Sukhdev Singh Sodhi Vs. The Chief
Justice and Judgesof The Pepsu High Court  Insc 76 (25 November 1953)
BHAGWATI, NATWARLAL H.
CITATION: 1954 AIR 186 1954 SCR 454
CITATOR INFO :
R 1963 SC 692 (16) R 1971 SC1132 (83) R 1972
SC 858 (5) RF 1991 SC2176 (1-1 13,21,25) R 1992 SC 904 (15,18,19,22,37,40)
Contempt of court-Contempt of Judges of High
Court-Power of Supreme Court to transfer proceedings to another High Court -
Criminal Procedure Code, 1898, ss. 1(2), 527- Constitution of India, art.
215-Contempt of Courts Act, 1952, s. 3.
The Supreme Court has no power under section
527 of the Criminal Procedure Code or under any other provision of law to
transfer from a High Court proceedings which that High Court has initiated for
contempt of itself, to another High Court.
Section 527 of the Criminal Procedure Code
does not apply to such a case as the power of a High Court to institute
proceedings for contempt of itself and to punish the condemner where necessary,
is a special jurisdiction which is inherent in all courts of record and section
1 (2) of the Criminal Procedure Code excludes such special jurisdictions 'from
It-is desirable, on general principles of
justice, that a judge who has been personally attacked should not as far as
possible bear a contempt matter which, to that extent, concerns him personally.
In re Abdool and Mahtab(8 W.R. Cr. 32),
Surendranath Banerjea v. Chief justice and Judges of the High Court of Bengal
(10 I.A. 171), Abdul Hasan Jauhar (I.L.R. 48 All.711), In the matter of Sashi
Bhushan Sarbadhicary (I.L.R. 29 All. 95), Crown v. Sayyad Habib (I.L.R. 6 Lah.
528 F.B1.), In re Abdul Hasan Jauhar (I.L.R 48.All 711), In the matter of
Muslim Outlook, Lahore (A.I.R 1927 Lah. 610), In re Murli Manohar Prasad (I.L.R
8 Pat. 323 ) Harikrishen Lal v. The Crown (I.L.R. 18 Lah. 69) Ambard v. Attorney-Geneneral
for Trinidad & Tobago ( A.C. 322), William Raini v. The Justices of
Sierre Leone (8 Moo. P.C. 47), In the matter of K. L. Gauba (I.L.R. 23 Lah.
411), Parashuram Detaram v. Emperor (A.I.R. 1945 P. C. 134), Emperor v. 455 B.
G. Horniman (A.I.R. 1945 All. 1), In re Pollard (L. R. P. C. 106), In re
Vallabhdas (I.L.R. 27 Bom.
394) and Ebrahim Mamoojee Parekh v. King
Emperor (I.L.R. 4 Rang- 257) referred to,
ORIGINAL JURISDICTION : Petition .(No. 304 of
1953) under section 527 of the Criminal Procedure Code.
H. J. Umrigar for the appellant.
M. C. Setalvad, attorney-General for India
(G. N. loshi, with him) for the respondent.
1953. November 25. The Judgment of the Court
was delivered by BOSE J.-This is an unusual application asking for a transfer
of certain contempt proceedings from the Pepsu High Court to any other High
Court and, in the alternative, asking that at least the matter should not be
heard by two -of the judges of that High Court who -are named. This at once
raises a question about our jurisdiction to order such a transfer.
The learned counsel for the applicant relied
on section 527 of the Criminal Procedure Code. Briefly his reasoning.
was this. Section 527 authorises the transfer
of any "case" from one High Court to another whenever it is made to
appear to the Supreme Court that such transfer is expedient for the ends of
justice. The word "'case" is not defined but "offence" is
,defined in section 4 (o) to mean "any act or omission made punishable by
any law for the time being in -force." Contempt is punishable under the
Contempt .of Courts Act, 1952, therefore it is an offence punish-able by a law
which is in force ; consequently, it is an offence.
Being an offence it is triable under the
Criminal Procedure Code because section 5 makes the Code applicable not only to
the trial of offences under the. Indian Penal Code but also to the trial of
offences against "other laws." As it is a matter triable under the
Criminal Procedure Code it must be a "case" within the meaning of
section 527 and accordingly the section can be invoked here.
We are unable to agree. In our opinion, the
power ,of a High Court to institute proceedings for contempt 456 and punish
where necessary is a special jurisdiction which is,inherent in all courts of
record section 1(2) of the Code expressly excludes special jurisdictions from
The section runs- "In the absence of any
specific provision to the contrary, nothing herein contained shall affect any
special...... law now in force or any special jurisdiction or power conferred
by I any other law for the time be' in force." The term "special
jurisdiction' is not defined in the Criminal Procedure Code but the words
"special law" are defined in section 41 of the Indian Penal Code to
mean "a law applicable to a particular subject." In the absence of
any specific definition in the Criminal Procedure Code we think that that
brings out the ordinary and natural meaning of the words "special
jurisdiction" and covers the present case. Contempt is a special subject
and the jurisdiction is conferred 'by a special set of laws peculiar to courts
This has long been the view in India. In 1867
Peacok C. J. laid down the rule quite broadly in these words in In re Abdool
and Mahtab (1):
"there can be no doubt that every court
of record has the power of summarily punishing for contempt." It is true
the same learned Judge sitting in the Privy Council in 1883 traced the origin
of the power in the case I of the Calcutta, Bombay and Madras High Courts to
the common law of England [see Surendranath Banerjea v. Chief justice and
Judges of the High Court of Bengal(2)], but it is evident from other decisions
of the judicial Committee that the jurisdiction is broader based than that. But
however that may be, Sir Barnes Peacock made it clear that the words "any
other law" in section 5 of the Criminal Procedure Code do not cover contempt
of a kind punishable summarily by the three Chartered High Court.
Now it is relevant to note in this connection
that whatever the origin of the jurisdiction may be in the (1) (1867) 8 W.R.
Cr. 32 at 33.
(2) (1883) 10 I.A. 171 at 179.
457 case of those three courts, the Charter
of 1774 which established the Supreme Court of Bengal, while providing in
clause 4 that its Judges should have the same jurisdiction as the Court of,
King's Bench in England, also expressly stated in clause 21 that the court is
empowered to punish for contempt. When the Supreme Court of Bengal was
abolished the High Courts Act of 1861 continued those powers to the Chartered
High Courts by sections 9 and 11 and clause 2 of the Letters Patent of the year
1865 continued them as courts of record. Despite this, in 1883 the Privy
Council did not trace this particular jurisdiction of the Calcutta High Court
to clause 15 of its Charter but to the common law of England. But what is the
common law ? It is simply this:
that the jurisdiction to punish for contempt
is something inherent in every court of record. Sulaiman J. collected a number
of English authorities at pages 728 to 730 of his judgment in In re Abdul Hasan
Jauhar (I and concluded thus:
"These leading cases unmistakably show
that the power of the High Court in England to deal with the contempt of
inferior courts is based not so much on its historical foundation as on the
High Court's inherent jurisdiction." Apparently, because of this the Privy
Council held in 1853 that the Recorder's Court at Sierre Leone also had
jurisdiction to punish for contempt, not because that court had inherited the
jurisdiction of the English courts but because it was a court of record. Their
Lordships' language was this:
"In this country every court of record
is the sole and exclusive judge of what amounts to a contempt of court.........
and unless there exists a difference in the constitution of the Recorder's
Court at Sierre Leone the same power must be conceded to be inherent in that
court...... we are of opinion that it is a court of record and that the law
must be considered the same there as in this country." (1) (1926) I.L.R.
48 All. 711 .
458 The 1884 edition of Belchamber's Practice
of the Civil Courts also says at 'page 241 that- "Every superior court of
record, whether in 'the United Kingdom, or in the colonial' possessions or
dependencies of the Crown has inherent' power to punish contemptís, without its
precincts, as well as in facie curiae......................
So also 7 Halsbury's Laws of England
(Hailsham edition) page 2- "The superior courts have an inherent
jurisdiction to punish criminal contempt etc.............." "But
reverting to the developments in India. The High Court of Allahabad was
established in 1866 under the High Courts Act of 1861 and was constituted a
court of record. In 1906 the Privy Council remarked at page 108 of its judgment
in In the matter of Sashi Bhushan Sarbadhicary (1) that- "There is also no
doubt that the publication of this libel constituted a contempt of court which
might have been dealt with by the High Court in a summary manner by fine or
imprisonment or both." After this came the Government of India Act, 1915.
Section 106 continued to all High Courts then
in existence the same jurisdiction, powers and authority as they had at the
commencement of that Act, and section 113 empowered the establishment of new
High Courts by Letters Patent with authority to vest in them the same
jurisdiction, powers and authority "as are vested in or may be conferred
on any High Court existing at the commencement of this Act." The Lahore
High Court was established by Letters Patent in 1919 and was duly constituted a
court of record. In the year 1925 a Special Bench of that court punished a
contempt of itself in Crown v. Sayyad Habib(2).
After this the question was again agitated in
the Allahabad High Court in 1926 but this time in respect of a contempt of a
subordinate court. A Full Bench was convened and the learned Judges reaffirmed
their (1) (1907) I.L.R. 29 All. 95.
(2) 1925 I.L.R. 6 Lah. 528 (F.B).
459 powers: In re Abdul Hasan Jauhar (1). Two
of the Judges based broadly on the inherent jurisdiction of a court of record.
Sulaiman J, said at page 727 that "it is not the territorial limits of the
jurisdiction of a Supreme Court" [of Bengal] "but the very nature of
its constitution that is of importance." Boys J. however preferred to
ground on the fact that that court "had conferred on it, by the statute
and the Letters Patent creating it, similar powers to those conferred on the
High Court of Calcutta," and at page 733 went on to say that that applied
"to every other High Court in this country." In the presence of all
this history the Contempt of Courts Act, 1926, was passed. The heading states
that the Act is "to define and limit the powers of certain courts in
Punishing contempts of courts." The preamble states- "Whereas doubts
have arisen as to the powers of a High Court of Judicature to punish contempts
of courts and whereas it is expedient to resolve these doubts and to define and
limit the powers exercisable by High Courts and Chief Courts in punishing
contempts of court : It is hereby enacted as follows Section 2 says :-
"Subject to the provisions of sub-section (3), the High Courts of
judicature established by Letters Patent shall have and exercise the same
jurisdiction, powers and authority in accordance with the same procedure and
practice, in respect of contempts of courts subordinate to them as they have
and exercise in respect of contempts of themselves." This recognises an
existing jurisdiction in all Letters Patent High Courts to punish for contempts
of themselves, and the only limitation placed on those powers is the amount of
punishment which they could thereafter inflict. It is to be noted that the Act
draws no distinction between one Letters' Patent High. Court and another though
it does distinguish between Letters Patent High Courts and Chief Courts;- also,
as the (1) (1926) I.L.R. 48 All. 711.
460 Act is intended to remove doubts about
the, High Course powers it is evident that it would have conferred those powers
had there been any doubt about the High Court's power to commit for contemptís
of themselves. The only doubt with which the Act deals is the doubt whether a
High Court could punish for a contempt of a court subordinate to it. That doubt
the Act removed. It also limited the amount of punishment which a High Court
Now this recognises an existing power in all
Letters Patent- High Courts to punish and as the Letters Patent High Courts other
than the Chartered High Courts could not have derived this power from the
common law, it is evident that the power must have been inherent in themselves
because they were courts of record.
In 1927 another Full Bench of the Lahore High
Court consisting of five judges re-examined the position: In the matter of
Muslim Outlook, Lahore(' They reaffirmed their earlier decision in The Crown v.
Sayyad Habib (2) and held that this jurisdiction is inherent in every High
Court and not merely in the three Chartered High Courts.
In 1928 a Full Bench of the Patna High Court
examined the matter [In re Murli Manohar Prasad(3)] and then committed for
contempt. In 1936 another Special Bench of the Lahore High Court [Harkishen Lai
v. The Crown(4)] followed the earlier Lahore decisions.
The Privy Council decided a case of contempt
from Trinidad in 1936 [Ambard v. Attorney-General for Trinidad & Tobago(5)]
and held that it was a quasi-criminal offence and in the course of their judgment
they referred to an earlier decision of the Be from Sierre Leone to which we
have already referred [William Rainy v. The Justices of Sierre Leone(6)]. In
the Trinidad case their Lordships did not accept the extreme proposition that
every court of record is the (1) A.I.R. 1927 Lah. 610.
(2) (1925) I.L.R. 6 Lah. 528.
(3) (1929) I.L.R. 8 Pat. 323.
(4) (1937) I.L.R. 18 Lab. 69.
(5)  A.C. 322.
(6) 8 Moo. P.C. 47.
461 sole and exclusive judge of what amounts to
a contempt because of their decision in Surendranath Banerjea v. the Chief Justice
and Judges of the High Court of Bengal(1), but they did not doubt the soundness
of the decision otherwise.
In 1942 the Lahore High Court examined the
position in a Full Bench for the third time and reached the same conclusion: In
the matter of K. L. Gauba(2). This time they pointed out that the Sind, Rangoon
and Nagpur High Courts had also punished summarily for contemptís. They also
referred to two American decisions where, though the power was said to have
been derived from the common law, it was said that.
"The power to fine and imprison for
contempt from the earliest history of jurisprudence has been regarded as a
necessary incident and attribute of a court without which it could no more
exist than without a judge............
Finally, in Parashuram Detaram v. Emperor(3 )
the Privy Council said that "this summary power of punishing for
contempt.......... is a power which a court must of necessity possess." We
have omitted references to the Bombay and Madras decisions after 1883 because
the judicial Committee settled the powers of the three Chartered High Courts.
What we are at pains to show is that, apart from the Chartered High Courts,
practically every other High Court in India has exercised the jurisdiction and
where its authority has been challenged each has held that it is a jurisdiction
inherent in a court of record from the very nature of the court itself. This is
important when we come to construe the later legislation because by this time
it Was judicially accepted throughout India that the jurisdiction was a special
one inherent in the very nature of the court. The only discordant note that we
know of was struck in Emperor v. B. G. Horniman(4) where a Division Bench of
the Allahabad (1) (1883) 10 I.A. 171.
(2) (1942) I.L.R. 23 Lah. 411.
(3) A.I.R. 1945 P.C. 134 at 136.
(4) A.I.R. 1945 All at 4.
462 High Court held that after the Act of
1926 the offence of contempt was punishable under an Indian Penal statute and
so the Code of Criminal Procedure applied because of the words "any other
law" in section 5. In our opinion, this is wrong because the Act of 1926
does not confer any jurisdiction and does not create the offence. It merely
limits the amount of the punishment which can be given and removes a certain
doubt. Accordingly, the jurisdiction to initiate the proceedings and take
seisin of the matter is as before.
The Pepsu High Court was established in 1948
and section 33 of the Ordinance which established it recites that it shall be a
court of record and that it shall have 'power to punish for contempt. It will
be remembered that the Charter of 1774 which established a Supreme Court for
Bengal said the same thing of that court and yet the Privy Council did not
trace its powers about contempt from the Charter but from the common law. In the
same way, the law by this time was so well settled in matters of contempt that
the words "court of record" and "power to punish for
contempt" had acquired a special meaning. Consequently, it is immaterial
whether in 1948 the power of the Pepsu High Court was derived from section 33
or was inherent in the nature of the court because whichever it is the
jurisdiction is a special one, and had the legislature desired to take it away
and confer another kind of jurisdiction it would have been necessary to use express
words in, view of the case law which by then had become well established.
In 1950 came the Constitution of India and
article 215 states that- "Every High Court shall be a court of record and
shall have all the powers of such a court including the power to punish for
contempt of itself." Here again, whether this is a fresh, conferral of
power or a continuation of existing powers hardly matters because whichever way
it is viewed the jurisdiction is a special one and so is outside the purview of
the Criminal Procedure Code.
463 The Contempt of Courts Act, 1926, was
repealed by Act XXXII of 1952. Section 3 of the new Act is similar to section 2
of the old and, far from conferring a new jurisdiction, assumes, as did the old
Act, the existence of a right to punish for contempt in every High Court and
further assumes the existence of a special practice and procedure, for it says
that every High Court shall exercise the same jurisdiction, powers and
authority "in accordance with the same procedure and practice." These
words are new and would be inappropriate if the Criminal Procedure Code
applied. In any case, so far as contempt of a High Court itself is concerned,
as distinct from one of a subordinate court, the Constitution vests these
rights in every High Court, so no Act of a legislature could take away that
jurisdiction and confer it afresh by virtue of its own authority. It is true
section 5 expands the ambit of the authority beyond what was till then
considered to be possible but it does not confer a new jurisdiction. It merely
widens the scope of an existing jurisdiction of a very special kind.
On reflection it will be apparent that the
Code could not be called in aid in such cases, for if the Code applies it must
apply in its entirety and in that event how could such proceedings be
instituted ? The maximum punishment is now limited to six month's simple
imprisonment or a fine of Rs. 2,000 or both because of the 1952 Act. Therefore,
under the second schedule to the Code contempt would be friable by a Magistrate
and not by a High Court and the procedure would have to be a summons procedure.
That would take away the right of a High Court to deal with the matter
summarily and punish, a right which was well established by the case law up to
1945 and which no subsequent legislation has attempted to remove. So also
section 556 could not apply, nor would the rule which prohibits a judge from
importing his own knowledge of the facts into the case. We hold therefore that
the Code of Criminal Procedure does not apply in matters of contempt triable by
the High Court. The High Court can deal with it summarily and adopt its own 464
procedure. All that is necessary is that the procedure is fair and that the condemner
is made aware of the charge against him and given a fair and reasonable
opportunity to defend himself. This rule was laid down by the Privy Council in
In re Pollard(1) and was followed in India and in Burma in re Vallabhdas(2) and
Ebrahim Mamoojee Parekh v. King Emperor(3) In our view that is still the law.
If the Code of Criminal Procedure does not
apply, then there is no other power which we can exercise. The Constitution
gives every High Court the right and the power to punish a contempt of itself.
If we were to order a transfer to another court in this case we would be
depriving the Pepsu High Court of the right which is so vested, in it.
We have no more power to do that than has a
legislature. As for transfer from one judge to another, there again there is no
original jurisdiction which we can exercise. It is not a fundamental right and
so article 32 has no application and there is no other law to which recourse
can be had. This petition is therefore incompetent and must be dismissed.
We wish however to add that though we have no
power to order a transfer in an original petition of this kind we consider it
desirable on general principles of justice that a judge who has been personally
attacked should not as far as possible hear a contempt matter which, to that
extent, concerns him personal1y It is otherwise when the attack is not directed
against him personally. We do not lay down any general rule because there may
be cases where that is impossible, as for example in a court where there is
only one judge or two and both are attacked. Other cases may also arise where
it is more convenient and proper for the judge to deal with the matter himself,
as for example in a contempt in facie curioe. All we say is that this must be
left to the good sense of the judges themselves who, we are confident, will (1)
L.R. 2 P.C. 106 at 120.
(2) I.L.R. 27 Bom. 394 at 399.
(3) I.L.R. 4 Rang. 257 at 259-261.
465 comport, themselves with that
dispassionate dignity and decorum which befits their high office and will bear
in mind the oft quoted maxim that justice must not only be done but must be
seen to be done by all concerned and most particularly by an accused person'
who should, always be given, as far as that is humanly possible,, A feeling of
confidence that he will receive a fair, just and impartial trial by judges who
have no personal interest or concern in his case.
Agent for the petitioner : Ratnaparkhi Anant
Agent for the respondent G. H. Rajadhyakska.