received a report about this from the process-server. He thereupon, made an inquiry and sent up a report to this Court against petitioner 2 the Sub-Inspector of Police, holding that his action amounted to wilful obstruction to the regular process of his Court constituting contempt of Court and recommending that proper action be taken. That was treated by this Court as a motion for proceedings for contempt and was numbered as Orl. Cr. Misc. 11 of 1951, and the same came up for orders of this Court. When that motion came up, this Court issued notice, suo motu, also to petitioner 1 the Magistrate, 1st Class, Cuttack, to show cause why he should not be committed for contempt for having passed an order restraining the Civil Court Peon from executing the process without any jurisdiction in that behalf. Thus, Orl. Cr. Misc. 11/51 is the motion in which the Court has directly or on the report of the Munsif taken the initiative. In addition to the above, the decree-holder filed an independent application to this Court for proceedings in contempt against both. That was numbered as Orl. Cr. Misc. 14/51. Both these motions came up for hearing before this Court and have been dealt with by the common order of this Court now sought to be appealed against.

(3.) The following main questions have been urged before us as arising on the proposed appeal to the Supreme Court and as being adequate grounds for the grant of leave. Certain important documents which have been relied on in the final order of this Court were not exhibited & some of those that have been used are inadmissible in evidence. The petitioners have been seriously prejudiced by the use of such material, since they had no opportunity of rebutting the same. It has been pointed out that one of the main documents that has been relied on as against petitioner 1 to show the absence of any powers in him to pass orders under Section 144, Criminal P. C., was a note of the Additional District Magistrate, Sri p. K. Das dated 25-6-1950 stating that Sri S. S. Roy had no powers under Section 144, Criminal P. C. on the date in question. It was contended that if this note had been formally exhibited, the petitioner would have been able to adduce rebutting material to show that that note of the Addl. District Magistrate was erroneous in fact. We are satisfied, however, that there is no substance in this objection. The procedure that has been adopted in this case was, that all the material which was proposed to be used on the hearing of the contempt application, was sent up by the Additional Munsif, when he made the report to this Court for taking proceedings in contempt as enclosures to that report. This note of the Addl. District Magistrate, was one of those enclosures. The report of the Munsif, as well as ail the papers that were sent up as enclosures thereto, were all included in the paper-book prepared for the hearing of the contempt application. Copies thereof were served on the lawyer who appeared for the petitioners on the hearing of the contempt application. It cannot, therefore, at all be said that the petitioners had no notice of the material that has been used by the Court in these proceedings. The complaint about the absence of marking of any of these materials as exhibits is also unfounded. It may be stated at the outset, that there has so far been no prescribed or settled practice in this Court for marking of the documents as exhibits for the hearing of contempt applications. But as a matter of fact, in this case, the documents used, appear to have been marked in the aggregate as Ex. I. Learned counsel for the petitioners draws our attention to a portion of the passage in the judgment of the learned Judge who delivered the leading judgment in this matter, and urges that it was only the original petition and the order of petitioner 1 under Section 144, Criminal P. C. that were marked as Ex. 1 and not the note of the Additional District Magistrate, that has been made use of by the learned Judge, to show the want of authority in the Magistrate. The order-sheet in the case, however, shows that not only the original petition dated 15-4-1950, but the orders passed thereon by the various Magistrates were marked as Ex. I. It may be mentioned in passing, that what has been referred to above as note of the Additional District Magistrate was not a mere ex parte office note, but an order passed by the Additional District Magistrate after calling for explanation from petitioner 1. Order No. 6 dated 17-1-52 in Orl. Cr. Misc. No. 11/51 which is initialled by one of the learned Judges shows the following note: "The original petition dated 15-4-50 along with the orders passed thereon by the various Magistrates be marked as Ex. I." Obviously this was not meant to confine the exhibit mark only to the order of Sri S. S. Roy, under Section 144 and the statement to that effect in the learned Judge's judgment prepared later could not have been meant to contradict this. What the learned Judge meant appears clearly from what he stated in his judgment as follows: