10 Nov 2022 5:45 AM GMT
The Calcutta High Court on Monday dismissed the contempt petition moved by Suvendu Adhikari against West Bengal's Director General of Police, Manoj Malviya and two other IPS officers for violating an earlier order by restricting Adhikari from going to Netai village in Jhargram district on January 7, 2022.The Single Judge Bench of Justice Sabyasachi Bhattacharya observed that a huge number...
The Calcutta High Court on Monday dismissed the contempt petition moved by Suvendu Adhikari against West Bengal's Director General of Police, Manoj Malviya and two other IPS officers for violating an earlier order by restricting Adhikari from going to Netai village in Jhargram district on January 7, 2022.
The Single Judge Bench of Justice Sabyasachi Bhattacharya observed that a huge number of people had converged in the area at the relevant time, belonging mostly to the ruling party AITC (All India Trinamool Congress) and the main opposition in the state, that is, the BJP (Bharatiya Janata Party). In view of these developments it was of the view that Adhikari's entry into the village may have led to a "riotous conflagration". Therefore, the preventive action of the law enforcement authorities was necessary.
"Several such supporters, according to the information of the alleged contemnors, had begun mobilizing from various parts of Jhargram, Paschim and Purba Medinipore districts and were flocking different approach roads to the Netai village, which are evidently narrow, which would create an imminent law and order situation if such a huge crowd was permitted to assemble there along with their vehicles...It is anybody's guess that there might have been a serious law and order breach if the petitioner, along with his supporters, had approached the said village in their vehicle or otherwise, which might have inflamed a fallout which would be more severe than could be contained by the Law Enforcement Personnel."
High Court's order dated January 5 granted permission to Adhikari to visit Netai village after recording that as citizens of India he as well as his security personnel have the right to not only visit the village but any other place in India, subject to legal restrictions, without violating any provision of law. Despite this direction, he was prevented by the Law Enforcement Authorities.
Contempt notice was issued in the matter on a prima facie satisfaction on January 30.
Counsels for the petitioner contended that he was restrained from travelling to Netai village in contravention to the assurances given by the Advocate General on behalf of the State. It was further contended that the purported defence of an apprehended violation of law and order was misplaced and de hors any material evidence as the order of January 30, 2022 issuing the Rule had recorded explicitly that the defence of mob interference was entirely within the realm of conjecture and surmise and that as the petitioner was not armed, there was no occasion for law enforcement authorities to restrain the petitioner from traveling to Netai village.
The Advocate General contended that the submission made on behalf of the State on the day of the parent order dated January 5, 2022 did not tantamount to an 'undertaking'. Moreover, there was no specific direction in the said order which could have been violated.
The High Court observed that to tantamount to contempt of court, the alleged disobedience has to be wilful and deliberate. However, an "element of doubt" is introduced in the instant case in view of the ongoing developments. "The benefit of any doubt which might crop up with regard to the allegation of deliberate disobedience has to go in favour of the alleged contemnor," it observed.
On the issue of adjudicating on the maintainability of the contempt application, the Court clarified the inasmuch as the application was in due compliance with Rule 15 of the 1975 Rules, the settled position of law was that powers of a constitutional court of records, as guaranteed under the provisions of the Contempt of Courts Act, 1971 and Article 215 of the Constitution, cannot be curtailed on the basis of mere procedural technicalities and as such held that "the court may, in a contempt proceeding, take such evidence as may be considered necessary, including affidavits filed by the parties."
One of the key operative considerations the Court for absolving the contemnors of liability was arrived upon by relying on the decision of the Supreme Court in Dr. U.N. Bora, Ex. Chief Executive Officer & Ors. v. Assam Roller Flour Mills Association & Anr. reported in (2022) 1 SCC 101 on the point of law that constructive/vicariously liability cannot be affixed in cases of contempt. Such consideration guided the Court in coming to the conclusion that the Rule cannot be invoked against two of the alleged contemnors as the said contemnors were not present in the vicinity and therefore had no direct involvement with the alleged wilful, deliberate and contumacious violation of the order of January 5, 2022. In respect of the respondent no. 1, the Court also absolved him of alleged contumacious conduct on the ground that him "being a superior officer, cannot automatically be liable for the actions taken on the field by the other alleged contemnors."
As regards the assurances/undertakings purportedly given by the Advocate General in respect of permitting the petitioner to travel anywhere and on the basis whereof the Court had passed the order of January 5, 2022, the Court by placing reliance on the decision of the Supreme Court in Union of India and others v. Mario Cabra, reported in (1982) 3 SCC 349, held:
"Although the position of the learned AG vis-à-vis the State is on a higher footing in law than any other government counsel in view of the several powers conferred on the learned AG in law, the submission of the learned AG to the effect that the petitioner was free to go anywhere was qualified by the rider that such act of the petitioner ought not to violate any law. Although, ipso facto, the petitioner's travel to the Netai village was not a violation of law, the direct apprehension of a law and order predicament would sufficiently entitle the Law Enforcement Authorities to prevent such act on the spot."
The findings of the Court in respect of the rider that the petitioner ought not to violate the law also found expression in the order's observations in respect of the phrase "subject to legal restrictions" as was recorded by the Court in its order of January 5, 2022 to mean:
"Moreover, the expression "subject to legal restrictions" qualified the permission to the petitioner to visit the said locale and there is sufficient material to justify the claim of the alleged contemnors that there would be a flagrant violation of the law and order situation in the event the petitioner was allowed to go through, which might have prompted the respondents to prevent him from doing so, as it would create a risk of inciting the highly volatile situation in Netai village."
Satisfied that there was sufficient cause for the respondent authorities to have restrained the petitioner from traveling to Netai village in apprehension of law and order breakdown and in qualified exercise of law enforcement obligations, the Court rejected the contempt application.
Case: Suvendu Adhikari v. Sri Manoj Malaviya, IPS & Ors., CPAN 29 of 2022 WPA 129 of 2022.
Citation: 2022 LiveLaw (Cal) 335
Click Here To Read/Download Order