Oxinel Services Pet. Ltd. Vs. MD, BTCL and others [4 LNJ (2015) 139]

Case No: Contempt Petition No. 2 of 2014 with Suo moto Rule No. 2 of 2014

Judge: Md. Rezaul Hasan,

Court: High Court Division,,

Advocate: Mr. Aneek R. Huq,Mr. Rais Uddin Ahmed,Mr. Tanveer Hossain Khan,,

Citation: 4 LNJ (2015) 139

Case Year: 2015

Appellant: Oxinel Services Pet. Ltd.

Respondent: Mr. S. O. M. Kalimullah and others

Subject: Contempt of Court,

Delivery Date: 2014-12-04

HIGH COURT DIVISION
(STATUTORY ORIGINAL JURISDICTION)
 
Md. Rezaul Hasan, J.

Judgment on
04.12.2014
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Oxinel Services Pet. Ltd.
. . Petitioner
-Versus-
Mr. S. O. M. Kalimullah, Managing Director, Bangladesh Telecommunication Company Limited (BTCL) and others.
. . .Respondents
 
Constitution of Bangladesh, 1972
Article 108
When the Judge takes up the proceedings or acts in response to direct contempt the proc-eedings are not to take the form of the trial and the same may be concluded brevi manu which means “summarily”. It is not thus necessary that there be a written charge, framing of issues, or to hold regular trial or examination – No other proof is necessary when it is a case of direct contempt.”       ...(25)

Constitution of Bangladesh, 1972
Article 108
Court should not accept the apology offered as a routine job or without taking into consi-deration the conduct of the contemners and its effect in defeating the course of justice. . . .(27)

Constitution of Bangladesh, 1972
Article 108
Being anxious that least it will disseminate an impression that this Court’s orders can be flouted at one’s sweet will, subject only to taking a bit discomfort in filing an affidavit seeking unconditional apology, will no doubt ridicule this Court and render its authority exists in theory only, resulting to the deteriation of an ordered society to exist and grow, based on the rule of law.  To give way to such arrogant, audacious and repeated acts of defiance, as recorded in the judgment would no doubt result in indulging many others, of any stratum of the society, to flout this court’s order of binding charter and to allow an era of lawlessness to begin, which this court is oath bound to prevent. This court’s voice must be louder enough to be heard by those who are bound to comply with the same.  . . . (27)

Constitution of Bangladesh, 1972
Article 108
Court should ensure effectiveness and workability of the administration of justice system and the rule of law to sustain in this country, by awarding appropriate punishment to the offenders, without discrimination as well as letting all concerned to hear the voice of this Court and to understand that the age old proverb that the hands of this court is long enough to reach any offender.       ...(28)

Constitution of Bangladesh, 1972
Articles 108, 109 and 112
Court should not act mechanically, to make it a routine job, in accepting the apology offered by the contemners, in each and every case. Rather, this Court has to ensure that the letters and spirit of Article 112 and Article 109 of the Constitution are respected and upheld by all quarters, government and non-government.      . . . (31)

Constitution of Bangladesh, 1972
Article 108
Apology offered may be taken as a mitigating factor, but not to discharge the contemner from their liability, though it is within discretion of this court to decide whether the contemners will be discharged or not and, if not, to ascertain the quantum of the punishment. . . . (31)

Constitution of Bangladesh, 1972
Articles 7, 39(2), 108, and 112
Article 7 read with Articles 39(2), 108, and 112 of the Constitution, considered together and with reference to the scheme of the Constitution, make it abundantly clear that the peoples power to punish the contemner has been invested in the Supreme Court to be exercised by the honourable Judges of this Court, so that the authority, dignity and majesty of this Court is upheld, an ordered society based on the rule of law can exist and the justice is even handedly secured to those who deserve. The people’s ‘will’ reflected in the Articles referred to herein above should be given effect to by this court without discrimination. . . . (31)

Constitution of Bangladesh, 1972
Article 108
Once this Court passes any binding order in any proceeding then it, in substance, becomes a public order and this Court is legally entrusted to implement the same in the public interest and the rule of law to prevail.   . . . (31)

Constitution of Bangladesh, 1972
Article 108
Refusal to obey this Court’s order is an explicit challenge to it’s authority and is a breach of public order by an arrogant party having no fear in undermining and in ridiculing the authority of this Court, rendering its judgment and order a nullity and such conduct cannot go unpunished with impunity, moreover, in such a case it is immaterial at what stage the apology is offered. Mr. S.O.M. Kalimullah, son of late Mohammad Dayem Mia is hereby held guilty of committing contempt of this court. His apology is rejected. Further, considering the aggravating factors, hereinbefore recorded at paragraph number 23, he is hereby sentenced to suffer simple imprisonment for a period of 4(four) months, with immediate effect and to pay a fine of Taka 1,00,000.00 (one lac), to be deposited in Bangladesh Bank under the concerned head, within 1(one) month of drawing of up of this judgment and order and shall submit affidavit in compliance before this court, within 2(two) weeks thereafter.      . . . (31)

Constitution of Bangladesh, 1972
Article 108
The power of the Supreme court, the Appellate Division and the High Court Division, being the court of records, as embodied under Article 108 of the Constitution of the People's Republic of Bangladesh, cannot be restricted and trammeled by any ordinary legislation including the Contempt of Courts Act [even if enacted] and their inherent power is elastic, unfettered and not subjected to any time limit.      . . . (31)

Constitution of Bangladesh, 1972
Article 108
The duty of a Judge sitting to punish the Court’s own contempt, therefore, means to prevent and stifle any damage to public confidence in an important organ of the State and not the protection of the individual Judges. No personal interest is therefore involved.  . . . (31)

Constitution of Bangladesh, 1972
Article 108
Compliance of the Court’s order cannot be treated as extenuating circumstances in all cases, since it is duty of the person concerned to obey the same. However, if the Court is satisfied that non-compliance was not deliberate or international, or that the contemner was not at all aware of the order required to be complied with or if the order to be complied with was lacking clarity to such an extent that the duty to comply with the same was honestly not comprehensible to the person(s) obliged to comply the court’s order, then the court should take lenient view. . . . (31)

Constitution of Bangladesh, 1972
Article 108
Contempt by a person who is a party to the proceedings and contempt by a person, who is not such a party, cannot be weighed on the same scale. However, gravity of the offence does not depend on the question as to whether the contemner was a party or act, but upon the nature of the offence. . . . (31)
 
35 DLR (AD) 290: Moazzem Hossain DAG Vs. State; DLR (1949) 177: Crown Vs. Moulvi Abdul Rashid Tarkabagish; 38 DLR (AD) 188: Abdul Karim Vs. State; 44 DLR (AD) 237: Shamsur Rahman Vs. Tahera Nargis; AIR 1983 SC 1151: Ashram M Jain Vs. A T Gufta and AIR 1984 (SC) 1374: LD Jaidwal Vs. State, 1 DLR (1949) 177, 44 DLR (AD) 237 and in the AIR 1984 SC 1374, 44 DLR (AD) 237, 1 DLR (1949) 177, AIR 1984 SC 1374, 18 DLR SC 124 and 34 DLR 223. AIR 1983 SC 1151: Ashram M. Jain Vs. AT Gupta, AIR 1943 PC 203: 19 BLT (AD) 54: Md. Riaz Uddin Khan Vs. Mahmuder Rahman and ors and the 2011 ADC 175: Shahudul Haque, IGP & another Vs. the State; Moazzem Hossain Vs State, 35 DLR (AD) (1983) 290, 293; Abdul Halim (Md) vs Dr. Md. Tareque, 63 DLR 465 (para-13); Mahbubur Rahman Sikder and ors Vs. Mujibur Rahman Sikder and Ors, 35 DLR (AD) 203; Abdul Karim Sarekr Vs. The State and another, 38 DLR (AD) 188; A.K. M.A Awal Vs. The State, 16 DLR (SC) 429 (para-20); Shamsur Rahman Vs. Tahera Nargis, 44 DLR (AD) 237 (para-12); Elders Ltd. Vs. Sunil Chandra Chowdhury and another, 54 DLR 226, (para 5) and The Crown Vs. Moulvi Abdul Rashid Tarkabagish M.L.A. of Serajgonj, 1 DLR (1949) 177, 181 ref.
 
Mr. Aneek R. Huq, Advocates
. . .For the Petitioner
Mr. Rais Uddin Ahmed, Advocate
. . . For the Respondents
Mr. Tanveer Hossain Khan, Advocate
…For the respondent in Suomoto Rule No. 2 of 2014

Mr. Rafique-ul Huq, Senior Advocate
Mr. Rokanuddin Mahmud, Senior Advocate
Mr. Ajmalul Hossain QC, Senior Advocate
Dr. Kazi Akter Hamid, Advocate
Mr. Manzill Murshid, Advocate
. . . Learned Amicus Curiaes
 
Contempt Petition No. 2 of 2014 with Suo moto Rule No. 2 of 2014

 
JUDGMENT
Md. Rezaul Hasan, J.
 
This Rule has arisen out of the petition for drawing up contempt proceeding, filed by the petitioner, against the accused-contemner Mr. S.O.M. Kalimullah, Managing Director, Bangladesh Telecommunication Company Limited (BTCL) and 3 other officials of BTCL, alleging, amongst other that, this contempt petition is directed against the contemner-opposite parties, for committing contempt of this Court, by not obeying this Court’s order dated 23rd of July, 2013 as regards admitting a new Bank Guarantee and adjust with the previous bank Guarantee and to return back the remaining amount to the petitioner; that the contemner-opposite party No. 1 Bangladesh Telecommunication Company Limited (hereinafter referred to as BTCL) is a company incorporated under the Companies Act 1994  represented by (1)  Mr. S.O.M. Kalimullah, Managing Director, BTCL , son of late Mohammad Dayem Mia, 28/2, Baily Road, Dhaka-1000,  No. 2 Mr. Md. Bahadur Ali, Member (Finance) of BTCL,  No. 3 Mr. Md. Moyez Mollah, Director (Finance & Accounts) of BTCL,  and  No.4 Mr. Shah Farid,  son of late Saiful Islam, Deputy Director (Accounts-1), Bangladesh Telecommunications Company Limited of 37/E, Eskaton Garden, Telejogajog Bhaban, Dhaka; that the petitioner in the course of business furnished a Bank Guarantee being BG No. IFIC/ STOCK/BG /07/2011 dated 04.05.2011 issued by IFIC Bank Limited for TK. 14,000,000.00 (One crore forty lac) with BTCL; that during the continuance of the business, without having reasonable cause, BTCL has asked the IFIC Bank Limited to encash the said Bank Guarantee; that the amount (USD83,142.33 = BDT68,17,617.00) claimed by BTCL was a disputed one and also much less than the amount of the said Bank Guarantee for Tk.1.40 crore; that this petitioner, having no other alternative, sought relief from this Court for justice; that upon hearing the grievance of the petitioner, this Court was pleased to pass order of injunction, on 30.10.2012, against the encashment of the Bank Guarantee by the BTCL; that as the disputed amount was much less than the amount of the Bank Guarantee, the petitioner filed a petition for reducing the said Bank Guarantee; that the petitioner in its petition applied for reducing the amount of the Bank Guarantee upto the disputed amount and to return the rest of the amount to the petitioner; that upon hearing the petition, this Court was pleased to pass an order on 23.07.2013. In the said order it is clearly stated that, “Accordingly the petition to reduce the amount of Bank Guarantee from TK. 14,000,000.00 is allowed and the petitioner is permitted to submit a fresh Bank Guarantee, containing similar terms and conditions, for Tk. 68,17,617.00 in favour of the BTCL and then to withdraw the existing one and to renew the same from time to time, till the dispute is resolved finally.”; that thereafter the said order passed by this Court was communicated to BTCL and IFIC Bank; that having knowledge of the said order, the IFIC Bank Limited issued a fresh Bank Guarantee being No. IFIC/ STOCK /BG/05/2013 dated 01.10.2013 for BDT.68, 17,671.00 (Sixty Eight Lac Seventeen Thousand Six Hundred and Seventy One Taka) only on A/C of the petitioner complying this Court order and sent the same to BTCL for acknowledgement vide letter No. IFICB/ ADV/BG /2013/1973 dated 30.09.2013. But it is very unfortunate that the BTCL had neither crried out this Court’s order, nor acknowledged the Bank Guarantee issued by the IFIC Bank Limited; that the conduct and attitude of the BTCL towards the order passed by this Court certainly falls under the offence of Contempt of the court. The said Bank Guarantee and letter for acknowledgement dated 30.09.2013 is annexed herewith this petition as “annexure: “B” and “B(1)”; that it is pertinent to mention here, that despite the fact that the contemners are very much aware of the concerned order, they have shown utmost disregard to the order passed by this Court and that this conduct amounts to gross Contempt of this Court; that the contemners-opposite parties are guilty of contempt of Court; that almost 6 (Six) months have already been elapsed but the said order by this Court has not been complied with as yet; that, instead of complying the said order, the contemner-opposite parties have sent a letter being No. IAS/8-6/2011/67 dated 30.09.2013 to IFIC Bank Limited by clearly stating that “We would like to inform you that BTCL has objection regarding reduce the amount of Bank Guarantee Tk. 14,000,000.00 (One crore forty lac) and we will inform you in this regard later on.” that BTCL was given reasonable time, by this court, by an order dated 13.6.2014, to submit their objection, if any, within which they did neither appear nor show any cause, and, in the result, this Court was pleased to passed the said order dated 23.07.2013 for the petitioner; that abovementioned reply by BTCL certainly poses a serious challenge to the dignity, authority and majesty of this Court as well as to the  rule of law; that the said letter dated 30.09.2013 is annexed herewith as “Annexure: “C”; that it is settled principle of law that “Disobedience to or failure to obey an interim order constitutes contempt of Court; that there can be no laxity in such a situation because otherwise the Court orders would become the subject of mockery.” It is also a settled principle of law that “Undue delay in complying with the judgment of the Court may render a party guilty of contempt of Court,” that it is crystal clear that the contemner-opposite parties could never be able to show any reasonable cause regarding the non-compliance of the Court order; that the contemner-opposite parties were given a legal notice dated 23.11.2013 as a caution so that they without making any further delay comply with the said order of this court; that even then the contemner-opposite parties have not taken any positive step towards the compliance of the Court order. The copy of the legal notice is annexed as “Annexure: “D” (underlining is mine).
 
Upon hearing the said petition, and having considered the relevant materials on record, this court found a prima facie case to issue a Rule. Hence, a rule was issued, on 23.01.2014, against the accused-contemner Nos. 1 and 4 in the following terms:-
 
“Accordingly, let a Rule be issued upon the contemner-respondents No.1. Mr. S.O.M. Kalimullah Managing Director, Bangladesh Telecommunication Company Limited (BTCL), Telejogajog Bhaban, 37/E, Eskaton Garden, Dhaka-1000 and (2) Mr. Shah Farid, Deputy Director (Accounts-1), Bangladesh Telecomm-unication Company Limited (BTCL), Telejogajog Bhaban 37/E, Eskaton Garden, Dhaka-1000, to show cause as to why the proceedings for contempt of court shall not be drawn up against  them for writing letter No.IAS/8-6/2011/67 dated 30.9.2013 signed by Md. Shah Farid  (Contemner No.2), with the approval of the contemner No.1, that prima-facie shows willful and flagrant violation of  order dated 23.7.2013 passed by this Court and amounts to committing contempt of court  in the manner specified herein above and as to why they should not be convicted for committing contempt of court and be sentenced to suffer imprisonment and be fined   for such term and/or for such amount, as this court may deem fit and proper.
The contemners are directed to appear before this court, in person, to answer the Rule on 19.2.2014 at 10-30 A.M. It should also be noted that, should the contemners fail to appear in person, a warrant of arrest may be issued to secure their presence, in Form No.1 (contempt), Appendix-III, of the Supreme Court of Bangladesh, (High Court Division) Rules, 1973.
I find no prima-facie case, at this stage, against 2(two) other persons alleged to have committed contempt. So, no Rule is issued, at this stage, against them.
This matter will appear in the cause list on 19.2.2014.
Let a copy of this order, enclosing the contempt petition, be served upon the Respondent-contemners through special messenger at the cost of the petitioner.”
 
The contemner No. 1 and 2 have appeared in person before this Court and have filed an affidavit, sworn on 10.04.2014, through their learned advocate Mr. Rais Uddin Ahmed, stating that the contemners-opposite parties have already complied with this court’s order, vide a letter dated 12.02.2014 (Annexure-1), sought unconditional apology and further stating that the contemners undertake that they will not do such act in future and that they express their deep regrets, without any attempt on their part to justify their conduct, and beg to submit that they have got their highest respect towards the Court and that they, under no circumstances, had any remotest intent to show any disrespect to the Court.
 
Considering the importance and anxiety of this Court in the matter of contempt of court, and also having taken into consideration the caution uttered in 1 DLR (1949) 177, Mr. Rafique-ul Huq (Senior Advocate), Mr. Rokanuddin Mahmud (Senior Advocate), Mr. Ajmalul Hossain QC (Senior Advocate), Dr. Kazi Aktar Hamid (Advocate) and Mr. Manzil Murshid (Advocate), were appointed as amicus curiae, particularly to reflect upon the contempt jurisprudence, in the facts and circumstances of this case, as well as to reflect upon (1) as to whether the act of contempt of court committed by  persons who are parties to the proceeding before the court and by  persons who are not parties to the proceeding shall be weighed on the same scale and (2) as to whether unconditional apology shall be accepted in all cases as if it is a matter of routine job for this court.
 
The learned advocate Mr. Aneek R. Huq, appearing for the petitioner, having placed the rule and the petition for drawing up contempt proceeding, first of all submits that the petitioner had filed an application, in Arbitration Application No. 27 of 2012, for reducing the amount of bank guarantee issued in favour of BTCL, from Tk. 1,40,00,000.00 to Tk. 68,17,671.00, being the amount claimed by the BTCL, vide their letter dated 22.10.2012. This Court, having received and heard the application, passed an order, on 13.06.2013, requiring BTCL to show cause as to why the bank guarantee amount shall not be reduced as prayed for by the petitioner and further ordered to keep this petition on record, for hearing, so that this Court may arrive at a decision after perusal of the BTCL’s statements / explanation that was called for by the Court and the Court had also directed that this order dated 13.06.2013 shall be served upon BTCL through special messenger and 21.07.2013 was fixed as the next date. In the Court’s order dated 13.06.2013 it was also recorded that should BTCL fails to show any cause against the prayer for reduction of the amount of the bank guarantee, then the court shall presume that BTCL has no objection in reducing the amount of the bank guarantee to the amount in excess of their claim. He next submits that, although BTCL has received the order dated 13.6.2013, served upon them through special messenger on 14.7.2013, they however, did not come up with any explanation or objection to the prayer for reducing the amount of bank guarantee. Accordingly, this Court has passed an order on 23.07.2013, in the said Arbitration Application No. 27 of 2012, reducing the amount of the bank guarantee from Tk.1,40,00,000.00 to Tk.68,17,617.00, i.e. conversion of the disputed amount equivalent to USD83,142.33. The BTCL did not come up, he continues, even thereafter, either to modify or to review the aforesaid order dated 23.07.2013 passed by this Court, nor they went to the Appellate Division against the said order dated 23.7.2013. As such, the order dated 23.7.2013 has become final and conclusive and the contemners were legally bound to comply with the same. But, to the utter surprise of the petitioner and in an unprecedented manner, the contemner No. 1 and 2 have refused to obey the Court’s order dated 23.7.2013 by writing a letter No. IAS/8-6/2011/67, dated 30.09.2013, to the Manager, IFIC Bank, Stock Exchange Branch, annexed as Annexure-C to the petition for drawing up contempt proceeding. He next submits that the said letter was signed by the accused contemner Mr. Shah Farid, Deputy Director (Accounts-1), BTCL (herein after referred to as the contemner No. 2), with the approval of the then Managing Director BTCL (contemner No.1). In that letter it has been stated that BTCL has objection regarding reduction of the Bank Guarantee. The petitioner had issued a legal notice dated 19.11.2013 (Annexure-D) calling upon the contemners to complying with this courts order dated 23.07.2013, but they have not at all pay any heed to the same as well, to show the degree of their arrogance and disrespect to this court order, he adds. The learned advocate further submits that the petitioner being a party to the proceedings and they having received the Court’s order dated 13.07.2013 as well as being aware of this Court’s order dated 23.7.2013, they have deliberately flouted this Court’s order dated 23.7.2013, by refusing to obey the same, vide their letter dated 30.09.2013 (Annexure-C). The conduct of the contemners amounts to willful defiance of this Court’s order, whereby they have chosen to act according to their own decision in clear disregard of the Court’s order dated 23.7.2013, he points out. Such act of willful disregard of the order of the highest Court of the country, he proceeds, is not only unprecedented, but it is a foreshadow of the reign of lawlessness to begin and this kind of conduct can never be indulged by this court in the interest of justice and to protect the dignity and authority of this Court passing orders of binding character as contemplated in Article 112 read with Article 108 of the Constitution. He also submits that the unconditional apology offered by the contemners is not a sincere one and it has been offered only to avoid the consequence of the offending conduct of the contemners. In support of his case, the learned advocate has cited the decisions reported in 35 DLR (AD) 290: Moazzem Hossain DAG Vs. State; 1 DLR (1949) 177: Crown Vs. Moulvi Abdul Rashid Tarkabagish; 38 DLR (AD) 188: Abdul Karim Vs. State; 44 DLR (AD) 237: Shamsur Rahman vs. Tahera Nargis; AIR 1983 SC 1151: Ashram M Jain Vs. A T Gufta and AIR 1984 (SC) 1374: LD Jaidwal Vs. State of UP and prayed for imprisonment of the contemners awarding the highest terms and for imposing exemplary fine, which is just and proper in this case, so that the would be violators of this Court’s order can be dettered from committing contempt of court so grievous in nature.
 
The learned advocate Mr. Rais Uddin Ahmed, appearing for the contemner Nos. 1 and 2, submits that the contemners have offered unconditional apology and further submits that the contemners even do not justify their conduct on any excuse whatever, that they have full respect to the Court and they will never repeat such conduct in future. He also adds that, indeed, the contemners No. 1 and 2 were misguided by a letter No. IFCB/STOCK/ CREDIT/2013/1888, dated 16.09.2013 of the Manager, IFIC Bank, Stock Exchange Branch. Accordingly, he has prayed for exemption of these two contemners from the charge of contempt of court brought against them.
 
Having considered the contents of the letter dated 16.09.2013, Reference No. IFCB/STOCK/CREDIT/2013/1888, of the Manager, IFIC Bank, addressed to BTCL, this Court has issued a separate Rule upon one Mr. Helal Ahmed, Manger, IFIC Bank Limited, Stock Exchange Branch, 16 Motijheel C/A, Dhaka-1000, on 21.05.2014. That Rule, forming part of the same cause of action, is to be disposed of simultaneously with the instant Rule.
 
The Rule issued upon Mr. Helaluddin Ahmed on 21.5.2014 read as follows:
 
“In the course of argument made in contempt petition No. 2 of 2014 (arising out of Arbitration Application No. 27 of 2012) it has been pointed out by the learned advocate for the petitioner as well as the learned advocate for the contemner that a letter No. IAS/8-6/2011/67 dated 30.09.2013, addressed by the Contemner No. 2 to IFIC Bank Limited, Stock Exchange Branch, 16, Motijheel C/A, Dhaka-1000, reference has been made to a letter No. IFCB/ STOCK/CREDIT /2013/1888 dated 16.09.2013. In that letter one Mr. Helal Ahmed, VP & Relationship Manager, IFIC Bank Limited, Stock Exchange Branch, Motijheel C/A, Dhaka-1000, asked BTCL as to whether BTCL had any objection regarding a fresh Bank guarantee for the reduced amount (as per order dated 23.7.2013 of this court).
 
Since, by an order dated 21.07.2013, this court has allowed the application for reduced Bank guarantee, so it was legal duty of all concerned to abide by the said order, which had acquired finality and become conclusive, since no petition to modify the said order was filed before this court, nor any appeal against said order was preferred before the Appellate Division. In the facts and circumstance recorded above, said Mr. Helal Ahmed, has prima facie, committed contempt of court by bluntly asking BTCL as to whether BTCL had any objection regarding a fresh guarantee with the reduced amount, knowing it fully well that this order was passed by the Supreme Court and it was duty of all to abide by the court’s order dated 23.07.2013 and to the act in aid of the Supreme Court, instead of preventing the course of justice or rendering the courts’ order ineffective or nullity or ridicule the court by undermining its authority. Hence, I considered it indispensable to issue a Suomoto Rule upon aforesaid Mr. Helal Ahmed, VP & Relationship Manager, IFIC Bank Limited, Stock Exchange Branch, 16, Motijheel C/A, Dhaka-1000, to show cause as to why he should not convicted for committing contempt of Court, in the manner herein above stated, and be sentenced to suffer imprisonment and be fined for such term and/or for such amount, as this court may deem fit and proper.
 
The contemner is directed to appear in person before this court on 29.05.2014 at 10.30 a.m. in person.
 
All the learned Amicus Curiae have made their invaluable submissions, in the course of which they have cited relevant decisions and have also referred to the relevant Articles of the Constitution and of the law, duly noted by this Court.
 
The learned Amicus Curiae Mr. Rafique-Ul Huq, in the course of his submission, has made it clear that the act of contempt committed by persons who are parties to the proceeding is, no doubt, more grave in nature and is punishable accordingly. However, he has made it a point that, in the disposal of the rule the court should ascertain, on the facts and circumstances of each case, as to whether the apology offered by the petitioner is true-hearted or not. When attention of the learned Amicus Curiae was drawn to the cases reported in 1 DLR (1949) 177, 44 DLR (AD) 237 and in the AIR 1984 SC 1374, the learned Amicus Curiae has unhesitantly asserted that the views taken in those decisions, indeed, represents the correct views on the contempt jurisprudence and provides valuable guideline in arriving at decision by tis court in a contempt proceeding.
 
Mr. Rokanuddin Mahmud, learned Amicus Curiae, has made his submission at length. He has also referred to the cases reported in 44 DLR (AD) 237, 1 DLR (1949) 177, AIR 1984 SC 1374, 18 DLR SC 124 and 34 DLR 223. In the facts and circumstances of this case, the learned Amicus Curiae submits that, this is a clear case of defying this court’s order by the parties to the proceeding. The learned amicus curiae has posed a question as to how the contemner No. 2 has issued this letter dated 30.09.2013, raising objection to the courts order dated 23.07.2013, after long time having been ran away since the order was passed and, moreso, when the contemnors were very much aware of the order flouted by them. He next submits that the court shall take decision based on the facts and circumstances peculiar to this case. He also submits that, the court has heard at length the application, in which the petitioner prayed for reduction of the bank guarantee amount and the contemners were asked by an order dated 13.6.2013,  to show cause within stipulated time, as to why the guarantee amount should not be reduced and further recorded that the court shall presume that the BTCL has no objection in reducing the bank guarantee amount if they default in showing any cause, . As such, it was duty of the contemner to abide by the Court’s order, to show cause, as called for by this court. But, they did not come up to show cause against the reduction prayed for,  neither they had come before this court for setting aside or modifying the order dated 23.07.2013, nor they had preferred any appeal against the said order before the Appellate Division and, in consequence, the said order has acquired finality. They have no scope to raise any objection as if a supra body to the apex court. If apology is accepted in such a case, he submits, then it would destroy the social fabric, the litigating people will be deprived of the fruits of a proceedings decided in their favour and the rule of law will never get rooted in this country. This is a case, the learned Amicus Curiae continues, where the contemners have offered apology to avoid the consequence of committing so clear a case of contempt of court. Therefore, in this case, he maintains, the apology offered must be rejected, in the light of the ratio laid down in 44 DLR (AD) 237: Shamsur Rahman Vs. Tahera Nargis. Referring to the alarming speed of escalation of contemptuous attitude in certain quarters, the learned advocate further submits that, the court should not act mechanically to make it a routine job to accept the apology offered by the contemners. He has, rather, emphasised, that the letters and spirit of Article 112 of the Constitution should be respected and upheld by all quarters, government and nongovernment. Otherwise judgments and order of this court will have no binding character or effect, rendering the entire system of administration of justice a mere nullity. Moreover, he continued that, as has been laid down in 1 DLR (1949) 177: Crown Vs. Moulvi Abdul Rashid Tarkabagish, this case is glaring instance that shows how much correct was the apprehension of the learned Judge expressed in 1 DLR (1949) 177. He has concluded submitting that, this case justifiably warrants punishment for contempt, least to ensure an ordered society, based on rule of law, to exist and that the law abiding people should not loose their trust in the authority of this court or in the system of administration of justice. (underlining is mine)
 
Learned Amicus Curiae Mr. Ajmalul Hossain Q.C., commenced his submission, first of all, by addressing the issue if this Court shall, in all cases, accept the unconditional apology offered by the contemners. He maintains, that, the fact of offering apology by the Court per se proves commission of the offence of contempt and, in that event, no further investigation is required as to the factum of contempt. This alone gives rise to the liability for committing contempt. Investigation relates to ascertaining the guilt and punishment relates to the consequence, once the liability is established, he continues. Apology offered, he further submits, may be taken as a mitigating factor, but not to discharge the offenders from their liability, though it is within discretion of this court to decide whether the contemners will be exonerated and, if not, to ascertain the quantum of the punishment. The contemners had chance to avoid the act of committing contempt, he adds, by showing cause, as called for by this court, or by coming up with an appropriate application for review or modification; but they did  neither. Nor they went to the Appellate Division which they ought to have done had they had any fear of consequence of flouting this Court’s order. No one can escape the obligation to comply with this Court’s order as long as it exists. He also submits that this Courts order, even if it were wrong or without jurisdiction, is binding on all concerned till the same is set aside or vacated or modified. Once the order has been passed the accused contemners were bound to obey the same. The learned amicus curiae next submits, referring to Article 39(2) of the Constitution, that the fundamental right guaranteed in that article (regarding freedom, speech, expression and the press) is also subject to the law relating to contempt of court. He then, referring to Article 7 read with Articles 39(2) and 108 of the Constitution, submits that the provisions of these Articles, considered together and with reference to the scheme of the Constitution, make it abundantly clear that the peoples power to punish the contemner has been invested in the apex Court to be exercised by the honourable Judges  of this Court, so that the authority, dignity and majesty of this Court, is upheld, the rule of law and an ordered society can exist and the justice is secured to those who deserve. The people’s ‘will’, reflected in these Articles shall not be undermined, he emphasised. He has also pointed out that the contemnors have accepted this Court’s order dated 23.07.2013, by way their conduct in abstaining from showing cause, and they are bound to obey the same, and that non-compliance of this Court’s order is not a matter of option for the contemners. The unconditional apology offered, weighed in facts and circumstance of this case, has not come from heart, he adds. He has viewed, in conclusion, that this is a fit case of awarding punishment (underling is mine).
 
Learned amicus curiae Dr. Kazi Aktar Hamid, in his turn, submits that, the persons obliged to obey this Court’s order can defy the same only subject to undergoing the consequences that are bound to follow. If they refuse to obey or do create any obstruction in the implementation of this Court’s order then they are liable to be held guilty for and be punished for committing contempt. Once this Court passes any order then it, in substance, becomes a public order and the Court has to implement the same in the public interest, none the less to maintain an ordered society as well.  So, the contemners are liable to be punished, in the facts and circumstances in this case, in the public interest and to maintain public order, trust and confidence in this Court, he emphatically argued. If this Court allows its order to be flouted in this way, as the contemners have done, then to whom the seekers of justice shall take resort to, he posed the question. Then should the people suffer injustice in despair or take the law into their own hands? He could not suppress his anxiety. Should not, inaction or indulgence on the part of this Court, in such cases, give way to the collapse of an ordered society, otherwise to be flourish and exist under our legal systems, his concern had yet to be expressed. He has asserted that, refusal to obey the Court’s order is an explicit challenge to it authority and is a breach of public order by an arrogant party having no fear in undermining and in ridiculing the authority of this Court and this cannot go unpunished with impunity. He has made submission distinguishing the civil and criminal contempt. He has concluded that this is a case where apology has been offered to escape the consequences and that cannot discharge the offenders and that appropriate punishment for committing criminal contempt would be justifiable, in this case, inasmuch as their conducts on their very face , constitute a challenge to the order passed by this Court and stand as obstruction to the administration of justice, which comes within the meaning of criminal contempt. Towards the clarification of and supporting his contention, he has referred to the ratio of the cases reported in AIR 1983 SC 1151: Ashram M. Jain Vs. AT Gupta, AIR 1943 PC 203: 19 BLT (AD) 54: Md. Riaz Uddin Khan Vs. Mahmuder Rahman and ors and the 2011 ADC 175: Shahudul Haque, IGP & another Vs. the State. He has also read out the principles laid down in those cases, duly noted by this Court (underling is mine).
 
The leaned amicus curiae, Mr. Manzill Murshid, with reference to the Rule, the affidavit offering unconditional apology and the queries  made from the Bench, submits that, in the facts and circumstances of this case, the question is whether both the actions and the inactions of the respondents tantamount to contempt of court or not and if it does, whether acceptance of unconditional apology shall advance the cause of justice by ensuring compliance of this Court’s Order, shall uphold the rule of law or maintain the dignity of this Court as the custodian of the Constitution and protector of the Rule of law. In the present legal jurisprudence, he submits, “Contempt of Court” is nowhere defined in any statutes of the land. However, in the case of Moazzem Hossain Vs State: 35 DLR (AD) (1983) 290, 293, F. Munim, C.J. (as his lordship then was) held that, Contempt may be constituted by any conduct that brings authority of the Court into disrespect or disregard or undermines its dignity and prestige …... conduct or action causing obstructions or interfering with the course of justice is contempt. He next submits that, on the other hand, Oswald defined contempt of court as follows: “It may be said to be constituted by any conduct that tends to bring the authority and administration of law into disrespect or disregard or interfere with or prejudice parties, litigant or their witnesses during the litigation” [Contempt of Court, 1910, p.6]. He then adds that, contempt has been classified into three categories in the case of Abdul Halim (Md) vs Dr. Md. Tareque, reported in 63 DLR 465 (para-13), such as-
  1. Scandalization of court
  2. Disobedience to the orders of the court and
  3. Interference with the due course of justice. In the instant case, he points out, the actions of the contemnor-respondents falls within the mischief of the last two categories.
 
Mr. Murshid has also cited the case of Mahbubur Rahman Sikder and ors vs Mujibur Rahman Sikder and Ors: 35 DLR (AD) 203, wherein it was held that willful disobedience to the order of the court or willful breach of the undertaking given to the court is contempt of Court.
 
He then, referring to the facts of this case, continued that the respondent’s actions i.e. informing the IFIC Bank, vide their objection raised in their letter dated 30.09.13 (Annexure-C), as to the reduction of the amount of the Bank Guarantee (BG), is as a clear obstruction, indeed giving damn, to the order dated 23.07.13 of this Court. This refusal to comply with the courts order, when it has become final, discloses a serious case of committing contempt of court by the contemners. On the other hand, their inactions to give reply to the order to show cause as per, dated 13.06.2013 as well as non-appearance before this Court, for explaining as to why the amount of the BG shall not be reduced to BDT: 68,17,671.00, is also a clear and deliberate refusal to obey order of this Court and, moreover, ignoring the initial or first stage to avoid the contempt proceeding. The contemnor-respondents had full knowledge of the orders of this Court, and the contemners Nos. 1 and 2 have defied this Court’s order as many as on 4(four) occasions. This not only aggravates their offence, but, at the same time shows the extent of their arrogance and attitude of the contemners in showing disrespect to the authority of this court. The respondents have repeatedly shown utmost disregard towards their duty to implement the binding order of this Court and committed contempt on the face of the court, in substance. In the said premises, Mr. Murshid argues, the contemnor-respondents appeared before this court on 19.02.14 and sought unconditional apology stating that they have already complied with the order of the Court dated 23.07.13. But, this is done only after the proceedings for contempt had been initiated, by issuing a Rule.
 
Next, in the facts and circumstances of this case, the learned Amicus Curiae, Mr. Murshid has placed series of decisions of Appellate Division in the matter of accepting of apology. In considering whether the apology should be accepted or not, the learned Amicus Curiae points out that, in the case of Abdul Karim Sarekr v the State and another: 38 DLR (AD) 188, Fazle Munim C.J. (as his lordship then was) mentioned five facts to be considered. They are:
  1. whether  the appellant appreciated that his act was within the mischief of contempt;
  2. whether he regretted it ;
  3. whether his regret was sincere;
  4. whether it was accompanied with expression of the resolution never to repeat again and
  5. Whether he made humble submission to the authority of the court.
In view of the above noted five criteria vis-à-vis their conduct, he continues, the apology of the contemnor-respondents does not seem to be sincere. Rather their apology was a paper apology ‘coming from the pen not from his heart’ as is observed in the case of L.D. Jaikwal v State of UP: AIR 1984 SC 1374, relied upon in 38 DLR (AD) 188. Since, inspite of having full knowledge of the order dated 23.07.13, the respondents have repeatedly obstructed implementation of the said order in the manner aforesaid, so the apology offered cannot be considered as sincere apology, he submits. Rather, the prayer for unconditional apology has been made only, after issuance of the Rule, he points out, to escape the consequences for committing contempt. No other coherent conclusion but this can be drawn in the facts and circumstances of the instant case.  The learned amicus curiae, next submits, on this issue, that in the case of The State Vs Nazrul Islam, Advocate: 37 DLR 200, (paragraph-7), it was held that a court of law will not be satisfied with a mechanical offer of an unconditional apology unless the contemnor purges himself of the offence of contempt of Court.  In the case of A.K. M.A Awal v The State: 16 DLR (SC) 429 (para-20), it was held that in contempt cases courts have never accepted the apology of a person who does not admit that he has committed any offence. What is called unconditional apology necessarily means that there should be an admission as to the commission of contempt. 
 
Learned amicus curiae Mr. Murshid elaborates, that, in spite of being unconditional apology, it was not accepted in the case of Vineet Kumar Mathur v India: 7 SCC 714 (para-10). In that case it was held that where the violation of the court’s order was deliberate and pre-planned indicating certain defiant attitude on the part of the contemnors, the court refused to accept the unconditional apology. In the similar way, he adds to the series, the case of Shamsur Rahman Vs Tahera Nargis: 44 DLR (AD) 237 (para-12), per A. T. M. Afzal, J (as his lordship then was), where the apex court has held that apology is an act of contrition and continued further that if the apology is qualified, hesitating and sought to be used as a device to escape the consequences of the contemnor’s action, it must be rejected. Here, he submits, the apology has been used as a device to escape the consequence of the contemner’s action.
 
Next, referring to the facts and circumstances peculiar to this case, Mr. Murshid, next submits that, in the instant case, this Court allowed the application for reduction of BG considering the fact that the reduced amount covers the disputed claim and after allowing the contemners an opportunity to show cause as to why the amount of BG should not be reduced. But, the contemners did not come up to show any cause against reduction of BG amount, inspite of the fact that this court has recorded, in order dated 23.07.2013, that should they fail to show cause then it will be deemed that they have no objection in  reducing the amount of BG, as prayed for. To my view, he adds, this Court passed the order on merit and considering that the disputed amount of BDT68,17,671.00 covers the amount which the BTCL has claimed and which is subject matter of arbitration. However, in spite of having full knowledge of the order dated 23.07.13 and received a legal notice dated 19.11.2013 (Annexure-D), the respondent Nos. 1 and 2 have flatly refused implementation of the said order, as if it was a matter of their sweet will, and having done so, the respondent came before this Court with unconditional apology; the intent of which is obvious. He went on to submit, that the contemnor-respondents did not comply with the order of this Court and have challenged the authority of this Court and thereby attempted to frustrate the administration of justice and the rule of law. Besides, in this case, the contemnor-respondents, though did not justify their action at the time of seeking apology, however, before offering that apology they have raised objection as to reduction of BG defying the written order of this court, dated 23.07.13 and paying no heed to the legal notice dated 19.11.2013 (Annexure-D) demanding compliance, yet not coming up with any explanation as to why the BG amount should not be reduced, pursuant to this court’s order dated 13.06.2013. Hence, their apology has been offered just to avoid the consequences of contempt of grave nature, he reiterated, and the contemnor-respondents should not be exonerated. Rather they should be punished for repeated disobedience and disregarding the order of this Court as well as for undermining the dignity and majesty of this court. He next adds, the case of Elders Ltd. v Sunil Chandra Chowdhury and another: 54 DLR 226, (para 5), Syed Amirul Islam, J. (as his lordship then was), emphasized on the action rather than intention of the contemnors. His Lordship held that it is the effect of the contemnor’s action which is to be taken into consideration in deciding whether contempt was committed or not. In the instant case the actions and inactions of the contemnor-respondents will also have to be considered in assessing and determination of the gravity of the offence and the punishment to be awarded.  He has, referring to the leading case of The Crown Vs. Moulvi Abdul Rashid Tarkabagish M.L.A. of Serajgonj: 1 DLR (1949) 177, 181, submits that, Ellis J. while refusing to accept the apology observed that: “To accept it, would inevitably create the impression that contempt of this kind, however much they may be condemned in theory, can in practice be purged by an expression of regret. Such an impression would be indeed disastrous and would do nothing to deter others in the position of the Moulvi Sahib from interfering with the course of justice. From our part, we are determined to see that such interference shall be visited with a prompt and deterrent punishment.” In the facts and in view of the decisions cited, being clearly applicable to the case in hand, the apology offered by the contemners is liable to be rejected, he concludes. (emphasis added)
 
I have heard the learned amicus curiae, perused the order dated 13.06.2013 and 23.7.2013 passed in Arbitration Application No. 27 of 2012, the petition for drawing contempt proceeding alongwith the documents annexed, the Rule, the affidavit filed by the contemners and have also consulted the decision cited above.
 
The facts leading to issuance of the Rule, registered as Contempt Petition No. 2 of 2014 has been recorded herein above as well as the facts and arguments have also been noted, alongwith the case law referred to in the course of arguments.  
 
In the instant case, as revealed from the materials on record, the contemnor-respondents had full knowledge of both orders dated 13.06.2013 and 23.07.2013, contents of which have been noted herein above. The contemnors Nos. 1 and 2 have (1) willfully and deliberately violated the orders of this Court;  (2) they did not come up to show cause as to why the BG amount should not be reduced, as they were required to, vide order dated 13.06.2013 passed in the Arbitration Application No. 27 of 2012;(3) they have refused to comply with the order dated 23.07.2013, passed in the said Arbitration Application, reducing the BG amount to the extent that covers the disputed claim, vide their letter dated 30.09.2013 (Annexure-C) addressed to the Manager, IFIC Bank, Stock Exchange Branch; (4) they did not come up before this court to review or to modify or to set aside the order dated 23.7.2014; (5) they did not go to the Appellate Division against said order, though they could have taken any of these steps if they had minimum fear about the consequence of flouting this court’s order; (6) They were not hesitant to wield their muscle in that they even did not pay any heed to the legal notice dated 19.11.2013 (Annexure-D), issued upon them (contemners Nos. 1 and 2) demanding that they should comply with the order dated 23.07.2013, passed by this court, quoting the very order in the legal notice, setting forth the facts and law in detail: (7) in doing so, in a repeated fashion, the contemners have flouted the aforesaid orders of the Court and the demand made in the legal notice showing a degree of arrogance hitherto unknown and gave a damn to this Court’s order of binding character and (8) thereby, they have deliberately defied to comply with same.
 
In the facts and circumstances of this case, this Court does not consider their apology, as sincere one. Besides, the apology, in my considered view, has been offered only to escape the consequence of committing contempt of this court, showing utter disrespect and giving clear damn to the authority and dignity of this court. It is not material in such a case at what stage the apology has been offered, though in the instant case the contemners had four occasions to comply with this court’s order, before seeking apology after issuance of the Rule on 23.01.2014.
 
I have also considered the views expressed by the Supreme Court of Pakistan in Re: contempt of court proceedings against General (Retd) Mirza Aslam Beg. It has been held in that case (at paragraph No. 8) that, “It is accepted as legal proposition that a Judge who stops summarily (brevi manu), any attempt (contempt) to interfere with the course of justice actually performs his Constitutional and public duty. The duty of a Judge sitting to punish the Court’s own contempt, therefore, means to prevent and stifle any damage to public confidence in an important organ of the State and not the protection of the individual Judges. No personal interest is therefore involved. These are accepted rules in the dispensation of justice in contempt cases. It may be emphasized here that in this context when the Judge takes up the proceedings or acts in response to direct contempt the proceedings are not to take the form of the trial and the same may be concluded brevi manu which means “summarily”. It is not thus necessary that there be a written charge, framing of issues, or to hold regular trial or examination – No other proof is necessary when it is a case of direct contempt.”
 
In the facts and circumstances of this case, I find all the decisions cited above apply to this case. The contemners No. 1 and 2 have, by their repeated defiance have aggravated the offence, gave an impression that they have unquestionable might and power to flout orders of this court giving a damn to it, that they are persons superior to this court and that they are untouchable or that the hands of the court are too short to reach them.
 
Hence, in a case like this, as has been rightly pointed out by the learned amicus curiae, this court should not accept the apology offered as a routine job or without taking into consideration the conduct of the contemners and its effect in defeating the course of justice. In respectful allegiance to the ratio decided in the cases cited above, and being anxious that least it will disseminate an impression that this Court’s orders can be flouted at one’s sweet will, subject only to taking a bit discomfort in filing an affidavit seeking unconditional apology, will no doubt ridicule this Court and render its authority exists in theory only, resulting to the deteriation of an ordered society to exist and grow, based on the rule of law.  To give way to such arrogant, audacious and repeated acts of defiance, as recorded hereinabove, would no doubt result in indulging many others, of any stratum of the society, to flout this court’s order of binding charter and to allow an era of lawlessness to begin, which this court is oath bound to prevent. This court’s voice must be louder enough to be heard by those who are bound to comply with the same.
 
This Court should ensure effectiveness and workability of the administration of justice system and the rule of law to sustain in this country, by awarding appropriate punishment to the offenders, without discrimination as well as letting all concerned to hear the voice of this Court and to understand that the age old proverb that the hands of this court is long enough to reach any offender. At the same time the admonition of Mr. Elis J (as his lordship then was) should be given weight to, albeit it is too late an stage to realize the truth and accuracy in his lordship’s admonition, vide 1 DLR (1949) 177, quoted above.
 
I have considered the conduct of contemner No. 2, Mr. Shah Farid Deputy Director, (Accounts-1) of BTCL, at the relevant time. He has, in my view, as a subordinate officer, complied with the instruction of the contemner No. 1, in writing letter dated 30.09.2013 under ref No. IAS/8-6/2011/67, (Annexure-C), raising objection to the bank concerned and thereby defying to obey this court’s order dated 23.07.2013. Similarly, I have also reviewed the conduct of Mr. Helal Ahmed, Manager, IFIC Bank, Stock Exchange Branch, 16, Motijheel C/A, Dhaka-1000. In the petition for drawing contempt proceeding it has been stated that he has complied with this court’s order. Besides, his explanation that, by his aforesaid letter he has only wanted to know from BTCL if they had taken any step to modify or review or set aside the order dated 23.07.2013, although the expression was not proper, it was candidly admitted. Considering this explanation, alongwith the statements made in the petition that he has complied with court’s order, I am inclined to give him benefit of doubt. Therefore the apology offered by Mr. Shah Farid of BTCL, being a subordinate officer, and Mr. Helal Ahmed of IFIC Bank are accepted and they are hereby discharged from the charges, with warning to be cautious in future in their dealings in court matters. (underling is mine)
 
However, for the reasons as well as in the facts and circumstances recorded hereinbefore and having considered the degree of proof required to decide such a case alongwith the nature of this proceedings, I find, on the contrary, that Mr. S.O.M. Kalimullah, Managing Director, BTCL, (retired after the proceedings was initiated), is guilty of repeatedly committing the offence of contempt of court. Besides, I have considered the aggravating and extenuating circumstances. I find no extenuating circumstances in this case. The aggravating factors, has been noted hereinabove. Moreover, Contemner No. 1, instead of prohibiting defiance of this Court’s order dated 23.7.2013, knowingly gave approval to his subordinate Officer, to write the letter dated 30.09.2013 (Annexure-C), for which he alone should be saddled with the liability for committing Contempt of Court. (emphasis added)
 
Before parting of, in view of the provisions laid down in Article 111 read with Article 108 of the Constitution, in the facts and circumstances of this case, I further declare, as law forming part of the contempt jurisprudence and jurisdiction, so far as the nature, duty of this court and procedure is concerned that,
  1. This court should not act mechanically, to make it a routine job, in accepting the apology offered by the contemners, in each and every case. Rather, this Court has to ensure that the letters and spirit of Article 112 and Article 109 of the Constitution are respected and upheld by all quarters, government and non-government;
  2. Apology offered may be taken as a mitigating factor, but not to discharge the contemner from their liability, though it is within discretion of this court to decide whether the contemners will be discharged or not and, if not, to ascertain the quantum of the punishment.
  3. Article 7 read with Articles 39(2), 108, 111 and 112 of the Constitution, considered together and with reference to the scheme of the Constitution, make it abundantly clear that the peoples power to punish the contemner has been invested in the Supreme Court to be exercised by the honourable Judges of this Court, so that the authority, dignity and majesty of this Court is upheld, an ordered society based on the rule of law can exist and the justice is even handedly secured to those who deserve. The people’s ‘will’, reflected in the Articles, referred to hereinabove, should be given effect to by this Court, without any discrimination.
  4. Once this Court passes any binding order in any proceeding then it, in substance, becomes a public order and this Court is legally entrusted to implement the same in the public interest and the rule of law to prevail.
  5. Refusal to obey this Court’s order is an explicit challenge to it’s authority and is a breach of public order by an arrogant party having no fear in undermining and in ridiculing the authority of this Court, rendering its judgment and order a nullity and such conduct cannot go unpunished with impunity, moreover, in such a case it is immaterial at what stage the apology is offered.
  6. That the power of the Supreme court, the Appellate Division  and the  High Court Division, being the court of records, as embodied under Article 108 of the Constitution of the People's Republic of Bangladesh, cannot be restricted and trammeled by any ordinary legislation including the  Contempt of Courts Act[even if enacted] and their inherent power is elastic, unfettered and not subjected to any time limit. [Following the ratio decided in the case of Pritam Pal v. High Court of Madhya Pradesh, Jabalpur, AIR 1992 SC 904,with reference to Articles 129 and 215 of the Constitution of India].
  7. “It is accepted as legal proposition that a Judge who stops summarily (brevi manu), any attempt (contempt) to interfere with the course of justice actually performs his Constitutional and public duty. The duty of a Judge sitting to punish the Court’s own contempt, therefore, means to prevent and stifle any damage to public confidence in an important organ of the State and not the protection of the individual Judges. No personal interest is therefore involved. These are accepted rules in the dispensation of justice in contempt cases. It may be emphasized here that in this context when the Judge takes up the proceedings or acts in response to direct contempt the proceedings are not to take the form of the trial and the same may be concluded brevi manu which means “summarily”. It is not thus necessary that there be a written charge, framing of issues, or to hold regular trial or examination – No other proof is necessary when it is a case of direct contempt.”, as has been held by his lordship Mr. Justice Muhammad Asfzal Zullah, the Chief Justice of Pakistan (as his lordship then was) in Re: Contempt of court proceedings against General (Retd) Mirza Aslam Beg.
  8. Compliance of the Court’s order cannot be treated as an extenuating circumstances in all cases, since it is duty of the person concerned to obey the same. However, if the Court is satisfied that non-compliance was not deliberate or international, or that the contemner was not at all aware of the order required to be complied with or if the order to be complied with was lacking clarity to such an extent that the duty to comply with the same was honestly not comprehensible to the person(s) obliged to comply the court’s order, then the court should take lenient view.
  9. Contempt by a person who is a party to the proceedings and contempt by a person who is not such a party, cannot be weighed on the same scale. However, gravity of the offence does not depend on the question as to whether the contemner was a party or act, but upon the nature of the offence.
In the result, the Rule issued in Contempt Petition No. 2 of 2014 is made absolute-in-part. The Suomoto Rule No. 2 of 2014 is discharged.

ORDER:
 
In view of the applicable law and the findings recorded herein above, Mr. S.O.M. Kalimullah, son of late Mohammad Dayem Mia, 28/2, Baily Road, Dhaka-1000, Managing Director, BTCL, at the time of drawing the proceeding, (now retired), is hereby held guilty of committing contempt of this court. His apology is rejected. Further, considering the aggravating factors, hereinbefore recorded at paragraph number 23, he is hereby sentenced to suffer simple imprisonment for a period of 4(four) months, with immediate effect and to pay a fine of Taka 1,00,000.00 (one lac), to be deposited in Bangladesh Bank under the concerned.