Remedies against the Order of punishment Remedies against the punishment of a civil contempt, the court, if it considers that

a fine will not meet the ends of justice and that a sentence of imprisonment is necessary, shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit. Actually the civil contempt is considered less serious than the criminal contempt. Consequently, in the case of civil contempt the general rule is to impose a fine and imprisonment is an exception.1 The remedies available to the contemner against the punishment may be discussed under the following headings : 1. Apology The contemner may tender apology to the Court and if the Court is satisfied that it has been made with real feeling of repentance, it may remit the punishment awarded for the contempt. Section 12 of the Contempt of Courts Act makes it clear that the accused of contempt of Court may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court. It is not a matter of course that a Judge can be expected to accept any apology. In the case of A.K. Pandey2 the Supreme Court has made it clear that the Court is not bound to accept the apology, unless there is real feeling of repentance in the contemner. In M.C. Mehta v. Union of India,3 apology tendered by the contemner was rejected on the ground that it was not the product of remorse or contrition. The Court has made it quite clear that an apology is not a weapon of defence to purge the guilt of the contemner. It must be sought at the earliest opportunity. Apology is not a weapon of defence to purge guilt. Apology tendered at the time the contemner finds that the Court is going to impose punishment is not apology and liable to be rejected.' Thus, it appears to be well settled that an apology is not a weapon of defence to purge the guilt under all circumstances.' It is not intended to operate as a universal panacea, but it is intended to be evidence of real repentance.' It should be sincere regret for the disrespect shown to the Judge and the Court.' It should not be tendered with the object to avoid punishment.8 It should be sincere and made in good faith with the real feeling of repentance.' Apology tendered must be sincere and not merely to escape the punishment.' Where the apology was tendered after lapse of nearly 12 years from the date of incident, the court rejected it.'

265 Whether apology would be accepted or not, depends on factors like attitude ofethe.coatem_rter, gravity of the contumacious conduct, hisyast records, etc. Thus, usually,
1 2

Smt. Pushpaben v. Badiani, AIR 1979 SC 1536. re A.K. Pandey, AIR 1997 SC 260. 3 AIR 2003 SC 3469.

the apology is not accepted from those who are found- totbe-indulged in repeated disobedience or from those who persist in justifying the action rather than express the genuine regret' or from those who do not have real feeling of repentance2 and blame the circumstances which led the contempt.3 Where the Court considers that the apology tendered in the Court is not sufficient, the Court may say that the apology will be accepted only when it is made to the Court before the public.' Prior to the contempt of Courts At, the apology which was qualified or conditional. was not accepted. It was made clear that there could not be both justification and apology.5 However, explanation to sub-section (1) of Section 12 of the Contempt of Courts Act, 1971 has resulted in the statutory overruling of this principle. This explanation to sub-section (1) of Section 12 makes it clear that an apology shall not be rejected merely on the ground that it is qualified or conditional, if the accused makes it bona fide. This explanation has enabled the contemner to put forward his defence and at the same time plead a bona fide apology keeping in view the fact that the defence might be rejected.' In Hari Das v. Sint,. Usha Rani Banik7 the apology tendered by the contemner was held to be not genuine as he tried to justify his statements. Consequently, it was not accepted by the Court. The contemner made the statement that he was offering the unconditional apology and at the same time he asserted that he would be in a position to substantiate the allegations. Therefore, in the opinion of the Court it was not genuine apology and so it was not accepted. 2. Appeal The Contempt of Courts Act, 1971, for the first time, provides for the statutory right of appeal from the orders or decisions of the High Court passed in the exercise of its jurisdiction to punish for the contempt of Court. Prior to this Act there was no statutory right of appeal. However, it should not be taken to mean that there was no remedy against the order of punishment passed by the High Court in the exercise of the contempt jurisdiction. The High Court itself could grant the appropriate certificate under Article 134 of the Constitution in fit cases and where the High Court refused the Supreme Court might allow the appeal by granting special leave under Article 136 of the Constitution. However, the right of appeal was dependent purely on the discretion of the Court. The appeal, in contempt matter, has been made by the present Contempt of Courts Act, 1971 as one of right. Even before the Contempt of Courts Act, 1971 the statutory appeal was available in respect of summary conviction under the provision of the Criminal Procedure Code and special appeal lay under Articles 134 and 136 of the Constitution of India. These statutory appeals and special appeals are still available and they are in no way

266 affected by the present Contempt of Courts Act, 1971. There was no provision for appeal from the order passed by the High Court in the exercise of its inherent power to punish for the contempt under the old Contempt of Courts Act and this defect has been removed by the present Contempt of Courts Act, 1971 by making specific provisions for appeal. Section 19 of the Contempt of Courts Act, 1971 confers a right of appeal from any order or detision of the High Court in the exercise of its jurisdiction to punish for contempt. Provisions of Section 19 of Contempt of Courts Act, 1971 are as follows : "Sec. 19. Appeals.-4-11 An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to

punish for contempt(a) where the order or decision is that of a single Judge, to a Bench of not less than two Judges of the Court; (b) where the order or decision is that of a Bench, to the Supreme Court : Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union Territory, such appeal shall lie to the Supreme Court. (2) Pending any appeal, the appellate Court may order that,--(a) the execution of the punishment, or order appealed against be suspended; (b) if the appellant is in confinement, he be released on bail; and (c) the appeal be heard notwithstanding that the appellant has not purged his contempt. (3) Where any person aggrieved by any order against which an appeal may be filed, satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by sub-section (2). (4) An appeal under subsection (1) shall be filed : (a) in the case of an appeal to a Bench of the High Court, within thirty days; (b) in the case of an appeal to the Supreme Court, within sixty-days, from the date of the order appealed against." Sub-section (1) of Section 19 provides that an appeal shall lie as of right from any order or decision of the High Court in the exercise of its jurisdiction to punish for contempt(a) where the order or decision is that of a single Judge, to a Bench of not less than two Judges of the Court ; (b) where the order or decision is that of a Bench, to the Supreme Court : Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court. Section 19 of the Act, thus, provides right of only one appeal. If the order of committal for contempt of Court is made by a single Judge of the High Court, there is one statutory right of appeal to a Division Bench of not less than two judges of the Court. If the order of committal for contempt of

267 Court is made by a Bench, an appeal lies as of right to the Supreme Court. Where an appeal is filed against the order of the learned single Judge to a Division Bench, the statutory right of appeal gets exhausted and there is no further right of appeal to the Supreme Court under the Contempt of Courts Act.' However, the remedy by way of special leave under Article 136 is still available and, therefore, even in such condition the Supreme Court may grant special leave to appeal under Article 136. Locus standi is an important issue to be considered. Subsection (3) of Section 19 of the Act gives an indication that an appeal will lie at the instance of a "person aggrieved". A proceeding for contempt is between the Court and the contemner. A person who brings the facts to the notice of the Court or who moves the Court for action being taken under the Contempt of Courts Act, 1971 is not a "person aggrieved". The informant is not a party to the contempt proceedings. If his application for initiating contempt proceeding is rejected, he cannot be said to be aggrieved nor his right can be said to be affected.' If the contemner is punished, he can file appeal against the order of punishment but if he is not found guilty or the contempt proceedings is dropped or the application for the initiation of contempt proceedings is dismissed, it cannot be said that the rights of the informant have been affected and he can file an appeal as of right under Section 19 of the Act as none of his rights is affected or jeopardised.' However, even in such condition the informant is not without remedy. He can move the Supreme Court under Article 136 of the

Constitution. In several cases4 the Court has held that appeal can be filed only against the order imposing punishment for the contempt of Court. The order or decision of the High Court refusing to initiate contempt proceedings or dropping the contempt proceedings or acquitting the contemner cannot be challenged by way of appeal under Section 19 of the Act. The High Court derives its jurisdiction to punish for contempt from Article 215 of the Constitution. Article 215 provides 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. Section 19(1) of the Contempt of Courts Act provides that an appeal shall lie as of right from any order or decision of the High Court in the exercise of its jurisdiction to punish for contempt. The jurisdiction or power conferred on it by Article 215 of the Constitution can be said to have been exercised when it imposes Punishment for contempt. When the HighCourt does not impose any Punishment on the alleged contemner, the High Court does not exercise its jurisdiction or power to punish for contempt. The jurisdiction of the High Court is to punish. When no punishment is imposed by the High Court, it cannot be said that the High Court has exercised its jurisdiction conferred on 268 it by Article 215 of the Constitution.' Thus, where the Court rejects a motion or a reference and declines to initiate a proceeding for contempt, it refuses to assume or exercise jurisdiction to punish for contempt.2 Such a decision would not fall within the opening words of subsection (1) of Section 19 of the Act and, therefore, no appeal would lie against it as of right under that provision.3 No appeal is maintainable against an order dropping for contempt or refusing to initiate a proceeding for contempt is apparent not only from sub-section (1) of Section 19 but also from sub-section (2) of Section 19, Sub-section (2) of Section 19 provides that pending any appeal, the Appeal Court may order that--(a) the execution of the punishment suspended ; (b) if the appellant is in confinement, he be released on bail ; and (c) the appeal be heard notwithstanding that the appellant has not purged his conduct. The above provisions of Section 19 indicates that the relief provided under clauses (a) to (c) can be claimed at the instance of the person who has been proceeded against for contempt of Court.' However, even if no appeal is maintainable on behalf of the person at whose instance a proceeding for contempt had been initiated and later dropped or whose petition for initiating contempt proceedings has been dismissed, he can invoke the jurisdiction of the Supreme Court under Article 136 of the Constitution and the Supreme Court on being satisfied that it was a fit case where proceeding for contempt should have been initiated, can set aside the order passed by the High Court.5 It has been made clear that in suitable cases the Supreme Court has to exercise its jurisdiction under Article 136 of the Constitution in the larger interest of the administration of justice.' An important issue is whether or not an appeal may lie from intermediate or interlocutory order passed in the contempt proceedings. In the case of Purshotam Dass Goel v. B.S. Dhilion,7 the Supreme Court has observed : or order appealed against be "If the alleged contemner in response to the notice appears before the High Court and asks it to drop the proceedings on the ground of its being barred under Section 20 of the Act but the

High Court holds that the proceeding is not barred, it may well be that an appeal would lie to this Court under Section 19 from such an order, although the proceeding has remained pending in the High Court.8 The procedural interlocutory order to the effect that all power arising in 269 the case including the one of maintainability of the proceedings would be heard together with the main contempt matter is not appealable under Section 19 because only those orders or decisions in which some point is decided or finding is given in the exercise of jurisdiction to punish the contempt are appealable.' Whether or not appeal would lie from intermediate or interlocutory order depends upon the nature of the contention raised and manner in which the same has been disposed of by the Court.' If contention raised goes to the very root of the jurisdiction and is turned down, an appeal would lie under Section 19 of the Act.3 Subsection (4) of Section 19 of the Act provides period of limitation for preferring an appeal under this section. It provides that an appeal under sub-section (1) of Section 19 shall be filed(a) in the case of an appeal to a Bench of the High Court, within thirty days ; (b) in the case of an appeal to the Supreme Court within thirty days from the date of the order appealed against. In both the cases, stated above, the starting point of limitation is the date of the order appealed against. Sub-section (2) of Section 19 makes provisions in respect of the power of the appellate court during the pendency of an appeal. It provides that pending any appeal, the Appellate Court may order that(a) the execution of the punishment or order appealed against be suspended ; (b) if the appellant is in confinement ; he be released on bail ; and (c) the appeal be heard notwithstanding that the appellant has not purged his contempt. Subsection (3) of Section 19 empowers the single Judge of the High Court to exercise all the powers conferred by sub-section (2), stated above. Sub-section (3) of Section 19 provides that where any person aggrieved by any order against which an appeal may be filed satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by 'sub-section (2) of Section 19. The position emerging from the judicial decisions as regards to appeals against orders in contempt proceedings may be summarized as follows' (I) An appeal under Section 19 is maintainable only against an order or decision of the High Court passed in the exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt. (II) Neither an order declining to initiate proceeding for contempt nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemner is appealable under Section 19. In special circumstances they may be open to challenge under Article 136 of

270 the Constitution. (III) In a proceeding for contempt, the High Court can decide whether any contempt of Court has been committed and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue

relating to the merits of the dispute between the parties. (IV) Any direction issued or decision made by the High Court on the merits of the dispute between the parties, will not be in the exercise of jurisdiction to punish for contempt and therefore not applicable under Section 19. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt in which event the appeal under Section 19 can also encompass the incidental or inextricably connected directions. (V) If the High Court, for whatsoever reason, decides an issue or makes any direction relating to the merits of the dispute between the parties in contempt proceedings the aggrieved person is not without remedy. Such an order is open to challenge in an intra-Court appeal (if the order was of a learned single Judge and there is a provision for an intra-Court appeal) or by seeking special leave to appeal under Article 136 (in other case).' Ordinarily the appellate Court confines its attention to the material which has received consideration by the trial Court while holding the contemner guilty of contempt.' However, there would be no lack of jurisdiction in taking into consideration material which formed the subject-matter of the notice issued to the contemner but which was not taken into consideration by the trial Court in finding the person charged guilty of the contempt.' If there is lack of material facts in the notice, the contemner can raise an objection in his reply to the notice but if the contemner did not raise any objection to the notice in his reply thereto and could not show any miscarriage of justice due to lack of material therein, he cannot raise an objection to the notice in appeal.' 3. Review The contempt of Courts Act does not give any power of review to the Court.' The order of punishment is amenable to correction only in appeal under Section 19 of the Act. The Court's power is only confined to remission of punishment awarded by it upon being satisfied with an apology made by the contemner in terms of the proviso to sub-section (1) of Section 12 of the Act. Proviso to Section 12(1) provides that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court.