1

RESERVED

Court No. - 42

AFR

Case :- CONTEMPT APPEAL No. - 6 of 2018

Appellant :- Ashok Kumar

Respondent :- Ram Pal

Counsel for Appellant :- Dharam Veer Singh,Imran Ullah

Counsel for Respondent :- Sanjeev Mishra

Hon'ble Manoj Misra,J.

Hon'ble Virendra Kumar Srivastava,J.

(Delivered by Hon'ble Manoj Misra, J)

This is an appeal under section 19 of the Contempt of

Courts Act, 1971 against the order dated 01.11.2018 passed by

learned single judge in Contempt Application (Civil) No.3035 of

2018 by which the learned single judge held the appellant guilty

of contempt of court for defying the interim order dated

10.04.2018 passed in Crl. Misc. Writ Petition No. 8980 of 2018.

The appellant has also challenged the consequential order of

punishment dated 14.11.2018 by which a fine of Rs. 1,000/- and

sentence of simple imprisonment of one month has been

imposed upon him.

The facts giving rise to the instant appeal are as follows:

One Vijendra Singh lodged a first information report (for

short FIR) on 26.12.2017 at P.S. Shikohabad, District

Firozabad, which was registered as Case Crime No. 1206 of

2017, against Ram Pal; Anand; and Vikram Singh for offences

punishable under Sections 363; 366 I.P.C. and section ¾ Pocso

Act. In the FIR the aforesaid persons were suspected as to

have enticed away informant's minor daughter Anju Kumari,

aged about 16 years, as she had been missing since

22.12.2017. Challenging the FIR, Anju Kumari and the accused

filed Crl. Misc. Writ Petition No. 8980 of 2018 in this court by

claiming that Anju and Ram Pal (the petitioner no.2 in that

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petition) were adult and of their own free will they had married

each other and therefore no offence has been committed. They

relied on Voter ID Card to demonstrate that the date of birth of

Anju was 01.01.1999. In that petition, on 10.04.2018, an interim

order was passed, which is extracted below:-

“Exemption application is allowed.

Heard learned counsel for the petitioner(s) and learned

A.G.A. for the State.

Learned counsel for the petitioners submits that victim

is petitioner no.1 - and accused is petitioner no. 2 are

major and they have also solemnized their marriage

and they are living happily as husband and wife; victim

herself is the deponent of the affidavit filed in support of

the writ petition; there is a joint affidavit of both the

petitioners in support of the present writ petition; as per

Voter ID Card the date of birth of victim petitioner no. 1

is 01.01.1999. Learned counsel for the petitioners has

further placed reliance upon a judgment of the Apex

Court rendered in Criminal Appeal No. 1142 of 2013 -

Sachin Pawar Vs. State of U.P., decided on 02.08.2013.

Learned A.G.A has accepted notice on behalf of

respondents no. 1 to 3.

Issue notice to respondent no. 4. Steps to be taken

within ten days.

Counter affidavit to be filed within four weeks by the

learned A.G.A. as well as respondent no. 4 and

rejoinder affidavit to be filed within three weeks

thereafter.

List thereafter.

It is directed that until further orders of this Court, the

petitioners shall not be arrested relating to case crime

no. 1206/2017 U/s 363/366 IPC and Section 3/4

POSCO ACT, P.S. Shikohabad, District Firozabad. ”

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Ram Pal, one of the accused, with whom Anju is stated to

have got married, filed Civil Misc. Contempt Application No.

3035 of 2018 against Ashok Kumar, Sub-Inspector, Police

Station Shikohabad, Firozabad (the appellant). In paragraph 10

of the affidavit filed in support of the contempt application, it was

stated that contemnor - opposite party (the appellant herein)

had arrested Anju Kumari (petitioner no.1 of Crl. Misc. Writ

Petition No. 8980 of 2018) on 20.05.2018 and has illegally

detained her without any court's order.

On the aforesaid contempt application, on 29.05.2018, the

court requested Sri K.R. Singh, Additional Chief Standing

Counsel, to obtain instructions from the contemnor with regard

to the averments made in paragraph 10 of the affidavit (supra).

It may be observed that on 30.05.2018, a supplementary-

affidavit was also filed by Ram Pal in support of the contempt

application which has been brought on record as Annexure 6 to

the affidavit filed in support of the appeal. The relevant

paragraph nos. 2, 3, 4 and 5 of that affidavit of Ram Pal are

extracted below:-

“2. That on 20.05.2018 when applicant and his wife Smt.

Anju was went to house of his Mausa at Jasrana then

some persons gave information to the parent and other

family members of Smt Anju then parent and other

family members of Smt. Anju reached to the house of

Mausa of applicant and started quarreling there and also

beaten to the applicant badly, then applicant escaped

there for saving his life and during this period someone

dial 100 number, then Police of Police Station Jasrana

reached there and taken Smt. Anju along with her parent

and other persons to Police Station Jasrana and after

sometime, Police of Police Station, Jasrana handover

Smt. Anju to Police of Police Station-Shikohabad and

Opposite Party taken Smt. Anju in his custody.

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3. That when this facts came to know by the applicant

then he immediately approached to Police of Police

Station-Shikohabad where the Opposite Party

misbehaved with applicant and told to implicated him in

case punishable under Section 376 I.P.C.

4. That applicant came to his well wisher that opp. Party

has taken heavy consideration from parent of Smt. Anju

and due to this reason, he behind the applicant for his

arrest.

5. That when all the effort made by applicant was failed

to release his wife Smt. Anju in illegal custody of opp.

Party then he filed Civil Misc. Contempt Petition before

this Hon'ble Court and when notices was issued to the

opp. Party then he escaped from legal proceeding, on

30.05.2018 the opp. Party given custody of Smt. Anju to

her parent.

6. That when this fact came by the opp. Party that

contempt application filed by the applicant against him

then started harassing the applicant and his family

members and told to implicate them in false other

criminal case and due to this reason applicant and his

family members are living under fear.”

On 23.07.2018, the contemnor-appellant filed his counter-

affidavit in the contempt proceeding. In paragraph 9 of the

counter-affidavit, it was submitted that Anju is minor; she had

studied in Chiraunji Lal Chadami Lal Primary School, Firozabad;

her Class V marks-sheet indicates her date of birth as

03.07.2002; and that in Adhar Card No. 773331613062, her

date of birth is 03.07.2002. In paragraph 13 it was stated that

the contemnor-appellant had not arrested Anju. Rather, on

22.05.2018, her father had come to the police station along with

Anju and had given an application that his daughter had come

back home today. They had supplied copy of the order dated

10.04.2018 passed in Crl. Misc. Writ Petition No. 8980 of 2018.

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It was stated that on 22.05.2018 statement of Anju was

recorded by Lady Sub-Inspector, Minu Som. In paragraph 15 it

was stated that contemnor-appellant had not arrested Anju but

as the FIR alleged kidnapping of Anju, therefore, as per law, her

statement under Section 161 Cr.P.C. was recorded and,

thereafter, her medical examination was done by Doctor of

Government Hospital, Firozabad. Whereafter she was produced

before the Special/Additional District Judge, Court No.8,

Firozabad and, on the direction of the Additional District Judge,

her statement was recorded by a Judicial Magistrate under

Section 164 Cr.P.C. It is stated that, thereafter, the contemnor

again went to the court of Additional District Judge, Court No.8

for appropriate directions regarding custody of the victim (Anju)

as she was minor. It is stated that the Additional District Judge

directed that she should be given to her father therefore the

custody of Km. Anju was given to her father.

In reply to the averments made in the affidavit filed by the

contemnor-appellant, a rejoinder-affidavit was filed by Ram Pal

(Annexure 11 to the affidavit filed in support of the appeal). In

paragraph 10 of the rejoinder-affidavit, it was stated that the

victim-Anju was arrested by opposite party on 20.05.2018 with

the connivance of her family members whereas the GD entry

was made after two days.

On 23.08.2018, another affidavit was filed by contemnor-

appellant (Annexure 13 to the affidavit filed in support of the

appeal). In paragraph 7 of the said affidavit, it was stated that

on 22.05.2018, Anju came along with her father at police station

Shikohabad and her father had given an application to the

Station House Officer, P.S. Shikohabad, Firozabad that his

daughter had come to his residence on 22.05.2018, which was

reflected by the GD entry of 22.05.2018. It was stated that on

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the above application of Anju's father, signature of Anju was

also there. In paragraph 9, it was stated that statement of Anju

was recorded by Lady Sub-Inspector, Minu Som, and,

thereafter, for her medical test, on 22.05.2018, Anju was

produced before Chief Medical Officer, Government Hospital,

Shikohabad. In this affidavit it is also stated that on 22.05.2018,

Anju went along with her father back to her home. On

23.05.2018, Anju again came with her father to Police Station.

On 23.05.2018, her X-ray was done at District Hospital to

ascertain her age. On 23.05.2018, she again went back with her

father and she stayed with her parents up to 25.05.2018. On

25.05.2018, the Investigating Officer received the age report of

Anju from Chief Medical Officer, Shikohabad, Firozabad as per

which she was aged 17 years. In paragraph 14, it has been

stated that upon receipt of X-ray report, a call was made by the

Investigating Officer to the father of Anju to produce her before

ADJ, Court No. 8 for recording her statement under Section 164

Cr.P.C. In paragraph 15, it is stated that on 25.05.2018, Anju

came with her father before ADJ, Court No.8 and thereafter she

was produced before ADJ (Pocso), Court no.8, Firozabad. The

ADJ (Pocso), Firozabad directed for recording of her statement

under Section 164 CrPC by a lady Judicial Magistrate of

District, Firozabad. Consequently, her statement was recorded.

In paragraph 16, it is stated that on 25.05.2018 Km. Anju again

went with her father to her home. In paragraphs 17 and 18, it is

stated that as statement recorded under Section 164 CrPC was

kept in a sealed cover and its copy was not provided to the

Investigating Officer, on 25.05.2018 no time was left to record

statement of Anju, therefore, Anju and her father were directed

to appear before ADJ (Pocso), Court No.8, Firozabad on

26.05.2018. On 26.05.2018, Anju, her father and the contemnor

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were in Court and sought permission of the Additional District

Judge, Firozabad to note the statement of Anju in case diary.

Upon grant of permission, on 26.05.2018, vide Parcha No. 8,

statement of Anju, recorded under section 164 Cr.P.C., was

entered in the case diary. Thereafter, for appropriate orders in

respect of her custody, Anju along with her father was produced

before the court of ADJ. It is stated that the ADJ (Pocso), Court

No.8, Firozabad had inquired from Anju about her education

upon which she responded by saying that she had studied in

Chiraunji Lal Chadami Lal Primary School, Firozabad.

Consequently, the ADJ (Pocso), Court No.8, Firozabad directed

for production of school records of Km. Anju upon which the

contemnor went to the school and collected marks-sheet of

Class V of Anju which disclosed her date of birth as 03.07.2002.

In paragraph 19 of the affidavit it is stated that, on 26.05.2018,

the contemnor directed the father of Anju to produce Anju

before Court on 28.05.2018 because 27.05.2018 was Sunday.

In paragraph 20 of the affidavit, it is stated that on 28.05.2018,

the Investigating Officer was out of station in connection with his

official work therefore he directed the father of Anju to be

present in the court of ADJ (Pocso), Court No.8, Firozabad on

30.05.2018. In paragraph nos. 21 and 22 of the affidavit, the

contemnor - appellant stated as follows:

“21. That the Investigating Officer/deponent along with

father Vijendra Singh and Km. Anju (victim) appeared

before the Court of Additional District Judge (Pocso)

Court No.8, Firozabad and the Additional District Judge

perused the case diary and other documents and

thereafter he directed that Km. Anju is not in police

custody and he gave an application to the police for

further proceeding and further order of Hon'ble High

Court is awaited in Writ Petition No. 8980 of 2018,

therefore, the Km. Anju (Victim) is not in police custody

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and thus the person who brought the girl, she should be

given in his custody and he has directed for further order

of Hon'ble Court, she should be given in the custody of

her father as she is minor. Therefore, the Investigating

Officer/deponent instructed to the mother and father of

Km. Anju to kept her in safe custody and whenever she

is required to Court as well as police, she should be

produced before the authority and thereafter the father

and mother of Km. Anju gave undertaking on 30.05.2018

before the Investigating Officer/deponent and they also

made their signatures on the undertaking and the same

is also been recorded in the case diary dated 30.05.2018

(Parcha No.9). For kind perusal of this Hon'ble Court,

photocpy as well as typed copy of Case Diary dated

30.05.2018 (Parcha No.9) and undertaking of mother

and father of Km. Anju (victim) are being annexed

herewith and collectively marked as Annexure No. 7 to

this affidavit.

22.That on 30.05.2018, the oral direction of the Court

as well as undertaking of the father has been mentioned

in the GD at Police Station Shikohabad dated

30.05.2018 at 11:45 A.M. For kind perusal of this Hon'ble

Court, photocopy of the GD entry at Police Station

Shikohabad dated 30.05.2018 is being annexed

herewith and marked as Annexure No.8 to this affidavit. ”

After exchange of affidavits, on 29.08.2018, the learned

Single Judge, after perusing affidavits, framed charge against

contemnor-appellant. The charge framing order dated

29.08.2018 is extracted below:-

“The Writ-Court, being prima facie convinced that the

applicant had married Anju Kumari and they were major

on the date of marriage, granted interim protection to

them by order dated 10.4.2018 by passing the following

order :-

"Exemption application is allowed.

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Heard learned counsel for the petitioner(s) and learned A.G.A.

for the State.

Learned counsel for the petitioners submits that victim is

petitioner no.1 - and accused is petitioner no. 2 are major and

they have also solemnized their marriage and they are living

happily as husband and wife; victim herself is the deponent of

the affidavit filed in support of the writ petition; there is a joint

affidavit of both the petitioners in support of the present writ

petition; as per Voter ID Card the date of birth of victim petitioner

no. 1 is 01.01.1999. Learned counsel for the petitioners has

further placed reliance upon a judgment of the Apex Court

rendered in Criminal Appeal No. 1142 of 2013 - Sachin Pawar

Vs. State of U.P., decided on 02.08.2013.

Learned A.G.A has accepted notice on behalf of respondents no.

1 to 3.

Issue notice to respondent no. 4. Steps to be taken within ten

days.

Counter affidavit to be filed within four weeks by the learned

A.G.A. as well as respondent no. 4 and rejoinder affidavit to be

filed within three weeks thereafter.

List thereafter.

It is directed that until further orders of this Court, the petitioners

shall not be arrested relating to case crime no. 1206/2017 U/s

363/366 IPC and Section 3/4 POSCO Act, P.S. Shikohabad,

District Firozabad."

The instant contempt application has been filed primarily

with the allegation that (i) Anju Kumari wife of the

applicant was illegally detained at the police station

since 20.5.2018 and (ii) she was handed over to her

parents against her wish.

After going through the material placed on record and

the statement of Anju Kumari recorded under Section

164 CrPC, this Court is not convinced that she was

detained at the police station against her wish since

20.5.2018.

In respect of the second allegation, the Court finds that

there is prima facie evidence to show that her custody

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was handed over to her parents by the opposite party on

the basis of some alleged oral direction by Addl. District

Judge (POCSO) Court No.8, Firozabad. Anju Kumari in

her statement, both under Section 161 CrPC and 164

CrPC, had categorically stated that she had married the

applicant out of her sweet will and she would like to go

with him. However, admittedly, instead of permitting her

to go with her husband, her custody was handed over to

her parents on the basis of alleged oral direction by the

POCSO Court.

The intent and purport of interim order of this Court was

also not to interfere with the free movement of the

applicant and Anju Kumari and at least not to compel

Anju Kumari to accompany her parent against her wish.

Having regard to the above fact, this Court frame the

following charge against the opposite party :-

1. You, the opposite party, is guilty of handing over

custody of Anju Kumari, contrary to her wish, to her

parents, in gross defiance of the intent of interim order of

this Court dated 10.4.2018.

The opposite party is called upon to answer the charge

by filing his reply within three weeks.

List on 24 September 2018, on which date the opposite

party shall remain personally present alongwith his reply

in the shape of affidavit and other evidence, if any. ”

In response to the charge framing order, another affidavit

was filed by the contemnor – appellant, dated 11

th

October,

2018. In this affidavit, the averments made in the earlier

affidavits were reiterated. The thrust of the defence was that

Anju was never arrested by the contemnor and since she had

been in custody of her father when she was produced at the

police station on 22.05.2018, she, being a minor, continued in

his custody and, therefore, the contemnor - appellant did not

violate or disobeyed the interim order passed by this court.

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The learned Single Judge after scanning through the

pleadings held the contemnor - appellant guilty vide order dated

01.11.2018. The relevant portion of the order dated 01.11.2018

passed by the learned Single Judge, which is impugned in this

appeal, is extracted below:-

“In the backdrop of the averments and defence of the

contemnor noted, herein above, it is not disputed that the

contemnor had knowledge of the writ court order; the

victim was taken into custody by the contemnor as is

reflected from the case diary (parcha no. 7), wherein, it is

noted that the contemnor had taken the victim from the

Thana alongwith the lady home guard to present the victim

before the POCSO Court and got her statement recorded

under Section 164 Cr.P.C. The victim in her statement

categorically stated that she had on her own and free will

had gone with the applicant and both of them contracted

marriage and are living as husband and wife; she (victim)

wants to stay with the applicant. Thereafter, the case diary

records that regarding custody of the victim contemnor

visited the Junior High School and from there obtained the

marksheet of class V of the victim, wherein, the date of

birth of the victim is recorded as 03.07.2002 being a minor.

As per the averments made in defence, victim was

produced before the POCSO court and the entire

proceedings before the POCSO court is oral and on the

oral directions of the POCSO court the contemnor

proceeded to deal with the victim. The averments taken in

totality and closely scrutinized, it is apparent that the

contemnor had removed the victim from the custody of the

applicant and handed her over to the father against her

wishes. The case diary nowhere records that the victim

accompanied her father to the Thana, rather, the case

diary (parcha no. 7) clearly records that the contemnor had

taken the victim from the Thana to the POCSO court. It is,

thus, apparent that the contemnor had taken the victim into

custody and detained her at the Thana in violation of the

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writ court order, thereafter, handed over the custody of the

victim to her father. To justify his conduct, the contemnor

has resorted to falsity by stating that all his acts in

producing the victim before the POCSO court, getting her

statement recorded under Section 164 Cr.P.C., thereafter,

handing over the victim to her father was on oral directions

of the POCSO court. An attempt has been made by the

contemnor to cast aspersion upon the POCSO court to

cover his illegal conduct without the contemnor or the

father having moved any application for custody of the

victim. The entries in the case diary recorded by the

Investigating Officer cannot override the procedure

prescribed in law, contemnor being a member of the

disciplined force has not only willfully and deliberately

flouted the writ court order but has indulged in acts of

indiscipline by becoming law and court unto himself. The

audacity of the contemnor is unpardonable. The

contemnor in order to cover up his illegal act obtained the

alleged affidavit of the father of the victim and got the case

dismissed, though as per the contemnor on investigation

the girl was found minor but contemnor did not file police

report nor did he make any application to recall the order

of the writ court quashing the criminal case.

In view of the discussions, findings and conclusions

recorded hereinabove, the contemnor is held guilty for

contempt of court.”

After holding the contemnor - appellant guilty for contempt

of court, the learned Single Judge fixed 14.11.2018 for hearing

the contemnor - appellant on sentence. After hearing him on

sentence, on 14.11.2018, awarded punishment as follows:-

“In view of the discussion, findings and conclusion

recorded, the contemner, Ashok Kumar, Sub Inspector,

is imposed punishment of simple imprisonment of one

month besides a fine of Rs.1,000/- (One Thousand).

The contemner is directed to deposit the fine within one

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month from today. In the event of failure to deposit the

fine within time, it shall be recovered from his salary in

accordance with law. The punishment of simple

imprisonment shall be served by the contemner and he

shall surrender before the Chief Judicial Magistrate,

Allahabad, within one month from today. ”

We have heard Sri Imran Ullah for the appellant. No one

appeared from the other side.

The thrust of the submissions made by Sri Imran Ullah,

learned counsel for the appellant, had been that the order

passed by the writ court of which violation is alleged is to the

effect that the petitioner shall not be arrested in Case Crime No.

1206 of 2017, P.S. Shikohabad, District Firozabad. From the

documents placed on record, it is clear that Anju was not

arrested by the police in violation of the writ court's order and in

fact the charge framing order itself records satisfaction that the

applicant could not substantiate that the victim was detained at

the police station since 20.05.2018 against her wish. It has

been submitted that the inference drawn by the learned Single

Judge that Anju-victim was taken into custody by the

contemnor- appellant, as reflected by Parcha No. 7 in the case

diary, is not justified as the entry only reflects that the

contemnor had taken the victim from the Thana (police station)

along with Lady Home-guard to the court of ADJ (Pocso), Court

No.8 for getting her statement recorded under Section 164

Cr.P.C. This act would not amount to taking her into custody

more so when she was brought by her father to the police

station with an assertion that she is minor. It has been urged

that as already a first information report was registered and

there was no stay on the investigation, the recording of the

statement of the victim under Section 164 CrPC was by no

means a contumacious conduct. Had there been a stay on

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investigation of the case, then the act of recording statement

under sections 161 and 164 CrPC might have been in violaion

of the order but since there was no stay on the investigation and

the victim was not arrested by the police but produced by her

father, the recording of her statement by itself would not amount

to contempt of court. It has been urged that the view taken by

the learned Single Judge that to hide his conduct, a false

statement has been made that, under oral direction, the victim-

Anju was given in the custody of her father is not at all justified,

firstly, because there was no such charge framed and, secondly,

because the victim had come with her father and was neither

arrested nor taken into custody by the police. Hence, there was

no occasion to hand over her custody to her father.

In addition to above, Sri Imran Ullah also invited attention

of the Court to the stand taken in the supplementary affidavit

filed in the contempt application, at page 111 of the paper book,

to demonstrate that from the own statement of Ram Pal (the

applicant in contempt proceeding), it appears that the victim-

Anju had gone to her Mausa's house at Jasrana where, upon

information, her parents arrived and dialed 100. Where after,

police of police station Jasrana arrived and took away Anju and,

thereafter, handed over Anju to police of police station

Shikohabad. It has been submitted that it is therefore clear that

the police of police station Shikohabad had never arrested the

victim. Under the circumstances, as there is nothing on record

to show or to prove that the police of police station Jasrana

handed over custody of the victim to the police of police station

Shikohabad, the stand taken by the contemnor that the victim

was produced by her father on 22.05.2018 appears to be

correct and, in fact, was impliedly accepted while passing the

charge framing order in which the claim of the applicant that the

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victim was arrested and detained at the police station was

disbelieved.

It has been submitted by Sri Imran Ullah that the learned

Single Judge has based his order on conjectures and surmises

without there being any documentary evidence to suggest that

the victim-Anju was arrested by the police and was handed over

to her father. Rather, the documents indicated that the victim

had come to the police station in the custody of her father

where after her statement was recorded under Section 161

CrPC as well as Section 164 Cr.P.C. It has thus been prayed

that the order convicting the contemnor-appellant is not legally

justified and is liable to be set aside.

We have given thoughtful consideration to the

submissions made on behalf of contemnor-appellant and have

perused the record carefully.

Before we proceed to address the submissions of the

learned counsel for the contemnor-appellant with reference to

the facts of the case, we must remind ourselves of the legal

position. For a person to be held guilty of civil contempt of

court it has to be found beyond reasonable doubt that that

person has willfully disobeyed any judgment, decree, direction,

order, writ or other process of a court (vide section 2(b) of the

Act, 1971). The term wilful is of significance. In Ram Kishan v.

Tarun Bajaj, (2014) 16 SCC 204, the apex court, in paragraph

12 of the judgment, as reported, in respect of the term wilful,

observed as follows: “The word “wilful” introduces a mental

element and hence, requires looking into the mind of a

person/contemnor by gauging his actions, which is an indication

of one’s state of mind. “Wilful” means knowingly intentional,

conscious, calculated and deliberate with full knowledge of

consequences flowing therefrom. It excludes casual, accidental,

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bona fide or unintentional acts or genuine inability. Wilful acts

does not encompass involuntarily or negligent actions. The act

has to be done with a “bad purpose or without justifiable excuse

or stubbornly, obstinately or perversely”. Wilful act is to be

distinguished from an act done carelessly, thoughtlessly,

heedlessly or inadvertently. It does not include any act done

negligently or involuntarily. The deliberate conduct of a person

means that he knows what he is doing and intends to do the

same. Therefore, there has to be a calculated action with evil

motive on his part. Even if there is a disobedience of an order,

but such disobedience is the result of some compelling

circumstances under which it was not possible for the

contemnor to comply with the order, the contemnor cannot be

punished.

In Sudhir Vasudeva v. M. George Ravishekaran, (2014)

3 SCC 373, the apex court in paragraph 19 of the judgment, as

reported, observed: “The power vested in the High Courts as

well as this Court to punish for contempt is a special and rare

power available both under the Constitution as well as the

Contempt of Courts Act, 1971. It is a drastic power which, if

misdirected, could even curb the liberty of the individual

charged with commission of contempt. The very nature of the

power casts a sacred duty in the Courts to exercise the same

with the greatest of care and caution. This is also necessary as,

more often than not, adjudication of a contempt plea involves a

process of self-determination of the sweep, meaning and effect

of the order in respect of which disobedience is alleged. The

Courts must not, therefore, travel beyond the four corners of the

order which is alleged to have been flouted or enter into

questions that have not been dealt with or decided in the

judgment or the order violation of which is alleged. Only such

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directions which are explicit in a judgment or order or are plainly

self-evident ought to be taken into account for the purpose of

consideration as to whether there has been any disobedience

or wilful violation of the same.”

Contempt proceedings are quasi-criminal in nature. The

standard of proof required is in the same manner as in other

criminal cases. The alleged contemnor is entitled to the

protection of all safeguards /rights which are provided in the

criminal jurisprudence, including the benefit of doubt. The case

should not rest only on surmises and conjectures {vide Kanwar

Singh Saini v. High Court of Delhi, (2012) 4 SCC 307 (para

38)}. In Gupta, T.C. v. Bimal Kumar Dutta, (2014) 14 SCC

446 : (2015) 1 SCC (Civ) 340, in paragraph 10 of the judgment,

as reported, it was observed: “.......A contempt action being in

the nature of quasi-criminal proceeding the degree of

satisfaction that must be reached by the court to hold a person

guilty of commission of contempt would be akin to what is

required to prove a criminal charge, namely, proof beyond

reasonable doubt. The order of the court in respect of which

violation is alleged must, therefore, be clear, unambiguous and

unequivocal and defiance thereof must be apparent on the very

face of the action with which a contemnor is charged. An

interpretation of the terms of court’s order in respect of which

disobedience is alleged would not be appropriate while dealing

with a charge of contempt. Such a charge cannot be brought

home by unravelling the true meaning of the court’s order by a

subsequent order when there is an apparent ambiguity, lack of

clarity or dichotomy in the initial order.

From the law noticed above what is clear is that mere

disobedience of court's order is not enough to make a person

guilty of civil contempt. What is important is that there should be

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willful disobedience. To find out whether there has been wilful

disobedience of an order, the order of which disobedience is

alleged has to be considered as it stands. It would not be

appropriate to unravel the true import of it through

interpretation, particularly, when a different view of it could

legitimately be taken. The Courts must not, therefore, travel

beyond the four corners of the order which is alleged to have

been flouted or enter into questions that have not been dealt

with or decided in the judgment or the order violation of which is

alleged. Only such directions which are explicit in a judgment or

order or are plainly self-evident ought to be taken into account

for the purpose of consideration as to whether there has been

any disobedience or wilful violation of the same.

In the instant case, we find that the contempt application

was filed by alleging that the victim Anju was arrested on

20.05.2018 by the police by flouting the interim order dated

10.04.2018 passed in Crl. Misc. Writ Petition No. 8980 of 2018.

In the charge framing order dated 29.08.2018, the learned

single judge has specifically observed that from the material

brought on record as also the statement of the victim recorded

under section 164 CrPC the allegation that the victim was

arrested on 20.05.2018 by flouting the interim order was not

proved. Thus, the learned single judge has not proceeded on

the charge that the victim was arrested in violation of the order

dated 10.04.2018 but on the charge that the contemnor was

guilty of handing over custody of Anju, contrary to her wish, to

her father/ parent, which amounted to gross defiance of the

intent of the interim order dated 10.04.2018.

The order dated 10.04.2018 was an order restraining

arrest of the petitioners. Restrain was put against the State

authorities. There was no restrain put on the petitioner to be

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with her own parents. There is nothing on record that the victim

Anju was arrested and given to her parents. The learned Single

Judge has inferred the above position on the ground that

statement of the victim was recorded under Section 161 CrPC

and thereafter she was produced by police force for recording of

her statement under Section 164 CrPC. And that, thereafter, on

the basis of non existent oral direction of Pocso Court, she was

left in the custody of her father against her wishes. The

aforesaid inferences are uncalled for inasmuch as there was no

stay order against investigation therefore, once the victim was

produced before the police, in absence of any stay against

investigation of the case, keeping in mind that a first information

report had already been registered and documents were

produced to suggest that the victim was a minor, with date of

birth recorded as 03.07.2002, recording of her statement, by

itself, cannot be treated as an act which willfully flouted the

interim order dated 10.04.2018.

The charge against the contemnor-appellant that by

handing over the custody of the victim to her father, the

contemnor-appellant had gone against the true spirit of the

order dated 10.04.2018, in our view, has not been satisfactorily

established for the following reasons:-

(a) Firstly, it has not been proved at all that the

victim was taken into custody by the police

therefore the charge of her custody being

passed over to her father does not arise.

(b) Secondly, from the GD entries, it appears

that father of the victim had produced the victim

at the police station on 22.05.2018 which implies

that the victim was already in her father's

custody and as there was no order either in

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respect of maintaining her custody with any

party or in respect of handing over custody to

any party, there could be no violation of the

arrest stay order on mere oral direction of the

contemnor-appellant to the father of the victim to

keep the victim in his custody till proper custody

order is passed.

The observations of the learned single judge that the

contemnor-appellant has set up a false defence about oral

directions of Pocso Court with regard to custody is beyond the

scope of the charge framed against the contemnor-appellant,

particularly, in the context of proceedings relating to civil

contempt, and as such these observations are uncalled for and

are hereby expunged.

For all the reasons recorded above, we are of the

considered view that it has not been proved beyond reasonable

doubt that the contemnor - appellant willfully disobeyed the writ

court's interim order dated 10.04.2018 passed in Crl. Misc. Writ

Petition No. 8980 of 2018. Hence, the order holding the

contemnor - appellant guilty of contempt of court and the

consequential punishment order are liable to be set aside. The

contempt appeal is accordingly allowed. The orders dated

01.11.2018 and 14.11.2018 are set aside. There is no order as

to costs.

Order Date :- 18.9.2019

Sunil Kr Tiwari