TaxTMI 
TaxTMI 
2009 (4) TMI 1036
X X X X Extracts X X X X
X X X X Extracts X X X X
....s petition filed by All India Anna Dravida Munnetra Kazhagam through its Presidium Chairman Shri E. Madhusudhanan. 2. Background facts; 2.1 In an apparent bid to pressurize the Central Government to expedite implementation of Sethu Samudram Project, Democratic Progressive Alliance comprising Dravida Munnetra Kazhagam, Indian National Congress, Communist Party of India (Marxist), Communist Party of India and Pattali Makkal Katchi, passed a resolution on 24.9.2007 to resort to total cessation of work and closure of shops on 1.10.2007 and to conduct a general meeting of the leaders of all parties on 30.9.2007 at Chennai. The relevant portions of the resolution are extracted below: ...in order to make understand the fact that the support of the people is only to implement the Sethu Samudram Project expeditiously to the Central Government, it is resolved to conduct total cessation of work and closure of shops on the 1 st of October, and to conduct a general meeting of the leaders of all parties on the 30th day of September, at Chennai. 2.2. The petitioner challenged the afore-mentioned resolution in Writ Petition No. 31435 of 2007 filed before Madras High Court a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....led S.L.P. (C) No. 18879 of 2007 in this Court. The same was heard on 30.9.2007. The counsel representing respondent Nos. 1 to 3, who volunteered to appear, also made their submissions. After considering the respective submissions, this Court passed a detailed order, the relevant portions of which are reproduced below: From a bare perusal of the aforesaid decision, it would be clear that neither anybody can give a call for Bandh nor the same can be enforced. The High Court, in the present case, has recorded a, prima facie, finding that, in the present case, the call was given for Bandh and not strike/hartal. Ordinarily, High Court as well as this Court refrains from passing an interim order the effect of which would be granting the main relief. But in cases where a party approaches court without loss of time, there are no laches on its part, it is not possible to give notices to all the necessary parties and hear them because of paucity of time and in case interim order is not passed in a case like the present one, which, prima facie, in the opinion of court is concluded by judgment of this Court, the main case would become infructuous, different consi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stations, bus depots, main roads, main junctions, hospitals, courts, schools and colleges will be maintained. 9. Necessary protection to market and business places shall be given. 10. All police control rooms will be fully activated to follow up incident to take proper stern and timely action. 11. Ensure that the 'Hartal' passes off peacefully. 12. Collectors may requisition and spare other department vehicles if required by the District Superintendent of Police. Any incident of law and order and other matters of significance should be informed to Chief Secretary's Control Room Telephone Nos. 26571388 and 26570372, followed by FAX-25677128. Bi-hourly report commencing from 0600 hours on 01.10.2007 about the 'Hartal' should be given to Chief Secretary's Control Room even if there is no incident. First Report should commence from 0600 hours on 01.10.2007. 2.7 On coming to know of this Court's order through electronic media, respondent No. 1 directed that telephonic instructions be given to all the Collectors to convene meetings with the respective Superintendents of Police for en....
X X X X Extracts X X X X
X X X X Extracts X X X X
....IsG. IN NORTH ZONE AND ARE REQUESTED TO TAKE NECESSARY ACTION AND REPORT COMPLIANCE. Sd/- 1.10.2007 For IGP/NZ/CNI-16 2.9 The Secretary to Government, Public (SC) Department also sent fax No. SR.II/5064-5/2007 dated 1.10.2007 to all the District Collectors at 11.25 a.m. requiring them to send hourly reports to the Chief Secretary's Control Room regarding the law and order situation, movement, transport, functioning of essential services, functioning of schools and colleges, opening of shops, hotels and other public utilities, attendance in Government offices etc. 3. On 3.10.2007, the petitioner filed this petition under Article 129 of the Constitution of India read with the 1971 Act and prayed that the respondents be punished for violation and disobedience of the Court's order dated 30.9.2007. The gravamen of the petitioner's allegation is that in complete disregard of the restraint order passed by this Court, the concerned political parties including Dravida Munnetra Kazhagam enforced the bandh in the entire State by ensuring that buses owned by the State Transport Corporation are kept off the road and shops and other business establishments rem....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ame. Are judgments being delivered correctly in the Courts? If that is so, why are higher courts granting stay of orders of lower Courts? If judges are not making mistakes why are there conflicting judgments? Today there are many complaints against many judges. Corruption charges are appearing everyday. What does that mean? If they were upright yesterday, does it mean that they are not upright now? When was a sitting ever held on a Sunday? Unprecedented things are taking place. We are expressing our feelings. How many complaints are received against judges? There is provision in law for impeachment of sitting judges. The MPs' sitting here should also think about it. Nothing wrong about it. Our MPs, including the ministers should know about it. Everyone including the ministers can sign it. 4. In paragraph 7 of the reply affidavit filed by him, respondent No. 1 has averred that after telecast of the news about the restraint order passed by the Court, telephonic instructions were issued to the District Collectors to maintain law and order and public peace. In para 8 of the affidavit, respondent No. 1 has averred that immediately on receipt of the C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1.10.2007 and adequate police bandobust was provided at the Depots, but most of the crew did not turn up in the morning on 1.10.2007 and even those who came did not enter the Depot premises, did not sign the duty chart and dispersed after holding demonstration in front of the Depots; that the Branch Managers and Divisional Managers made efforts to operate the bus services with the help of available crew and with the passage of time the number of services substantially increased. Respondent No. 3 has denied that the Drivers and Conductors were prevented from carrying out their duties or that the conductors did not issue tickets or that the main gates of bus terminals were closed and locked. He has also denied receipt of any representation or telegram. In para 15 of the affidavit, respondent No. 3 has referred to the call given by the trade unions to abstain from work in the wake of decision taken by the political parties and averred that even though the latter withdrew the call for cessation of work, there was no corresponding response from the trade unions due to paucity of time and also due to the fact that most of the workers had left for outside places taking advantage of the im....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Tamil Nadu by FAX at 10.30 PM by the Registrar of this Court on 30.09.2007. Even before the order was officially communicated, it was flashed in the TV News channels. After verifying with counsel at New Delhi and without waiting for any formal communication from this Hon'ble Court, at about 1.30 PM I immediately called for the withdrawal of the resolution dated 24.09.2007 passed by the Democratic Progressive Alliance for cessation of work. This was also conveyed to all political parties, which were party to the said Resolution. However, Democratic Progressive Alliance decided to hold a day long fast on 1st October, 2007 to draw attention to the importance of the Sethu Samuthiram Project and for early implementation of the same. I made it clear at that time that the fast was not against the order of this Hon'ble Court. I annex an extract from the Hindu newspaper 1st October, 2007 reporting this (Annexure -R1). I also gave instructions to Government officials to carry out the order of this Hon'ble Court and to ensure that the Bandh did not take place on 1st October, 2007, and that the day long fast undertaken by political parties should not in any way affect the general ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ioner for summoning the tapes of the speech allegedly made by respondent No. 6 on 1.10.2007 at Chennai and ordered issue of notice to the Resident Managers of Times Now Channel and Jaya T.V. requiring them to produce the tapes and original chips of the speech. Notices were also issued to Dhanya Rajendran and M. Ramasubramanian (reporters) and Manish Dhanani, Y. Jayaprakash and S. Ravikumar (camera persons of Times Now Channel and Jaya T.V. respectively). 11. In response to the Court's notice, Shri M. Vasudev Rao, authorised signatory of Times Global Broadcasting Company Limited, which is running Times Now Channel, sent letter dated 16 January, 2009 stating therein that the company is unable to provide the original tapes and news clips of the speech delivered by respondent No. 6 because in terms of the Uplinking and Downlinking Guidelines issued by the Ministry of Information & Broadcasting, Government of India, the company maintains a record of the contents uplinked and downlinked by its channel for a period of 90 days from the date of its telecast. After taking note of that letter, the Court allowed further time to the parties to file affidavits. 12. In furtherance of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nbsp;f. That the protests organized by the DMK and its allies on 1.10.2007 by way of the hunger strike at Chennai was covered by the reporting team of Mr. Ramasubramanian and Mr. S. Ravikumar and Camera assistant Satish. They had handed over to me the original tapes containing the events recorded including the speech made by Mr. T.R. Baalu, Union Minister for Shipping and of certain other speakers during the afternoon on 1.10.2007. On my instructions, the news branch technicians ingested the contents of the original tapes containing the events covered including the speech of Mr. T.R. Baalu, into the Avid system. From this, I selected the portions in the speech of Mr. Baalu which were most objectionable and found appropriate to be telecast. Accordingly, the portions were selected and telecast in the news bulletin carried by the channel on 1.10.2007 at 7.30 PM and on 2.10.2007 at 7.30 PM. The portions of the speech as telecast on the news bulletins clearly show the speech made by Mr. T.R. Baalu and the objectionable statements made by him, the translations of which read as follows: A Judge is a judge till yesterday. Today there are allegations against him. Every day a ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Progressive Alliance for cessation of work must be treated as call for bandh in the State and even though respondent No. 4 is said to have made a statement on 30.9.2007 at 1.30 p.m. giving an impression that resolution dated 24.9.2007 was withdrawn, no direction was given by the political establishment to the concerned officers to ensure that the administration moves on and respondent Nos. 1 to 3 did not take steps to prevent disruption of normal life in the State. He further argued that the so called withdrawal of the call given by the political parties for cessation of work must be treated as sham because the workers of the party headed by respondent No. 4 indulged in physical violence and ensured that bandh is observed throughout the State by forcing closure of shops and commercial/ industrial establishments. Learned Counsel relied on the newspaper reports to buttress his submission that the workers of Dravida Munnetra Kazhagam party had, by wielding deadly weapons compelled the shop keepers to down the shutters and general public to remain away from the streets and argued that this should be treated as sufficient for drawing an inference that respondent No. 4 had deliberately m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dent No. 6, Shri Guru Krishna Kumar strongly relied on the speech made by the said respondent on 1.10.2007 and argued that he should be held guilty of committing criminal contempt within the meaning of Section 2(c) of the 1971 Act and adequately punished. In support of his arguments, Shri Guru Krishna Kumar relied upon the judgments of this Court in Mohd. Aslam v. Union of India AIR1995SC548 ; M. v. Home Officer (1993) 3 All ER 537; A. Sanjeevi Naidu v. State of Madras [1970]3SCR505 ; Azhar Ali Khan v. Commissioner, Municipal Corporation of Delhi AIR1984SC1240 ; Hoshiar Singh v. Gurbachan Singh 1962 (Supp) 3 SCR 127; T.N. Godavarman Thirumulpad v. Ashok Khot 2006CriLJ2773 ; Aswini Kumar Ghose v. Arabinda Bose [1953]4SCR215 and E.M. Sankaran Namboodripad v. T. Narayanan Nambiar 1970CriLJ1670 . 16. Shri R. Venkataraman, learned Counsel appearing on behalf of the petitioner in Contempt Petition No. 262 of 2007 argued that respondent Nos. 1 to 5 are guilty of civil contempt inasmuch as they willfully disobeyed the directions contained in order dated 30.9.2007 passed in Special Leave Petition (Civil) No. 18879 of 2007 and ensured that total bandh is organized in the State. Learned Co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Democratic Progressive Alliance and the coming holidays on 29th and 30th September, 2007 and again on 2nd October, 2007. 18. Shri T.R. Andhyarujina, learned senior counsel appearing for respondent No. 4, extensively referred to affidavit dated 22.8.2008 of his client to show that even before receipt of the Court's order, he had made a statement for withdrawal of resolution dated 24.9.2007 and argued that in the absence of any evidence to show that respondent No. 4 had instigated anyone to disrupt the essential services or cause inconvenience to the general public, he cannot be proceeded against under the 1971 Act. Learned Counsel submitted that telefax dated 30.9.2007 sent at the instance of respondent No. 1 also shows that the administration had taken positive steps to ensure that essential services are not disturbed due to call given by the political parties for cessation of work etc. on 1.10.2007 and the police bandobust was provided for all public and private establishments and effective steps were taken for maintaining transport services. 19. Dr. A.M. Singhvi, learned senior counsel appearing for respondent Nos. 3 and 5, argued that the concerned Minister and Secr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hly contumacious conduct which resulted in violation of the Court's order. 22. We have considered the submissions/arguments of learned Counsel for the parties. Section 2(b) and (c) of the 1971 Act which define civil and criminal contempt read as under: 2(b) "civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court; 2(c) "criminal contempt" means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which- (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. An analysis of Section 2(b) shows that willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willf....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erse; 2. Willing; consenting; ready to comply with a request, desire, or requirement - 1598. 3, proceeding from the will; done or suffered of one's own free will or choice; voluntary - 1687. 4. Done on purpose or wittingly; purposed, deliberate, intentional. (Chiefly, now always, in bad sense of a blameworthy action; freq. implying 'perverse, obstinate'.) 24. In Ashok Paper Kamgar Union v. Dharam Godha and Ors. (2003) 11 SCC 1, this Court was called upon to decide whether the respondents, i.e., Shri Dharam Godha, Chairman, Nouveau Capital & Finance Ltd., Shri S. Jagadeesan, Joint Secretary, Ministry of Industry, Department of Industrial Policy and Promotion, Government of India, Shri G.S. Kang, Secretary, Department of Industries, Government of Bihar, Shri S.N. Khan, Chairman and Managing Director and Shri R.P. Chabra, Chief General Manager, Rehabilitation Finance Department, Industrial Development Bank of India were guilty of contempt. The facts of the case were that by an order dated 8.7.1996, this Court approved the proposal made by the Government of India for take over of M/s. Ashok Paper Mills by M/s. Nouveau Capital and Finance Ltd. and disposed of the writ pet....
X X X X Extracts X X X X
X X X X Extracts X X X X
....This has to be judged having regard to the facts and circumstances of each case. The facts mentioned above show that none of the respondents to the petition can be held to be directly responsible if the Scheme which had been formulated by the Government of India on 28-6-1996 and had been approved by this Court by the order dated 8-7-1996 could not be implemented in letter and spirit as many factors have contributed to the same. The reasons given for non-inclusion of Shri Umadhar Prasad Singh in signing of the agreement appear to be quite plausible. NCFL has undoubtedly not discharged its liability of making payment of its entire liability of Rs. 6 crores. However, it has come out with a case that some additional expenditure has been incurred in running the unit. It is not possible to get the complete financial picture only on the basis of the affidavits filed in the present petition. On the material on record, therefore, it is not possible to hold that the charge of having committed contempt of court on account of alleged noncompliance with the orders passed by this Court on 8-7-1996, 1-5-1997 and 31-7-2000 has been established against any one of the respondents. [Emphasis added....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rder. [Emphasis added] 27. In the light of the above, we shall now consider whether respondent Nos. 1 to 5 can be said to have willfully disobeyed order dated 30.9.2007. At the cost of repetition, we consider it necessary to point out that while issuing notice in Special Leave Petition (Civil) No. 18879 of 2007, this Court restrained the political parties from proceeding with the call for bandh in the State of Tamil Nadu on 1.10.2007 pursuant to resolution dated 24.9.2007 or any other day. The language of the restraint order is unambiguous. The prohibitive injunction contained therein was explicitly directed against the political parties and not against respondent Nos. 1 to 3. The Court did not direct respondent Nos. 1 to 3 to act in any particular manner or take certain specific steps to meet the challenge likely to be posed by implementation of the call given by Democratic Progressive Alliance. This was so because the Court could not have presumed that the restraint order passed by it will be disregarded or flouted by the political parties. Therefore, respondent Nos. 1 to 3 cannot, per se, be held guilty of disobeying or violating the Court's order dated 30th September,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion of work on 1.10.2007. If, despite statement of respondent No. 4, which was made known to the public, the shops and business establishments remained closed and the private transport operators did not consider it proper to operate their services on 1.10.2007, respondent Nos. 1 to 3 cannot be held to have deliberately disobeyed the Court's order. 30. The argument of Shri S. Guru Krishna Kumar that respondent No. 4 should be held guilty of contempt because the Government did not issue written instructions to the officers to take steps for maintaining the essential services and to ensure that public life is not disrupted on account of the call for bandh and the workers of his party coerced the people to close the commercial and business establishments is being mentioned only to be rejected. The bald statement contained in the contempt petitions that violence and coercion was resorted to by members of the party headed by respondent No. 4 has remained unsubstantiated because except the newspaper reports no material has been produced before the Court giving the names and other relevant particulars of the persons who are said to have indulged in forced closure of shops and busin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....here the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker. 2. The accuracy of the tape-recorded statement must be proved by the maker of the record by satisfactory evidence: direct or circumstantial. 3. Possibility of tampering with, or erasure of any part of, the tape-recorded statement must be totally excluded. 4. The tape-recorded statement must be relevant. 5. The recorded cassette must be sealed and must be kept in safe or official custody. 6. The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances. 33. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and Ors. AIR1975SC1788 , a three-Judge Bench while considering the question whether the appellant was guilty of promoting feeling of enmity between two sections of the society, examined the question of admissibility of tape recorded speech, referred to the judgment in R. v. Maqsud Ali (1965) 2 All ER 464 and observed: We think that the High Court was quite right in holding....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Judge Bench observed: As regards the burden and standard of proof, the common legal phraseology "he who asserts must prove" has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the "standard of proof, be it noted that a proceeding under the extraordinary jurisdiction of the court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond all reasonable doubt. 37. In Anil Ratan Sarkar and Ors. v. Hirak Ghosh and Ors. 2002CriLJ1814 , the Court referred to the judgment in Chhotu Ram v. Urvashi Gulati and Anr. (supra) and observed: The Contempt of Courts Act, 1971 has been introduced in the statute-book for the purposes of securing a feeling of confidence of the people in general and for due and proper administration of justice in the country - undoubtedly a powerful weapon in the hands of the law courts but that by itself operates as a string of caution and unless thus otherwise satisfied beyond doubt, it would neither be fair nor reasonable ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on of the platform would have triggered an adverse reaction endangering the safety of disputed 'Ram Janma Bhoomi-Babri Masjid' structure which was situated in immediate vicinity and for whose protection Government stood committed and, therefore, the respondent who was holding the office of the Chief Minister, cannot be held guilty of contempt. While rejecting the plea, this Court relied upon the observations contained in William G. Cooper, Members of the Board of Directors of the Little Rock v. John Aaron 358 US1 : 3 L Ed 2d 5 : 78 S Ct 1401 (1958) and observed: The use of force to further obedience to law is in any event a last resort and one not congenial to the spirit of out Nation.... Violent resistance to law cannot be made a legal reason for its suspension without loosening the fabric of our society. What could this mean but to acknowledge that disorder under the aegis of a State has moral superiority over the law of the Constitution? The historic phrase 'a Government of laws and not of men' epitomizes the distinguishing character of our political society. When John Adams put that phrase into the Massachusetts Declaration of Right....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Superintendent of Police and proceeded to observe: The next question is whether these activities were carried on by a congregation of Sadhus at the site and not by the State Government and despite Government's efforts. Apart from a glib suggestion that any attempt to prevent the work would have created a violent situation endangering the safety of the "Ram Janma Bhoomi-Babri Masjid structure" itself, nothing is indicated as to what was sought to be done at all to prevent constructional material coming in. There is no mention in any of the affidavits of any of the officers as to what reasonable measures the Government took to prevent the inflow of constructional material such as large quantities of cement, mortar, sand, constructional equipment, water-tankers etc. that were necessary for the work. The report of the Expert Committee has indicated that constructional machinery was indispensable having regard to the nature and magnitude of the work carried out. While it is understandable that the prevention of the gathering of Sadhus might have created some resentment, it is un-understandable why large quantities of building materials were allowed to be brought on t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Chief Minister was a personal undertaking or was on behalf of the State of U.P. It was both. There is no immunity for any authority of Government, if a personal element is shown in the act of disobedience of the order of the Court, from the consequence of an order of the Court. Even in England where the maxim "Crown can do no wrong" has had its influence, a distinction is made between the Crown as such and the Executive. In a recent pronouncement of far-reaching impact, the House of Lords in M. v. Home Office observed (as per Lord Templeman): My Lords, Parliament makes the law, the executive carry the law into effect and judiciary enforce the law. The expression 'the Crown' has two meanings; namely the monarch and the executive. In the seventeenth century Parliament established its supremacy over the Crown as monarch, over the executive and over the judiciary. Parliamentary supremacy over the Crown as monarch stems from the fact that the monarch must accept the advice of a Prime Minister who is supported by a majority of Parliament. Parliamentary supremacy over the Crown as executive stems from the fact that Parliament mainta....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... do not call for decision in this case. In England, there is a specific rule providing for sequestration of the corporate property of the party concerned, where such party is a corporation. I am not aware of any similar rule obtaining in this country, but I do not consider it impossible that in a fit case a fine may be imposed and it may be realised by methods analogous to sequestration which would be a distress warrant directed against the properties of the Government or the Corporation. (emphasis supplied) The State Government is, therefore, liable in contempt. A Minister or Officer of Government is also either in his official capacity or if there is a personal element contributing to contempt, in his personal capacity, liable in contempt. 41. In the case before us fact situation is entirely different. As mentioned above, on coming to know of the restraint order passed by this Court, respondent No. 4 made a statement for withdrawal of resolution dated 24.9.2007 vide which call was given by five political parties for cessation of work. It is also borne out from the affidavit of respondent No. 1 that on 24.9.2007 itself the said respondent had issued instructio....