In Re : B. Yegnanarayaniah

Venkataraman, J.—This is an appeal against the judgment of Ramanujam, J., convicting the Appellant, Yegnanarayaniah, of contempt and sentencing him to undergo simple imprisonment for six months and a fine of Rs. 2000.

The facts are these: One Subbanna created a trust called ''Vavilla Venkateswara Sastrulu Trust'' by deed dated 30th June, 1956. She was the sole trustee during her life and she appointed the Appellant (her sister''s son-in-law) as the sole trustee after her death. The Appellant took charge as sole trustee on 12th September, 1958. She left a will in respect of her private properties and appointed the Appellant as executor. On the allegation that the Appellant did not perform any of the charities mentioned in the trust deed and misappropriated certain amounts, some persons filed a suit, C.S. 88 of 1970 Since reported in Short Notes; 87 L.W. (Part 41) 89 J.S. (S.N.) seeking the removal of the Appellant from the trusteeship. During the pendency of the suit, the Appellant and an advocate Sri S.S. Marthandam were appointed joint receivers. After an elaborate trial, Ramanujam, J. found that the Appellant had diverted an amount of Rs. 1,22,769, from the trust fund to the executor''s account without any authority or justification, in addition to the various enormous amounts misappropriated by him. He also found that he had lent a sum of Rs. 1,00,000, to his wife at a nominal interest at 7 1/2 per cent per annum in the year 1967. This amount was not really available for investment because necessary public dues like incometax, wealthtax, estate duty, etc., had not been paid. In effect, he found that the Appellant had wrongfully diverted the funds. When questioned about the loan in his evidence at the trial, the Appellant stated that he had taken as collateral security by deposit of title deeds of the property of his wife, namely, door No. 495, Thiruvottiyur High Road. Ramanujam, J. decreed the suit Since reported in Short Notes; 87 L.W. (Part 41) 89 J.S. (S.N.) directed the Appellant to be removed from the trusteeship and ordered him to hand over the management of the properties of the trust to the Official Trustee, Madras. The Appellant handed over some documents, but not the documents relating to the deposit of title deeds by his wife in respect of door No. 495, Tiruvottiyur High Road.

An Application No. 184 of 1973 was made by the Plaintiffs for directions to the Appellant to produce the deeds. Ramanujam, J., by order dated 9th February, 1973, directed the Appellant to produce the said deeds within a week. By his further order, dated 17th February 1972, he directed the Appellant to be present in court on the hearing date, namely, 22nd February 1973. The Appellant did not appear on that date and did not produce the document. Thereupon Ramanujam, J. by order dated 27th February 1973, directed him to appear before the court on 8th March, 1973, to show cause why he should not be proceeded with for committing contempt of court in not complying with the orders of court dated 9th February 1973 and 17th February 1973. This notice was accordingly served on the Appellant on 7th March, 1973.

The Appellant filed an affidavit in answer to this show cause notice. He stated therein that he was not in possession of title deeds relating to door No. 495 Tiruvottiyur High Road, belonging to his wife. We are not concerned with the other title deeds. Ramanujum, J., however, held by order dated 16th March 1973, that it was a belated statement, that his conduct showed that he was in possession of the title deeds which he accepted as collateral security for the loan advanced to his wife, that he wilfully suppressed them, that he was actuated by fraudulent motive in not bringing the documents, because he had allowed the promissory note to become time-barred, and for enforcing the mortgage, for which a longer period of limitation was available, the title deeds would be required, and that the Appellant wanted to put obstacles in the way of the Official Trustee recovering the loan and that was why he did not produce the documents. The conduct of the Appellant being highly reprehensible, the learned Judge imposed the maximum punishment provided u/s 12 of the Contempt of Courts Act 1971, (Act 70 of 1971.)

The first point taken by Sri G. Vasantha Pai, the learned Counsel for the Appellant, is that Ramanujam, J., had no jurisdiction to initiate proceedings in contempt suo motu, that the order directing the Appellant to produce the title deeds relating to door No. 495, Tituvottiyur High Road for the disobedience of which the contempt proceedings were taken, was an order which the Official Trustee or the Plaintiffs in the suit could have enforced by initiating proceedings in execution of that order, that, at any rate, even if it amounted to wilful disobedience of the court''s order, it only amounted to ''civil contempt'' that the court''s jurisdiction under the Contempt of Courts Act to punish the Appellant for civil contempt should have been invoked by the Official Trustee or by the Plaintiffs, on an application in the manner provided in Order 19 of the Original Side Rules of this Court, 1956 and that the court had no jurisdiction to take proceedings against the Appellant suo motu.

On the merits, the urged that the teamed Judge was wrong in holding that the title deeds in question were with the Appellant.

On the first point, the learned Advocate General, Sri Govind Swaminathan, supports the learned Counsel, Sri Vasantha Pal. The submission of the learned Advocate General (adopted and developed by Sri Vasantha Pai), is this. u/s 2 of the Contempt of Courts Act (Act 70 of 1971), ''contempt of court'' means civil contempt or criminal contempt. The contempt, if any, in this case would only constitute a civil contempt. ''Civil contempt'' means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. u/s 14, when it appears to the court that a person is guilty of contempt committed in its presence or hearing, then the court may detain such person, inform him of the contempt with which he is charged, give him an opportunity to defend himself and then make on order for the punishment or discharge of such person. It is open to the party to ask for the trial of the case by some other Judge. u/s 15, in the case of criminal contempts, other than contempts referred to in Section 14, the High Court may take action on its own motion or on a motion made by the Advocate General or any other person with the consent of the Advocate General. Section 17 prescribes the procedure in respect of proceedings u/s 15. Under this Section, notice should be served personally on the person charged and the notice should be accompanied by the copy of the motion and also copies of the affidavits, if any. Section 23 says that the Supreme Court, or, as the case may be, any High Court may make rules not inconsistent with the provisions of this Act providing for any matter relating to its procedure. So far, our High Court has not framed any rules under Act 70 of 1971. Therefore, the old rules continue. The old rules are to be found in Order 19 of the Original Side Rules and Appendix v. of the Appellate Side Rules. Those rules do not provide for suo motu action by the court in a civil contempt for wilful disobedience of an order directing the party to produce some title deeds. In such matters an application is filed by the concerned party under Order 19 of the Original Side rules or under the Appellate Side rules. Sri Vasantha Pal, referring to Article 21 of the Constitution which says that no person shall be deprived of his life or personal liberty except according to procedure established by law contends that no procedure has been established by law, for the court to take suo motu action in a case of civil contempt.

We are unable to accept these contentions. Article 215 of the Constitution says 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. This is only in recognition of the inherent powers of the High Court as a court of record to punish for contempt of itself. No limitation has been imposed in this Article that in cases of civil contempts the court cannot take action suo motu. It is easy to conceive of a case where no party may care to come forward to move the court for initiating proceedings for contempt, but where the court may consider it necessary and expedient to initiate action suo motu. It is obviously necessary in such cases that the court should have such a power.

In Sukhdev Singh Sodhi Vs. The Chief Justice and Judges of The Pepsu High Court, , the Supreme Court had to consider an application for transfer of certain contempt proceedings from the Pepsu High Court to any other High Court. In that connection, their Lordships pointed out that the High Court, as a court of record, had from its inception, the inherent power to punish for contempt. That was a special jurisdiction, not in any way controlled by the Code of Criminal Procedure. This was recognised in Section 2 of the Contempt of Courts Act, 1926. This position was maintained by the Constitution under Article 215. Section 2 of the Contempt of Courts Act, 1926, ran thus:

Subject to the provisions of Sub-section 3, the High Court of Judicature established by Letters Patent shall have and exercise the same jurisdiction, power and authority in accordance with the same procedure and practice, in respect of contempts of courts subordinate to them as they have and exercise in respect of contempts of themselves.

It was recognised in Act XXXII of 1952. Their Lordships say that Section 3 of the new Act (Act XXXII of 1952) is similar to Section 2 of the old Act (Act of 1926) and assumes the existence of a right to punish for contempt in every High Court and further assumes the existence of a special practice and procedure. Their Lordships then observed:

We hold therefore that the Code of Criminal Procedure does not apply in matters of contempts triable by the High Court. The High Court can deal with it summarily and adopt its own procedure. All that is necessary is that the procedure is fair and that the contemner is made aware of the charge against him and given a fair and reasonable opportunity to defend himself. ...If the Code of Criminal Procedure does not apply, then there is no other power which we can exercise. The Constitution gives every High Court the right and the power to punish a contempt of itself. If we were to order a transfer to another court in this case we would be depriving the Pepsu High Court of the right which is so vested in it. We have no more power to do that than has a legislature.

This discussion does not, in any way turn on the question whether the contempt is a civil contempt or a criminal contempt.

A Division Bench of the Bombay High Court had to deal with the argument based on Article 21 of the Constitution in The State of Bombay Vs. P., . A Barrister, Mr. P, was the person against whom the proceedings were taken. His counsel (Mr. K.L. Cauba) contended that there was no procedure relating to the exercise of the inherent jurisdiction of the court in dealing with matters of contempt and that by virtue of Article 21 of the Constitution, the Respondent there, could not be deprived, of his personal liberty. The learned Judges of the Bombay High Court met this argument by referring to the passage of the of the Supreme Court in Sukhdev Singh Sodhi Vs. The Chief Justice and Judges of The Pepsu High Court, where their Lordships have observed that the High Court can deal with it summarily and adopt its own procedure and that Section 3 of the Contempt of Courts Act 1952, itself recognised the procedure existing previously, and the practice of the High Court, to punish for contempt of court the learned Judges observed--

Having regard to the provisions of the Act, we consider that the procedure followed by the High Court in dealing with matters relating to contempts of itself is a procedure established by law within the meaning of Article 21 of the Constitution.

The learned Judges also pointed out that Clause 38 of the Letters Patent also led to the same result.

This decision was followed by a Full Bench of the Patna High Court. In the matter of In Re: Basanta Chandra Ghosh, Advocate and Others, in paragraph 10 of the report.

In R.L. Kapur v. State of Madras 1972 1 S.C.W.R. 423 the Supreme Court had to consider the question whether the period of limitation of six years for collecting the fine laid down in Section 70 of the I.P.C., applied to a case of recovery of fine imposed in earlier contempt proceedings. Their Lordships held that Section 70 was no bar because the jurisdiction of the High Court in contempt proceedings was under special law not affected by the provisions of the Penal Code. Their Lordships followed the earlier case of the Supreme Court in Sukhdev Singh Sodhi Vs. The Chief Justice and Judges of The Pepsu High Court, and stated--

In any case, so far as contempt of the High Court itself is concerned, as distinguished from that of a court subordinate to it, the Constitution vests these rights in every High Court and so no act of legislature could take away that jurisdiction and confer it afresh by virtue of its own authority.

Section 10 of the Act of 1971 maintains the same position.

Ali Mohamed Adamalli v. King Emperor ILR 1945 Bom. 959 : AIR 1944 P.C 157 is in a way useful to us, because that is a case where the High Court suo motu initiated proceedings for civil contempt; against the Appellant for not complying with an order of the Court of Small Causes dated 4th September 1939, directing him to furnish some particulars u/s 3 of the Wakf Act, and he was found guilty and sentenced by the High Court. It was confirmed in appeal by the Privy Council. The point to be noted is that though other objections were put forth against the order finding him guilty of contempt, no objection was taken that the Court had no jurisdiction to initiate proceedings suo motu.

In view of these decisions and the statutory provisions, it is quite clear that this Court has jurisdiction to initiate contempt proceedings suo motu even in a civil contempt as defined in Section 2 of Act 70 of 1971, that no particular form of procedure is necessary so long as the proceedings are initiated giving an opportunity to the contemner to defend himself and that Article 21 of the Constitution is not in any way violated thereby. We are also satisfied that the procedure adopted in this case was correct, that the Appellant was made aware of the charge against him and that he was given a fair opportunity to defend himself. The order dated 9th February 1973, itself gave full reasons which in the opinion of the learned Judge made him think that the title deeds were with the Appellant. When he was asked to show cause why he should not be proceeded with for contempt, the Appellant filed an affidavit, he was heard and only thereafter the order imposing the punishment was passed.

Before dealing with the merits, we must point out that proceedings for contempt are quasi-criminal in nature as pointed out by the Privy Council in Ambard v. Attorney General for Trinidad and Tobago 1936 A.C. 322 and (sic) referred to by the Supreme Court in Sukhdev Singh Sodhi v. Chief Justice and Judges of the Sukhdev Singh Sodhi Vs. The Chief Justice and Judges of The Pepsu High Court, and (sic), and therefore, we must be satisfied about the guilt of the Appellant beyond reasonable doubt.

This brings us to the merits of the case. The question, therefore, to be considered is whether it has been proved beyond reasonable doubt that the Appellant had the title deeds of his wife relating to the property, 495 Tiruvottiyur High Road. We are, however, not quite satisfied about it, because, firstly, it is not quite clear that the wife had the title deeds herself and secondly, we cannot exclude the possibility of the Appellant not having taken these title deeds at all as collateral security. The question of Sri P. Sivaramakrishnaiah, counsel for the Plaintiffs in C.S. 88 of 1970 at page 176 of the typed set, put to the Appellant (D.W. 1) is this:

In Ex. A-2, the settlement deed by Subbamma under which several properties were settled on persons including your wife the total value of the 5 properties settled was given as Rs. 70,000.

The answer is ''yes''. In other words, the suggestion of the counsel was that the settlement deed related to several properties and, besides the wife of the Appellant, there were several persons also on whom properties were settled. Hence, we cannot be certain whether the settlement deed was with the wife of the Appellant at all. Secondly, it is possible that in order to avoid an accusation that money was lent to his wife merely on a promissory note, the Appellant thought it expedient to say at that stage of the evidence that the title deeds relating to D. No. (sic), Tiruvottiyur High Road, were taken as collateral security, without really having taken any, collateral security. In this connection, it is not out of place to note that though in his earlier answer at page 175 of the typed set, the Appellant had stated that on the securely of all the title deeds relating to the house, he gave the loan, in his further answer at page 176 of the typed set, he stated that at that time they were with one bank in connection with some other private transaction. This takes away the sting of the earlier admission and it would not be right for us to ignore this later statement, particularly when his earlier admission is the main basis for his being convicted of contempt. We were informed during the bearing of the appeal before us that the wife herself had denied that she deposited any title deeds with her husband; that is certainly not conclusive, but, the question is one which will have to be tried in the normal way when a suit is filed against her by the Official Trustee to recover the loan. It may be that if the Appellant did not take the title deeds as collateral security, he was guilty of dereliction of duty as a trustee. But, the question before us in the contempt proceedings is different, namely, whether it has been proved beyond reasonable doubt that the title deeds relating to door No. 495, Tiruvottiyur High Road were with him, having been handed over by his wife. It may be that he is really having the custody of the title deeds, but we cannot be certain about it, We are constrained to give the benefit of doubt, though we may add that we do so with great reluctance, because, otherwise the, conduct of the Appellant as trustee seems to be prima facie reprehensible.

Accordingly, we set aside the order finding him guilty of contempt of court, and the sentence of imprisonment for six months and fine of Rs. 2000.

Maharajan, J.

While agreeing with my learned brother, I wish to add a few remarks. The Appellant has been held guilty of contempt of court, because, he failed to comply with the order of the learned Judge, Ramanujam, J. and to produce the title deed in respect of door No. 495 Tiruvottiyur High Road, belonging to his wife. The direction was made, because in a prior deposition, the Appellant, who had probably misappropriated Rs. one-lakh out of the trust fund, trotted out the excuse that he had lent out the same to his wife, Bhuvanapalli Indiramma on the security of an equitable mortgage accompanied by a deposit of her title deed relating to door No. 495.

X X X

[The discussion of facts is omitted: Ed.]

In these circumstances, there is a reasonable doubt as to Whether the Appellant''s wife, who was only the 10th settlee in the deed, ever got into possession of the original title deed. If she did not get custody of the original of Ex.P. 2, she could not have deposited it with the Appellant at the time of the alleged equitable mortgage, which, we have reasons to suspect, was itself a myth. The inability of the Appellant to produce the title deeds the custody of which he did not probably have is an element which has an important bearing on the question of his guilt held. The conduct of the Appellant is certainly such as to shock the conscience of any court. He may be guilty of perjury or criminal misappropriation, with which we are not here concerned. If we give him the benefit of the reasonable doubt in these quasi-criminal proceedings for contempt, we would have to hold that he is not proved to have been in custody of the title deed. If he is not in custody, his failure to produce the deed cannot be regarded as wilful, in which case it would follow that we must acquit him of contempt which we do regretfully, I agree, therefore, that this appeal be allowed.