State through Sub-Judge (C.J.M) Budgam. vs Syed Nissar Gilani, Tehsildar (Territorial ) Budgam

Heard Mr.Hussain, learned counsel for the respondent/contemner.

The factual matrix of the case are that the learned Sub,Judge, Budgam in an application arising out of Civil Original Suit pending decision before

him came to issue adinterim injunction against the respondent/defendants which included the present respondent namely Syed. Nissar Gilani, the

then Tehsildar, Budgam. This order of adinterim injunction appears to have been endorsed in the name of process server namely Mohammad

Ishaq Bhat 14.9.1994, who reported that the respondent Syed.Nissar Gilani refused to receive the copy of the said court order and passed

derogatory remarks about the said court by expressing to the process server that the court of SubJudge cannot send such orders to him nor has it

jurisdiction to pass any order against a Tehsildar. On receipt of this report of the process server the learned SubJudge, Budgam came to issue

show cause notice to the respondent namely Syed.Nissar Gilani to the effect as to why a case of contempt against him be not submitted to the

Hon'ble High Court under Section 94 of the Constitution of Jammu & Kashmir with a further notice as to why complaint for offence punishable

under Section 187 RFC be not instituted against him before the court of competent jurisdiction. The respondent appears to have tendered no

explanation in reply to this show cause notice as a result of which the learned SubJudge came to submit his report dated: 15.10.1994 to this court

through Registrar Judicial together with the relevant record of appropriate action against the said Tehsildar. This report to be registered as COA

No. 03/1994 in the registry of this court and came to be listed the Single Bench for 14.11.1994. On this day the learned Single Bench of this court

recorded the following order.

M/S ZA Quarashi an G.Ali.

Notice to the respondent to be served Dasti also through district Judge, Budgam and SSP Budgam. Addl. Registrar shall take necessary steps to

ensure service of notice on the respondent within one week in any case. Respondent being a Government Officer can also be informed on

telephone or by other means and should be required to remain present before this court on the next date. List on 21.11.1994"" Pursuant to this

court, the registry came to issue the notice in the name of the respondent which reads as under

High Court of Jammu & Kashmir

at Srinagar

Contempt No. 03/1994

SubJudge, Budgam

vs

Syed Nissar Geelani,

Tehsildar.

To

Syed Nissar Geelani, Tehsildar (Terrotorial ) Budgam.

WHEREAS, the above noted case has been fixed for hearing on the 21st of. Nov. 1994 (21.11.94) at Srinagar in the forenoon at 10A.M. You

are summoned to appear in the court in person to answer material questions relating to the case.

Take notice in default of your appearance on the day above mentioned, the case will be dealt with according to law.

Given under my hands and seal of the court this 15th day of Nov.1994.

Sd/Dy. Registrar)

High Court of Jammu & Kashmir at Srinagar. Forwarded to District and Sessions Judge, Budgam for immediate service through a special

messenger sd/Dy Registrar No. 4782/15.11.1994

Respondent failed to cause his appearance before the court as a result of which coercive methods for his appearance came to be issued against

him by virtue of orders dated: 21.11.1994, 23.11.1994 and 30.6.1995. It further appears that the respondent caused his appearance before the

registry of this court on 01.05.1994 and also appears to have filled his explanation on 01.05.1995, where in he has interalia denied to have used

any derogatory language against any Judicial Officer or any language that would amount to disregarding the orders of the court and has thrown

himself to the mercy of the court tendering his unqualified and unconditional apology and has also explained his conduct in the reply affidavit.

I have considered the case in the right earnest and have also given my thoughtful consideration to the relevant provision of law. As indicated the

respondent is alleged to have committed contempt of the court if learned SubJudge. Budgam on 14.9.1994 by using derogatory language against

the said court but so far no notice to the effect came to be issued against the respondent calling upon him to show cause why he be not punished

for contempt. Section 20 of the Contempt of Courts Act deals with limitation for actions for contempt. The section reads:"" no court shall initiate

any proceedings for contempt, either on its own accord or otherwise after expiry if period of one year from the date on which the contempt is

alleged to have been committed."" Their lordship of the Supreme Court in a case titled ""Om Prakash Jaiswal vs O.K. Mittal"" reported in AIR 2000

SC 1136. While discussing the implications of the expression initiate any proceedings of contempt ""have in para 14 and 15 observed as under:

In order to appreciate the exact connotation of the expression initiate any proceeding for contempt, we may notice several situations or stages

which may arise before the court dealing with contempt proceedings. These are:

I. (a) a private party may file or present an application or petition for initiating any proceeding for civil contempt; or

(b) The Court may receive a motion or reference from the Advocate General or with his consent in writing from any other person or a specified

Law Officer or a Court subordinate to High Court.

II) (a) The Court may in rou tine issue notice to the person sought to be proceeded against; or

(b) The court may issue notice to the respondent calling upon him to show cause why the proceedings for contempt be not initiated;

III) The Court may issue notice to the person sought to be proceeded against calling upon him to show cause why he be not punished for

contempt.

In the case contemplated by (i) or (ii) above, it cannot be said that any proceedings for contempt have been initiated. Filing of an application or

petition for initiating proceedings for contempt or a mere receipt of such reference by the Court does not amount to initiation of proceedings by

Court. On receiving any such documents, it is usual with the Courts to commence some proceedings by employing an expression such as 'admit' ;

'rule', issue notice or issue notice to show cause why proceedings for contempt be not initiated. In all such cases the notice is issued either in

routine or because the court has not yet felt satisfied that a case for initiating any proceedings for contempt has been made out and therefore the

court calls upon the opposite party to admit or deny the allegations made or to collect more facts so as to satisfy itself if a case for initiating the

proceedings for contempt was made out. Such a notice is certainly anterior to initiation. The tenor of the notice is itself suggestive of the fact that

inspite of having applied its mind to the allegations and the material placed before it the Court was not satisfied of the need for initiating proceedings

for contempt; it was still desirous of ascertaining facts or collecting further material where on formulate such opinion. It is only when the court has

formed an opinion that a prima facie case for initiating proceedings for contempt is made out and that the respondents or the alleged contemners

should be called upon to show cause why they should not be punished then the Court can be said to have initiated proceedings for contempt. It is

the result of a conscious application of the mind of the court to the facts and the material before it. Such initiation of proceedings for contempt

based on application of mind by the court to the facts of the case and the material before it must take place within a period of one year from the

date on which the contempt is alleged to have been committed failing which the jurisdiction to initiate any proceedings for contempt is lost. The

heading of section 20 is limitation for actions for contempt strictly speaking, this section does not provide limitation in the sense in which the term in

understood in the Limitation Act. Section 5 of the Limitation Act also does not, therefore, apply. Section 20 strikes at the jurisdiction of the court

to indicate any proceedings for contempt.

Considering the case in hand in the light of the aforesaid authoritative judgment of the apex court. The contempt which is alleged to have been

committed by the respondent on 14.9.1994 is beyond one year as a result of which this court has lost jurisdiction to initiate any proceedings in the

case. This being so, the rule nishi issued against the respondent is hereby dropped. The petition is accordingly dismissed.