Contempt of Court

Contempt of court is any action that is performed by any person in defiance of the authority of a court of law, an action that disrespects the court, or one that hinders the court from delivering justice. Usually, an offence of the contempt of court is between the court of law and the offender but if a third party is also found to be in contravention of the values the court then such a third party can also be held guilty for contempt of court. Judges, magistrates, law officers or any person who is authorised to act judicially can also be held liable for contempt of court in the same manner as any other individual. However, if a judge, magistrate or any person who has been authorised to act in a judicial capacity makes a remark or observation on the subordinate court in case of a revision or appeal before it, then such a judge, magistrate or the person authorised to act in judicial capacity cannot be held to be in contempt of subordinate court with regard to the judgement or order passed by the subordinate court.

There are usually four conditions that establish that a person has acted in contempt of the court:

1.    The court had made a legal and valid order,

2.    The person in contempt was in the knowledge of this order,

3.    The person in contempt was in the position to comply with the order, and

4.    The person in content deliberately and willfully disobeyed the order of the court.

The reason why contempt of court is a criminal and civil offence is so that the supremacy and dignity of law and the body that delivers justice and equity can be upheld. If people were to be allowed to indiscriminately disregard and disrespect the law then the trust of the society upon the law and the legal system would be broken, bringing about the downfall of the nation’s legal structure. This cannot be allowed to happen in any case and therefore the offence of contempt of court finds a place in civil and criminal law. It should be noted that the contempt of court as an offence does not seek to protect the person or judge that delivers justice but the institution of the court of law as a whole.

In order to uphold the machinery of delivery of justice, a court cannot impose a sentence of contempt of court until and unless it is completely satisfied that the alleged act of contempt of court interferes substantially or tents to interfere substantially in the process of delivery of justice.

Contempt of Court in India

There are two categories of contempt of court in India: Criminal Contempt of court and Civil Contempt of court.

•    Criminal contempt of court

The Contempt of Courts Act, 1971 defines criminal contempt under section 2(c). It says that any publication through any platform like written or spoken words, signs, visual representation or any other form, that fulfils any of the below-mentioned criteria is a contempt of court:

i.    A publication that lowers the standards or tends to lower the authority of the court;

ii.    A publication that scandalises or tends to scandalise the authority of the court;

iii.    A publication that interferes or prejudices or tends to interfere or prejudice the course of the court’s judicial proceedings;

iv.    A publication that interferes or obstructs or tends to interfere or obstruct the delivery of justice by the court.

•    Civil contempt of court

Civil contempt of court is defined in section 2(b) of the Contempt of Courts Act, 1971. As per this definition, civil contempt is any willful and voluntary disobedience of any order, decree, judgment, writ, direction or any other process of the court. It also includes the willful and deliberate breach of any undertaking that may be given to the court by the person in contempt.

Period of Limitation

The period of limitation within which a contempt of court proceeding of either criminal or civil nature can be filed is specified in Section 20 of the Contempt of Courts Act, 1971. Accordingly, a court has to initiate contempt of court proceeding within a time period of one year from the date when the alleged act of contempt was performed. After the expiry of this one year time period, the court can no longer take action against the accused.

Penalty for Contempt of Court

The punishment of contempt of court as provided for in Section 12 of the Contempt of Courts Act, 1971. The offence of contempt of court carries with the penalty of a prison term of a maximum period of six months, or a fine up to rupees two thousand, or both. However, this section also has a provision that if the accused makes a proper, bona fide apology to the court, then the aforementioned penalty can be remitted or the accused can be discharged from imprisonment. The detention for contempt of court in civil cases is carried out in a civil prison.

If the accused party is not an individual person but a company or a corporate entity, then the company along with all the people who were in charge of and responsible for the conduct of a business of the company shall be held liable for contempt of court. However, if such a person in charge or person responsible for the conduct of a business of the company successfully proves that the contempt was committed without his knowledge or that he had performed all the due diligence in order to prevent the commission of contempt of court, such a person shall not be held liable.

The High Court and the Supreme Court too have special provisions to deal with contempt of court under section 14 of the Contempt of Courts Act, 1971. As per this provision, if either the High Court or the Supreme Court is of the opinion that someone has acted in contempt of its court proceedings, then the court can on the same day, before the rising of the court, and if not on the same day then as soon as it can, inform such person in contempt, in writing that he or she is going to be charged with contempt of court. In such a case, the court shall also allow such a person in contempt with an opportunity to defend him or herself. After the court has taken in evidence and after hearing the defence of the person in contempt, shall come to the decision whether contempt has actually been committed or not. The person who has been charged with contempt of court can apply before the relevant court to transfer the hearing of the contempt case before another judge. The court will consider this application and if it believes that transferring the case would be in line with the proper administration of justice and also a practical step, then it shall place the matter before the Chief Justice of India, along with the statement of facts of the case. The Chief Justice will then consider and pass the relevant direction as it thinks fit. If the case is transferred and tried before a judge or judges in whose court the contempt did not occur, then the judge or judges in whose court the contempt was actually committed need not appear as witnesses to the case and the statement of facts that was put before the Chief Justice of India will be treated as evidence for this case.

While the contempt of court case is pending in the court, the person who has been charged with contempt can be directed to be put under custody if it is deemed necessary. The option of release on bail is available for contempt of court, however, the court can also release the accused upon execution of a bond without sureties.

Procedure of Criminal Contempt of Court

Apart from the powers entrusted upon the High Court and the Supreme Court to try contempt of court cases in section 14, the Contempt of Courts Act, 1971 also has specific provision for trying contempt of court cases of criminal nature under section 15 of the same Act. Action against criminal contempt of court of a High Court or the Supreme Court can be taken by any of the following bodies:

•    The High Court or the Supreme Court itself;

•    The Advocate- General;

•    Any person who has received consent from the Advocate- General to take such action;

•    In a case when the High Court of the Union Territory of Delhi, any Law Officer that the Central Government has specified by way of a notification in the Official Gazette, or any person who has been so authorised by way of a written consent from such a Law Officer.

If the act of criminal contempt of court has been committed in a court lower than the High Court, then the High Court can take action if such subordinate court makes a reference before it through a motion initiated by the Advocate- General. And if such a subordinate court is located in a Union Territory of India, then a Law Officer who has been notified by the Central Government by way of a notification in the Official Gazette can refer such a matter.

All such motions or references of criminal contempt of court have to necessarily specify what act of contempt the accused is being charged off. Moreover, it is worth noting that an ‘Advocate- General’ in case of the Supreme Court means either the Solicitor- General or the Attorney- General. And in case of the High Court, an ‘Advocate- General’ is the Advocate- General is the Advocate- General of the state in which the High Court is situated.

The notice of criminal contempt of court (as provided for in section 15) has to be delivered in writing and in person to the accused charged with the offence. If the notice is not delivered as such, the court has to record its reasons for the same. If the contempt of court proceedings are initiated upon a motion by the authority mentioned above, then this notice is served to the accused along with a copy of the motion and, if there be any, copies of the affidavits on which the motion is based. If the contempt of court case is based on a reference to the higher court by a subordinate court, then the copy of the reference is also served to the accused along with the notice. Furthermore, if the court is of the opinion that the accused may abscond or fail to present him or her before the court for proceedings, it can make orders to attach the property of the accused of the value as the court may deem necessary. Attachment of the property of the accused is carried out as per the procedure laid down in the Code of Civil Procedure, 1908, specific to the procedure for attachment of property when the decree is money decree. If the accused person whose property has been attached show is successfully able to convince the court that he or she did not abscond and or did not take any action that would amount to him or her being prevented from serving the contempt notice, the court can issue another order to release the attached property.

A person who has been charged under section 15 for contempt of court has the right to file an affidavit in order to defend them. The court will then decide upon the matter either on the basis of the affidavits filed and can also take in additional evidence. Furthermore, the bench that decides upon such criminal contempt cases should consist of two or more judges, except for when the deciding being is of the Court of the Judicial Commissioner.

Appeal

A person accused of contempt of court has the right to appeal the decision of the High Court. If the decision has been passed by a single judge bench, then the appeal will lie with a bench of two or more judges. If the decision has been passed by division bench or the Judicial Commissioner, then the appeal shall lie with the Supreme Court. If the appeal has to be filed with the High Court, then the period of limitation is of 30 days but if the appeal has to be filed before the Supreme Court then the limitation period is increased to 60 days.

GST FOR BUSINESSMEN-AN INSIGHT INTO A FEW PRACTICAL ASPECTS

The Goods and Services Tax is almost here, and all businesses are eager to make out its implications on their trade and potential profits/loss. The term GST has now become ubiquitous, and all related professionals are focusing on the same to come up with as many sensible speculations and forecasts as they practically could, for arriving at commercial and economic foresight. We have here enlisted a few practical aspects derived from the Schedules I, II and III of the Central Goods and Service Tax Act which received the assent of the President and was published in the Gazette of India on 12^th April 2017.  Since the levy of tax is subject to whether the said activity falls within the meaning assigned to the term “supply” under S.7 of the Act, it becomes essential to comprehend what exactly the term connotes. In this Article, the legal jargons entwined in the Act have been brought out to the common man in simple and straight language.

Supply has been widely defined under the Act (Indian Kanoon), including within its purview sale, transfer, barter, exchange, license, rental, lease; import of services for consideration irrespective of whether it was done in furtherance of business; and in addition, the activities listed in Schedules I and II. Furthermore, activities carried out by the Central Government, a State Government or any local authority in their capacity as  public authorities, are exempted from the purview. In addition to that, activities enlisted in Schedule III are considered neither as supply of goods nor as supply of services.

Activities to be treated as Supply even when made without consideration

·         The permanent transfer or disposal of business assets where input tax credit has been availed on these assets. Input Tax Credit is the credit of input tax that a seller may avail, while the product moves from one level to the other in the chain. (Manufacturer à Wholesaler à Retailer à Consumer)

·         Supply of goods, services or both made in the furtherance of business, when done between related or distinct persons. However, gifts of up to Rs. 50000/- in value in a financial year by an employer to an employee are exempted from this purview.

·         Where a Principal supplies goods to his agent where the agent undertakes to supply such goods on behalf of the principal; or where an agent supplies goods to his principal where the agent undertakes to receive such goods on behalf of the principal.

·         Import of services by a taxable person from a related person or from any of his other establishments outside India, in the course or furtherance of business.

Activities to be treated as Supply of goods or supply of services

·         Transfer of the title in goods is a supply of goods

·         Any transfer of right in goods or of undivided share in goods without the transfer of title, is a supply of services.

·         Transfer of title in goods under an agreement that property in goods would pass at a later date upon the payment of full consideration, is a supply of goods.

·         Any lease, tenancy, easement, license to occupy land is a supply of services; similarly, lease or letting out of the building including a commercial, industrial or residential complex for business or commerce, either wholly or partly, is a supply of services.

·         Any treatment or process which is applied to another person's goods is a supply of services.

·         If goods forming part of the assets of a business are transferred or disposed of at the directions of the person carrying on the business, it is to be treated as a supply of goods, irrespective of whether the transfer is made for a consideration.

·         If goods held or used for the purposes of the business are put to any private use or are used for any other purpose not incidental to the business, under the direction of a person carrying on a business, making available of such goods is a supply of service.

·         Renting of immovable property, construction of a complex, building, civil structure, etc. is to be regarded as supply of services.

·         Supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration is regarded as a supply of goods.

Activities treated neither as Supply of Goods nor as Supply of Services

·         Services by an employee to the employer in the course of or in relation to his employment.

·         Services by any court or Tribunal established under any law for the time being in force.

·         Functions performed by the Members of Parliament, Members of State Legislature, Members of Panchayats, Members of Municipalities and Members of other local authorities.

·         Duties performed by any person who holds any post in pursuance of the provisions of the Constitution in that capacity.

·         Services of funeral, burial, crematorium or mortuary including transportation of the deceased

·        Actionable claims, other than lottery, betting and gambling.

Reference to the provisions of the Schedules help to interpret the Section defining and elaborating what is regarded as Supply under the Act.