TMI Blog1976 (1) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner in the contempt petition before the High Court. He will hereafter be called as 'P'. The facts are these: R-1 is the owner of the olathooki Ariyalakkan Malavaram in Kayanna Amsom which is managed for and on her behalf by her son, R-2. On March 28, 1969 R-I presented a petition through R-2, to the Superintendent of Police, Kozhikode alleging that the accused persons (P and his men) were likely to trespass into the olathukki Arialakkan Malavaram to remove her timber. It was alleged that 'P' had collected a large number of persons and equipped them with dangerous weapons, unlicensed guns. swords etc.; that the sheds constructed by the petitioner and occupied by his workers and watchmen were being attacked and there was an apprehension that P and his men would demolish the sheds. The Superintendent of Police appears to have forwarded this petition to the Police Station Kayanna where, on its basis, a case under ss. 143, 147 and 506, Penal Code was registered against 'P' and others. The Sub-Inspector in-charge of the Police Station, went to the spot and took into possession the disputed timber comprising of 587 logs and entrusted the same o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused had questioned the validity of the Government order allowing Smt. Parukutty Amma to remove timber` cut from the permitted and non- perrnitted area of olakhukki Arialakkan Malavaram and the High Court had upheld the order of the Government and the complainant's mother was allowed to transport all timber cut from the Malavaram, both from the permitted and non-permitted area. According to the Divisional Forest officer there is no Malavaram known as Kalpidiyan Thirumudiyan Malavaram in Pilliperuvnna Amsom as per the Registration Manual. I also questioned the complainant and his workmen and they stated that there was no trespass as such by the accused or his henchmen. They did not enter the Malavaram, nor have they intimidated any of them and as such no offense has been made out u/s 447 or 506 (1) IPC. Under the above circumstances, it is clear that Shri M. K. Prakash accused in this case was not allowed to operate his permit and the 587 logs of timber seized by my predecessor were cut by the complainant's mother and the same belong to her. These logs are now in the custody of the Range officer, Kuttiady as per the order of the Munsiff Magistrate Perambra and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing investigation. The order in revision would not and cannot relate to the disposal of the logs after the completion of the investigation. It is therefore wrong to suggest that the final order is calculated to over-reach the possible orders in the pending Cr. Revision Petition. In his affidavit, the Magistrate emphasised that in Cr. Revision 176 of 1969, the High Court had not issued any interim order staying further proceedings. R-1, R-2, R-4 and R-5, also, in their reply affidavits denied the allegations made against them by 'P' in the contempt petition. The Advocate-General assisted the High Court and filed a statement of facts on February 16, 1970. After considering the replies, a memoranda of charges was drawn up against R-1 to R-5 on February 10, 1970. The material part of the charges served on R-3 ran as under: That you, on receipt of the final report, even without giving notice to the petitioner, not only passed an order on 26-9-69 on the final report directing the return of the timber logs to the complainant but also wrote a letter (copy of which is Ext. P-10) to the Forest Range officer, Kuttiadi, directing him urgently to release the timber l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy was involved in Cr. Rev. Petition No. 176 of 1969..... was puerile . (3)(b) R-3 passed the order on the Final Report, directing the release of the logs, without caring to issue notice to the petitioner (P). (4) In the letter Ex. P-10, dated 26-9-1969, the Magistrate wrote to the Range officer that the logs should be released to R-1, urgently. This is a very strange procedure, unheard of, and reveals an anxiety on the part of the Munsiff-Magistrate to help R-1 and R-2. The urgency can only be to circumvent any possible orders of stay that may be passed by (the High) Court . We have heard R-1 and the Counsel for the other appellants. R-1 has argued his case in person because, according to him he has no funds to engage a Counsel. His submissions are straight and simple. He has reiterated what he had stated in his further affidavit filed in reply to the memorandum of charge in the high Court. In sum, his defence is that in all the proceedings relating to the disposal of the disputed timebr including the making of the order dated September 26, 1969, the issuing of the letter, Ex.-10, of the same date, and in failing to issue notice to 'P', he acted in the bona fide dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motive to defeat, obstruct or interfere with the due course of justice, the courts will not, as a rule, punish him for a criminal contempt . Even if it could be urged that mens rea, as such, is not an indispensable ingredient of the offence of contempt, the courts are loath to punish a contemner, if the act or omission complained of, was not wilful. In Debabrata Bandopadhyaya's case (supra), Hidayatullah C.J. speaking for the Court elucidated the position, thus: A question whether there is contempt of court or not is a serious one. The court is both the accuser as well as the judge of the accusation. It behaves the court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate (1) (A.I.R. 1969 S.C. 189.) practices in courts and tribunals. It is only when a clear case of contumacious conduct not explainable otherwise, arises that the contemner must be punished. It must be realised that our system of courts often results in delay of one kind or another. The remedy for it is reform and punishment departmentally. Punishment under the law of contempt is called for when the lapse is deliberate and is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve reply given by the Magistrate was at least, sufficient to dispel the suspicion that in making the order dated. September 26, 1969, in regard to the delivery of the timber to R-1 he was actuated by a motive to impede or obstruct or defeat the course of justice. The notoriety of the case looming large in their minds, the learned Judges of the High Court without due consideration rather hastily rejected the explanation of the Magistrate that he had directed (vide his letter Ex.P-10), urgent delivery of the timber to R-1 because on seeing the copy of the High Court's order, dated May 2, 1969, which was shown to him, he was of the opinion that t such a course was indicated therein. The point of substance was, whether such an order was made by the High Court and had been shown to the Magistrate before he made the order for urgent delivery of the timber. It was immaterial if certified copy of that order was shown to the Magistrate by R-1 or her Counsel or her agent. Ex.R-1 is a certified copy of that order dated May 2, 1969 which was passed by the High Court in C.M.P. 5869/1969 in O.P. 2405/1969, M. K. Prakash v. R-1 to R-4, C.M.P. 5869/69 was a petition made by `P' before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of any final order in regard to' the delivery of this timber till the final disposal of the revision petition by the High Court. It would also have been proper for him to issue notice to 'P' and give an opportunity of being heard before making any order. That would have been the ideal. But the point for consideration is whether the Magistrate deliberately did not follow this prudent course or whether he misdirected himself owing to an error of judgment. The stark circumstances viz. that the High Court had declined to issue any interim injunction or stay order in favour of `P' in the criminal revision pending before it; that there was an observation in the High Court's order, dated May 2, 1969, stressing the need for speedy removal of the cut timber and the possibility of its being damaged by the in-coming rainy season; that he was labouring under the impression, though wrongly, that the order, dated April 28, 1969, was merely an interim order which had exhausted itself on the completion of the police investigation and the presentation of the Final Report by the police in which there was a positive finding that the timber belonged to R-1 and R-2 and they were ..... X X X X Extracts X X X X X X X X Extracts X X X X
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