HONOURABLE MR v. SUO MOTU

Learned Counsel Shri Mihir Thakore has appeared for the appellant, whereas learned counsel Shri J.N. Pardiwala has appeared as amicus curiae as, normally, in all matters wherein the High Court of Gujarat is a litigant, Shri Pardiwala represents the High Court.

4. Learned counsel Shri Thakore has submitted that according to the provisions of sec. 14(2) of the Act, the person charged with contempt under sec. 14(1) of the Act has an option to be tried by some judge other than the judge or judges in whose presence or hearing the offence is alleged to have been committed and, therefore, according to the learned counsel, the application submitted by the appellant ought to have been granted or OJA/16/2006 JUDGMENT otherwise disposed of because the learned single Judge had no jurisdiction to conduct the matter in view of the provisions of sec. 14(2) of the Act.

5. It has been submitted by him that the cause of action in the case of the persons, concerned with publication of some contemptuous averments or allegation against the learned single Judge had nothing to do with the ringing of mobile phone with which the appellant was concerned. In view of the said fact, according to the learned counsel, the learned single Judge has erred by tagging cases of other persons with the appellant's case.

6. According to him, looking to the law laid down in the case of Bachharaj Factoies Ltd. v. Hirjee Mills Ltd., AIR 1955 Bombay 355, and in the case of Shankarlal Aggarwala and others v. OJA/16/2006 JUDGMENT Shankarlal Poddar and others, AIR 1965 SC 507, it has been held that if an order or decision, which causes prejudice to a litigant, the said order or decision can be challenged by filing an appeal.

7. The learned counsel has also referred to the provisions of Rule 11 of the Contempt of Courts (Gujarat High Court) Rules, 1984 (hereinafter referred to as 'the Rules') and has submitted that according to the provisions of the said Rule, every proceedings under the Act should be heard and determined by a Bench of not less than two judges as the Chief Justice might from time to time appoint. Thus, according to him, the learned single Judge was not competent to conduct the case according to the Rules and, therefore, he ought not to have retained control over the proceedings with him and he ought to have referred the matter to the Chief Justice or to the Division Bench taking up contempt matters. OJA/16/2006 JUDGMENT He has further submitted that as there was no publication of contemptuous statements at the instance of the appellant, there was no reason for the learned single Judge to retain the proceedings with him and more particularly when the learned single Judge had expressly stated that he was not concerned with the resolutions, which had been passed by the Bar Association in relation to ringing of the mobile phone.

8. The learned counsel has further submitted that by an interim order passed by this appellate court on 6.3.2006, the learned single Judge was restrained from proceeding further with Misc. Civil Application No. 27 of 2006, so far as it pertained to the appellant and yet the learned single Judge had passed a further order in the said Misc. Civil Application on 16.3.2006 by misinterpreting the order of the appellate court. He has submitted that the learned single OJA/16/2006 JUDGMENT Judge ought to have initiated separate proceedings against the persons concerned with the press, if he so desired. Incidentally, the learned counsel has submitted that the learned single Judge should not have made any averment or raised doubt with regard to jurisdiction of the appellate court as it would adversely affect the judicial discipline. He has referred to the judgment delivered by the Hon'ble Supreme Court in the case of Tirupati Balaji Developers (P) Ltd. & others v. State of Bihar and others, (2004) 5 SCC 1, to substantiate his aforesaid submission.

9. Learned counsel Shri Thakore has also cited some other judgments to substantiate his above referred submissions, but we do not think it necessary to enumerate and discuss the same as they also lay down the same principles and the settled legal position. OJA/16/2006 JUDGMENT

10. Thus, while summarising his submissions, he has submitted that the learned single Judge has erred by not passing an order on Misc. Civil Application No. 47 of 2006 and he ought not to have proceeded further with Misc. Civil Application No. 27 of 2006 in violation of the order passed by the appellate court in Civil Application No. 55 of 2006 in O.J.Appeal No. 16 of 2006.

11. Learned advocate Shri Pardiwala appearing as amicus curiae has fairly submitted that though he was not holding brief for the High Court, he would assist the court in the matter and he has submitted that if the impugned order had been only a procedural order, it could not have been an appealable order.

12. He has fairly submitted that according to law OJA/16/2006 JUDGMENT laid down by the Hon'ble Supreme Court in the case of R.N. Dey and others v. Bhagyabati Pramanik and others, (2000)4 SCC 400, any order passed after initiation of the contempt proceedings is an appealable order, if the said order is not an order for discharging the rule issued in contempt proceedings. If any order causes any prejudice to a person alleged to have committed contempt, according to his submission, the said order becomes appealable.

13. He has also submitted that according to the law laid down by the Hon'ble Supreme Court in the case of Purushottam Dass Goel v. Hon'ble Mr. Justice B.S. Dhillon and others, AIR 1978 SC 1014, if any order affecting rights of a party is passed, such an order can be challenged by filing an appeal as per sec. 19(1) of the Act.

14. He has fairly submitted that it is a right OJA/16/2006 JUDGMENT of the contemner to make an application for being tried by some judge other than the judge or judges in whose presence or hearing the offence is alleged to have been committed.

15. We have heard the learned counsel at length and have also gone through the material on record.

16. So far as maintainability of the appeal is concerned, even at the time when the appeal was notified for admission for the first time on

6.3.2006, we had considered the said aspect. Prima facie we were of the view that the appeal was maintainable and, therefore, we had admitted the appeal. We also note that the learned single Judge, against whose order the appeal has been filed, has observed in his order dated 16.3.2006 as under: OJA/16/2006 JUDGMENT “ No one can dispute that an appeal is a statutory remedy. An appeal shall lie to an appellate forum either under a particular statute or under the Rules or under the provisions of the Letters Patent. Under Section-19 of the Act, an appeal is maintainable before the appellate forum, provided the Judge has exercised his contempt jurisdiction. In certain matters, where proceedings were initiated or some other orders were passed on earlier occasions, the matters were taken to the Appellate Court under Section-19 of the Act and the matter went upto the Supreme Court. The Supreme Court, in number of decisions, has observed that an appeal would be maintainable only if the Court has exercised its contempt jurisdiction and not otherwise. In the matter of D. N. Taneja vs. OJA/16/2006 JUDGMENT Shri Bhajan Lal, [(198) 3 S.C.C. 26], the Supreme Court has observed that except in cases where the alleged contemnor is convicted of the contempt, an appeal shall not be maintainable; third party has no right to intervene in the matter as the matter is between the court and the alleged contemnor. I do not know whether this legal position has been brought to the notice of the Division Bench or not. Ordinarily, it is expected of the Counsel, who appears for the appellant before a particular Court, that, instead of obtaining a favourable order, he would provide to the Court the correct legal position. Reference may also be made to the judgments of the Supreme Court reported in