GOSTHO BEHARI DAS versus DIPAK KUMAR SANYAL & ORS. on 28 July 2023

1. The present appeal stands filed against the judgement renderedby the High Court of Calcutta, (Circuit Bench at Jalpaiguri) in MAT No.67 of 2022, by which it upheld various orders passed by learned singleJudge dated 5[th], 11[th], 12[th] and 14[th] July, 2022 in contempt proceedingsbearing number WPCRC9 of 2022, whereby vide the order dated 11[th]GJuly, 2022 the Petitioner/Appellant’s licence to practice medicine, wassuspended.

2. Further with the order dated 14[th] July 2022, while extending theperiod of suspension till 19[th] August 2022, the petitioner was asked toshow cause as to why such suspension be not affected for a period ofHtwo years.

3. A perusal of the record reveals that the Appellant hadunauthorizedly constructed a structure which was in deviation with theplans sanctioned by the Siliguri Municipal Corporation.[1] Respondent No.1(private party) filed numerous complaints against such unauthorisedconstruction, but to no avail. Discontented by the non-intervention of theCommissioner of SMC[2], and the SMC[3] - appellant herein filed a writpetition before the High Court. Vide order dated 22[nd] December 2016passed in W.P No. 11464 (W) of 2016, Respondent No. 3 was directedto have the construction so made, inspected and submit a report beforethe court. On the next date of hearing, that is 19[th] December 2017 it wasdirected that the representation that stood already filed before theMunicipal Corporation dated 2[nd] August 2007, was to be considered anda reasoned order was to be passed thereon.

4. Pursuant to the above direction, an order dated 13[th] June 2018,directing the Respondents No. 3 to demolish the unauthorised construction,was passed. This order however, came to be quashed by the High Courtobserving the Commissioner SMC, not to be the competent authorityand instead, only the Board of Councillors of the SMC, who could passorders for demolition. Subsequently, vide a fresh order dated 25[th]June2019 the Board of Councillors of SMC while observing the constructionto be unauthorised, ordered its demolition. In furtherance thereto,Respondent No. 2 passed an order dated 3[rd] August 2019 directing thedemolition to be carried out.

5. Aggrieved by this order, the petitioner, (Appellant herein) fileda Writ Petition bearing No. 349/2019 before the High Court of Calcutta(circuit bench at Jalpaiguri.) The same was disposed of with theobservation that an appeal from the order dated 25[th] June 2019, laybefore the Principal Secretary, Urban Development and Municipal Affairs,Government of West Bengal. The said authority passed orders on 8[th]January 2020 and 28[th ]July 2020 directing the SMC to take necessarysteps to aid the petitioner in undertaking self- demolition of theunauthorised construction and, in the event of his failure to do so, directedthat the SMC itself undertakes such steps to do so.

6. Respondent No. 1 then filed a contempt petition in WPA No.349 of 2019. It is hereunder that the license to practice medicine, of theAppellant herein, was suspended.

1 Hereafter, “SMC”

2 Hereafter, Respondents No. 2

3 Hereafter, Respondents No. 3

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ALAW ON THE ISSUE AT HAND

7. The grant, regulation and suspension of the licence to practicemedicine is governed by the National Medical Commission Act, 2019. Itfacilitates the maintenance of a medical register for India and enforceshigh ethical standards in regards of all aspects of medical services. ABstatutory body namely the National Medical Commission looks after theabove-mentioned activities.

8. A perusal of the provisions of this Act as well as the nowrepealed, Medical Council Act, 1956 shows that the power to punish aregistered medical practitioner for “misconduct” rest exclusively withCthe body envisaged under this Act. The Act itself provides for anexhaustive, complete mechanism to revoke the licence of a registeredpractitioner for professional misconduct. The same may be done afterholding an inquiry and complying with the principles of audi alterumpartem.

D9. The instant dispute involves the question as to whether such apunishment could be handed down under the Contempt of Courts Act,1971[4].

10. Contempt of Court is defined in the Act under Section 2(a) :

“2(a). “Contempt of Court” means civil contempt or criminalEcontempt;”11. Civil contempt, with which the present case concerns itself, isdefined under Section 2(b) which reads as follows:

“2(b). “civil contempt” means wilful disobedience o any judgment,Fdecree, direction, order, writ or other process of a court or wilfulbreach of an undertaking given to a court;”

12. The punishment for contempt of Court is prescribed underSection 12 of the Contempt Act, which reads as under:

“12. Punishment for contempt of court.- (1) Save as otherwiseGexpressly provided in this Act or in any other law, a contempt ofcourt may be punished with simple imprisonment for a term whichmay extend to six months, or with fine which may extend to twothousand rupees, or with both:

H4 Hereinafter referred to as the ‘Contempt Act’

Provided that the accused may be discharged or the punishmentawarded may be remitted or on apology being made to thesatisfaction of the court.

Explanation.- An apology shall not be rejected merely on theground that it is qualified or conditional if the accused makes itbona fide.

(2) Notwithstanding anything contained in any other law for thetime being in force, no court shall impose a sentence in excess ofthat specified in sub-section (1) for any contempt either in respectof itself or of a court subordinate to it.

xxxxxx”

13. It may be noted that right from the Privy Council onwards,judicious and sparing use of the power of contempt has been an acceptedproposition. In Parashuram Detaram Shamdasani v. Emperor[5]theCouncil had observed- “… this summary power of punishing for contempt of court shouldbe used sparingly and only in serious cases. It is a power which aCourt must of necessity possess; its usefulness depends on thewisdom and restraint with which it is exercised…”

14. A Bench of seven judges in C.S. Karnan, In re[6], had, referringto various decisions of other jurisdictions, observed

“63. The authority to punish for contempt of court has alwaysbeen exercised by the judiciary from times immemorial [ In oneof the earliest legal pronouncements dealing with the subject,Justice Wilmot in R. v. Almon, 1765 Wilmot’s Notes 243 : 97 ER94 explained the philosophy behind the power to punish forcontempt of court. The passage now a classic exposition runs asfollows : (ER p. 100)”… and whenever men’s allegiance to thelaws is so fundamentally shaken, it is the most fatal and mostdangerous obstruction of justice, and, in my opinion, calls out for amore rapid and immediate redress than any other obstructionwhatsoever; not for the sake of the Judges, as private individuals,but because they are the channels by which the King’s justice isconveyed to the people.”] . The justification for the existence ofthat is not to afford protection to individual Judges [ “14. … the 5 1945 AC 264

6 (2017) 7 SCC 1

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1180SUPREME COURT REPORTS

Alaw of contempt is not made for the protection of Judges whomay be sensitive to the winds of public opinion. Judges are supposedto be men of fortitude, able to thrive in a hardy climate.” [Douglas,J., Craig v. Harney, 1947 SCC OnLine US SC 79, para 14 : 91 LEd 1546 : 331 US 367 at p. 376 (1947)]] but to inspire confidencein the sanctity and efficacy of the judiciary [ “… The object of theBdiscipline enforced by the Court in case of contempt of court isnot to vindicate the dignity of the court or the person of the Judge,but to prevent undue interference with the administration ofjustice.” [Bowen, L.J. — Helmore v. Smith (2), (1886) 35 Ch D449 at p. 455 (CA)]] , though they do not and should not flowCfrom the power to punish for contempt. They should rest on moresurer foundations. The foundations are—the trust and confidenceof the people that the judiciary is fearless and impartial.”

15. Krishna Iyer J. speaking for himself and Bhagwati J. inBaradakanta Mishra v. Registrar Orissa High Court[7] (ConstitutionDBench), observed- “65. … we would like to underscore the need to draw the linesclear enough to create confidence in the people that this ancientand inherent power, intended to preserve the faith of the public inpublic justice, will not be so used as to provoke public hostility asEovertook the Star Chamber. A vague and wandering jurisdictionwith uncertain frontiers, a sensitive and suspect power to punishvested in the prosecutor, a law which makes it a crime to publishregardless of truth and public good and permits a process of brevimanu conviction, may unwittingly trench upon civil liberties andso the special jurisdiction and jurisprudence bearing on contemptFpower must be delineated with deliberation and operated withserious circumspection by the higher judicial echelons. So it isthat as the palladium of our freedoms, the Supreme Court and theHigh Courts, must vigilantly protect free speech even againstjudicial umbrage — a delicate but sacred duty whose dischargedemands tolerance and detachment of a high order.”G

16. In W.B. Administrative Tribunal v. SK. MonobborHossain[8], (two-Judge Bench) has observed that the tenor of the dictaof this Court on the topic (contempt) is crystal clear. The Court has time 7 (1974) 1 SCC 374H8 (2012) 11 SCC 761

GOSTHO BEHARI DAS v. DIPAK KUMAR SANYAL & ORS.[SANJAY KAROL, J.]

and again asserted that the contempt jurisdiction enjoyed by the Courtsis only for the purpose of upholding the majority of the judicial systemthat exists. While exercising this power, the Courts must not behypersensitive or swung by emotions but must act judiciously. The principleof sparing use stood reiterated in Prashant Bhushan, In re[9]

On the aspect of Punishment under a specified statute

17. A Bench of seven judges in Bar Council of Maharashtra v.M.V Dabholkar[10] had observed as follows, in respect of the role ofBar Councils and the powers of disciplinary action vested within them,as under- “24. The scheme and the provisions of the Act indicate that theconstitution of State Bar Councils and Bar Council of India is forone of the principal purposes to see that the standards ofprofessional conduct and etiquette laid down by the Bar Councilof India are observed and preserved. The Bar Councils thereforeentertain cases of misconduct against advocates. The Bar Councilsare to safeguard the rights, privilege and interests of advocates.The Bar Council is a body corporate. The Disciplinary Committeesare constituted by the Bar Council. The Bar Council is not thesame body as its Disciplinary Committee. One of the principalfunctions of the Bar Council in regard to standards of professionalconduct and etiquette of advocates is to receive complaints againstadvocates and if the Bar Council has reason to believe that anyadvocate has been guilty of professional or other misconduct itshall refer the case for disposal to its Disciplinary Committee. Amost significant feature is that no litigant and no member of thepublic can straightaway commence disciplinary proceedingsagainst an advocate. It is the Bar Council of a State which initiatesthe disciplinary proceedings.”

(emphasis supplied)

18. This Court in Supreme Court Bar Association v. Union ofIndia, (1998) 4 SCC 409 (five-Judge Bench) categorically held that –

“39. Suspending the licence to practice of any professional like alawyer, doctor, chartered accountant etc. when such a professional 9 (2021) 3 SCC 160

10 (1975) 2 SCC 702

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Ais found guilty of committing contempt of court, for any specifiedperiod, is not a recognized or accepted punishment which a courtof record either under the common law or under the statutory lawcan impose on a contemner in addition to any of the otherrecognized punishments.”

(emphasis supplied)

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19. A reading of sub-section (1) of Section 12 of the Act showsthat the punishment prescribed therein is simple imprisonment, notexceeding six months or a fine not exceeding Rs.2,000/- Sub-Section (2)reads “notwithstanding anything contained in any other law for the timeCbeing in force” this implies that save and except the punishment providedin sub-Section (1) no other punishment can be prescribed to a personguilty of committing contempt of Court.

20. In view of the above, this Court has no hesitation in holdingthat the punishment handed down to the contemnor is entirely foreign toDthe Act and, therefore, unsustainable. The Court, in awarding suchpunishment showed complete disregard for the statutory text of theContempt of Courts Act 1971, which is abundantly clear in respect ofthe punishment that can be imposed thereunder.

21. A medical practitioner guilty of contempt of Court may alsoEbe so for professional misconduct but the same would depend on thegravity/nature of the contemptuous conduct of the person in question.They are, however, offences separate and distinct from each other. Theformer is regulated by the Contempt of Court Act, 1971 and the latter isunder the jurisdiction of the National Medical Commission Act, 2019.

F22. The Division Bench in the impugned judgment did not consideror discuss this issue nor was any final decision taken by the Single Judgein the subject contempt proceedings.23. The question raised in the instant appeal is answered in theabove terms.

G24. The appellant has submitted before the High Court that therequisite demolition has been carried out with the exception ofapproximately 250 mm in the rear portion of the concerned building as,removal of the same would have rendered the building, legally constructed,to be unsafe. In respect of the unauthorized construction that remains,we direct that an undertaking be furnished before the concerned HighH

GOSTHO BEHARI DAS v. DIPAK KUMAR SANYAL & ORS.[SANJAY KAROL, J.]

Court that remedial construction to safeguard the soundness of theexisting building and the consequent demolishing of the unauthorizedconstruction shall be completed within a reasonable time.

25. Consequently, the judgment of the Court’s below, i.e., theDivision Bench and the orders of the Single Judge, High Court of Calcutta,(Circuit Bench and Jalpaiguri) in MAT No.67 of 2022 and orders dated11[th], 12[th] and 14[th] of July 2022 are set aside. The licence of the appellant, to practice medicine is revived.

26. The appeal is allowed accordingly. The pending application(s),if any, stands disposed of. No costs.

Nidhi Jain

Appeal allowed.

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