Shabban Bhat vs Habib Magray and Ors.

(1) This is an application for initiation of contempt proceedings against respondent No. 1 to 3 and for punishing them for contempt.

(2) The case of the petitioner is that in a civil suit pending in the court of City Munsiff, Srinagar, a Commissioner was appointed by the trial court

on 261973 to make spot inspection. The said Commissioner a local lawyer, namely, Ghulam MohiudDiu Pandit, went on spot He made report on

2161973 alleging that the respondent had assaulted him, stones were pelted at him, and on others The respondents dismantled the wall and even

damaged the camera of the photographer who had accompanied the Commissioner. The Commissioner had to run away to save his life and take

shelter in the house nearby. The matter was reported to the police concerned. On arrival of the police the injured person were sent to the Hospital

and a case was registered by the police. The respondents are guilty of gross contempt for having interfered with the administration of justice and

also for having interfered in the work of the Commissioner in their discharge of his duties.

(3) A rule was issued to the respondents and to the other condemners as to why they should not be dealt with for contempt of court and punished

for that. The respondents appeared and have filed their objections. In their objections, the respondents have stated that there are a number of suits

pending between two mosques namely Masjid Hanfia and Masjid Ahal Hadis. The respondents had no knowledge about the appointment of

Commissioner. Nor was that order conveyed to the respondents. Nor were the summons sent to them at the time of inspection on spot by the

Commr. The respondents have denied that they have committed any act of violence. A regular enquiry has been filed for the alleged acts in the

court of the City Magistrate Srinagar and, therefore, no proceeding by way of contempt can be initiated by this court when the petitioner had

already moved the criminal court for a substantive offence and the matter is already under inquiry before the Court.

(4) In support of the application, the applicant besides examining himself, has produced Ghulam MohiUdDin Pandit, Law officer, Commissioner

appointed in the case, (Rattan Lal Taploo S I. Ghulam Ahmad wani, Ali Mohamad, Ahmad Ullah Shawl and Abdul Gaffar Bhat. The respondent

Produced Mohamed Ramen Dar, Rasool Mir and Sultan Pary, as their witnesses.

(5) The substance of the depositions made by the witnesses for the petitioner is that Ghulam MohiudDin Pandit (Commissioner) was deputed as

Commissioner by the court of the City Munsiff, Srinagar to make inspection on the spot (vide order dated 461973. The Commissioner carried a

photographer with him. When he reached the spot and took snap of the property in dispute, the respondent along with their other associates

assaulted the Commissioner. These persons carried sticks and stones with them. Assault was of such a magnitude that the Commissioner had to

run away from the spot and take shelter in the house nearby. Even the Taxi car which had brought the Commissioner on spot was stoned. The

glass panes of the said taxi were broken The matter was reported to the nearest police station. The police arrived on the spot and proceeded in the

matter. The commissioner has identified Subban Yattu, Ali Mohamad Magray, Abdul Razaq Malla, Mai la Sona, Ghulam Ahmad Akhoon,

Ghulam Ahmad Bhat, Ahmad Akhoon and Abdul Gaffar Magray as the persons who committed the offence.

(6) Now in so far as the factum of assault of having committed by the persons mentioned above, is concerned, the same is established from the

statement of the commissioner himself as also from the other evidence on the record, It is also established that the wall was dismantled and the

glass panes of the taxi car were broken. The commission of other acts of misfeasance attributed to the aforesaid persons receives corroboration

from the testimony of witnesses. To this evidence there is no rebuttal worth the name. The witnesses for the respondents have given negative

evidence which does not disestablish the fact alleged by the petitioner. However before the respondents and the persons mentioned above, who

have been responsible for assaulting the Commissioner are indicated for contempt, there is an important legal question that merits our consideration

(7) The question that falls for consideration is whether the Commissioner who was deputed on spot can be said to be a court and, therefore, the

acts of mal feasance and misfeasance committed by the respondents could render them liable as condemners. It is submitted by the learned counsel

for the respondents that the commissioner appointed by the court for making spot inspection is not a court. He functioned only as a public officer

and if he was assaulted proceedings under the penal Code could be initiated against the persons who were responsible for assaulting him. Attention

is invited to two decisions of the Supreme Court e. g. A. I. R. 1956 SC 66 and A. I. R. 1961 S. C. 218. The last mentioned decision is not helpful

to the respondent. The ratio Laid down in A. I. R. 1956 (Supra) is that a Commissioner appointed under the public Services (Inquiries Act) is not

a court as it function is fact finding. In order to constitute a court In the strict sense of the term the essential condition is that the court should have,

apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and

authoritativeness which are essential tests of a judicial pronouncement. These tests must be applied for determining what is a court within

connotation of the terms as used in the contempt of Court Act. Therefore, a Commissioner appointed on a fact finding mission does not constitute

a court within the meaning of the term. His report is merely an expression of opinion and it lacks both finality and authoritativeness which are

essential tests of judicial pronouncement. That was a case where an application under the contempt of courts Act read with article 227 of the

Constitution as also under Section 8 of the Public servants (Inquiries) Act, was filed before the Patna High court for alleged contempt against the

Commissioner. The High court found the appellant guilty of contempt and sentenced him to pay fine. On appeal the Supreme Court enunciated the

above view and quashed conviction of the appellant.

(8) In the instant case, the Commissioner was appointed to make report after making spot inspection He had not to pass a judicial order. He was

merely an officer of the court and his function was more fact finding. In my opinion, such a commissioner could not be said to be a projection of the

court so as to have the attributes of a court.

(9) Apart from the question whether the Commissioner in the present case was not a projection of the court, another moot question to be

considered is whether the High court in exercise of its power vested under Cl. 23 of the Letters Patent read with Section 94 of the Constitution can

punish the respondents for contempt when the contempt alleged 1o have been committed by them is in respect of a court subordinate to tins court

and the contempt alleged is an offence punishable under Ranbir Penal Code. It will be useful to reproduce proviso to Cl. 23 of the Letters Patent ;

Provided that the High court shall not take congnizance of a contempt alleged to have been committed in respect of a Court subordinate to it

when such contempt is an offence punishable under the Ranbir Penal Code

(10) In the instant case, it is noticed that an act of assault was committed on the Commissioner when the latter was executing the order of the City

Munsiff Even if the evidence led in the case is to be believed and accepted, it would mean that penal acts were committed by the respondents

which are punishable as contempt under the Ranbir Penal Code. As a matter of fact, the respondents and some other persons were proceeded

against by the police in a criminal court for having committed the offence on the relevant date. The said criminal case is pending before the criminal

court. I am given to understand that the parties leave composed their difference and they do rot seem to be interested in pursuing the lactation in

courts of law. Counsel for the respondents has made a statement at the bar an application for initiation of contempt proceedings in regard to the

same offence was moved before the subordinate court but that application was later on withdrawn. His argument is that in view of this the second

application for contempt will not lie in the High Court. Be as it is, one thing that emerges from the picture is that the contempt alleged to have been

committed is in respect of a subordinate court and the contempt alleged is also an offence punishable under the Penal Code. In view of Proviso to

cl 23 of the letters Patent, the High court cannot take cognizance of this case. The inevitable result is that the proceedings have to be dropped

(11) There is also one noticeable feature in this case which would not persuade the court to indict the respondents. The occurrence is alleged to

have taken place on 261973 and the Commissioner made his report on 2161973 ie. after 19 days. There is no explanation furnished by the

commissioner as to why he waited for these 19 days and did not report about the occurrence to the trial court. This long delay has remained

unexplained. Again, the application for contempt was moved in this court on 2751975, i.e. nearly after two years of the occurrence why the

application has been made after such a long time, has also not been explained ? Moreover, there are improvements in so far as the number and

description of the condemners is concerned.

(12) For these reasons, and also for the reason that proviso to cl. 23 of the Letters Patent places an embargo on the powers of the Court to

proceed in the case for contempt, the proceedings are dropped. The Rule is hereby discharged.