Brajnandan Sinha Vs. Jyoti Narain
 INSC 63 (8 November 1955)
BHAGWATI, NATWARLAL H.
SINHA, BHUVNESHWAR P.
IMAM, SYED JAFFER
CITATION: 1956 AIR 66 1955 SCR (2) 955
Public Servants (Inquiries) Act, 1850 (XXXVII
of 1850)-A Commissioner appointed thereunder-Whether a court within the meaning
of Contempt of Courts Act, 1952 (XXXII of 1952).
Held, that a Commissioner appointed under the
Public Servants (Inquiries) Act, 1850 (XXVII of 1850) is not a court within the
meaning of the Contempt of Courts Act, 1952 (XXXII of 1952).
Shell Co. of Australia v. Federal
Commissioner of Taxation ( A.C. 275), Huddart,Parker & Co. v.
Moorehead ( 8 C.L.R. 330), Rex v. Electricity Commissioners ( 1 K.B.
171), Bharat Bank Limited v. Employees of Bharat Bank Ltd. ( S.C.R. 459),
Maqbool Hussain v. The State of Bombay ( S.C.R. 730), Cooper v. Wilson ( 2 K.B.
309), S. A, Venkataraman v. The Union of
India and Another ( S.C.R. 1150), Royal Aquarium and Summer and Winter
Garden Society Ltd. v. Parkinson ( 1 Q.B. 431), Dawkins v. Lord Rokeby
( L.R. 8 Q.B. 265), Kapur Singh v. Jagat Narain (A.I.R. 1951 Punjab 49)
and M. V. Bajwade v. Dr. S. M. Hassan, (A.I.R. 1954 Nag. 71), referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 25 of 1954.
Appeal under Article 134(1) (c) of the
Constitution from the judgment and order dated the 12th January 1954 of the Patna High Court in Criminal Miscellaneous Case No. 10 of 1953.
M. C. Setalvad, Attorney-General of India and
Mahabir Prasad, Advocate-General of Bihar (Balbhadra Prasad Sinha and P. G.
Gokhale, with them) for the appellant.
Purshottam Prikamdas, (R. Patnaik, with him)
for the respondent.
1955. November 8. The Judgment of the Court
was delivered by BHAGWATI J.-This appeal with certificate under article
134(1)(c) of the Constitution arises out of an application under section 2 of
the Contempt of Courts 121 956 Act (XXXII of 1952) and section 8 of the Public
Servants (Inquiries) Act (XXXVII of 1850) read with article 227 of the
Constitution filed by the respondent against the appellant in the High Court of
Judicature at Patna and raises an important question as to whether the
Commissioner appointed under Act XXXVII of 1850 is a Court.
The respondent is a Member of the Bihar Civil
Service (Executive Branch). The State Government received reports to the effect
that the respondent bad been guilty of serious misconduct and corrupt practices
in the discharge of his official duties while employed as Sub-Divisional
Officer at Aurangabad and they accordinly decided that an inquiry into the
truth of. the various charges against him should be made under the provisions
of the Public Servants (Inquiries) Act, 1850 (Act XXXVII of 1850, hereinafter
referred to as the Act) and Mr. Anjani Kumar Saran who was the then Additional
District and Sessions Judge, Gaya, and was thereafter the District and Sessions
Judge of that place was appointed Commissioner under the Act for making the inquiry.
Gaya was fixed as the venue of the inquiry and the State Government also
ordered that, during the pendency of the inquiry, the respondent will remain
under suspension. The Government made the appointment aforesaid after obtaining
the concurrence of the High Court on its administrative side which was obtained
on the condition that an extra-temporary post of Additional District and
Sessions Judge was created by the Government for the period Mr. Saran was
occupied with the inquiry. The appointment was made on the 2nd June 1952 and it was expected that Mr. Saran would be able to complete the inquiry during a
period of three months. The respondent, however, adopted dilatory tactics. He
made various representations to the Government, one on the 6th June 1952
demanding that a Judge of the High Court be appointed as Commissioner under the
Act to make the inquiry against him and that inquiry be made at Patna and not
at Gaya, another on the 10th July 1952 protesting against the appointment of
Mr. Saran 957 as Commissioner to hold the inquiry against him and demanding
that a' confirmed District and Sessions Judge be appointed as Commissioner in
his place, and' a third on the 17th November 1952 in which he requested the
Government to appoint three Commissioners instead of one for holding the
inquiry against him and also to pay the entire cost of his defence at the same
rates at which the Special Public Prosecutor engaged by the Government was
being paid and also to reimburse other incidental expenses to be incurred by
him. All these representations were turned down by the Government. Being thus
thwarted in his attempts to put off the inquiry on some pretext or the other,
the respondent tried to evade the same and failed and neglected to reply to the
queries made from him by the Commissioner. The Commissioner also could not
communicate to him the orders passed by him from time to time because the
respondent did not stay at the headquarters and did not leave his proper
address for communication either at Gaya or at Motihari. On the 24th November 1952 the Commissioner passed an order calling upon the parties to attend the
hearing of the proceedings before him on the 8th December 1952 and forwarded a copy of this order to the appellant for communication to the
respondent. The District Magistrates of Champaran and Gaya who were
requested-to serve a true copy of the order upon the respondent could not do so
as he was available neither at Motihari nor at Gaya and it was with great
difficulty that he could be traced at Patna and the order served upon him. On
the 18th December 1952, the Commissioner passed another order recording that he
was feeling great difficulty in contacting the respondent and in communicating
-his orders to him. He observed that this was a highly undesirable state of
affairs and that it was necessary that his orders should be communicated to the
respondent as early as possible. A copy of this order was forwarded by the
Commissioner to the appellant along with his letter dated the 20th December
1952 for information and doing the needful. The appellant thereafter wrote the
letter complained against to 958 the Commissioner on the 26th December 1952
being D.O. No.
II/3C-306/52A-11614 which ran as under:-"Dear
Mr. Saran, I am desired to refer to your memo No. 8266 dated the 26th November
1952 and to say that Government are anxious not to allow Mr. Jyoti Narayan to
adopt dilatory tactics and delay the progress of the inquiry against him. I am
to request you to be vigilant against such tactics adopted by Mr. Narayan.
Yours sincerely, (Sd.) B. N. Sinha".
The Commissioner acknowledged receipt of this
letter by his D.O. letter No. 244, dated the 5th January 1953 stating that he
would not allow the respondent to adopt any dilatory tactics and delay the
progress of the inquiry against him.
On the 2nd February 1953, the respondent
filed a petition before the Commissioner stating inter alia that he had not
been able to engage any lawyer or counsel for want of necessary papers and
copies and prayed for an adjournment of the inquiry. He also prayed for
starting a contempt of Court proceeding against the appellant but the
Commissioner rejected both his prayers. The order which was passed by the
Commissioner on these applications may as well be set out in extenso inasmuch as
it has a bearing on the question whether the appellant was guilty of contempt
of Court for having addressed the letter complained against to him:"3-2-53.
Another point raised in the first petition of the accused was that Mr. B.N.
Sinha, Deputy Secretary to Government in addressing his D.O. letter No. 11614,
dated the 26th of December, 1952, was guilty of contempt, because he had
interfered in my judicial discretion. I do not find anything in this letter
from which it can be inferred that the author of the letter intended to
influence me in the exercise of my judicial function. This letter was sent to
me in reply to my memo No. 8266 dated 26-11-1952 whereby I had forwarded a copy
of my order dated 24-11-1952 for communication to Mr. Narayan. Mr.
959 B.N. Sinha wrote in his letter dated the
26th of December 1952 that Government are anxious not to allow Mr. Jyoti
Narayan to adopt dilatory tactics and to delay the progress of the inquiry. Now
it is to be noted that Mr. Narayan in paragraph 11 of his petition has himself
charged the State Government for delaying the inquiry and thereby causing
harassment to him. Therefore, it is obvious that both parties, that is, the
State and the accused are anxious that the inquiry should be expedited so what
Mr. B.N. Sinha meant by writing the D.O. was that the inquiry should be
expedited. This cannot by any stretch of imagination be construed to mean that
the aforesaid officer in any way tried to influence me in the discharge of my
judicial functions. For these reasons I rejected the two prayers contained in
the first petition of Mr. J. Narayan".
The respondent thereafter started proceedings
in, contempt against the appellant in the High Court of Judicature at Patna. A
Rule was issued by the High Court against the appellant which was heard and
finally disposed of on the 12th June 1954. The High Court was of the opinion
that the Commissioner appointed under Act XXXVII of 1850 was a Court, that the
Court was subordinate to the High Court, that the letter complained against amounted
to a contempt of Court and that the appellant was guilty of such contempt. It
accordingly sentenced the appellant to pay a fine of Rs. 250 and in default to
undergo simple imprisonment for a period of one month. The appellant obtained a
Certificate under Article 134(1), (e) of the Constitution from the High Court.
The Certificate was, however, limited to the
question as to whether the Commissioner appointed under the Act is a Court.
At the hearing before us, the appellant filed
a petition for urging additional grounds which included inter alia the ground
that the High Court erred in holding that the Commissioner appointed under the
Act is a Court subordinate to the High Court within the meaning of the Contempt
of Courts Act for the mere reason that its orders are open to be reviewed 960
judicially in exercise of the power vested in the High Court under article 227
of the Constitution and also the ground that the High Court erred in holding
that the letter complained against tended to interfere with or obstruct the
course of justice and constituted contempt of Court.
The learned Attorney-General for the appellant
contended in the first instance that the Commissioner appointed under the Act
is not a Court. He next contended that even if he is a Court, he is not a Court
subordinate to the High Court within the meaning of the Contempt of Courts Act.
He lastly contended that the letter complained against did not tend to
interfere with or obstruct the course of justice and did not constitute
contempt of Court.
Prior to the enactment of the Contempt of
Courts Act, 1952, there was in existence in India the Contempt of Courts Act,
1926 (XII of 1926). The various States also had their corresponding enactments.
The Contempt of Courts Act, 1926 (XII of 1926) and the corresponding enactments
in the States of Hyderabad, Madhya Bharat, Mysore, Pepsu, Rajasthan and
Travancore-Cochin and the Saurashtra Ordinance II of 1948 were repealed by the Contempt
of Courts Act, 1952 and a uniform Act to define and limit the powers of certain
Courts in punishing contempts of Courts was enacted which extended to the whole
of India except the State of Jammu and Kashmir.
In section 2 of the Act, "High
Court" was defined as meaning the High Court for a Part A State or a Part
B State and including the Court of the Judicial Commissioner in a Part C State.
Section 3 of the Act enacted:"3. (1) Subject to the provisions of
sub-section (2) every High Court 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 it as it has and exercises in
respect of contempts of itself.
(2) No High Court shall take cognisance of a
contempt alleged to have been committed in respect of a Court subordinate to it
where such contempt is an 961 offence punishable under the Indian Penal Code
(Act XLV of 1860)".
The word "Court" was not defined in
the Act and' the expression "Courts subordinate to the High Courts"
would prima facie mean the Courts of law subordinate to the High Courts in the
hierarchy of Courts established for the purpose of administration of justice
throughout the Union.
It would be relevant, however, to notice the
definitions of "Court" available elsewhere.
Coke on Littleton and Stroud defined the word
"Court" as the place where justice is judicially administered.
According to Stephen, "In every Court,
there must be at least three constituent parts-the actor, reus and judex; the
actor or plaintiff, who complains of an injury done; the reus, or defendant,
who is called upon to make satisfaction for it; and the judex, or judicial
power, which is to examine the truth of the fact, and to determine the law
arising upon that fact, and if any injury appears to have been done, to
ascertain, and by its officers to apply, the remedy".
Section 3 of the Indian Evidence Act (I of
1872) defines "Court" as including all Judges and Magistrates, and all
persons, except arbitrators. legally authorised to take evidence. This
definition, however, has been held to be not exhaustive but framed only for the
purpose of Indian Evidence Act and is not to be extended where such an
extension is not warranted.
Sections 19 and 20 of the Indian Penal Code
(Act XLV of 1860) define the words "Court" and the "Court of
Justice" as under:"Section 19. The word 'Judge' denotes not only
every person who is officially designated. as a Judge, but also every
person-who is empowered by law to give, in any legal proceeding, civil or
criminal, a definitive judgment, or a judgment which, if not appealed against
would be definitive, or a judgment which, if confirmed by some other authority
would be definitive, or who is one of a body of persons, which body of persons
is empowered by law to give such a judgment.
962 Section 20. The words "Court of
Justice" denote a Judge who is empowered by law to act judicially alone,
or a body of Judges which is empowered by law to act judicially as a body, when
such Judge or body of Judges is acting judicially".
The pronouncement of a definitive judgment is
thus considered the essential sine qua non of a Court and unless and until a
binding and authoritative judgment can be pronounced by a person or body of
persons it cannot be predicated that he or they constitute a Court.
The Privy Council in the case of Shell Co. of
Australia v. Fedral Commissioner of Taxation(1) thus defined "Judicial
Power" at page 295:"Is this right? What is "judicial power"?
Their Lordships are of opinion that one of the best definitions is that given
by Griffith, C. J. in Huddart, Parker & Co. v.
Moorehead(2) where he says: "I am of
opinion that the words judicial power' as used in section 71 of the
Constitution mean the power which every sovereign authority must of necessity
have to decide controversies between its subjects, or between itself and its
subjects, whether the rights relate to life, liberty or property. The exercise
of this power does not begin until some tribunal which has power to give a
binding and authoritative decision (whether subject to appeal or not) is called
upon to take action".
Their Lordships further enumerated at page
297 certain negative propositions in relation to this subject:
"1. A tribunal is not necessarily a
Court in this strict sense because it gives a final decision;
2. Nor because it hears witnesses on oath;
3. Nor because two or more contending parties
appear before it between whom it has to decide;
4. Nor because it gives decisions which
affect the rights of subjects;
5. Nor because there is an appeal to a Court;
6. Nor because it is a body to which a matter
is referred by another body.
See Rex v. Electricity Commissioners(3)"
(1)  A.C. 275. (2)  8 C.L.R. 330, 357.
(3)  1 K.B. 171.
963 and observed at page 298:
"An administrative tribunal may act
judicially, but still remain an administrative tribunal as distinguished from a
Court, strictly so-called. Mere externals do not make a direction to an
administrative officer by an ad hoc tribunal an exercise by a Court of Judicial
The same principle was reiterated by this
Court in Bharat Bank Limited v. Employees of Bharat Bank Ltd.(1) and Maqbool
Hussain v. The State of Bombay(1) where the test of a judicial tribunal as laid
down in a passage from Cooper v.
Wilson(1) was adopted by this Court:"A
true judicial decision presupposes an existing dispute between two or more
parties, and then involves four requisites:--(I) The presentation (not
necessarily orally) of their case by the parties to the dispute; (2) if the
dispute between them is a question of fact, the ascertainment of the fact by
means of evidence adduced by the parties to the dispute and, often with the
assistance of argument by or on behalf of the parties on the evidence; (3) if
the dispute between them is a question of law, the submission of legal
arguments by the parties; and (4) a decision which disposes of the whole matter
by a finding upon the facts in dispute and an application of the law of the
land to the facts so found, including where required a ruling upon any disputed
question of law".
Maqbool Hussain's case, above referred to,
was followed by this Court in S. A. Venkataraman v. The Union of India and,
Another(4) where a Constitution Bench of this Court also laid down that both
finality and authoritativeness were the essential tests of a judicial
It is clear, therefore, that in order to
constitute a Court in the strict sense of the term, an essential condition is
that the Court should have, apart from having some of the trappings of a
judicial tribunal, power to give a decision or a definitive judgment which has
finality and authoritativeness which are (1)  S.C.R. 459. (2) (1953]
(3)  2 K.B. 309, 340. (4)  S.C.R.
122 964 the essential tests of a judicial
It was, however, urged by Shri Purshottam
Tircamdas for the respondent that the word "Court" should not be
limited to a Court of Justice or a Court of law but should be construed in a
wide sense, including within the connotation, other Courts which, though not
Courts of Justice, were nevertheless Courts according to law and be relied upon
a decision of the Court of Appeal in England in Royal Aquarium and Summer and Winter
Garden Society Ltd. v. Parkinson(1) and the observations of Fry, L.J. at page
"I do not desire to attempt any
definition of a "court". It is obvious that, according to our law, a
court may perform various functions. Parliament is a court. Its duties as a
whole are deliberative and legislative: the duties of a part of it only are
judicial. It is nevertheless a court. There are many other courts which, though
not Courts of Justice, are nevertheless courts according to our law. There are,
for instance, courts of investigation, like the coroner's court. In my
judgment, therefore, the existence of the immunity claimed does not depend upon
the question whether the subject-matter of consideration is a Court of Justice,
but whether it is a Court in law. Wherever you find a Court in law, to that the
law attaches certain privileges, among which is the immunity in question".
The question involved in that case was
whether the defendant was entitled to absolute immunity from action for
anything done by him while performing his duty as a member of the County
Council in dealing with the applications for licences for music and dancing. It
was contended on behalf of the defendant that he was exercising a judicial
function when he spoke the words complained of and therefore was entitled to
absolute immunity in respect of anything he said. The argument that
"wherever you find a Court in law, to that the law attaches certain
privileges among which is the immunity in question" was used on behalf of the
defendant and Fry, L.
J. dealt with the same as under at page 447:965
"It was said that the existence of this immunity is based on
considerations of public policy, and that, as a matter of public policy,
wherever a body has to decide questions, and in so doing has to act judicially,
it must be held that there is a judicial proceeding to which this immunity
ought to attach. It seems to me that the sense in which the word
"judicial" is used in that argument is this: it is used as meaning
that the proceedings are such as ought to be conducted with the fairness and
impartiality which characterize proceedings in Courts of Justice, and are
proper to the functions of a judge, not that the members of the supposed body
are members of a Court. Consider to what lengths the doctrine would extend, if
this immunity were applied to everybody which is bound to decide judicially in
the sense of deciding fairly and impartially. It would apply to assessment
committees, boards of guardians, to the Inns of Court when considering the conduct
of one of their members, to the General Medical Council when considering
questions affecting the position of a medical man, and to all arbitrators. Is
it necessary, on grounds of public policy, that the doctrine of immunity should
be carried as far as this? I say not. I say that there is ample protection
afforded in such cases by the ordinary law of privilege. I find no necessity or
propriety in carrying the doctrine so far as this argument requires".
Lord Esher, M. R. expressed himself as
follows while dealing with this argument at page 442:"It is true that, in
respect of statements made in the course of proceedings before a Court of
Justice, whether by judge, or counsel, or witnesses, there is an absolute
immunity from liability to an action. The ground of that rule is public policy.
It is applicable to all kinds of Courts of Justice; but the doctrine has been
carried further; and it seems that this immunity applies wherever there is an
authorized inquiry which, though not before a Court of Justice, is before a
tribunal which has similar attributes. In the case of Dawkins v. Lord Rokeby(1)
the doctrine was extended (1) L.R. 8 Q.B. 255; L.R. 7 H.L. 744, 966 to a
military court of inquiry. It was so extended on the ground that the case was
one of an authorized inquiry before a tribunal acting judicially, that is to
say, in a manner as nearly as possible similar to that in which a Court of
Justice acts in respect of an inquiry before it. This doctrine has never been
extended further than to Courts of Justice and tribunals acting in a manner
similar to that in which such Courts act. Then can it be said that a meeting of
the county council, when engaged in considering applications for licences for
music and dancing, is such a tribunal? It is difficult to say who are to be
considered as judges acting judicially in such a case".
The case of Dawkins v. Lord Rokeby(1) was a
case where immunity was claimed by a witness who had given evidence before a
military Court of inquiry. The case went to the House of Lords and the Lord
-Chancellor, in his speech at page 754, in 7 H.L. 744 observed:"Now, my
Lords, adopting the expressions of the learned Judges with regard to what I
take to be the settled law as to the protection of witnesses in judicial
proceedings, I certainly am of opinion that upon all principles, and certainly
upon all considerations of convenience and of public policy, the same
protection which is extended to a witness in a judicial proceeding who has been
examined on oath ought to be extended, and must be extended, to a military man
who is called before a Court of Inquiry of this kind for the purpose of
testifying there upon a matter of military discipline connected with the
Both these cases, the one before the Court of
Appeal and the other before the House of Lords, were concerned with the
extension of the principle of immunity of members of a tribunal or witnesses in
judicial proceedings and the Courts logically extended the principle of
immunity beyond the Courts of Justice to tribunals or bodies of persons
functioning in a manner and according to procedure which was assimilated to a
judicial inquiry. The extension of the (1) L.R. 8 Q.B. 255; L.R. 7 H.L. 744.
967 immunity to such tribunals or bodies
would not, however, constitute them Courts of Justice or Courts of law.
The position is thus summarised in the
following passage in Halsbury's Laws of England, Hailsham Edition, Volume 8,
page 526:"Many bodies are not courts, although they have to decide
questions, and in so doing have to act judicially, in the sense that the
proceedings must be conducted with fairness and impartiality, such as
assessment committees, guardians committees,, the Court of referees constituted
under the Unemployment Insurance Acts to decide claims made on the insurance
funds, the benchers of the Inns of Court when considering the conduct of one of
their members, the General Medical Council, when considering questions
affecting the position of a medical man".
We must, therefore, fall back upon the tests
laid down above for determining what is a Court strictly so-called within the
connotation of the term as used in the Contempt of Courts Act. It would be
appropriate at this stage to note the relevant provisions of the Public
Servants (Inquiries) Act (XXXVII of 1850) which would fall to be considered for
determining whether the Commissioner appointed under the Act is a Court or not.
The Act was passed for regulating inquiries
into the behaviour of public servants and the preamble runs:"Whereas it is
expedient to amend the law for regulating inquiries into the behaviour of
public servants not removable from their appointments without the sanction of
Government, and to make the same uniform throughout India;
It is enacted as follows:-" Section 2
requires the articles of charges to be drawn out and a formal and public
inquiry to be ordered whenever the Government shall be of opinion that there
are good grounds for making a formal and public inquiry into the truth of any
imputation of misbehaviour by any such person. The inquiry may be committed
under section 3 either to the Court, 968 Board or other authorities to which
the person accused is subordinate or to any other person or persons specially
appointed by the Government, Commissioners for the purpose.
Sections 4 to 7 contain provisions in regard
to the conduct of the prosecution and section 8 prescribes the powers of the
Commissioners. This section has been particularly relied upon as constituting
the Commissioners a Court, and runs as under:"Section 8. The commissioners
shall have the same power of punishing contempts and obstructions to their
proceedings, as is given to Civil and Criminal Courts by the Code of Criminal
Procedure, 1898, and shall have the same powers for the summons of witnesses,
and for compelling the production of documents, and for the discharge of their
duty under the commission, and shall be entitled to the same protection as the
Zila and City Judges, except that all process to cause the attendance of
witnesses or other compulsory process, shall be served through and executed by
the Zila or City Judge in whose jurisdiction the witness or other person resides,
on whom the process is to be served, and if he resides within Calcutta, Madras
or Bombay, then through the Supreme Court of Judicature thereto. When the
commission has been issued to a Court, or other person or persons having power
to issue such process in the exercise of their ordinary authority, they may
also use all such power for the purposes of the commission".
Section 9 prescribes a penalty for
disobedience to process issued as aforesaid for the purpose of the commission
and sections 10 to 20 prescribe the procedure to be followed in the conduct of
the inquiry. It ,may be noted that this procedure is assimilated as far as
possible to the conduct of a prosecution in a Criminal Court of law and the
person accused is given the fullest opportunity to enter upon his defence and
lead evidence in order to clear himself of the charges levelled against him.
Sections 21 and 22 lay down the functions of the Commissioners in regard to the
report to be made by them to the Government of their proceedings under the
commission and the powers of 969 the Government to pass final orders on such
reports. These sections have an important bearing on the question before us and
they enact:"Section 21.-After the close of the inquiry the commissioners
shall forthwith report to Government their proceedings under the commission,
and shall send with the record thereof their opinion upon each of the articles
of charge separately, with such observations as they think fit on the whole
Section 22.-The Government, on consideration
of the report of the commissioners, may order them to take further evidence, or
give further explanation of their opinions. It many also order additional
articles of charge to be framed, in which case the inquiry into the truth of
such additional articles shall be made in the same manner as is herein directed
with respect to the original charges. When special commissioners have been
appointed, the Government may also, if it thinks fit, refer the report of the
commissioners to the Court or other authority to which the person accused is
subordinate, for their opinion on the case; and will finally pass such orders
thereon as appear just and consistent with its powers in such cases".
These provisions were considered by this
Court in the case of S.A. Venkataraman v. The Union of India and Another(1).
The question that arose for consideration
there, was whether an inquiry made and concluded under the Act amounted to
prosecution and punishment for an offence as contemplated under article 20(2)
of the Constitution. Articles of charge bad been framed against the petitioner
in that case and evidence had been led both by the prosecutor and by the
defence and witnesses on both sides were examined on oath and cross-examined
and re-examined in the usual manner. The Commissioner bad found, on a
consideration of the evidence, that some of the charges had been proved against
the petitioner and had submitted a report to that effect to the Government. The
President had accepted the opinion of the Commissioner and, in view of the
findings on (1)  S.C.R. 1150.
970 the several charges arrived at by the
latter, was provisionally of the opinion that the petitioner should be
dismissed. Opportunity was given to the petitioner under Article 311(2) of the
Constitution to show cause against the action proposed to be taken in regard to
him and after considering his representation and after consultation with the
Union Public Service Commission, the President finally decided to impose the
penalty of dismissal upon him and he was accordingly dismissed. After his
dismissal, the police submitted a charge-sheet against him before the Special
Judge, Sessions Court, Delhi, charging him with offences under sections 161 and
165 of the Indian Penal Code and section 5(2) of the Prevention of Corruption
Act and upon that summons were issued by the learned Judge directing the
petitioner to appear before his Court. The petitioner thereupon challenged the
legality of this proceeding in a writ petition contending, that the proceedings
were without jurisdiction inasmuch as they amounted to a fresh prosecution, for
offences for which he had been prosecuted and punished already.
While considering whether under the
circumstances there had been a violation of the fundamental right of the petitioner
under Article 20(2) of the Constitution, this Court, scrutinised the provisions
of the Act and the position of the Commissioner appointed, there under. Justice
Mukherjea, as he then was, delivered the judgment of the Court and observed at
page 1159:"As the law stands at present, the only purpose, for which an
enquiry under Act XXXVII' of 1850 could be made, is to help the Government to
come to a definite conclusion regarding the misbehaviour of a public servant
and thus enable it to determine provisionally the punishment which should be
imposed upon him, prior to giving him a reasonable opportunity of showing
cause, as is required under article 311(2) of the Constitution. An enquiry
under this Act is not at all compulsory and it is quite open to the Government
to adopt any other method if it so chooses. It is a matter of convenience
merely and 971 nothing else. It is against this background that we will have to
examine the material provisions of the Public Servants (Inquiries) Act of 1850
and see whether from the nature and result of the enquiry which the Act
contemplates it is at all possible to say that the proceedings taken or
concluded under the Act amount to prosecution and punishment for a criminal
and at page 1160:"A Commissioner
appointed under this Act has no duty to investigate any offence which is
punishable under the Indian Penal Code or the Prevention of Corruption Act and
he has absolutely no jurisdiction to do so. The subject-matter of investigation
by him is the truth or otherwise of the imputation of misbehaviour made against
a public servant and it is only as instances of misbehaviour that the several
articles of charge are investigated, upon which disciplinary action might be
taken by the Government if it so chooses.
The mere fact that the word
"prosecution" has been used, would not make the proceeding before the
Commissioner one for prosecution of an offence. As the Commissioner has to form
his opinion upon legal evidence, be has been given the power to summon
witnesses, administer oath to them and also to compel production of relevant
documents. These may be some of the trappings of a judicial tribunal, but they
cannot make the proceeding anything more than a mere fact finding enquiry. This
is conclusively established by the provisions of sections 21 and 22 of the Act.
At the close of the enquiry, the Commissioner has to submit a report to the
Government regarding his finding on each one of the charges made. This is a
mere expression of opinion and it lacks both finality and authoritativeness
which are the essential tests of a judicial pronouncement. The opinion is not
even binding on the Government. Under section 22 of the Act, the Government
can, after receipt of the report, call upon the Commissioner to take further
evidence or give further explanation of his opinion. When Special Commissioners
are appointed, their report could be referred to the court or other authority
123 972 to which the officer concerned is subordinate for further advice and
after taking the opinion of the different authorities and persons, the
Government has to decide finally what action it should take".
The Court was no doubt concerned in that case
with finding whether the inquiry before the Commissioner was tantamount to a
prosecution of the petitioner. While considering the same, however, the
position of the Commissioner was discussed and the conclusion to which the
Court came was that he was a mere fact finding authority, that the report made
by the Commissioner to the Government was merely his expression of opinion and
it lacked both finality and authoritativeness which are the essential tests of
a judicial pronouncement. This conclusion is sufficient to establish that the
Commissioner appointed under the Act was not a Court and his report or findings
were not a definitive judgment or a judicial pronouncement inasmuch as they
were not binding and authoritative and lacked finality. We are also of the same
opinion. Apart from the above considerations which weighed with the Court in
that case, we have also the provisions of section 8 of the Act itself which go
to show that the Commissioners are given certain powers 'of the Civil and
Military Courts in regard to punishing contempts and obstruction to their
proceedings, summoning of witnesses, compelling the production of documents and
for service of their process as also the same protection as Zila and City Judges.
The very fact that this provision had got to be enacted shows that the position
of the Commissioners was not assimilated to that of Judges and that they did
not constitute Courts of Justice or Courts of law but were mere fact finding
tribunals deriving whatever powers they could exercise under the very terms of
the Act which created them. The power of punishing contempts and obstruction to
their, proceedings as is given to Civil and Criminal Courts by the Code of
Criminal Procedure, 1898 was also similar in its nature and the very nature and
extent of the power indicated that they were not Courts in the ordinary sense
of the term. No such provision would have been 973 uted Courts of Justice or
Courts of law and it is no argument to say that these provisions were enacted
even though they were not strictly necessary merely for the sake of abundant
caution or clarification of the position. We are of the opinion that the
Commissioner appointed under the Act, having regard to the circumstances above
set out, does not constitute a Court-within the meaning of the term as used in
the Contempt of Courts Act.
Our attention was, however, drawn by, Shri
Purshottam Tricamdas to a decision of a Division Bench of the Punjab High Court
in Kapur Singh v. Jagat Narain(1). That was a case directly in point and on all
fours with the case before us. The learned Chief Justice of the Punjab High
Court bad been appointed a Commissioner under the Act in the matter of an
inquiry against Sardar Kapur Singh, I.C.S., and Lala Jagat Narain, the editor,
printer and publisher of ail Urdu Daily newspaper published at Jullundur called
The Hindu Samachar, was called upon to show cause why he should not be punished
under section 3 of Contempt of Courts Act with regard to a leading article
which appeared in his name in the issue of the paper dated the 12th March 1951.
A preliminary objection was taken on his behalf that the Court had no
jurisdiction to take proceedings against him for contempt and the argument was
that the Court of the Commissioner appointed to hold an inquiry under the Act
was not a Court and in any event was not a Court subordinate to the High Court.
Mr. Justice Falshaw who delivered the judgment of the Court observed at page 50
in connection with this argument: "The Public Servants (Inquiries) Act
itself seems clearly to indicate that a Commissioner or Commissioners appointed
under the Act constitute a Court as they are given all the powers of a Court
regarding the summoning of witnesses and other matters, and the only ground on
which the learned counsel for the respondent could base his argument that the
Commissioner does not constitute a Court was that he can (1) A.I.R. 1951 Punjab
974 give no final decision, but merely has to
draw up a report giving his findings on the charge or charges against the
respondent, which is to be forwarded to the Government. In my opinion, however,
this fact alone is not sufficient to make the Commissioner or Commissioners any
thing other than a Court and it is to be noted that the definition of Court in
section 3, Evidence Act, is very wide indeed as it reads:
"'Court' includes all Judges and
Magistrate and all persons, except arbitrators, legally authorised to take
The learned Judges there relied upon the
definition of Court given in section 3 of the Indian Evidence Act which, as has
already been noted, is framed only for the purposes of the Act and is not to be
extended where such an extension is not warranted. This definition does not
help in the determination of the question whether the Commissioners appointed
under the Act constitute a Court and the attention of the learned Judges was
not drawn to the position that finality and authoritativeness are the essential
tests of a judicial pronouncement. We are of the opinion that the decision
reached by the learned Judges of the Punjab High Court in that case was wrong
and cannot help the respondent.
Our attention was also drawn to another
decision of the Nagpur High Court in M. V. Rajwade v. Dr. S. M. Hassan(1).
The question which came to be considered by
the Court in that case was whether a commission appointed under the Commissions
of Inquiry Act, 1952 was a, Court within the meaning of section 3 of the Contempt
of Courts Act, 1952, and, while considering the provisions of that Act, the
learned Judges of the Nagpur High Court incidentally considered the provisions
of the Public Servants (Inquiries) Act, 1850. They rightly observed that
"the term 'Court' has not been defined in the Contempt of Courts Act, 1952.
The Act, however, does contemplate a 'Court of Justice' which as defined in
section 20, Indian Penal Code, 1860, denotes 'a judge who is empowered by law
to act judicially'. The least that is required of a Court is the capacity to
deliver a "definitive judgment" and unless this power vests in a
tribunal in any particular case, the mere fact that the procedure adopted by it
is of a legal character and it has the power to administer an oath will not
impart to it the status of a Court", and came to the conclusion that the
commission appointed under the Commissions of Inquiry Act, 1952 is not a Court
within the meaning of the Contempt of 'Courts Act, 1952. The learned Judges
were merely considering the provisions of the Commissions of Inquiry Act, 1952
and were not concerned with the construction of the provisions of the Public
Servants (Inquiries) Act, 1850 and whatever observations they made in regard to
the provisions of the latter Act by way of comparing the same with the
provisions of the former which they were there considering would not have the
effect of putting on the provisions of the latter Act a construction which
would be any avail to the respondent before us. The ratio which was adopted by
the learned Judges was quite correct but it appears that they digressed into a
consideration of the provisions of the Public Servants (Inquiries) Act, 1850 in
order to emphasize the character and position of the commission appointed under
the Commissions of Inquiry Act, 1952 even though it was not strictly necessary
for the purpose of arriving at their decision, though it must be mentioned that
while discussing the nature and function of the commission they expressed
themselves correctly as under:"The Commission governed by the Commissions
of Inquiry Act, 1952 is appointed by the State Government "for the
information of its own mind", in order that it should not act, in exercise
of its executive power, "otherwise than in accordance with the dictates of
justice & equity" in ordering a departmental enquiry against its
officers. It is, therefore, a fact finding body meant only to instruct the mind
of the Government without producing any document of a judicial nature".
We are of the opinion that neither of these
cases which have been relied upon by Shri Purshottam Tricamdas is of any help
to the respondent or detracts 976 from the true position as we have laid down
above. The only conclusion to which we can come on a consideration of all the
relevant provisions of the Act is that the Commissioner appointed under the Act
is not a Court within the meaning of the Contempt of Courts Act, 1952.
In view of the conclusion reached above, we
do not think it necessary to go into the question whether the Commissioner
appointed under the Act is a Court subordinate to the High Court within the
meaning of the Contempt of Courts Act. Nor do we think it necessary to express
any opinion as to whether the letter complained against constituted a contempt
of Court. We may, however, note in passing that the circumstances under which
the letter came to be addressed by the appellant to the Commissioner, the terms
thereof and the order which was passed by the Commissioner on the application
made by the respondent to proceed against the appellant in contempt on date the
2nd February 1953 lend support to the argument which was advanced on behalf of
the appellant that the letter complained against did not constitute contempt of
The result, therefore, is that the appeal
will be allowed, the order passed against the appellant by the Court below will
be set aside and the original Criminal Miscellaneous Petition No. 10 of 1953
filed by the respondent in the High Court of Judicature at Patna will stand
dismissed. The fine if paid will be refunded.