STATE OF MAHARASHTRA

MOHD. Y AKUB S/0 ABDUL HAMID & ORS.

March 4, 1980

[R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.J

Penal' Code--Atte1npt to con1mit an offence-What constitutes-"I'reparation" and "attenipt" distinction.

The respondents were charged with th'e offence of attempting to smuggle out cf India 43 silver ingots in violation of the Foreign Exchange Regulation Act,

1947, Imports and Exports (Control) Act, 1947 and the Customs Act, l 962.

The prosecution alleged that on the night of the occurrence the res.pondents carried in a truck and a jeep silver ingots some of which were concealed in a shawl, and some others hidden in saw-dust bags from Bombay to a lon-ely creek nearby and that when the ingots were unloaded n'ear the creek the sound of the engine of a mechanised sea-craft from the side of the creek was heard by the Customs officials and that therefore they were guilty of attempting to muggle silver out of India.

The respondents pleaded that they w'ere not aware of the presence of silver ingots in the vehicles, that they were only employed for driving the jeep and the truck to another destination and that the police stopped them en route and had driven them to the creek.

E The Trial Court convicted and sent.enced them to vaI_:ious terms of imprio; onment and fine.

On appeal, the Sessions Judge acquitted all the respondents taking the view that the facts proved showed no more than that the accused had only marle _/ "preparations" for bringing the silver to the creek and "had not con1mittcd any -...___ act amounting to a direct mov'ement towards the commission of the offence" and F that until the silver was put in the boat with intent to export, it would merely be in the stage of preparation 'falling short of an "attempt" to export in contravention of the law.

The High Court dismissed the State's appeal.

Allowing the appeal to this Court,

HELD : Per Sarkaria, J. : (Chtnnappa Reddy, J. concurring)

1. The High Court was in error in holding that the circumstances established by the prosecution fell short of constituting the offence of an "attempt" to export

unlawfully silver out of Jndia.

[1165F]

2. The expression "attempt" within the .meaning of the penal provision" is wide enough to take in its fold any one or series of acts committed beyond the stage of preparation in movingcontraband goods deliberately to the place of embarkation, such act or acts 1'eing reasonably proximate to the completior. of the unlawful export. [ll65E].

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MAHARASHTRA V. MOHD. YAKUB 1159

3. The definition of 'proved' contained in section 3 of the Evidence Act does not draw any distinction between cir.::umstantial 2.n<l other evidence.

If the circumslances establish such a high degree of probability that a prudent n1~1n ought to act on the supposition that the accused was attempting to export silver from Jndia in contravention of the law, that woukl be ufficicnt proof rJf tbc.t fact in issue.

[1164AB]

4(a.) What constitutes an "attempt" is a mixed question of law and fact, depending largely on the circumstances of the particular case. "Attempt" defie~

a precise and exr.::t definition.

Bro•adly speaking, all crimes which cons1"-t of the commission of affirmative acts are preceded by some covert or ovrt conduct which may be divided into three stages : the first stage exists when the c;.ilplit first entertains the idea or intention to commit an offen•;;; e; in the s'econd stage he makes preparations to commit it; and the third stage is reac_hed when the culprit takes. delib'rate overt steps to commit the offence. Such overt act 01 step, in order to be criminal, need not be the penultimate act towards the commission of the offence. It is sufficient if such act or acts were deliberately done and manifest a clear intention to commit the offence aimed, being reasonably proxi~

ma(e to the consu1nmation of lhe offence.

[1164C-E]

Abhayanand Mishra v. State of Bihar, [1962] 2 S.C.R. 241, followed.

(b) There is a distinC:tion between "preparation" and "attempt".

Attempt begins where preparation ends. In sum, a p'erson commits the offence of 'at -tempt to commit a particular offence' when (i) he intends to commit that part?·

cul.ar offence c.nd (ii) he, having made preparations and with the int'euti,)n to commit the offence, does an act towards its commission; such an ac.t need not be the penultimate act towards the commission of that offence but must be an act during the course of co1nmiting that offence.

[1164E-F]

In the instant case the respondents carried silver ingots in the two vchicle3 to the sea-shore and started unloading them near a creek from which the sound of the engin'e of a sea-craft was heard. In short they did all that was necc<; sary

to expert the silver ingots by sea and the only step that remain1::d was to l•J1d then1 on the soo-craift for moving out of the territorial waters of the counlry.

But for the intervention of the Customs officials, the unlawful export would have been consummated. The disappearance of the sea-craft reinforces the inference that the accused had delib'i!rately attempted to export silver by sea in con:ruven~

tion of law.

[1164G-H]

Chinnappa Reddy, J (concurring),

Jn order to constitute rut ".attempt" first there must be an intention tv commit a particular offence, second, some act must have been done which wcu!d n'ecessarily have to be done towards the commission of the offence and third suih act must be 'proximate' to the intended result.

The measure of prciximity is not in relation to time and action but in relation to intention.

In other words, the act must reveal with reasonGble c'erta.inty, in conjunction with other facts and circumstances and not necessarily in isolation, an intention as d; stinguished from a mere desire or object to commit the particular offence, though the act by itself may be merely suggestive or indicative of such intention.

[1170E-F]

Jn the instant case had the truck been stopped and searched at the very commencement of the journey "or even on the way much before its destination the discovery of silver ingots in the truck might at the worst Jead to the inference

tbat the accus'ed had prepare.J or were preparing for the commission of the offence. It could be said that the accused were transporting or attempting to tninsport the silver somewhere but it would not necessarily suggest or inJicate that the inrention was to export silver.

The fact that the truck was dri\'.en up tu a lonely creek from where the silver rould be transferred into a sea-faring vessel was suggestive or indicative, though not conclusive, that the accus'ed want~ ed to export the silver. It might have been open to the accused to plead thr.t the silver was not to be exported but only to be transported in the course of inter-coastal trade.

But the circumstMlce that all this was done in a clandtstine fashion, at dead of night revealed, with reasonable certainty,_ th'e intention of the accused that the silver was to be exported. [ll 70GH]

Reg v. Eagleton [1854] Dears C.C. 515; Gardner v. Akerayd [1953[ 2 All ER 306; Davey v. Lee [!968] 1 Q.B. 366; Haughten v. SmiJh [1975] A.C. 476, 492; Director of Puhlic Prosecutions v. Stonehouse [1977] 2 All E.R. 909, referred to.

A.bhavanand Mishra v. The State of Bihar [19621 2 SCR 241 @ 253, applied.

Malkiat Singh & Anr. v. State of Punjab [1969] 2 SCR 663 @ 667, distin guished. ~

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 335 D of 1974.

Appeal by special leave from the Judgment and Order dated 1-11-1973 of the Bombay High Court in Criminal Appeal No. 113 of 1972.

0. P. Rana and M. N. Shroff for the Appellant.

V. N. Ganpule and V. B. Joshi for the Respondents.

The following Judgments were delivered :

SARKARIA, J.--This appeal by special leave preferred by the State ~' of Maharashtra, is directed against a judgment <4_ted November 1, F 1973, of the Bombay High Court.

Mohd. Yakub respondent 1, Shaikh Jamadar Mithnbhai respondent 2, and Issak Hasanali Shaikh respondent 3, were tried in the court of the Jndicial Magistrate First Class, Bassein, 13-0mbay, in respect of three sets of offences punishable under section 135 read G with section 135 (2) of the Customs Act, 1962. The first charge was the violation of sections 12(1), 23(1) and 23 (d) of the Foreign Exchange Regulation Act, 1947, the second was violation of Exports (Contrcl) Order No. 1 of 1968 E.T.C. dated March 8, 1.968: rnd the third was the contravention of the provisions of Sections 7, 8, 33 and 34 of the Customs Act, 1962.

They were also charged for H violation of the Exports (Control) Order No. 1/68 E.T.C. dated March 8, 1968 issued under sections 3 and 4 of the Imports and Exports (Control) Act, 1947 punishable under section 5 of the said

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I MAHARASHTRA v. MOHD. YAKUB (Sarkaria, !.)

I J 61

Act.

The gist of the charges was that the respondents attempted to A smuggle out of India 43 silver ingots", weighing 1312.410 kgs., worth about Rs. 8 lakhs, in violation of the Foreign Exchange Regulation Act, the Imports & Exports (Control) Act, 1947, and the Customs Act.

The facts of the case were as follows :

On receiving some secret information that silver would be transported in Jeep No. MRC-9930 and Truck No. BMS-796 from Bombay to a coastal place near Bassein, Shri Wagh, Superintendent of Central Excise along with Inspector Dharap and the staff proceeded in two vehicles to keep a watch on the night of September 14, 1968 at Shirsat Naka on the National Highway No. 8, Bombay City. At about mid-night, the aforesaid jeep was seen coming from Bombay followed by a truck. These two vehicles were proceeding towards Bassein. The officers followed the truck and the jeep which, after travelling some distance from Shirsat Naka, came to a fork in the road and thereafter,

insteac\ of taking the road leading to Bassein, proceeded on the new National Highway leading to Kaman village and Ghodbunder Creek.

Ultimately, the jeep and truck halted near a bridge at Kaman creek whereafter the ~CCJ!Sed removed some small and heavy bundles from the truck and placed them aside on the ground.

The Customs Officers rushed to the spot and accosted the persons present there.

At the same time, the sound of the engine of a mechanised sea-craft . from the side of the creek was heard by the officers.

The officers surrounded the vehicles and found four silver ingots near the footpath leading to the creek.

Respondent 1 was the driver and the sole occupant of the jeep, while the other two respondents were the driver and cleaner of the truck.

The officers sent for Kana and Sathe, both residents of Bassein. In their presence, respondent 1 was questioned about his identity.

He falsely gave his name and address as Mohamad Yusuf s/o Say.yad Ibrahim residing at Kamathipura.

From the personal search of respondent 1, a pistol, knife and currency notes of Rs. 2,133/- were found.

Fifteen silver ingots concealed in a shawl were found in the rear side of the jeep and twenty-four silver ingots were found lying under saw-dust bags in the truck.

The truck and the jeep together with the accused-respondents and the silver ingots were taken to Shirsat Naka where a detailed panchanama was drawn up. Respondent 1 had no licence for keeping a pistol.

Consequently the matter was reported to Police Station Bassein, for prosecuting the respondent under the Arms Act.

1162 SUPREM!l° COURT REPORTS

The respondents and the vehicles and the silver ingots were taken to Bombay on September 15, 1-968.

The statements of Um respondents under section 108 of the Customs Act were recorded by Shri Wagh, Superintendent of Central Excise.

The Collector, Central Excise, by his order elated May 28, !969, confiscated the silver ingots.

After obtaining the requisite sanction, "the Assistant Collector, Central Excise made a complaint against all the three accused in the court of the Judicial Magistrate, Basscin for trial in respect of the aforesaid offences.

The plea of the accused was of plain denial of the prosecution case. They stated that they were not aware of the alleged silver and

that they had just been employed for carrying the jeep and the truck to another destination.

They alleged that they were driven to the creek by the police.

The trial Magistrate convicted the accused of the aforesaid offences and sentenced accused I to two years' rigorous imprisonment ai1d a fine of Rs. 2,000 and, in default, to suffer further six months' rigorous imprisonment.

Accused 2 and 3 were to suffer six montl1s' rigorous imprisonment and to pay a fine of Rs. 500 and, in default, to suffer two months' rigorous imprisonment.

The accused preferred three appeals in the court of the Additiom1l Sessions Judge, Thana, who, ]Jy his common judgment dated September 30, 1973, allowed the appeals and acquitted them on the ground that the facts proved by the prosecution fell short of establishing that the accused had 'attempted' to export silver in contravention of the law, because the facts proved showed no more than that the accused had only made 'preparations' for bringing this silver to the creek and

"had not yet committed any act amounting to a direct movement towards the commission of the offence".

Jn his view, until silver was pnt in the boat for the purpose of taking out of the country with intent to export it, the matter would be merely in the s.tage of 'preparation' falling short of an 'attempt' to export it.

Since 'preparation' to commit the offence of exporting silver was not punishable under the Customs Act, he acquitted the accused.

Against this acquitt:il, the State of Maharashtra carried an app<:al H to the High Court, wh:ch, by its judgment dated November I, 1973, dismissed the appeal and upheld the acquittal of the accused-respondents.

Hence, this appeal.

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MAHARASHTRA v. MOHD. YAKUB (Sarkaria, J.)

116 J

In the instant case, the trial court and' the Sessions Judge con- A cmrently held that the following circumstances had been established by the prosecution:

(a) The officers (Shri Wagh and party) had received definite information that silver would be carried in a truck and a jeep from Bombay to Bassein for exporting from the country and for this purpose they kept a watch at Shirsat

Naka and then followed the jeep an_d the truck at some distance.

(b) Accused 1 was driv:ng the jeep, while accused 2 was driving the truck and accused 3 was cleaner on it.

( c) Fifteen silver ingots were found concealed in the jeep and 24 silver ingots were found hidden in the truck.

( d) The jeep and the truck were parked near the Kaman creek from where they could be easily loaded in some

sea craft.

(e) Four silver ingots from the vehicle had been actually unloaded and were found lying by the side of the road near the foot-path leading to the sea.

(f) On being questioned accused 1 gave his false name and address.

(g) The accused were not dealers in silver.

The trial Magistrate further held that just when the officers surrounded these vehicles and caught the accused, the sound of the engine of a mechanised vessel was heard from the creek.

The first appellate court did not d!scount this fact, but held that this circum- F stance did not have any probative value.

The question, therefore, is whether from the facts and circumstances, enumerated above, it could be inferred beyond reasonable doubt that the respondents had attempted to export the silver in contravention of law from India ?

At the outset, it may be noted that the Evidence Act does not insist on absolute proof for the simple reason that perfect proof in this imperfect world is seldom to be found.

That is why under Section 3 of the Evidence Act, a fact is said to be 'proved' when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition

A that it exists.

This definition of 'proved' does no~ draw any distinction between circumstantial and other evidence.

Thus, if the circumstances listed above establish such a high decree <if probability that a prudent man ought to act on the supposition that the appellant was attmpting. to exp2rt silver from India in contravention of the

law, that will be sufficient proof of that fact in issue.

Well then, what is an "attempt" ? Kenny in his 'Outlines of Criminal Law' defined "attempt" to commit a crime as the "last proximate act which a person does towards the commission of an offence, the consummation of the offence being hindered by circumstances beyond his control." This definition is too narrow.

What constitutes an "attempt" is a mixed question of law and fact, depending largely on the circumstances of the particular case. "Attempt" defies a precise and exact definition.

Broadly speaking, all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages.

D The first stage exists when the culprit first entertains the idea or intention to commit an offence.

In the second stage, he makes preparations to commit it.

The third stage is reached when the culprit

takes deliberate overt steps to commit the offence.

Such overt act or step in order to be 'criminal' need not be the pennltimate act towards the commission of the offence.

It is sufficient if such act or acts were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence. As pointed out in Abhayanand Mishra v.

State of Bihar(') there is a distinction between 'preparation' and 'attempt'.

Attempt begins where preparation ends. In sum, a person commits the offence of 'attempt to commit a particular offence' when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; snch an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence.

Now, let us apply the above principles to the facts of the case in hand.

The intention of the accused to export the silver from India by sea was clear from the circnmstances enumerated above.

They were taking the silver ingots concealed in the two vehicles under cover of darkness.

They had reached close to the sea-shore and had started unloading the silver there near a creek from which the sound of the engine of a sea-craft was also heard. Beyond the stage of preparation, most of the steps necessary in the course of export by

(I) [1962) 2 S.C.R. 241.

MAHARASHTRA v. MOHD. YAKUB (Sarkaria, !.) 1165

sea, had been taken.

The only s!ep that remained to be taken towards the export of the silver was to load it on a sea-craft for moving out of the territorial waters of India. But for the intervention of the officers of law, the unlawful export of silver would haVle been consummated.

The calendestine disappearance of the sea-craft when the officers intercepted and rounded up the vehicles and the accused at the creek, reinforces the inference that the accused had deliberately attempted to export silver by sea in contravention of law.

It is important to bear in mind that the penal provisions with which we are concerned have been enacted to suppress the evil of smuggling precious metal out of India.

Smuggling is an antisocial activity which adversly affects the public revenues, the earn' ing of foreign exchange, the financial stability and the economy of the country.

A narrow interpretation of the word "attempt" therefore, in these penal provisions which will impair their efficacy as instruments for combating this baneful activity has to be eschewed.

These provisions should be construed in a mannr which wonld suppress the mischief, promote their object, prevent their subtle evasion and foil their artful circumvention. Thus, construed, the expression "attempt" within the meaning of these penal provisions is wide enough to take in its fold any one or series of acts committed, beyond the stage of preparation in moving the contr1,1band goods deliberately to the place of embarkation, such act or acts being reasonably proximate to the completion of the unlawful export. The inference arising out of the facts and circumstances established by the prosecution, unerringly pointed to the conclusion, that the accused had committed the offence of attempting to export silver out of India by sea, in contravention of law.

For reasons aforesaid, we are of opinion that the High Court was in error in holding that the circumstances established by the prosecution fell short of constituting the offence of an 'attempt' to export unlawfully, silver out of India.

We, therefore, allow this appeal, set aside the acquittal of the accused-respondents and convict them under

Section 135(a) of the Costoms Act, 1962 read with Section 5 of the G Imports and Exports Control Act, 1947 and the Order issued thereunder, and sentence them as under :

Accused-respondent 1, Mohd. Yakub is sentenced to suffer one year's rigorous imprisonment with a fine of Rs. 2,000 and, in default, to suffer six months' further rigorous imprisonment. Accused respon- H dents 2 and 3, namely, Sheikh Jamadar Mithubhai and Issak Hasanali Shaikh are each sentenced to six months' rigorous imprisonment

A with a fine of Rs. 500 and, in default to suffer two months' further rigorous imprisonment.

CHINNAPPA REDDY, J.

I concur in the conclusion of my brother Sarkaria, J. in whose Judgment the relevant facts have been set out with clarity and particularity.

I wish to add a few paragraphs on

8 the nature of the actus reus to be proved on a charge of an attempt to commit an offence.

The question is what is the difference between preparation &nd perpetration?

An attempt to define 'attempt' has to be a frustrating exercise.

C Nonetheless a search to discover the characteristics of an attempt, if not an apt definition of attempt, has to be made.

In England Parke B described the characteristics of an 'attempt' in Reg. v. Eagleton,(') as follows :-

"the mere intention to commit a misdemeanour is not criminal. Some act is required, and we do not think that all acts towards committing a misdemeanour indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit but acts immediately conuected with it arc .... "

The dictum of Parke B is considered as the locus classicus on the subject and the test of 'proximity' suggested by it has been accepted and applied by English Courts, though with occasional bnt audible murmur ab, out the difficulty in determining whether an act is immediate or remote. Vide Lord Goddard C.J. in Gardner v. Akeroyed.(')

I' " .... it is sometimes difficult to determine whether an act is " immediately or remotely connected with the crime of which it is alleged -,,

to be an attempt". Parke B. himself appeared to have thought that the last possible act before the achievement of the end constituted the attempt.

This was indicated by him in the very case of Reg. v.

Eagleton (supra) where he further observed :

". . . . . . . . . . . . and if, in this case . . . . . . . . any further step on the part of the defendent had been necessary to obtain payment .............. we should have thought that the obtaining credit ................ would not have been sufficiently proximate to the obtaining the money, But, on the statement in this case, no other act on the part of the

(1) [18541 Dears C. C. 515.

(2) [1952] 2 All E. R. 306.

MAHARASHTRA v. MOHD. YAKUB (Chinnappa Reddy,!.) 1167

defendant would have been required. It was the last act, depending on himself towards the payment of the money, and therefore it ought to be considered as an attempt".

As a general principle th!'; test of 'the last possible act before the achievement of the end' would be entirely unacceptable. If that principle be correct, a person who has cocked his gun at another and is about to pull the trigger but is prevented from doing so by the intervention of someone or something cannot be convicted of attempt to murder.

Another popular formulation of what constitutes 'attempt' is that of Stephen in his Digest of the Criminal Law where he said :

"An attempt to commit a crime is an ac~ done' with intent to commit that crime and forming part of a series of acts, which would constitute its actual commission if it were not interrupted. The point at which such a series of acts begins cannot be defined; but depends upon the circumstances of each particular case".

While the first sentence is an attempt at defiuing 'attempt', the second sentence is a confession of inability to define. The attempt at definition fails precisely at the point where it shonld be helpful. See the observations of Parker C.J. in Davey v. Lee(') and of Prof. Glanville Williams in his essay on 'Police Control of intending criminals' in 1955 Criminal Lmv Review.

Another attempt at definition was made by PtQfessor Turner in [1934] 5 Cambridge Law Journal' 230, and this was substnntially reproduced in 'Archbald's Crimlnal Pleading, Evidence and Practice (36th &Jn.). Archbald's reproduction was quoted with approval in Davey

v. Lee(") and was as follows :

, ' .......... '. . the actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of a specific crime, which is immediately and not merely remotely connected with the commission of it, and the doing of which cannot reasonably be regarded as having any other purpose• than the commission of the specific crime".

We must at once say that it was not noticed in Archbald's (36th Edn.) nor was it brought to the notice of the DivisiQrla] Court which

 decided Davey v. Lee (supra) that Prof. Turner was himself not satis- H fied with the definition propounded by him and felt c; o'mpelled to

(l) [1968]! Q. B. 366. 2&--138 SCl/80

A modify it, as he thought that to require that the act could not reasonably be regarded as having any other purpose then the commission of the specific crime went too far and it shold be sufficient "to show prima facie' the offender's intention to commit the crime which he is charged with attempting".

B Editing 12th edition of Russell on Crime and 18th edition of Kenny's Outlines of Criminal Law, Professor Turner explained his modified definition as follows:

"It is therefore suggested that a practical test for the actus reus in attempt is that the prosecution must prove that c the steps taken by the accused must have reached the point when they themselves clearly indicate that was the end towards which they were directed.

In other words the steps taken must themselves be sufficient to show, prima facie, the offender's intention t, o commit the crime which he is charged with attempting. That there may be abundant other evidence D to establish his mens rea (such as a confession) is irrelevant to the question of whether he had done enough to constitute the actus reus".(I)

We must say here that we are unable to see any justification for e!!:cluding evidence aliunde on the question of mens rea in considering what E constitutes the actus reus.

That would be placing the actus reus in too narrow a pigeon-hole.

In Haughten v. Smith,(') Hai/sham L. C. quoted Parke B from the Eagleton case (supra) and Lord Parker, C.J. from Davey v.

Lee (supra) and proceeded to mention three propositions as emerg- F ing from the two definitions :

"(1) There is a distinction between the intention to commit a crime and an attempt to commit it. .......... .

(2) In addition to the intention, or mens rea, there must be an overt act of such a kind tha~ it is intended, to form and does form part of a series of acts which would constitute the actual commission of the offence if it were not interrupted. . . . . . . . . . ( 3) The act relied on as constituting the attempt must not be an act merely preparatory to commit the completed offence, but must bear a relationship to the completion of the offence referred to in Reg. v. Eagleton, as being 'proximate' tci the completion of the offence in

(l) Russell on Crimes (12th Elin.) edited by Prof. Tarner, P. 184.

(2) [1975] A. C. 476 at 492.

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MAHARASHTRA v. MOHD. YAKUB (Chinnappa Reddy, !.) 1169

Davey v. Lee [1968) 1 Q.B. 366, 370, as being 'imme- A diately and not merely remotely connected' with the completed offence ........... "

I In Director of Public Prosecutions v. Stonehouse, (1) Lord Diplock a'nd Viscount Dilhome, appeared to accept the 'proximity' test of Parke B, while Lord Edmund-Davies accepted the statement of Lord Hailsham as to what were the true ingredients of a criminal attempt.

Whatever test was applied, it was held that the facts clearly dis-· closed an attempt in that case.

Ill India, while attempts to commit certain specified offences have themselves been made specific olfonces (e.g. 307, 308 Indian Penal Code etc.), an attempt to commit an offence punishable under the Penal Code; generally, is dealt with under section 511 Indian Penal

Code.

But the expression 'attempt' has not bee'n defined anywhere.

In Abhayanand Mishra v. The State of Bihar,(') Raghubar Dayal and Subba Rao, JJ., disapproved of the test of 'last act which if uninterrupted and successful would constitute a criminal offence' and summarised their views as follows :

"A person commits the offence of 'attempt to commit a particular offence' when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence".

In Malkiat Singh & Anr v. State of Punjab,(3) a truck which was carrying paddy, was stopped at Samalkha 32 miles from Delhi and about 15 miles from the Delhi-Punjab boundary. The question was whether the accused were attemJ?ting to export paddy from Punjab to Delhi.

It was held that on the facts of the case, the offence of attempt had not been committed. Ramaswamy. J., observed :

"The test for determining whether the act of the appellants constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. In the present case it is quit~ possible that the appellants may have

(1) (1977] 2 All E. R. 909.

(2) (1962] 2 S.C.R. 241at253,

(3) (1969] 2 S.C.R. 663 at 667.

Ii been warned that they had no licence to carry the paddy and they may have changed their mind at any place bet- \'leen Samalkha barrier and the Delhi-Punjab boundary and not have proceeded further in their journey".

We think that the test propounded by the first, sentence should be understood with reference to the facts of the case.

The offence alleged to be coutemplated was so far removed from completion in that case that the offender had yet ample time and opportunity to change his mind and proceed no further, his earlier acts being com pletely harmless. That was what the Court meant, and the reference to 'the appellants' in the sentence where the test is propounded makes it clear that the test is propounded with reference to the partieular

facts of the case and not a~ a general rule.

Otherwise, in every case where an accused is interrupted at the last minute from completing the offence, he may always say that when he was interrupted he was about to change his mind.

Let me now state the result of the search and research : In order to constitute 'an attempt', first, there must be an intention to commit a particular offence, second, some act must have been done which would necessarily have to be done towards the commission of the offence, and, third, such act must be 'proximate' to the intended result.

The measure of proximity is nOt in relation to time and action but in relation to intention. In other words, the act must reveal, with reasonable certainty, in conjunction with other !acts and circumsta'nces and not necessarily in isolation, an intention, as distinguished from a mere desire or object, to commit the particular offence, th9ugh the act by itself may be merely suggestive or indicative of such intention; but, that it must be, that is, it must be indicative. or suggestive of the intention.

For instance, in the instant case, had the truck been stopped and searched at the very commencement of the journey or even at Shirsad Naka, the discovery of silver ingots m the truck might at the worst lead to the inference that the accused had prepared or were preparing for the commission of the offence. It could be said that the accused were transporting or attempting to transport the silver somewhere hut it would not necessarily suggest or indicate that the intention was to export silver.

The fact that the truck was driven upto a lonely creek from where the silver could be transferred into a sea-faring vessel was suggestive or indicative though not conclusive, that the accused wanted to export the silver.

It might have been open to the accused to plead that the silver was

? r

MAHARASHTRA v. MOHD. YAKUB (Chinnappa Reddy, J.) 1171

not to be exported but only !o be transported in the. course of inter- A coastal trade. But, the circumstance that all this was done in a clandestine fashiob, at dead of night, revealed, with reasonable certainty, the intention of the accused that the silver was to be exported.

In the result I agree with the order proposed by Sarkaria, J .

P.B.R.' Appeal allowed.

STATE OF MAHARASHTRA

MOHD. Y AKUB S/0 ABDUL HAMID & ORS

March 4, 1980

R. S. SARKARIA

0. CHINNAPPA REDDY, JJ

Foreign Exchange Regulation Act

Customs Act

Bombay

India

Sarkaria

Chtnnappa Reddy

section 3

Jndia

[1962] 2 S.C.R. 241

Chinnappa Reddy

[1969] 2 SCR 663

P. Rana

M. N. Shroff

V. N. Ganpule

V. B. Joshi

SARKARIA

Mohd. Yakub

Shaikh Jamadar Mithnbhai

Issak Hasanali Shaikh

section 135

section 135

Customs Act, 1962

sections 12(1), 23(1) and 23

Foreign Exchange Regulation Act, 1947

March 8, 1.968

Sections 7, 8, 33 and 34

Customs Act, 1962

sections 3 and 4

section 5

Customs Act

Bassein

Wagh

Dharap

Shirsat Naka

Bombay City

Kaman village

Kana

Sathe

Mohamad Yusuf

Kamathipura

Arms Act

September 15, 1-968

section 108

Customs Act

Judicial Magistrate, Basscin

Additiom1l Sessions Judge, Thana

September 30, 1973

Customs Act

State of Maharashtra

Shirsat

Naka

Section 3

Kenny

[1962) 2 S.C.R. 241

Section 135(a)

Costoms Act, 1962

Section 5

Imports and Exports Control Act, 1947

Jamadar Mithubhai

Issak Hasanali Shaikh

England

Parke B

Goddard

Parke B.

Stephen

Parker

Glanville Williams

Archbald

Turner

Hai/sham L. C.

Tarner

Diplock

Viscount Dilhome

Edmund-Davies

Hailsham

Indian Penal Code

Penal Code

section 511

Code

Raghubar Dayal

Subba Rao

Punjab

Samalkha

Delhi

Ramaswamy

(1962] 2 S.C.R. 241

(1969] 2 S.C.R. 663


ADVOCAIB GENERAL, STAIB OF BIHAR v.

MADHYA PRADESH KHAIR INDUSTRIES LTD.

March 5, 1980

[R. S. SARKARIA AND 0. C!IlNNAPPA REDDY, JJ.]

Criminal Contempt-Section 2(C) of the Contempts of Courts Act, 1971, Seope of-Statutory Limitation under Section 20 of the Act; computation of.

The respondents were the successful bidd'ers at an auction of forest coupesin the State of Bihar. As they defaulted in making the security deposit in 1espect of three coupes, the agreements With them were determined by the Conservator of Forests.

The respondents thereupon filed a writ petition in the Calcutta High Court instead of in the Patna High Court and followed it up with several applications one after another both in tlie Calcutta and Pain" High Courts towards the forest department from preventing unauthorised removal of forest produce by the respondents.

Vexed by the manner in which the respondent was filing repeated applitationsand procuring orders of a learned single judge of the High Court necessitating the filing of as many appeals to the Division Bench, the State of Bihar moved an application for committing the respondents for contempt of court, alleging that, by their conduct the respondents Wt:re obstructing the administration of justice-· and interfering with the due course of judicial proceedings. The Patna High Court held that the tespondent's conduct was most unscrupulous and that !here was gross abuse of the process of the Court, which could in certain circumstances

amount to contempt of Court. However, the High Court dismissed the appli cation on the ground that it was b•rred by limitation as it was filed beyond the p'eriod of one year prescribed by section 20 of the Contempt of Courts Act. The- High Court held, on a reading of the contempt application that the material allegation in regard to the contempt committed by the respondents was that re la ting to the filing of the application dated April 7, 1971 before the single judge of the Ca.lcutta High Court to circumvent and nullify the order dated March 29,

1971 of the Division Bench of the Patna High Court. As the contempt appli cation dated 18-7-73 in OCM 7 /73 was filed more than a year later, it WM tin1'• barred. In regard to the allegation relating to the filing of the petftion dated December 14, 1972, the High Court observed that there was no specific all'8'>" lion th-at any contempt of court was committed by the filing of this application.

Though the r.espondents tendered an unconditional apology, its acceptance was, not considered as the application was found to b'e beyond time. Hence the appeal under section 19 of the Contempt of Courts Act, 1971.

Allowing the State appeal, the Court

HELD : 1. Every abuse of process of the court may not necessarily amount lo contempt of Court. Abuse of proc'ess of the Court calculated to hamper thedue course of a judicial proceeding or the orderly administration of justie is a.

contempt of Court.

[1178A-B]

2. It may be that c.ertain minor abuses of the process of the court may be suitably dealt with as between the parties by striking out pleadings under the

.())VOCATE GENL., BIHAR v. M. P. KHAIR INDUSTRIES 1173

provisions of Order 6, Rule 16 C.P.C. or in some other manner. But on the A other hand, it may be necessary to punish as a contempt, a course of conduct Which abuses and makes a mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of Justice. [ll 78B-CJ

3. The public have an interest, an abiding and a real interest and a vital istakc, in the effective and orderly administration of justice, because, unless justice is so administered, there is the peril of all rights and liberties perishing. The Court has the duty of protecting the interest of the public in the administraition of justice and, so, it is entrusted with the power to commit for contempt of Court, not in order to protect the dignity of the Court against insult or injury as the expression "Contempt of Court" may seem to suggest, but to protect and to vindicate the right of the public that administration of justice shall not be pre~ vented, prejudiced, obstructed or interfered with. [ll 78C-E]

Offutt v. U.S., 348, U.S. p. 11, quoted with approval.

4. It is not necessary that every allegation made should be followed then and there by the statement that the allegation established a contempt of CourL Paragraph 29 of the application to commit th'e respondents for Contempt express~ ly referred to the application dated December 14, 1972 an~ paragraph 31 state

that all the facts and circumstances enumerated in the petition established tba.t D the respondents were obstructing and interfering with the due course of adminis tration of justice.

[1180F-H]

In the instant ooe :

(a) the respondents began the "game" by filing an application under o\rt. 226 of the Constitution of India in the Calcutta High Court, whereas in the normal course one would expect such an application to be filed in the Patna High Court within whose jurisdiction the subfect matter of dispute was situate.

A justifiable prim.a facie inference from this circumstance may be that the application was not bonafide but intended to harass and oppress the opposite party.

[1179C-EJ

(b) Thereafter application after application was filed before the learned single Judge, everyone of them, designed to circumvent, cfefect or nullify the effect of the orders of the Division Benches of the Calcutta High Court and Patna High Court. The order of !lie Division Bench of the Calcutta High Court directing the respondents to furnish security in a sum of Rs. 1,55,000/- \Vas never complied with, The order of the Division Bench of the Pa.tna High Court directing the respondents to furnish security of immovable property in a sum of Rs. 75,000/- and to deposit in cash or furnish bank guarantee in a sum of Rq, 50,000/- was also never complied with. Instead, an order was obtained from

the single Judge of the Calcutta High Court restraining the State of Biha.r from continuing the money suit in the Court of the Subordinate Judge, Palamau. When this order was set aside by the Division Bench, an attempt was m.ade to circum vent all earlier orders by obtaining an order of the single Judge that they ma.y be allowed to deposit a sum of Rs. 60,000/. in cash and permitted to remove the •tock from the forest Coupes. When the State of Bihar moved the learned Subordinate Judge, Palamau for a direction to auction the attached stock, the respond'ents moved ao application on December 14, 1972, aod obtained an order from the Single Judge of the Calcutta High Court staying the proceedings in the

money suit in the Court of the Subordinate Judge, Palamaiu. In considerina the question whether the filing of the application dated December 14, 1972, amounts to a Contempt of Court, the Cou1t must take into account the whole course of the continuing contumacious conduct of the respondents from the beginning of 1he 'game'. Clearly, not a single application mad'e to the Single Judge was bona fide. Every application was a daring 'raid' on the Court and each was an abuse of the process of the Court. The applica.tion dated December 14, 1972 praying that the proc'eedings in the money suit in the Court of the Subordinate Judze should be stayed was made despite the fact that earlier, on January 10, 1972 the Division Bench of the Calcutta High Court had expressly permitted the proceedings in the money suit to go on. The application of the respondents clearly showed that they were intent upon obstructing the due course of the proceedings in the money suit in the Court of the Subordinate Judge, PaJamau and to obstruct

the administration of justice by abusing the process of the Court. [11790 H,

llSOA-E]

(c) The application dated December 14, 1972 was an abuse of process of the Court, calculated to obstruct the due course of a judicial proceeding and the

administration of justice end was therefore, a criminal contempt of Court; [llSOH, l!81A]

(d) though the respondents had expressed an unconditional apology to the Patna High Court, the conduct of the respondents is so reprehensible as to

\Varrant condemnation by the imposition of a sentence.

[1181A}

CRIMINAL AIPELI, ATE JURISDICTION : Criminal Appeal No. 349 of 1974: From the Judgment and Order dated 24-4-1974 of the Patna High Court in Original Cr!. Misc. No. 7 /73.

Lal Narayan Sinha, Attorney General, U. P. Singh, B. P. Singh and S. N. !ha for the Appellant.

Sukumar Ghosh for the Respondent.

The Judgment of the Court was delivered by

CHINNAPPA REDDY, J.

The Advocate-General of Bihar is the appellant in this appeal under Section 19 of the Contempts of Comts Act, 1971. Respondent No. 1, M/s. Madhya Pradesh Khair Industries, represented by respondent No. 2, Om Prakash Agrawal, were the highest bidde.rs at an auction held by the Divisional Forest Officer, Garhwa South, of four forest coupes iu the State of Bihar.

Under the terms of the agreements the respondents were required to deposit 25% of each of the four bids as security.

The respondents were, however, able to make the deposit in respect of one coupe only and not in respect of the other three coupes.

The responde.nts requested for time. Thereafter, there was a long course of correspondence with which we are not now concerned.

Finally, on January 28, 1970, th~ Conservator of Forests determined the agreements.

On February 28, 1970, respondent No. 1 served a notice on the Divisional FQl'est Offieer

..~

ADVOCATE GENL., BIHAR V. M. P. KHA!R INDUSTRIES 1175 (Chinnappa Reddy, J.) Garhwa South, intimating him that they had filed au application under

Article 226 of the Constitution in the Calcutta High Court and that S. C. Deb, J., had been pleased to issue a rule nisi aud also an injunction restraining the Govt. of Bihar and the officials of the Forest Department of the Govt. of Bihar from giving effect to the proceedings by which the leases were. determined and further directing them to all9w M/s. Madhya Pradesh Khair Industries to carry on the work of cutting and felling of trees and removing the material in the, said forest coupes.

Alleging that the Officers of the Forest Department of the Govt. of 13ihar had violated the order of injunction granted against them, the respondents filed an application to commit the Officers for Contempt of Court and in that application they prayed for and obtained an interim order directing the Officers not to interfere in any way with the activities of the respondents in removing the produce of the Khair trees. The, State ofBihar preferred an appeal to a Division Bench of the Calcutta High Court aud on September 29, 1970, the Division, Bench passed arr order allowing the appeal and directing the respondents to furnish;

security in a sum of Rs. 1,55,000 if they desired to remove the forest produce.

Otherwise, they were restrained from selling the trees aud extracting the produce.

The respondents offered certain property as security but that was rejected by the Registrar of the Calcutta High Court as the title was found to be defective.

At this stage on J auuary 8, 1971, the State of Bihar filed money suit No. 3 of 1971 in the Court of the Subordinate Judge of Palam.au to recover a sum of Rs. 1,93,225 as damages.

The State of Bihar also filed au application under Order 38, Rule 5, Code of Civil Procedure and obtained an order of attachment of the 'Kath' manufactured by the respondents alongwith. utensils, equipment, etc.

The espondents were directed to furnish security in a sum of Rs. 2 lakhs and asked to show cause why the interim attachment should not be made absolute.

The attachment was effected on January 10, 1971. The respondents appeared before the learned Subordinate Judge and requested that the reduced the amount of security from Rs. 2 lakhs to Rs. 75,000. The learned Subordinate Judge allowed the ayer of the respondents and reduced the amount of security from Rs. 2 lakhs to Rs. 75, ooo. The State od' Bihar preferred an appeal to the Patna High Court and ail,

interim order was made by the High Court, stayi.ng the operation of the order of the learned Subordinate Judge but continuing the attachment.

On March 29, 1971, after hearing both the parties, the Patna High Court made an order directing the respondents, to furnish security of immovable property in a sum of Rs. 75,000 and to deposit cash or furnish bank guarantee in a sum of Rs. 50,000. It was directed that

J!'

on such security being furnished the interim attachment would cease and the respondents would be allowed to remove the stock, utensils and equipment.

Without complying with the orde.r of the Patna High Conrt, Respondent No. 1 then moved the learned Single Judge of the Calcutta High Court on April 21, 1971, and obtained an order restraining the

State of Bihar from continuing the money suit in the Court of the Subordinate Judge, Palamau and further directing the State to take steps to get the attachment vacated if security was furnished by the respondents as directed by the Division Bench of the Calcutta High Court. The State of Bihar filed an appeal against the order of the learned Single Judge and the operation of the order was stayed by an order of January 10, 1972 of the Divisio!\ Bench. It was directed that the proceedings in the money suit in the Conrt of the learned Subordinate Judge of Palrunau should proceed.

In the meanwhile on July 30, 1971, Respondent No. 1 moved another application before the learned Single Judge of the Calcutta; High Court offering to deposit Rs. 60,000 in cash and requesting that on such deposit being made, they might be allowed to remove the stock. This application was allowed on July 30, 1971, by the learned Single Judge and the amount was directed to be deposited with the counsel for th~

State of Bihar.

The order was later on modified on December 16, 1972, and the amount was directed to be deposited with the Registrar of the High Court.

On November 20, 1972, the State of Bihar filed an application in the Court of the Subordinate Judge, Palamau complaining that the respondents had not furnished secnrity as di.reeled by the Patna High Court and as the attached stock was deteriorating it might be sold by auction.

Before anything further could be done Respondent. No. I filed a petition on 14th December, 1972, and obtained an order from the learned Single Judge of the Calcutta High Court on December 18, 1972, staying the proceedings in the money suit in the Court of the Subordinate Judge, Palamau until the attached goods we.re released in compliance with the orders dated July 30, 1971 and February 16, 1972.

The State of Bihar preferred an appeal against the order of tbe learned

Single Judge and on January 22, 1973, a Division Bench of the Calcutta High Court set aside the order of the learned Single Judge and directed the proceedings in the Court of Subordinate Judge, Palamau, to go on.

Vexed by the manner in which the 1st Respondent was filing repeated applications and procuring orders from a learned Single Judge

•'I

ADVOCATE GENL. B!llAR V, M P. KHAIR INDUSTRIES 1177 ( Chlnnappa Reddy, J.) of the High Court, necessitating the filing of as, many appeals to the Division Bench, the State of Bihar filed an application for committing the Respondents for Contempt of Court alleging that, by their conduct the respondents were obstructing the administration of justice and interfering with the due course of judicial proceedings. The Patna High Court held that the respondents' conduct was most unscrupulous one that there wa5 gross abuse of the process of the Court, which could in certain circumstances amount to contempt of Court. The High Court, however, dismissed the application on the ground that it was barred by limitation as it was filed beyond the period of one year prescribed by section 20 of the Contempt of Comts Act.

The High Court held, on a: reading of the Contempt application, that the material allegation in regard to the contempt committed by the respondents was that relating to the filing of the application dated April 7, 1971, before tbe Single Judge of the Calcutta High Court to circumvent and nullify the order dated March 29, 1971 of the Division Bench of tile Patna High Court.

As the contempt application was filed more than a year later it was time-barred. In regard to the allegation relating to the filing of the petition dated December 14, 1972, the High Court observed that there was no specific allegation that any Contempt oe Court was ccmmittcd by the filing of this application. We may also mentioi; i. that the respondents tendered an unconditional apology to the High Court of Bihar.

The question of accepting the apology was Mt considered as the application was found to be bey®d time.

The A<lvocate General of Bihar has filed this appeal against the judgment of the Patna High Court.

I"-- Before we consider the merits of the appeal we may mention here - that the learned Single Judge who made the several orders in favour

of the respondents was himself compelled in a later order dated AugusG F 13, 1973 to state that the respondents had suppressed material facts and misled him on various occasions and obtained orders from him.

Section 2 ( c) of the Contempt of- Courts Act defines Criminal contempt as follows :

"(c) 'Criminal Contempt' means the publication (whether by words, spoken or written, or any signs, or by visible rcprn

sentations, 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".

While we are conscious that every abuse of the process of the Court may not necessarily amount to Contempt of Court, abuse of the process of the Court calculated to hamper the due course of ai judicial proceeding or the orderly administration of justice, we must say, is a contempt of Court. It may be that certain minor abuses of the process of the Court may be suitably dealt with as between the parties, by striking out pleadings under the provisions of Order 6, Rule 16 or in some other manner.

But, on tlie other hand, it may be necessary to punish as a contempt, a course of conduct which abuses and makes a mockery of the judicial process and which thus extends its pernicious infiueoce beyond the parties to the action and affects the interest of the public in the administration of justice.

The public have an interest, an abiding and a real i!lterest, and a vital stake in the effective; and orderly administration of justice, because, unless justice is so administered, there is the pe.ril of all rights and liberties perishing.

The Court has the duty of protecting the interest of the public in the due administration of justice and, so, it is entrusted with the power to commit for Contempt of Court, not in order to protect the dignity of the, Court against insult or injury as the expression "Contempt of Court" may seem to suggest, but, to protect and to vindicate the right of the public that the administration of justice shall not be prevented, prejudiced, obstructed or interfered with. "It is a mode of vindicating the majesty of law, in its active manifestation against obstruction and outrage".(!) "The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope''.(')

In Halsbury's Laws of England (4th Edn-Vol. 9, paragraph 38), there is a brief discussion of when abuse of the process of the Court may be a punishable contempt. It is said :

"38. Abuse of process in general.

The Court has power to punish as contempt any misuse of the court's process.

Thus the forging er altering of court documents and other deceits of like kind are punishable as serious contempts. Similarly, deceiving the court or the court's officers by deliberately S1'ppressing a fact, or giving false facts, may be1 a punishable contempt.

(I) Por Frank Further Jin Offutt v. U.S. -34: U.S. p. II.

(2) Per Judge Curtis-Raleigh quoted in Je11nisq11 v. Baker- [1972] I All E. R.

997@ 1006.

, ,

ADVOCATE GENL. B!HAR V. M P. KHAIR INDUSTRIES: 1179 (Chlnnappa Reddy, !.) Certain acts of a lesser nature may also constitute an abuse of process as, for instance, initiating or carrying on proceedings which are wanting in bona {ides or which are frivolous, vexatious, or oppressive.

In such cases the court has extensive alternative powers to prevent an abuse of its process by striking ant or staying procee<lings or by prohibiting the taking of further proceedings without leave.

Where the court, by exercising its statutory powers, its powers under rules of court, or its inherent jurisdiction, can give an adequate remedy, it will not in general punish the abuse as a contempt of court.

On the other hand, where an irregularity or misuse of process amounts to an offence against justice, extending its influence beyond the parties to the action, it may be punished as a contempt".

In the present case, the respondents began 'the game' by filing an application under Art. 226 of the Constitution in the Calcutta High Court, whereas in the normal course one would expect such as application to be filed in the Patna High Court within whose jurisdiction the subject matter of the dispute was situate.

For some mysteriou~ reasons which nobody has been able to explain to us, the writ application was filed in the Calcutta High Court. A justifiable prima facie inference from this circumstance may be that the application was not bona fide but intended to harass and oppress the opposite parties. We do not want to say anything more about this aspect of the case as we are told that this is a failing of the respondents which they shared with several others. Perhaps, as we had occasion to remark during the course of the hearing, some parties are unable to reconcile themselves to the fact that the Calcutta High Court has long since ceased to have jurisdiction over the area comprising the State of Bihar which it had several decades ago.

The 'game' proceeded further.

Application after application was filed before the learned Single Judge, everyone of them designed to circumvent, defeat o.r nullify the effect of the orders of the Division Benches of the Calcutta High Court an.ct the Patna High Court. . The order of the Division Bench of the Calcutta High Court directing the respondents to furnish security in a sum of Rs. 1,55 ,000 was never complied with.

The order of the Division Bench of the Patna High Court directing the respondents to furnish security of immovable property in a sum of Rs. 75,000 and to deposit cash or furnish bank guarantee in a sum of Rs. 50,000 was also never complied with.

Instead, an order was obtained from the; Single Judge of the Calcutta High Court restraining the State of : Bihar from CO'Jltinning the money suit in the Court of the Subordinate Judge, Palamau., When this order was set aside by the Division Bench, an attempn was made to circumvent all earlier orders by obtaining an order from the Single.

Judge that they may be allowed to deposit Rs. 60,000 in cash and permitted to remo'le the stock from the forest coupes. When the State o[ Bihar moved the learned Subordinate Judge, Palamau for a direction to auction the attached stock, the respondents moved an application: on December 14, 1972, and obtained an order from the Single Judge of the Calcutta High Court staying the proceedings in the money suit in the Court of the Subordinate Judge, Palamau.

In considering the question whether the filing of the application dated December 14, 1972, amount to a Contempt of Court, the Court inust take into accoont the whole course of the continuing contumacious conduct of the respondents from the beginning of the "game". Clearly, not a single appliciition made to the Single Judge was bona fide. Every application was a daring 'raid' on the Court and each was an abuse of the process of the Court.

The application dated December 14, 1972 praying that the proceedings in the money suit in the Court of the Subordinate Judge shonld be stayed was made despite the fact that earlier, ori January 10, 1972, the Division Bench of the Calcutta High Court had expressly permitted the proceedings in the money suit to go on. The application of the respondents clearly showed that they were inten~ upon obstructing the due course of the proceedings in the money suit in the Court of the Subordinate Judge, Palamau and to obstruct th~

administration of justice by abusing the process of the Court.

The High Court expressed the view that there was no specific allegation that any contempt of Court had been committed by the filing of the application dated December 14, 1972. We are unable to agree with the view .of the High Court. Paragraph 29 of the application to commit the responqents for Contempt expressly refers to the application dated December 14, 1972 and paragraph 31 states that all the facts and circumstances enumerated in the petition; estabiished that the respondents were obstructing and interfering with the due course and administration of justice. It was not necessary that every allegation made should be followed then and there by the statement that the allegation established a Contempt of Court.

We are satisfied that the filing of the application dated December 14, 1972, was an abuse of the process of the Court, calculated to obstruct

{ '• I

ADVOCATE GENL. BIHAR V. M P. KHA!R INDUSTRIES. 1181 (Chlnnappa Reddy, !.) the due course of a judicial proceeding and the administration of justice and was, therefore, a Criminal Contempt of Court. The respondents had expressed an unconditional apology to the Patna High Court, but we are convinced that the conduct of the respondents is so reprehensible as to warrant condemnation by the imposition of a sentence. We accordingly allow the appeal and sentence each of the respondents to pay a fine of Rs. 500/-, in default to undergo simple imprisonment for a period of two weeks. ·

V.D.K. 11ppeal allowed.

MADHYA PRADESH KHAIR INDUSTRIES LTD

March 5, 1980

R. S. SARKARIA

0. C!IlNNAPPA REDDY, JJ.

Section 2(C)

Contempts of Courts Act, 1971

Section 20

Calcutta High Court

Patna High Court

State of Bihar

section 20

Contempt of Courts Act

Ca.lcutta High Court

March 29,

1971

December 14, 1972

section 19

Contempt of Courts Act, 1971

Order 6, Rule 16

C.P.C

Constitution of India

State of Biha.r

Court of the Subordinate Judge, Palamau

Palamau

January 10, 1972

Lal Narayan Sinha

P. Singh

B. P. Singh

S. N. !

Sukumar Ghosh

CHINNAPPA REDDY

Section 19

Contempts of Comts Act, 1971

Madhya Pradesh Khair Industries

Om Prakash Agrawal

Garhwa South

State of Bihar

January 28, 1970

February 28, 1970

Article 226

S. C. Deb

Govt. of Bihar

Madhya Pradesh Khair Industries

State ofBihar

September 29, 1970

J auuary 8, 1971

Order 38, Rule 5

Code of Civil Procedure

January 10, 1971

State od' Bihar

March 29, 1971

April 21, 1971

Subordinate Judge of Palrunau

July 30, 1971

Calcutta; High Court

December 16, 1972

November 20, 1972

Subordinate Judge, Palamau

14th December, 1972

December 18, 1972

February 16, 1972

January 22, 1973

Court of Subordinate Judge, Palamau

section 20

April 7, 1971

High Court of Bihar

Bihar

AugusG F 13, 1973

Section 2

Order 6, Rule 16

England

Art. 226

State of : Bihar